mattsib79, post: 419591, member: 1138 wrote: I posed this same question to an attorney friend of mine. This was part of his response: "So i.e. I sell you property and exclude a piece for myself, you obviously don't get that, but if I don't specifically describe what I'm keeping out and there is nothing referencing my intent they I don't exclude it and sold it all to you. So basically the intent of the developer to include all his property in the subdivision would clearly show that he is conveying it all and not intending to retain anything"
That sounds resonable. Wouldn't the answer be found in the dedication within the plat, granting and conveying owner ship of (see specific language) from the owner, to builder, land company, llc ...
If the transfer were properly recorded with your county clerk, there may also be language to the effect of 'owner transferring all rights and interest' or possibly referring back to a deed in which he acquired the property.
So, the predecessor in title on the subject parcel was granted by metes & bounds, then your client on the same parcel was granted by a subdivsion plat? Is there a being the same as clause in your clients deed?
The exterior boundary of the platted subdivision isn't conitguous with the calls and monumentation of the adjoining parcels.
A call for an adjoiner on the subdivision plat should be enough to show intent for the subdivision to join the adjoining parcels. If that is missing and subdivision monuments placed in 1989 doesn't reach the parent tract boundary, then you have a gap. Whenever a subdivider fails to subdivide all of the boundary, then a gap will remain.
Research both (all) tracts back to creation
Junior and Senior rights apply
Are the adjoining tracts called for in deeds anywhere in the chain of title
Do the descriptions along a chain of ownership to create another tract of land
Are there any reservations made in any of the change of ownership
Most of the surveys I make these days take more research than actual measuring because of the existence of gaps and gores on paper and on the ground.
It is also very difficult to make the client understand that the piece of the puzzle they bring in the form of their deed is not the correct size and shape on paper to fit properly on the ground.
good luck
mattsib79, post: 419560, member: 1138 wrote: I was asked to do a survey for a boundary dispute. My clients purchased a 115 acre lot in a subdivision in 1989. A few months ago an adjoining farm was being surveyed and the surveyor did not put his stakes on the same line as was staked in 1989.
I told my client there may be multiple lines on the ground that may be retraced. In fact this is the case. The subdivision that was completed and recorded in 1989 did not follow deed calls nor did he find any called for monuments. I have found enough monumentation from the 1989 subdivision to be sure where his lines were. I also pushed the survey out further and retraced where the adjoining deed calls were.
With all of that said my question is in areas where there are gaps between the deeds and the subdivision who owns the gap areas?
My thought is the owner is the person who purchased the Lot in the subdivision. My theory behind this is that baring any wording to the contrary in the deed or on the plat that the grantor intended to sell everything that he owned up to the adjoining property lines. What say you?
I agree. When one of the subdivision lot lines is also along an exterior line of the parent tract, and there's a difference of opinion on the location of that exterior line, then the lot ends at wherever that line is eventually agreed or adjudicated to be. But there's going to be a cloud on the title to that area unless you can get a boundary line agreement or quit claim deed or judgement. Or, maybe you can get the 1989 surveyor to file a revised subdivision map that agrees with you and the adjoining surveyor. If the record doesn't get corrected it will eventually cause problems. Well, I guess it already has as you say you were hired for a boundary dispute.
Ask a title company if they will insure title on that gap. They won't and by including it with the tract you may cloud title on the whole tract, your client then has an issue with you. I speak from personal experience, when we bought our house here in East Texas the Engineer/surveyor who laid out the subdivision was following a bayou, he cut a cross a small bend in the bayou, guess where my house is located. The house had been built with out a survey, when we were purchasing the house we had a survey and found this issue. Shawn I know what the Texas rules say and you are correct but the title world does not operate by the same rules. We had to run down the descendants of the man who developed the subdivision to get them to deed this property to us.
Does the plat show the boundary as also being the adjoiners boundary? If it does, there is no gap. Is the gap shaped and located is such a way that it could conceivably be of use to someone other than the two adjoiners? If not, there is no gap.
If you can't disprove a gap by either of thsee two methods it may be time to contact the original subdivider and/or the adjoiner and/or an attorney.
"Who owns the gap areas?" is by definition a question of title. I'd use some dotted or dashed lines to illustrate the situation and report it to my client and refer him or her to an attorney.
I have seen this very same situation arise in Kentucky. In this case the lot owners did not have rights to the gap, it belonged to the original owner (which happened to be a bank due to loan default).
I agree with A Harris.
The answer lies in the chain of title. Read that back to the deed before the subdivision was created and I suspect the anser will be there. (I suppose this could be difficult depending on era or subdivision, vs. the title co.'s records). This would also answer the question, if the gap happened prior to the subdivision, or was it because of the subdivision. In a sence was the subdivision the cause OR an effect of the gap!
Gaps are a legal impossibility. Either you are dealing with two adjoining properties sharing a common boundary, or you are dealing with three intentionally created parcels and two boundaries. Can't have a "gap" and can't have an "overlap." There is always an appropriate rule of law which governs the location of the common boundary.
JBStahl, post: 419707, member: 427 wrote: Gaps are a legal impossibility. Either you are dealing with two adjoining properties sharing a common boundary, or you are dealing with three intentionally created parcels and two boundaries. Can't have a "gap" and can't have an "overlap." There is always an appropriate rule of law which governs the location of the common boundary.
Yes, but he is dealing with both, not either. Surveyor can't solve this alone.
mattsib79, post: 419560, member: 1138 wrote: I was asked to do a survey for a boundary dispute. My clients purchased a 115 acre lot in a subdivision in 1989. A few months ago an adjoining farm was being surveyed and the surveyor did not put his stakes on the same line as was staked in 1989.
Do you agree with the survey from a few months ago?
I told my client there may be multiple lines on the ground that may be retraced. In fact this is the case. The subdivision that was completed and recorded in 1989 did not follow deed calls nor did he find any called for monuments. I have found enough monumentation from the 1989 subdivision to be sure where his lines were. I also pushed the survey out further and retraced where the adjoining deed calls were.
So what did the 1989 surveyor rely on?? He didn't follow deed calls or find monuments?
With all of that said my question is in areas where there are gaps between the deeds and the subdivision who owns the gap areas?
My thought is the owner is the person who purchased the Lot in the subdivision. My theory behind this is that baring any wording to the contrary in the deed or on the plat that the grantor intended to sell everything that he owned up to the adjoining property lines. What say you?
Wouldn't that depend entirely on how things were worded and what type of documents were recorded? I can envision it going either way based on what you've posted.
Ron Lang, post: 419590, member: 6445 wrote: I do not intend decide what was the intention of the owner. And how am I suppose to? If one parcel deeded by metes and bounds and another by a plat prepared created a gap. How am I suppose to determine the intent? Unless more intrinsic evidence exists.
Just because a parcel isn't taxed doesn't mean it doesn't exist and just because it is taxed doesn't mean it does exist.
My opinion is that it is impossible to Survey a boundary without making some determination of the intentions of the parties that created the boundary. It doesn't involve reading minds, simply follow the rules of construction in conjunction with other relevant evidence to make a determination. The Courts have handed down ample guidance on this. It's true a Superior Court Judge may disagree with my opinion in the case but they often follow persuasive opinions by Surveyors too.
My intention in this thread is not to give a final opinion on the O.P. either way because not enough information is given to do so.
I have a boundary right where the neighbor has a similar issue although it doesn't affect our tract because our Deed calls for the controlling line. The tract in our northwest quadrant was cut out of our common grantor's lands. The description of that tract (senior to us but that doesn't matter in this particular problem) does not call for the north-south centerline of section (nominally on it's west boundary). I think what happened was our common grantor thought the north-south centerline was 100 feet or so west of where it really and he owned more land to the north so it makes sense that he might've left a corridor between the tract in our northwest quadrant and what he thought was his west boundary. Also that tract is monumented, the monuments are not on either north-south centerline. Therefore there is about a 16' gap between that parcel and the true north-south centerline of section. We don't have that gap because our deed calls for the centerline. The Assessor doesn't show a 16' strip in the original grantor and the original grantor's remaining lands got taken for a reservoir. In that case I think there is a remnant strip of title but the owner of the tract with the gap probably can show he has paid the taxes for decades and would have a pretty good case for adverse possession but he would have to do a quiet title action to clear it. On the other hand, if there was solid evidence of an intention to sell all the land then I wouldn't have a problem showing no gap, it's just in the circumstances of this particular case I think there is a remnant of record title in the original grantor.
Does the plat show a common line with the adjoiner?
JBStahl, post: 419707, member: 427 wrote: Gaps are a legal impossibility. Either you are dealing with two adjoining properties sharing a common boundary, or you are dealing with three intentionally created parcels and two boundaries. Can't have a "gap" and can't have an "overlap." There is always an appropriate rule of law which governs the location of the common boundary.
The State of Texas has them even from the GLO thet are called Vacancies.
JBStahl, post: 419707, member: 427 wrote: Gaps are a legal impossibility. Either you are dealing with two adjoining properties sharing a common boundary, or you are dealing with three intentionally created parcels and two boundaries. Can't have a "gap" and can't have an "overlap." There is always an appropriate rule of law which governs the location of the common boundary.
Well yes, there is no gap in ownership, but there may be an area between an area of questionable ownership between what was thought to be two contiguous properties. Is there a better word to use for thsee areas?
R.J. Schneider, post: 419596, member: 409 wrote: That sounds resonable. Wouldn't the answer be found in the dedication within the plat, granting and conveying owner ship of (see specific language) from the owner, to builder, land company, llc ...
If the transfer were properly recorded with your county clerk, there may also be language to the effect of 'owner transferring all rights and interest' or possibly referring back to a deed in which he acquired the property.
In Texas, the Texas Supreme Court set a precedent by determining that the intent of the grantor was to sell all of the lands, unless there was specific language to the contrary, within the document. Of course, the land needs to be of little or no value. There is in Houston a subdivision wherein the plat clearly states that the developer (grantor) kept all lands under street and alley easements and rights-of-way. Only one I have seen.
Dave Karoly, post: 419749, member: 94 wrote: My opinion is that it is impossible to Survey a boundary without making some determination of the intentions of the parties that created the boundary. It doesn't involve reading minds, simply follow the rules of construction in conjunction with other relevant evidence to make a determination. The Courts have handed down ample guidance on this. It's true a Superior Court Judge may disagree with my opinion in the case but they often follow persuasive opinions by Surveyors too.
My intention in this thread is not to give a final opinion on the O.P. either way because not enough information is given to do so.
I have a boundary right where the neighbor has a similar issue although it doesn't affect our tract because our Deed calls for the controlling line. The tract in our northwest quadrant was cut out of our common grantor's lands. The description of that tract (senior to us but that doesn't matter in this particular problem) does not call for the north-south centerline of section (nominally on it's west boundary). I think what happened was our common grantor thought the north-south centerline was 100 feet or so west of where it really and he owned more land to the north so it makes sense that he might've left a corridor between the tract in our northwest quadrant and what he thought was his west boundary. Also that tract is monumented, the monuments are not on either north-south centerline. Therefore there is about a 16' gap between that parcel and the true north-south centerline of section. We don't have that gap because our deed calls for the centerline. The Assessor doesn't show a 16' strip in the original grantor and the original grantor's remaining lands got taken for a reservoir. In that case I think there is a remnant strip of title but the owner of the tract with the gap probably can show he has paid the taxes for decades and would have a pretty good case for adverse possession but he would have to do a quiet title action to clear it. On the other hand, if there was solid evidence of an intention to sell all the land then I wouldn't have a problem showing no gap, it's just in the circumstances of this particular case I think there is a remnant of record title in the original grantor.
1. If a deed is unambiguous, the intent of the grantor is determined from the language of the deed
The primary consideration in construing a deed is to determine the intention of the parties executing the
instrument. Poindexter v. Molton, 237 Va. 448, 377 S.E.2d 450 (1989); Allen v. Green, 229 Va. 588, 331 S.E.2d 472
(1985). Where the language of a deed clearly and unambiguously expresses the intention of the parties, no rules of
construction should be used to defeat that intention. CNX Gas Company, LLC v. Rasnake, 287 Va. 163, 752 S.E.2d
865 (2014). Technical rules of construction are not to be invoked to defeat the intention of the grantor when that
intention appears by giving to the words used their natural and ordinary import. Fitzgerald v. Fitzgerald, 194 Va. 925,
76 S.E.2d 204 (1953).
The grantorÛªs intention, as expressed in the instrument, must prevail unless it is contrary to some principle of
law or rule of property. Auerbach v. County of Hanover, 252 Va. 410, 478 S.E.2d 100 (1996) (in ascertaining the intent
of the grantor, the deed is examined as a whole and effect given to all of its terms and provisions not inconsistent
with some principle of law or rule of property); Austin v. Dobbins, 219 Va. 930, 252 S.E.2d 588 (1979); Fitzgerald v.
Fitzgerald, 194 Va. 925, 76 S.E.2d 204 (1953).
If a deed is clear and unambiguous, the focus is upon the language of the deed and from that source alone, its
meaning is determined. Trailsend Land Co. v. Virginia Holding Corp., 228 Va. 319, 321 S.E.2d 667 (1984); Irby v. Roberts,
256 Va. 324, 504 S.E.2d 841 (1998) (in such a case, one should look no further than the four corners of the deed
itself). Put another way, if the language of a deed is clear, unambiguous and explicit, and the intention is thereby free
from doubt, that intention is controlling, if not contrary to law or to public policy, and auxiliary rules of construction
should not be used. Shirley v. Shirley, 259 Va. 513, 525 S.E.2d 274 (2000).
The terms of every deed are to be understood in their plain, ordinary, and proper sense, and where words have a
primary meaning they must always be understood in that sense, unless the context shows that they were otherwise
intended. Lindsey v. Eckels, 99 Va. 668, 40 S.E. 23 (1901). Words deliberately put into a deed, and put there for a
purpose, are not to be lightly considered nor arbitrarily put aside. Halsey v. Fulton, 119 Va. 571, 89 S.E. 912 (1916).
Where there is no conflict in any of the provisions of the deed and no repugnancy results, all parts thereof should be
given effect. Fitzgerald, supra.
Oral evidence of the circumstances at the time of the deedÛªs creation is not to be considered in giving effect to
the clear, unambiguous, and explicit language of the deed. Irby v. Roberts, 256 Va. 324, 504 S.E.2d 841 (1998).