Oh, the joy of it all! Another one of THOSE jobs.
Real estate lady calls with what sounded simple to her. The deed was for a pretty much square 5-acre tract. 467x467. Description said to start at the southeast corner of the northeast quarter of the northeast quarter, go west to the west side of highway to point of beginning, then west 467, north 467, east 467 to r-o-w, south 467 to p.o.b.
Apparent south line is a row of large trees, some well over 70 years old. Fence on west and north sides, with r-o-w fences to north and south of our tract.
We tied in the section lines and such to break down the quarter section. We shot the apparent tract corners based on occupation. Stuck it in the whizbang computer magic thingy. Uh oh! Apparent south line is roughly 165 feet south of where it's supposed to be. West line is about 42 feet further west than it should be. North line is from 12 to 25 feet further from the south line than record. Even though this quarter section was always intact up until the creation of the deed cited above they had obviously decided to assume the tree row was on the quarter-quarter line and then made-up the 5-acre description.
Luckily, the is the only tract out of the entire quarter section. Owner's father is top dog of the corporation owning the other 155 acres. We will survey out what the son needs to own, so that he can sell it. Buyer has already moved into the house. The catch is that the son has a sizeable mortgage on the tract. Record south line of tract would cut right through the house. Somehow, someway, this mess has to get straightened out in the proper order of events to satisfy his mortgage holder, the title insurance company and the buyer's lender. Simplest would probably be for the father (who has many millions of dollars) to pay off the son's debt, clear the mortgage, swap deeds in the proper order, have son finish the sale to the buyer, then give the father back the money temporarily borrowed.
Much more money for surveyor and no money wasted on lawyers if competent surveyor prepared correction document with signatures of all involved and recorded it with notice to existing lender pointing out that correcting the inaccurate record removed a cloud on the title and thus made the property more valuable.
If there was a 'survey' made at the time of the sale, the principles could probably have a lawyer collect the cost of the correction from that surveyor.
Do the work a surveyor should do and put the money in your pocket rather than fill the deeds office with useless paper from lawyers.
Richard Schaut
It sounds like the “leaps and bounds” descriptions I see a lot of. Your idea of having the father “redeed” the parcel after getting back the first deed should work well. You could also write a corrective legal and have him quit claim any interest to the 5 acre parcel. I see this stuff all the time, there's really no reason to hire a surveyor unless at the end of the day the issues surrounding the boundary aren't cleaned up, or at least the issues a surveyor can get involved in.
Sounds like a cadastraphy to me.
Stephen
Sounds as if a correction deed would provide the simplest fix. A correction deed opens the original, mistaken conveyance, reforms the document description to reflect the true intent of the parties, and closes it back up. All documents prepared subsequent to the original document are automatically reformed to also reflect the original intent as now corrected. The best benefit is that there is no need to reform or re-execute every document. Every document which relied upon the initial agreement is automatically corrected, making a complex problem quite simple to fix.
JBS
There is no need to designate the correction document as a 'correction deed' when a simple affidavit signed by all affected owners along with the surveyors designation of the specific correction, (in this case the 'lead in line').
It is not necessary to use 'lawyer terminology' in a surveyor-provided correction document, plain language is sufficient.
Richard Schaut
In Oklahoma, if all the parties are alive and agree, then the Corrective Deed is the proper form to use in our area. It's not an attorney document, but one of form, to fulfill a particular usage. I've written many of them to fix booboo's in the records that were never intended.
I've never used your affidavit as the document to correct a title or description error.
I'm going with JB. Corrective Deed.
You have to remember that your experience is that of a public servant representing a municiple entity, not a private citizen and your duties were 'ministerial', (meaning with limited or no discretionary authority). It is positive that you dealt with form documentation and that would have been drafted by the municiple attorney, or if you drafted the document it would have to have been approved by the municiple attorney. A private surveyor serving the private citizen is not bound by those restrictions.
Richard Schaut
Well, Richard. I worked over 20 years in the private sector and became registered long before I went to work for a city. My experience is the same in either case.
And you were ignorant of the OK law that says the legislature could not pass law that would restrict the right of alienation during that same time.
How would you get the idea that a municipality or individual had more authority than the state legislature?
20 yrs, 30 yrs or a lifetime of deed staking is not professional land surveying.
Richard Schaut
I would want to exchange deeds on something like this. Corrective deed works well for some things, but here you have an entirely different piece of property rather than a correction of one call. I doubt the title people or the buyer will be satisfied with a correction deed or affidavit. But one never knows.
Richard.
I'm am not saying that either I, nor a municipality, has the authority to force anything. It's the people that sign the corrective deed that is the important part. What I'm saying is that I can prepare the proper forms for them to sign but they need to have a meeting of the minds to agree and then to sign.
It's not rocket science.
Signed,
Dippy Idiot in Okie
Hopefully Holy is working in an area that would allow the parcel to be deeded to the larger one then deed back as a 5+- Ac. tract. In the areas I work in that wouldn't fly. There would be so many zoning and subdivision regulations violated by doing that I couldn't list them all if I typed all day. However, if you can do it that would be the cleanest solution. It would create a really nice chain of title and the owner would have a good survey and deed to rely on.
You concurred with the concept of a 'correction deed' as advanced by JBS, and I had merely said that a deed form was not necessary. Remember, the boundaries of the parcel were found, the only question was the relationship between those found boundaries and the section corner monuments that were supposed to be controlling.
My stated position is simply that the 'deed' concept is not necessary and that there are other document forms that do not raise 'danger flags' for lawyers and title insurers.
Richard Schaut
Are you saying the only thing that would be allowed is a lot line adjustment on the south line and leave the rest as is?
Well Richard. In Oklahoma a corrective deed does NOT raise any flags for attorneys or title insurers. We have two parties that agree that there was a foopah and they wish to correct this in the record.
The corrective deed is field in the same books as the other deeds so it is easily found, traced backwards by both attorneys and title people.
Other documents are not filed in our deed books and these can be hard to follow the chain sometimes. I just prefer that the corrective deed is in the same book. Even someone from Wisconsin could follow our records.
And for Duane.
I've seen aliquot calls that left off a call. This technically relates to your post on a completely different description but I've fixed several of these with a corrective deed.
Register of deeds offices have an efficient cross-reference system so the filing of the document does not have to be restricted to a series of deed books, therefore a deed concept is not required as part of correction documentation.
Surveyors, not attorneys, are the ones who determine when and what type of correction is necessary on a case by case basis; therefore the correction document need not embody any set legal form for the convienence of attorneys or title insurers, especially as they are not qualified to detect nor correct these types of title defects.
Richard Schaut
No I wouldn't do a lot line adjustment. I would treat the original deed as a valid document. Making some assumptions: The original deed was created by the owner of the remainder of the NE1/4 (the father), the person who wrote the deed didn't know the proper method to do it, the present owner of the 5 Ac and the neighbor (father) have no problem where the land is situated. So write a new legal (call it a corrective legal if you wish-but I don't think you need to) describing the parcel as it sits on the ground which is what the new buyer gets.
Also have the father quit claim all interest he has in the entire 5 Ac Tract. At the end of the day it would be nice to file a new deed for the father describing the NE1/4 excepting the 5Ac Tract. I would avoid any involvement with subdivision regulations I could.
Mr. Stahl?
What about the lender? It seems like they would have to be a party unless the Father pays them off as stated in the original post.
A map showing the record 5 acre tract inside the occupied tract along with the line going through their collateral (the house) would encourage them to play along. I can't see how they would object to getting more ground for collateral though.
Mr. Stahl?
> What about the lender? It seems like they would have to be a party unless the Father pays them off as stated in the original post.
>
Dave,
That's precisely why a "correction deed" is used in the appropriate situation. It all goes back to the initial intent of the parties who created the original conveyance. They reached an agreement to sell the 5 acres. They supposedly expressed that agreement when they prepared the description. They "foopahed" the description, not their agreement. All that is necessary is to "correct" the description and all subsequent conveyances (including third-party reliance) are equally "corrected."
When you think about it, it only makes sense. The parties enter an agreement to create the 5-acre parcel. The lender loans money on the 5-acre parcel. The grantee occupies the 5-acre parcel. A home is constructed on the 5-acre parcel. The contractors file liens on the 5-acre parcel. Everything is done in reliance, not upon the description of the 5-acre parcel, but upon the original agreement between the original parties.
When the description of the 5-acre parcel is discovered to improperly describe the parcel as originally intended, the parties of the original agreement (or those in privity to the original agreement) can reach back, make one simple "correction" to the description bringing it into conformance with the original agreement, and the problem is resolved for ALL parties who subsequently relied upon the original agreement.
The process of affidavits or the execution of quitclaim deeds back and forth would require an untold number of signatures by every party, every lien holder, every lender, every title insurer, every neighbor, every... The problem can be insurmountable.
The reason correction deeds work is they provide remedy to the original parties. They likely sold the property under a Warranty Deed. They find out they made a mistake. Without a correction deed process providing a simple amendment, the grantor could be liable for damages to any and all persons (lenders, lien holders, etc.) who relied upon the mistake and suffered damage. The grantor's only remedy would be to start cutting checks. The grantee's only remedy would be to file a quiet title action (including every party in reliance), then look to the grantor for the costs (damages). Filing a correction deed provides a simple remedy to all parties but does require recognition of the mutual mistake of the original grantor and grantee.
Correction Deeds provide a simple fix to an otherwise insurmountably complex problem.
JBS
