Does that law require you to write a new description when the old one was good enough to survey the intended tract. If it was good enough, can you just provide a copy of the description you used to survey the property. If good enough to survey the ground and monument intent, then writing a new description is doing no favors to those who follow. What I have to do is compare the latest to the original to determine if they are in agreement in intent, if not, then a search is done to find out where intent was changed. Often I will survey a tract using an old description instead of the latest and greatest produced by a unnecessary rewrite, yep, it is explained in the narrative for all to see.
jud
Ok
:good:
NJAC 13:40 5.1 (i)
1. The licensed land surveyor shall also supply a description of the property surveyed when the survey is to be used for conveyancing (title transfer or mortgage). This description must be suitable for use in a deed. The description shall be by metes and bounds or by reference to a filed plan, block and lot. If a filed plan, block and lot is utilized, the entire title of the filed plan shall be set forth along with, the filed plan number and the date on which the plan was recorded in the office of the County Recording Office. If there is any deviation from the filed plan to the completed survey, a description by filed plan, block and lot, shall not be utilized. The deed description shall be consistent with both the survey provided and the documentation upon which the survey was based and shall be written in such a manner as to define the boundary lines of real property unambiguous and sufficient for a surveyor to lay it out on the ground. This description may be reproduced on the survey plat itself or may be by separate
document. If the deed description is provided on the survey plat, it must be titled "Deed Description." If a separate document is provided, the description shall be signed and sealed by the licensed land surveyor responsible for its preparation.
The description commonly matches the record description, although not always. I do like to add calls to corners found and set. New Jersey is not a recording state (except for subdivisions greater than 3 lots) so this is the only way to get this information into the public record. Unfortunately, although I may be required to provide a description the Title Company and/or Attorney is not required to use it. Most descriptions written by the Title Company or Attorney only include the metes and bounds (math), no other calls other than to the sideline of the road. Some even strip out calls to recorded subdivision maps.
Excellent response Mr. Stahl, and similiar to a position you have stated earlier that changed the way I look at this problem. My state does not have a repository for surveying records which is the larger problem. Until that problem is resolved, I'm happier in that gray area of the law by rewriting legal descriptions to make the best of an imperfect situation. Having the new plat and legal on file is only going to happen in a deed for now. We are working on a plat law but only have many irons in the legislative fire now.
I understand what your are saying
and agree with a lot of it. But, if we are just going to repeat the bearings and distances from a previous description why draw a plat of what you find today? All the "legal descriptions" that I have written are based on what I find, not what was described from a previous survey (although I do add record/field when I think it is necessary). I certainly agree with linking the description to the recordation of the previous description, but any I write will be based on my assessment of the conditions on the ground. I don't know about other areas but around here describing monuments is a relatively modern idea. If the monument is not described then how can I place my faith in the rebar that I found?
Andy
I understand what your are saying
I'm with you Andy. Am formulating what I hope will be an at least semi-intelligent response to JB's post.
That is the really great thing about Professor Stahl. If you are going to argue a position that is contrary to his, you better be prepared to back it up with more than just "it is this way because I said so".
Larry P
I understand what your are saying
Exceptions to every rule. Some have trouble with that. As noted above, add your new description to the original as a further more detailed supplement to the deed description that created the tract to begin with. If the original was sufficient to transfer title and for you to survey the tract, thereby making that description a good description, providing a new one will not make it any better than it always was. Adding to it is not rewriting, if the latest writing which includes additional calls is junior as written. There are times when rewriting descriptions to supplement the previous documents is necessary, it should never become the norm. Law says to provide a description, then provide the original or the last one that held the original intent.
jud
I wouldn't get too worked up over it. It can be a "new" description merely by referencing the old book and page or document number at the end, and keeping all the other wording. The only "new" should be for clarification. Certainly many descriptions have been successfully updated to better describe the property. Then again, some have only caused confusion.
But the fact is, unless it's a subdivision, the older description (subdividing description, or senior description) is going to control conflicts.
Interpreting descriptions and writing better ones or worse ones is not reforming a contract because the original contract always controls. But it's still a matter of "what does it say?".
In platted and recorded subdivisions there is no need to provide a new written description, unless the findings are so different from the original information on the plat.
Normally, a plat is sufficient. A proper plat has the same information that would be provided in a narrative metes and bounds. A plat is actually a graphic version of a metes and bounds. Both include monument information, deed and other recorded references, bearing source, adjoining ownership and related deed references, monument witness, bearing and distance of boundaries and related deed calls. A proper and detailed survey plat should suffice for any survey. The narrative property description says the same.
When the recorded information is not adequate to stand up to present requirements, a new description is needed. That would include the location of boundaries and monuments that will not fall within the required tolerance of location.
Many of the existing deed descriptions in this area are from eons ago and have been passed down and down. They do not get close to fitting what is on the ground within today's requirements of measuring accuracy.
What is usually missing from deed descriptions are the bounds portion. Many do not mention adjoining information, witness to monuments, bearing basis and type of monument.
The title company itself is the one asking for the updated survey by the bank's request.
I for one am not going to certify to some old description that would not fall within standards that I must meet to stay certified to practice.
JB: We just like metes & bounds because it's easier to enter into the data collector for the stakeout.
And that is exactly why Wattles wasn't too keen on metes and bounds - people take the easy way out and accept the metes, forgetting they have to survey the bounds.
> > 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-)
I've heard this for years but have not heard or seen a definitive explanation of the exact difference between a "legal description" and a "property description". Of the hundreds of court cases I have read, I can find no distinction.
A legal description is wording that will enable most anyone he ability to identify with certainty what property is being described in the document.
A property description is all that plus giving significant information that enables the next surveyor to be able to retrace and locate and/or replace the monuments and boundaries of a property on the ground with certainty and includes owner and legal information on all the properties that adjoins and/or touches the described tract, including existing and set monuments and any references of physical and legal information as discovered during an actual on the ground survey.
An illegal description are those legal descriptions and property descriptions that keep appearing from nowhere without having the proper signature and seal of a licensed surveyor and/or those that were fabricated from behind the desk without an on the ground survey.
0.02
> A legal description is wording that will enable most anyone he ability to identify with certainty what property is being described in the document.
>
> A property description is all that plus giving significant information that enables the next surveyor to be able to retrace and locate and/or replace the monuments and boundaries of a property on the ground with certainty and includes owner and legal information on all the properties that adjoins and/or touches the described tract, including existing and set monuments and any references of physical and legal information as discovered during an actual on the ground survey.
>
> An illegal description are those legal descriptions and property descriptions that keep appearing from nowhere without having the proper signature and seal of a licensed surveyor and/or those that were fabricated from behind the desk without an on the ground survey.
>
> 0.02
Currently in Idaho (and probably most states) anyone can legally write a description for the transfer of property. Are there any jurisdictions that have held a deed and/or a description invalid based entirely upon who did or did not write the description?
The way it's told around here (in very broad geographical terms) is that only a lawyer or title officer can write a "legal description", but anybody can write a "description". I'm just looking for authoritative sources of such claims. I have a feeling that this may be just more surveyor fiction, but I may be wrong.......
In NJ the law specifies calling it "Deed Description".
First of all, here in Texas we call the metes and bounds of the description of the property "Field Notes".
It is a slang word that has stuck for many generations.
We are required to write a new set of "field notes" on every new survey, unless it is a lot in a recorded subdivision.
We are required to mention and call for a deed reference for every adjoiner.
We are also required to mention the difference between the measured calls versus the deed calls and when there is a significant difference we prepare a surveyors report to explain.
In the PLSS world where most descriptions are a part of a part of a part of a section and calls for found monuments are rare as is calls for recorded adjoiners. (I am also licensed and practiced in a PLSS State so I have this experience).
It is what it is.
Randy
In Kentucky only a surveyor can write descriptions, and that has been the law for some time. The former law wasn't perfectly clear about it so we re-codified it within the last couple of years.
Randy finally said it
I have to admit that I have refrained from commenting on this thread because I just didn't have the time to respond. While surveyors from other states have made some mighty good arguments for not rewriting old descriptions, they are largely off base and not relevant to Texas surveying when considering the directives that the Texas Board of Professional Land Surveying have given us. In fact, if they turned in fieldnotes based upon some of these thoughts and beliefs, they would quickly find themselves before the Texas Board of Professional Land Surveying.
This reminds me of the argument some make for giving out copies of old surveys because the surveys are recorded in the courthouse, while Texas is a non-recording state and our plats of these surveys are seldom recorded. As well as I understand it, their recorded surveys do not show the detail and improvements on the property that our plats are required and desired by the mortgage loan business to show.
But please, and hopefully before anyone gets offended, understand I am not posting this to ridicule the well thought out responses to this thread, but only to point out the vast differences in surveying from state to state.
Anyone can describe a piece of property, it may be correct, it may be vague, it may be absolutely wrong. Joe-the-bum might say, "that old guy's property is the one over there on the hill with the barking dog." Someone else might say "oh he lives at 1234 fifth lane." Someone else might say "that-there is lot 10 of the adams' subdivision". They are all describing some piece of property. A surveyor might describe it better than anyone else. They might pinpoint it so that it can't be misconstrued with any other property in the world.
However, the "legal description" of an owned property is the description of what was attached to the deed. it may also be vague, ambiguous or otherwise unclear, but it is the legal description.
I can go to the clerk-and-recorder and say that I need the legal description of the property @ lot 10 of the adam's subdivison over there at 1234 fifth lane, and the clerk would be wrong in saying "oh, that is the Property on the hill with the barking dog; there is your legal description." No. they are (should be) aware that I need the description that is attached to the deed. In Colorado, State Statutes specifically define the description that the land surveyor puts on his/her retracement "survey plat" as a "property description".
Aside: a lot of people, we have all probably come across this, want to think that a "legal description" is a metes-and-bounds description. I submitted a description of property for transfer on a quit-claim, and did not write a "metes-and-bounds" description. The real estate "professional" who had to process it, kept insisting that he needed a "legal description". I tried to explain that the legal description can come in many formats. And he wouldn't stop. I finally explained that the words he was trying to say was a "metes-and-bounds" description. I don't think he ever really "got" it.
Finally: I get it. I know what most people mean when they say "legal description". It has become a term in the (American) English Language. But is certain circles, it might be okay to use, and in other areas, you might want to make the distinction. (Ie: when asking a clerk for the legal description, you may not want the "property description" that is on a plat that is not the same as the description on the deed.)