I'm often perplexed by this general question for the following reasons. In my professional career, I have always been taught by my superiors/mentors to rewrite legal descriptions every time I've done ALTA's. As of the last couple of years, at the end of the 'new' description, I have added the note, "The property surveyed and described on here is the same as the property description on Schedule A of the Commitment for Title Insurance...".
My question is do you think it's even necessary to rewrite the legal description for ALTA's? I bring this up because under the ALTA standards it states under Section 6.B.i. "...Preparation of a new description should be avoided unless deemed necessary or appropriate by the surveyor and insurer. Preparation of a new description should also generally be avoided when the record description is a lot or block in plateed, recorded subdivision."
Secondly, I wanted to give credit for John B. Stahl for going over this similar topic before and wanted to post what he had to say about this:
"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?"
So, again my question is do you think it's necessary to rewrite the legal description for ALTA's? . And if so, why?
NO. Never. Cite the title policy, and show on your map any discrepancies as Record & Measure. If you set something, provide evidence on the map. You may wind up with a good extra on the deal, after it PO's the title company and lawyers.
ALTA's are over rated IMVHO. Every state has standards, and that is what we should work to. Actually, state laws trump ALTA standards. Not what some broker from BFE wants you to do. Then there are two sets of rules to follow.... 😛
Just my $0.02 from podunk high desert
PS - edit: can not speak highly enough of sitting with John Stahl in one of his seminars. Listen hard to what he says. Good stuff
YES! The Purpose Of An ALTA Is To Cover All The Bases
While the outbounds of a legal description may not change, other items referenced may change, such as easements, uses or uses in easements. The user of an easement may in fact change. It is possible that the original easement was granted to a now non existent company or a company now a subsidiary of another. A gas line easement may now include fiber optic cable, a high tension easement may now include a cell antenna.
In addition the description may include such references as to a pipe, which an adjoiner's surveyor may have replaced with a pin and cap. In fact all monuments should be noted as "Recovered, date of most recent update." How will you explain to your board that the pipe your survey goes to was noted as not found 3 months prior by another surveyor?
Can you in fact identify all users on an above ground utility pole? Shortly it will be necessary to have an "above ground one-call" because of possible overburdening of older easements.
Paul in PA
In my opinion, if I can put that description on the ground in a unique manner, then it is a good legal description. Period. Rewriting or "modernizing" the description just because you have recently surveyed the site is a horrible idea, which is why Arizona does not allow the practice and the American Land Title Association discourages it.
:good: :good:
Cut/Paste from the title work.
If at all possible and the legal closes, use it.
I did one ALTA where the attorney insisted the legal be re-wrote, it was late on a Friday and I was feeling a bit agitated at him so I cut/paste from the warranty deed, then immediately followed with a label "Rewritten at attorney request" and cut/paste the exact same thing. Funny thing is that it was not questioned or commented on further.
Just finished up an ALTA where the courses and distances did not change, but the adjoiners did. Texas law requires that adjoiners be cited, so there will be a new description.
Lawyers are the problem with legal descriptions.
We did a number of them for a client and the lawyers wanted the "lot and block" descriptions written as "metes and bounds". Our first issue was they cannot accept NE as NE or SW with the map right next to the description. Then we found out they were rerecording the legal descriptions as metes and bounds. From then on our Lot and block descriptions got real long so that gaps or overlaps created by M&B would not happen on a L&B description.
The other issue with the M&B is the lawyers don't understand that 15 surveyors can measure a line and come up with 15 different bearings or distances, so any change by a second or two or a few hundredths is catastrophic to them.
Lawyers without a Land Surveyors license should not be allowed to review ALTAs.
> "...Preparation of a new description should be avoided unless deemed necessary or appropriate by the surveyor and insurer. Preparation of a new description should also generally be avoided when the record description is a lot or block in plateed, recorded subdivision."
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Listen to John's advise, and follow the indications in the ALTA stds. Please note the ALTA quote above says "deemed necessary or appropriate by the surveyor and insurer". This means the two professionals that deal with the boundary location (surveyor) and the title issues (insurer) should agree on what properly should and should not be done. It does not mention "attorney".
I've seen too many instances where re-written deeds actually introduced ambiguities which did not exist in the original description. I suspect it resulted from someone wanting to "streamline" a legal description without realizing the adverse consequences.
Personally, I wouldn't advise it unless you are truly clarifying the intent of the original, and even that must be done with very great caution. Just my two cents' worth.
The only superior evidence is that which you haven't yet found.
> > "...Preparation of a new description should be avoided unless deemed necessary or appropriate by the surveyor and insurer. Preparation of a new description should also generally be avoided when the record description is a lot or block in plateed, recorded subdivision."
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> Listen to John's advise, and follow the indications in the ALTA stds. Please note the ALTA quote above says "deemed necessary or appropriate by the surveyor and insurer". This means the two professionals that deal with the boundary location (surveyor) and the title issues (insurer) should agree on what properly should and should not be done. It does not mention "attorney".
Just for the sake of clarity my good friend John Stahl was responding to a post I made. Some of the points made are from my original post.
Mr. Allen is correct that the latest ALTA standards state that before a new description is written that is be "deemed necessary or appropriate by the surveyor and insurer".
Frankly, I choke on that statement. I can't believe NSPS agreed to having that phrase in the standards. When is it appropriate for a title insurer's opinion to supersede that of the licensed professional? The way that statement is written if the PLS believes a new description is needed (for any reason whatsoever) and the insurer disagrees (for any reason whatsoever) the new description isn't to be created.
Larry P
:good: :good:
As Nancy Reagan said, "Just say no."
> Mr. Allen is correct that the latest ALTA standards state that before a new description is written that is be "deemed necessary or appropriate by the surveyor and insurer".
>
> Frankly, I choke on that statement. I can't believe NSPS agreed to having that phrase in the standards. When is it appropriate for a title insurer's opinion to supersede that of the licensed professional? The way that statement is written if the PLS believes a new description is needed (for any reason whatsoever) and the insurer disagrees (for any reason whatsoever) the new description isn't to be created.
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I don't read it that way. I think it says that the decision is a joint decision, not one "superseding" the other. With the surveyor being the expert in boundary stuff and the title insurer being the expert in title stuff, in a perfect world (yea, I know 😉 ) two reasonable, knowledgeable, experts should be able to agree on the solution to nearly any problem(s) that may arise. I understand that the level of cooperation and expertise isn't always "perfect", but we do the best we can.
The ALTA standard says "description" and not "Legal Description". The legal description is the description by which the the title was transferred. You can't change that - I don't mean you aren't allowed to, I mean that you can't. The property you are retracing is already written and of record. You can write a new description, in my mind, as your surveyor's notes or your findings on the body of your plat. As I see it, you are perpetuating the location of the property to current conditions on your plat. An example might be that the called-for point of beginning monument is no longer in, so you state what you found or set as accepted. Maybe it called for a distance of 100' to the north line of jones' property and you find that it measured 150 feet. If the measured distance is 100.02, and the called for distance is 100.00, I would contend that you got the same measurements within an acceptable tolerance and that you don't need to write a new description.
That is how I read the instructions.
There are times my survey reveals evidence that triggers a new description. If the property is a Lot and Block I'm right in step with the ALTA standards. Don't write a new description.
All too often we are 'required' by various entities to write a metes and bounds description for no good reason. These invariably find their way into the record and wreak havoc. I have adopted numerous strategies for dealing with this. Most of the time a declaratory statement of intent takes care of it. End your description with 'the preceding description is for rezone purposes only and is not to be used for any other purpose' or some such. Force them to re-type it at the least...