Owner Facts on Survey Plat

> WHY? If a survey is filed in the survey records all that information about location and such is available to anyone who wants it.

Not every state has "survey records". I could record your plat in the plat books (along with all the subdivisions) but unless I record something in the deed records, no one will know where the plat is.

Here in Ohio I would file an Affidavit Relating to Title (O.R.C. 5301.252) with my survey plat and description attached with the County Recorder. Such an affidavit can include:

Possession

Statements of the affiants should be reviewed/approved by an attorney.

The document goes into the searchable chain of title for the adjoiners. No quit claim deeds. Neat, sweet, petite.

Easy enough to write of a statement of acknowledged facts, place it on the plat and have the signatures notarized along with the narrative by me.

Seems to me title folks do check the survey files because I get calls from them about past surveys which they acquired from the survey records. Wouldn't it be sort of negligent for a title company not to check the public survey records?

Many times I have clients that don't wish to go the full distance and expense of a full blown boundary agreement even though they acknowledge the facts of the situation. Most times they believe in the established boundary and frown upon a new surveyed boundary. (we've used that as the boundary for decades, so why is it over there?) I think generally in my area, the old time landowners have little faith in new surveyors created boundaries. I think I know why but ain't going to spell it out.

That sounds like the Cadillac version of what I'm thinking! We don't have that in any statute (at least that I'm aware of). I'll research your statute. Thanks!

Here it is:

Ohio Statute

> OK, I thought it was fairly obvious what the general conciseness was.

If it's "general", it's not "concise"; and vice versa. (just kidding over the typo.)

I disagree a little bit. If they both signed agreement to your findings on your plat, and/or how old the fence was, it would be stronger than if your plat stood alone. There should be enough information on the plat where they signed, to identify that they are the owners to the common line and exactly what they are testifying to (ie: the age of the fence, or something).

The owners signatures would verify the owners agree with the surveyors finding of fact. There
may well be value added there.

It is the biggie. We can't wrap our minds around the fact the current description defines what title is and not where the boundary to the title lies. A simple rec. as xx, measured as yy covers most surveys like this. Any kind of deed that varies from the record implies a conflict where none exists other than in our CADD file.

The answer really lies in where the document will end up and what force it has when it gets there.

If the document ends up in the title record, it will typically carry the force of constructive notice. All subsequent purchasers are expected to know of the existence of document simply because it's recorded. Whether they actually have ever seen the document is irrelevant. They will be bound by its terms.

You are talking about a document here where the owners are simply recognizing the facts and attesting to them on the face of your survey instead of on an 8x11 piece of paper (assuming both are properly acknowledged). Then the answer depends again upon where the document will reside. Will it show up in the title record, will it show up in an independent public repository, or will it possibly be discovered in someone's attic?

Knowing that LRD is from Utah, a state which requires private surveys to be filed in the county surveyor's office, having the owners sign the face of the survey will certainly perpetuate the evidence for posterity. The surveyor's records, however, do not carry the force of constructive notice, so only subsequent purchasers who are actually informed of the survey would be bound by the evidence presented. Actual notice of the boundary location may, however, be accomplished by the mere existence of the fence located on the ground as well. The fence, or some subsequent indication, may prompt the subsequent purchaser by placing them on inquiry notice which, had they inquired, would have led them to the discovery of the survey. Either way, they may be bound by the evidence presented on the survey, despite its' exclusion from the title record.

You're really looking at a good, better, best scenario whenever you are documenting evidence concerning boundary locations. The most binding document would be in the title records and would take the form of a conveyance document which created the boundary and unambiguously referenced known and identifiable monuments on the ground as marking the boundary. Since the boundary has already been created when a retracement survey is made, then all we can do is document evidence relative to the boundary.

We can provide documents usually in the form of an affidavit such as owners' affidavits, scrivener's affidavits and surveyor's affidavits. Essentially, that is what LRD is proposing to document on the face of the survey. The same documentation can be made on an 8x11 piece of paper in proper form that the recorder would index in the title record. As an affidavit, there is nothing binding about the evidence presented, but the evidence is at least perpetuated. Every subsequent determination of the boundary location would take the evidence into consideration and would likely treat it quite highly in their analysis. Especially when both adjoining owners have affirmed the same evidence. Their mutual affirmation would approach that of a mutual agreement establishing the boundary.

I do agree that it's best to get the information in the title index, but would disagree that it should be in the form of a quitclaim deed between the parties. Quitclaim deeds are title documents meant to convey property even though they have been viewed with an alternative of releasing any claim of interest. Such a release of interest is best made in the form of an affidavit, not a quitclaim form. It is important to consider also what index the document is entered. Will it be indexed to the property, or will it fall in a miscellaneous index were it is less likely to be discovered? In Utah, affidavits, liens and mortgages (any document affecting an interest in property) are abstracted in a unified index against the property by location, not by grantor/grantee.

If LRD does decide to place the landowners affidavits on the face of the survey, I would recommend that the signatures be properly notarized, the survey be filed, and that a surveyor's affidavit be recorded in the title record stating that a survey has been performed of the boundary between the identified parcels, and that it is filed in the surveyor's repository. The surveyor's affidavit, if properly formatted would be indexed against both parcels so it would show up in a title search of either parcel. That may extend constructive notice to any subsequent purchasers giving it the "best" approach rather than a "good" approach.

JBS

Thanks John for the lunch a while back and the very well thought out and written extension of our conversation that day!

> ... what about just having the adjoining owners sign the survey plat ...
That would pretty much seal the deal, except two things.

First, as Jud has said, the survey wouldn't turn up in a title search. And it may go missing altogether unless it happened in a recording state.

Second, such an agreement would be nullified if it could be shown that the parties knew (or reasonably should have known) where the boundary was at the time they made their agreement. So it's not ironclad.

BTW, in a recording state it is the Surveyor's responsibility to record the map.