I have a sticky situation in which my client, the potential buyer of a piece of property, needs a clean description with "virtually" no overlaps or gaps.?ÿ This is required by the bank and title insurer for the sale to proceed.?ÿ
The problem is that there is an inconsequential sliver of property extending into the adjoiner by 100' (deed overlap).?ÿ For the sake of this discussion, I will state that it should be accepted that this is a result of limited surveying/measuring ability of the past and "sloppy" description writing. Also, for the sake of this discussion, I will state that it should be accepted that this sliver is uncontested.?ÿ?ÿ
I am being tasked with performing a survey and writing a new description that "corrects" this described overlap by removing it.
To remove this sliver, I am suggesting that the seller first quit claim this sliver to the adjoiner. I have stated that it is inconsequential in context of past surveying and conveyances (intent) in the area, but it is 15' wide (can't turn my head to it). It is clearly occupied and used by the adjoiner.?ÿ Neither the seller or the client/buyer want this sliver. Lastly, parcel maps (auditor/assessor maps), tax records and occupation (fence) indicate that the adjoiner owns this sliver. Everything indicates that the sliver is the adjoiner's.
We could approach this adjoiner but there is no time to enter into any kind of discussion or negotiations.?ÿ
Consider this: It is sometimes believed under the Statute of Frauds that a deed/conveyance be acknowledged/signed by both the grantor and grantee, but this is not always the case (one spouse dies). I have seen quit claim deeds with no grantee signature.
I am interested in others' opinions regarding this only issue: In this situation, do we need the adjoiner's permission to quit claim this this sliver to them??ÿ
Acceptance is a requirement.
I should further state that this extension into the adjoiner's property is a deed overlap.?ÿ Devil's advocate here...does one have to accept what is already described as theirs??ÿ We want to remove any interest that might be the current seller/future owner's.
@holy-cow acceptance doesn't have to be in writing. They are occupying the sliver already. Acceptance by use.?ÿ
@aliquot?ÿ
and as described by recent amendment to my post, it is also described in their (adjoiner's) deed (overlap).
@scott-bordenet?ÿ
Acceptance is still required.?ÿ What if that sliver contained a drilled well site that is oozing contaminants into the subsoil??ÿ If there is an overlap, both parties must work together.?ÿ Next year the guy suddenly starts getting a separate tax notice for that sliver because the GIS people are assuming there was acceptance.?ÿ If he refuses to pay the taxes, that sliver could be sold at a tax auction to some doofus who will bid on anything without checking it out, so long as it is cheap.
You need to get the adjoiner's attention and convince him that he is actually getting something out of the deal.
@aliquot?ÿ
again, devil's advocate here...Statute of Frauds doesn't address use/occupation (though this may be a case for a separate discussion regarding unwritten rights).?ÿ So, is a quit claim deed really an instrument of conveyance??ÿ Is it more a release of interest?
for the sake of discussion:
1. Don't get me started on the GIS people ????ÿ
2. He is already paying taxes, he occupies the grounds, and it is described in his deed (it is an overlap - I amended my post to reflect this).
The delivery of a deed is inferred when the grantee receives or has possession of the deed.
I would argue that you are missing one element of a deed...written acceptance (not delivery to) the grantee.?ÿ Is this not a condtion of the Statute of Frauds??ÿ Otherwise, I could unjustly give my problem (leaking drill well) to an adjoiner without his knowledge and stick him with a liability.
So why do I see "vaild" quit claim deeds identifying a grantee but no signatures from the grantee?
Where I struggle here is what is a quit claim deed really??ÿ A deed/conveyance? Or a release of interest?
If the overlapped grounds in question are already claimed in the described deeds of two parties, can one party just give up their interest??ÿ Especially if the other party is clearly occupying the grounds?
Thoughts?
@scott-bordenet, couldn??t the current owner of the parcel being sold just have a corrective deed drawn up and recorded?
Is this really a true overlap? No senior/junior rights involved here? Simultaneous conveyance of both tracts? No bounds called out for in description?
I don't understand how the lender can possibly determine that there is an "overlap". It's not even remotely within their purview. If they need a survey, fine, but mathematical overlaps in and of themselves are not a title defect. If you can place the parcel on the ground they don't need to be screwing with the record, full stop...
A deed is used to convey some or all of the bundle of rights associated with real estate.?ÿ A Warranty Deed provides an assurance that the grantor DOES have something to convey.?ÿ A Quit Claim Deed provides no assurance of anything being eligible for conveyance.?ÿ I could give you a QCD to your own property.?ÿ But, If I were to give you a QCD to an entire section of land where I, in fact, own any fraction of any part thereof, you will be able to claim whatever real claim I possess to that (any) part.?ÿ The title company won't issue a title policy for about 20 years and a lender won't lend you any money if you are using that for collateral until you can get a title policy issued.
Many times a QCD is used to clear up family issues.?ÿ For example, you may or may not have inherited some percentage of the rights to a specific tract.?ÿ If you have no desire to own a fractional portion of that tract, a QCD can be used to clean up one part of a complicated estate.?ÿ That's where you will see three to thirty deeds in a row in the index book conveying minor potential rights to the same grantee.
@aliquot?ÿ
again, devil's advocate here...Statute of Frauds doesn't address use/occupation (though this may be a case for a separate discussion regarding unwritten rights).?ÿ So, is a quit claim deed really an instrument of conveyance??ÿ Is it more a release of interest?
I don't think those things are mutually exclusive; my understanding is that a quit claim simply conveys whatever interest I happen to have.
Never mind the deed dimensions. Where is the boundary?
I would argue that you are missing one element of a deed...written acceptance (not delivery to) the grantee.
Requiring written acceptance by the grantee seems like a good idea, but I've never read anything that says it is an actual legal requirement. Since when have good ideas and legislatures ever had anything to do with each other?
Written acceptance is not a requirement.?ÿ Notification prior to filing is a requirement.
Shortly before his death, Great Uncle Joe files a QCD giving you his 20,000 acre ranch in Montana, but does not tell you this.?ÿ He owns all rights to that property, free and clear.?ÿ A few months later you receive a registered letter informing you that you are being sued for injuries that happened to a trespassing hunter while on your ranch.
I wouldn't bother with a QC for this.?ÿ
Jones is east of Smith, they share an uncontested common line, because of poor measurements, bad descriptions it appears on paper that Jones has overlapped into Smith by 15'.
Smith wants to sell to the Acme LLC .
Smith is lucky, he hired a surveyor and the surveyor finds Jones west line which has been uncontested for 80 years.?ÿ
Surveyor now completes a survey with an updated metes and bounds description calling the west line of Jones as Smith's east line and Smith sells that description to the new owner. Boundary crisis averted. Happens everyday.
Put a note on the plat that poor measurements and descriptions caused these issues and explain them in the notes. Don't graphically show the "overlapp" since it's a fiction anyway. This is what we do,?ÿ
As far as quit claim deeds and acceptance, Cow has a point, but grantees don't sign deeds,,,,,,,,,,,,,so you can file it, but I wouldn't for this, your plat/record of survey/certificate of survey/exhibit, whatever it's called in your area referenced in the description should make everyone happy.
Boundary evidenced by CLEAR occupation is a fence which follows the grounds which have been given up by quit claim deeds and some exceptions in the subject parcel title/legal that have appeared in the chain of title with no record of conveyance. I am dealing with the one sliver which has not been addressed.?ÿ I have pointed out it is small in the scheme of things but not small enough to turn my head.
Remember, I have been hired to identify the lands in the effective parcel (boundary as you put it) by new legal description.?ÿ Also, I will need to identify the grounds in question by legal description so that they can be "disposed of".
My post is following my thought process on how it should be done given the time we have (maybe not possible, not my fault). Boundary line agreement - don't think so. Legal survey (Indiana) - don't think so. I think QCD.?ÿ I have certain reservations as for the same reasons @holy-cow points out.
In the end, I will provide the what.?ÿ Title/legal will determine the how - but they have asked my opinion.
@rover83?ÿ
Some additional info:
1. It is a mathematical overlap of 100' with no call to qualify boundaries.
2. There are jr/sr rights, but our deed records are unindexed prior to 1963.?ÿ Both the title company and I have put in significant time looking for the first conveyance having to go back to actual index books and microfiche.?ÿ We both give up. I am pretty good, but I am not an expert abstractor. I am disappointed, but satisfied I have done my duty to research.
3. The lender is holding things up because the title insurer has the issue with the overlaps (and some other things already figured out).?ÿ They have produced 1960's arbs maps which identify this known problem.
4. I do believe there are some title defects as exceptions have appeared in the subject parcels legal with no record of their conveyance.?ÿ Other exceptions in the title do follow filed QCD's.