Re-writing Property Descriptions

There was a lengthy thread called "bought the farm" that had to do with this subject. The essence of it was that I recently purchased a farm that had an ancient description which varied signigicantly in both acreage and calls from a new survey and description. I inisted that the new plat and legal description be used. The bank and title company insisted that the old description be used to keep the chain of title clear. There were many responses on both sides of the issue, though in my case, the new plat and legal description will replace the old description eventually.

I have mixed feelings about rewriting descriptions. The "legal" description of that property was made when it was first created.

I have two thoughts. (1) your new description could be the same, verbatim, as the older one. (2) you could make sure and language to your new description to reference the original as the senior (so to speak) that you are trying to describe in more clear words. Ie, the new buyer/lender is acquiring the same exact land that the owner owns.

I'm not from Texas. I am not an expert. I have slowly seen some of the logic that a lot of colonial state have in "updating" descriptions, but I have a hard time with it. We are required to write a "property description" on our Survey Plats. Some might use the original description, some might right a new one showing what they found and accepted and what their measurements were today. It would be up to someone else to take that description and put it on a new deed.

I would ask the attorney to kindly provide written evidence of the requirement so I could have it for my records. The description should only be changed when the description varies considerably from what is on the ground. I would not rewrite a legal description because an attorney told me to do it, only when IMHO it was necessary.

The ALTA specifications also state that State Regulations trumph ALTA standards, especially when the state regs are tighter.
In my state, this is the case:

"f. All discrepancies between the survey and the record description, and the source of all information used in making the survey shall be indicated. When an inconsistency is found, including a gap or overlap, excess or deficiency, erroneously located boundary lines or monuments, or when any doubt as to the location on the ground of the true boundary or property rights exists, the nature of the inconsistency shall be clearly shown on the drawing.

g. A description and location of any physical evidence of occupation found along a boundary line, including fences, walls, buildings or monuments.

h. The horizontal length (distance) and direction (bearing or azimuth) of each line as specified in the legal description and as determined in the actual survey process."

Showing both record and survey in both the plat and the legal description is common practice in my area. Showing record calls maintains chain of title and showing your measurements maintains your sanity.

If the Title folks are not happy with this solution, or whatever you come up with, ask yourself this question, "What is their authority?". ALTA "specs" are simply the way they want things done, aka "client request", and have no legal authority or standing. They cannot pull your ticket, they cannot impose any fine, they cannot even take you to court for failing to comply with their check lists.
All they can do is to go to another surveyor, AND when everyone who is tired of all this nonsence refuses to comply, this blight on the surveying community will go away.
We already have state regs that set the standards.
ALTA specs actually appear to be an attempt to get the surveyor to take on the liability that they do not desire, ie: listing your "ruling" on the Section II, Part B exceptions. That's not your job. Your job is to locate all that you are aware of on the ground. It's effect is a legal matter and up to the lawyers. Beside, where in the ALTA specs does it say we must show and comment on the exception items?? Anyone???

I agree. If the description more or less describes the same property that is in the new survey, then I'd leave it alone.

I might re-write it if the current description is just a bounding description, or if it contains a lot exceptions.

I've seen descriptions that state 45 acres and property on both sides of the road, where the current lot is in reality 5 acres on one side of the road. There were a lot of prior sales.

What exactly is a legal description?

A LD is a model of the reality of the actual physical property. A LD is not what is being transfered in a conveyance. The property is what is conveyed.

If I ask 10 surveyors to survey and prepare a legal description on a piece of property, I should receive back 10 different descriptions. Each person will measure slightly differently than each other. But none of that changes the physical reality on the ground.

When I see a "new" survey that is exactly the same as an earlier survey of exactly the same property where every bearing and every distance is verbatim from the earlier version, I conclude the "new" survey was simply copied from the previous work with no real new measurements.

So what if your model of the reality is slightly different than mine. That does not matter. What does matter is the reality on the ground.

Not only do I not mind re-writing the old description, I insist on doing so.

Just never understood how some people held existing descriptions as some mystical item that had to be handled with great care lest it be broken. I'll say it again, a description (and description) is nothing more than a model for the physical reality that is on the ground.

Larry P

(Slipping into my fire resistant suit, fire away as you wish)

If you disagree with the location of a monument for a few hundredths, do you set a new one?

What do you think when you come across two or three pipes all purporting to be THE corner marker?

How many times have we beat the pin cushion?

Let's say you turned in a survey that showed a pipe off by 0.5'. The attorney calls up and says, "We'd like you to set another monument." how would you respond?

Isn't this just a pin cushion on paper?

Me: Wow! DrJekyl blew that measurement! His bearing is off by 0.04". I guess I'll show everyone and write a new legal description! Boy! What a great land survey am I!

Thanks for the answers so far. I agree with Larry and have no problem re-writing property descriptions, but why change a description, that is good, for two hundredths of a foot on a line that is four hundred feet long or three seconds of a degree when the line is only fifty foot long?

Chain of title will not be lost by writing a new description if you reference the parent document in the new description at the end of your caption. For example "... as previously described in Volume ### on page ###..." therefore bringing the chain of title forward.

In maintaining "chain of title", TFF beat me to it.

The phrase I use is:

" .....intending to be the same property conveyed from (so and so) to (so and so) in Liber xxxx, Page xxx, filed on (date)."

Meaning and intending clauses don't change the conveyance if something else is described in the M-B of the description. That will hold, no matter what clause or wording you put at the end.

> Meaning and intending clauses don't change the conveyance if something else is described in the M-B of the description. That will hold, no matter what clause or wording you put at the end.

Disagree. When I write a legal description with a "Being all of the Joe L. Smith and wife Tammy J. Smith property as described in ....." What gets conveyed is ALL of the Smith property described in that deed. That is the the whole reason to put that paragraph in there.

From the earlier post on priority of calls isn't the intent of the parties always at or near the top of the list?

Sorry dude, the math does not control everything else.

Larry P

> What exactly is a legal description?

As opposed to an illegal description?;-)

I don't write legal descriptions, I write property descriptions. It's not up to me to make it "legal". It's up to the buyers, sellers, lawyers and ultimately the County Recorder to make it "legal"

Completely off topic and off my soapbox now.....B-)

:good:

I never said that the math controlled, just that a meaning and intending statement at the end of a deed doesn't over-rule what was described.

If the grantor owns the land that was described, then that is what he's sold, even if he was meaning and intending to sell another parcel.

If the two parcels are in conflict, then what was actually described will hold.

Don Wilson:

http://www.profsurv.com/magazine/article.aspx?i=1910

There are also those who would give construction to the "meaning and intending" clause in an attempt to define the intent of the parties based on that wording. Courts have declared otherwise: A clause in a deed, at the end of a particular description of the premises by metes and bounds, "meaning and intending to convey the same premises conveyed to me," is merely a help to trace the title and does not enlarge the grant (Brown v. Heard, 27 A. 182, 85 Me. 294 1893).

> What exactly is a legal description?
>
> A LD is a model of the reality of the actual physical property. A LD is not what is being transfered in a conveyance. The property is what is conveyed.
>
I would take a different spin on it. The purpose of a property description is to identify the parcel of land being conveyed. It really has nothing to do with the size shape and configuration of the parcel (from a surveying perspective). As long as the description can be relied upon to identify the subject parcel, the description is sufficient to convey the property.

The property description exists for title purposes for the fulfillment of title law, not boundary law. The surveyor's needs are secondary. Consider a bounds description: All of that certain parcel bounded on the north by smith, the east by jones, the west by black and the south by chestnut street. A perfectly sufficient description. Could be hell for a surveyor to determine the boundaries, but really no different than a metes & bounds description, STR description or a lot/block description from the sufficiency standpoint. We just like metes & bounds because it's easier to enter into the data collector for the stakeout; it takes no further thought process (the same reason GIS guru's prefer metes & bounds).

> If I ask 10 surveyors to survey and prepare a legal description on a piece of property, I should receive back 10 different descriptions. Each person will measure slightly differently than each other. But none of that changes the physical reality on the ground.
>
This is one of the reasons surveyors should not be re-writing descriptions. They would perpetually change with each survey, while in fact, should not change at all. Retracement surveys should report the record vs. measured values indicating the differences on the graphical depiction of the survey, not by interjecting the modern measurements into the description. I realize this presents a real problem for those states which do not have a public repository for survey records. The problem is not having a repository. The answer shouldn't be to muck up the title record with a bunch of survey evidence.

> Not only do I not mind re-writing the old description, I insist on doing so.
>
I used to think this way (well, I didn't really insist; I just did it as a common practice because I was taught to do it that way). That is, until I was involved in a court case which required me to research the law regarding Deed Reformation (just Google the term). That's the law that governs how a description can legally be changed. That research changed my perspective on the matter as it was clearly evident that a surveyor has absolutely no authority to alter the words of a property description unless they were the original scrivener. Then the proper form for repairing a scrivener's error would be by affidavit. Other than that circumstance, even a judge's hands are strictly tied with regard to changing a description. He is allowed under limited circumstances proven by a high burden.

The only ones truly authorized to change a description are the original parties (or ones in close proximity) and the law is even strict where they are concerned. They can only alter the words of the description when the words fail to convey what was originally intended to be conveyed. Upon discovery of a mutual mistake, they may reform the description by preparing a "correction deed" which states the reason for the correction.

Once I learned this law and understood the reasoning behind it I stopped my practice of re-writing descriptions. I now certify to that I surveyed the property identified by the record description and I report my survey measurements graphically on my survey along with the record for the dimensions and the source of the record.

> Just never understood how some people held existing descriptions as some mystical item that had to be handled with great care lest it be broken. I'll say it again, a description (and description) is nothing more than a model for the physical reality that is on the ground.
>
It's not so much a matter as breaking it, but it is a matter of breaking the chain of title by interjecting a surveyor's opinion into a contract between two property owners. We simply have no authority to reform a description as we see fit.

> (Slipping into my fire resistant suit, fire away as you wish)

I'm not flaming Larry or our profession here. I'm just trying to make us step back from "the way we do it around here" for a moment to ask "why" we do it that way. I realize that our profession (I include myself) has lost much of the meaning for the work that we do. We have imposed standards of practice upon ourselves (the standards weren't imposed by any outside of our profession) which often conflict with the law and often expose ourselves to unnecessary liabilities (slander of title being only one example).

Why?

JBS

New Jersey Regulations require me to provide a description anytime a survey is done for the transfer of property.

If the title company wants you to provide a new description, write one and charge them for it. If you don't write it they will have a clerk in their office write one. Whose description would you rather follow, one written by a surveyor or one written by a clerk in a title company?

> If you disagree with the location of a monument for a few hundredths, do you set a new one?
>

Of course not. The physical reality is what is important, not the math.

> What do you think when you come across two or three pipes all purporting to be THE corner marker?

Weigh all the evidence and make a determination.

>

> Let's say you turned in a survey that showed a pipe off by 0.5'. The attorney calls up and says, "We'd like you to set another monument." how would you respond?
>

Never had an attorney ask that. They always ask why my new description does not match the existing description to the second and to the hundredth. The answer is always the same. The land is the same land. The model being slightly different does not matter. What is on the ground is what counts.

> Isn't this just a pin cushion on paper?

No.

> Me: Wow! DrJekyl blew that measurement! His bearing is off by 0.04". I guess I'll show everyone and write a new legal description! Boy! What a great land surveyor am I!

Show me any line measured by 10 surveyors that matches to the second and to the hundredth and I'll show you 10 surveyors that didn't report what they measured. The fact that the measurements do not match does not matter. What matters is what is on the ground.

Larry P

Wilson stated: "....merely a help to trace the title...."

I think that maintaining the chain of title was the only aspect I addressed.