I live in an area where attorneys, surveyors, zoning officials and real estate agents do their job and don't venture into the other professional's area of expertise. It is amazing how we work together compared to what I have read on this or the other board. Most of the problems I do encounter are from out of town attorneys or 40+ year old descriptions.
I just got off of the phone with one of the local real estate attorneys. He was asked to be a speaker for an attorney's continuing education seminar at the end of September. The topic is "what mistakes/problems/out of date practices attorneys are making with descriptions that make it difficult for surveyors." I immediately thought of several and suggested we meet to discuss them in the next few weeks.
I am asking the board to share some examples of mistakes/out of date practices made by attorneys writing a legal descriptions that make your job tough. I would like to keep it to descriptions written in the last 5 years.
I would tell them their first mistake is not hiring a Surveyor to survey the tract.
Long standing poor practice is failing to consider prior actions.
Example: Owner sells west 20 feet of a 50 foot lot. Attorney writes description to sell what's left calling it east 30 feet. Easy to resolve but why dobit?
Recent poor practice is lack of intent statement.
Example: Why not say , 'This description is intended to include all of the property described in warranty deed xxxx and no other property'.
Amen to that!
I encountered a common problem yesterday. It involved splitting a lot in a subdivision. Three sides form what would be a rectangle except for a sweeping, curving road along the fourth side. Someone decided to split it into what was called the north half of Lot 14 and the south half of Lot 14. But, the south half is quite a bit bigger than the north half if you go to the midpoint of the west line and draw a line straight east. That's probably what they really meant to do, but someone could attempt to calculate a line that would give the same area to the north as to the south. Half isn't necessarily half.
Scott Ellis, post: 330781, member: 7154 wrote: I would tell them their first mistake is not hiring a Surveyor to survey the tract.
AND to prepare the description!
You might point the attorney to trends in other states. As the world becomes more complex requirements for everything become more restrictive. Ohio law requires counties to adopt rules creating minimum transfer standards. Ohio Department of Transportation provides their consultants with web page "http://www.dot.state.oh.us/Divisions/Engineering/RealEstate/row/Pages/County_Conveyances.aspx&apos ;">County Conveyance Information" with links to the county standards. Most of these require descriptions of new parcels to be prepared by a professional surveyor and include the name and license information of that surveyor. These rules reflect requirements in other Ohio laws.
In addition the Ohio State Board of Registration for Professional Engineers and Surveyors issued an http://www.peps.ohio.gov/BoardOpinions/BoardOpinion|20090527.aspx&apos ;">opinion letter to an Ohio attorney that you local attorney may find informative. The following link will download a PDF of the http://www.peps.ohio.gov/Portals/0/news%20releases/opinions/20090527%20Preparation%20of%20legal%20descriptions.pdf&apos ;">Ohio Board Opinion | 2009-05-27 (2-PAGE PDF).
Holy Cow, post: 330787, member: 50 wrote: Amen to that!
I encountered a common problem yesterday. It involved splitting a lot in a subdivision. Three sides form what would be a rectangle except for a sweeping, curving road along the fourth side. Someone decided to split it into what was called the north half of Lot 14 and the south half of Lot 14. But, the south half is quite a bit bigger than the north half if you go to the midpoint of the west line and draw a line straight east. That's probably what they really meant to do, but someone could attempt to calculate a line that would give the same area to the north as to the south. Half isn't necessarily half.
Isn't a "half" always calculated by area once land leaves Federal Jurisdiction? That's how it is here...
Tell 'em not to leave out the calls to monuments: "...to a 2 inch iron pipe tagged..."
It's not saving anybody time, except maybe the typist, and adds considerable time for future surveyors who then have to contemplate why there is a 2 inch iron pipe there that is not called for.
Jim in AZ, post: 330791, member: 249 wrote: Isn't a "half" always calculated by area once land leaves Federal Jurisdiction? That's how it is here...
Not here, necessarily,
Colorado Statutes state:
"(1) Whenever a professional land surveyor conducts a survey for the purpose of locating a parcel of land which is described in terms of the nomenclature of the public land survey system, such professional land surveyor shall proceed according to the applicable rules contained in the current "Manual of Instructions for the Survey of the Public Lands of the United States" published by the United States government printing office; except that all monumentation shall conform to section 38-51-104."
I would use different 'nomenclature terms' if I were intending to write a description by exact half-area. It seems that if your writing the description you should define exactly what you mean to say within the text of your description so there can be no misunderstanding. If you don't, and there are two ways to interpret it, you could have problems.
All of that land known as quarter STR, Headright, tract per Book and Page, LESS and EXCEPT any subsequent conveyances, DESCRIBED AS FOLLOWS...TO WIT....
AKA 1056 Hillbilly Road, Caddo Gap, Arkansas...1 AC. SQ. SE SW 10 5s 6w montgomery a
My first words to him, if surveyed, let the surveyor write the description. BTW most descriptions are based upon meets and bounds.
I am trying to think of examples of descriptions that can have conflicting elements. One example is a lot not square to the road and the description says a 100' wide lot being 100' along XYZ road.
Tom Adams, post: 330798, member: 7285 wrote: Not here, necessarily,
Colorado Statutes state:
"(1) Whenever a professional land surveyor conducts a survey for the purpose of locating a parcel of land which is described in terms of the nomenclature of the public land survey system, such professional land surveyor shall proceed according to the applicable rules contained in the current "Manual of Instructions for the Survey of the Public Lands of the United States" published by the United States government printing office; except that all monumentation shall conform to section 38-51-104."I would use different 'nomenclature terms' if I were intending to write a description by exact half-area. It seems that if your writing the description you should define exactly what you mean to say within the text of your description so there can be no misunderstanding. If you don't, and there are two ways to interpret it, you could have problems.
Most interesting... that is not in accordance with Wattles, or standard practice here...
You might mention the difference between similar descriptions that go:
a) thence east to Murphy Creek, thence ....
b) thence east to the middle of Murphy Creek, thence......
c) thence east to the high bank of Murphy Creek, thence......
d) thence east to the thalweg of Murphy Creek, thence.......
e) thence east to the normal high water mark on the easterly bank of.....
Anything riparian should drive them nuts.
General calls that go to something like "the right-of-way of the Western South Dakota Railroad" can be entertaining. Do you stop at the nearest point, the farthest point or the midpoint of where that line intersects the edges of said r-o-w? Same applies to most any right-of-way that might be named as a boundary controlling item.
The east 35 acres of................. What the heck does that mean?
We recently worked on a survey of a disputed property in which the description called for the top bank of a slough, but it did not specify whether it meant the permanent narrow channel in the center or the high bank next to the cultivated fields. It made a difference of about 20 acres of expensive hunting land
My suggestion is stress the avoidance of "trimming" the description of things that the lay person might deem as "unnecessary", but have great importance to the perpetuation of the harmony between title AND boundary. When in doubt, DON'T SCREW WITH IT.
I'm interested in this subject also. I have been asked to speak at a seminar September 21 on the subject. The attendants will not be attorneys, but municipal employees from around the state. Most of these are involved in the operation and maintenance of the GIS. I plan on "schoolin' them up" reeeeel good. B-)
Jim in AZ, post: 330791, member: 249 wrote: Isn't a "half" always calculated by area once land leaves Federal Jurisdiction? That's how it is here...
That is not how it is in most places. Arizona minimum standards say that a surveyor is to consult the federal source documents whenever you are surveying an aliquot part.
Jim in AZ, post: 330803, member: 249 wrote: Most interesting... that is not in accordance with Wattles, or standard practice here...
That confuses me. If you are surveying the N1/2NW1/4 of a section and the S1/2 is in federal ownership what do you do? Does the boundary suddenly change when the feds sell it?
Is this a seminar to teach attorneys to write boundary descriptions?
or
Is this a seminar about the horrific fails when attorneys write boundary descriptions?
Most boundary descriptions I've seen written by an attorney contains a preamble that identifies the last recording of the property and basically says go pull that deed if you want a description.
When an attorney does make an attempt at writing a boundary description they include a preamble that my trace back to the parent tract or not and may only include the last owners name. Then there is a feeble attempt to describe the beginning point and usually gives a reference to a highway intersection. Then the description consists of bearings and distances to a point. There are never any calls for the neighbor or adjoining property owners.
Best thing to do is to let surveyors do this part and let the attorneys continue to cut and paste it into their letterheads and take credit for it.
It would also be nice if they would be liable for it too...........
B-)
It's teaching to try and avoid problems.
Lamon Miller, post: 330801, member: 553 wrote: My first words to him, if surveyed, let the surveyor write the description. BTW most descriptions are based upon meets and bounds.
I am trying to think of examples of descriptions that can have conflicting elements. One example is a lot not square to the road and the description says a 100' wide lot being 100' along XYZ road.
One of the most common I see (and I know everyone will argue the point) "to the intersection of Abc Street and Xyz Avenue and an iron pipe". It has a call to the intersection, but is also has a call to the monument. Intersections are almost like a C1/4 in our area so now there is the conflict because ties and calculations show the pipe may not be at the intersection. If it were worded "to a pipe at the intersection of Abc Street and Xyz Avenue" it would tell you (in my mind) the monument is paramount and is somewhere around wherever the intersection is.