Simultaneous Conveyance

In Okie if a lot has not been sold then the subdivision can be voided, extinguished or whatever term you want to use.

The first sale triggers all the rest. Until then it's not a subdivision, even with all the plats or okays.

The same is true in Texas, do you think a foreclosure on a Deed of Trust would be considered a transfer and trigger the simultaneous conveyance.

> In Texas monuments set on a new subdivision become set in stone (so to speak) upon the first transfer of any lot within that subdivision. Up until that point a surveyor can correct monuments he finds were set with error.

Well, the issue to my mind is that lots are described in reference to the subdivision plat, which was all surveyed as one single operation and so constitutes a system to which all of the parts may be looked for clues about any of the others, including the subdivider's intentions. The survey system also bears upon how excess and deficiency are to be treated.

The question of correcting errors in monuments is basically this practical one:

"How will correcting an error possibly affect the boundaries of some part of the subdivision that isn't under common ownership?"

If the entire subdivision is under one ownership, subject perhaps to any easements that may have been in existence or dedicated by the plat, I don't see any objection to correcting blunders at all so that the lots as marked upon the ground actually conform to the shapes and locations shown on the plat and no inequity or problem is created.

In theory, you probably should file an amended plat so that future conveyances are made in reference to it, showing the details of the new monuments. In practice, I can imagine plenty of cases where it would be optional, i.e. the lots can be located on the ground without the amendment to the plat.

I believe the iron rods will change from just metal in the ground to original survey monuments with the first land transfer in the subdivision. What I am unsure about is if a foreclosure action with a Deed of Trust that identifies the subdivision by recording references is enough to trigger that or if it would require one or more of the individual lots to be sold.

> I believe the iron rods will change from just metal in the ground to original survey monuments with the first land transfer in the subdivision. What I am unsure about is if a foreclosure action with a Deed of Trust that identifies the subdivision by recording references is enough to trigger that or if it would require one or more of the individual lots to be sold.

It's all in the description. If you convey land by reference to a plat that is, in effect a representation of a survey, then the original marks of that survey *shown upon the plat*, if undisturbed are the best evidence of that survey. Subsequently placed markers not referenced in the deed by which the lot is conveyed are just a muddle if it can be definitely proven that they aren't the same markers shown on the plat and the shapes and locations of the lots as marked by them is significantly different than as shown on the plat.

The case I thought you were describing was that of just a sloppy stakeout where a few markers ended up well out of the positions shown on the plat, but where generally the majority of the monuments fit the calls of the plat reasonably well. That is, you can remove one of the original markers and replace it with a new marker that substantially fits the ties from other original monuments, so the plat remains an acceptably good representation of the shapes and locations of lots.

Since no lots are in separate ownership, no one can claim to have relied upon the mistakenly placed rod and there is no particular reason not to remove it. If it is the result of a radial stakeout blunder, its position may be completely useless in establishing the location of any other corner in the subdivision, so it really isn't any loss at all.

I would want to verify the locations of any utility improvements that may have been based upon the misfired rods, however, before removing it.

That pretty well explains my understanding, I just figured I would kick it around since a foreclosure is a form of transfer of fee simple interest and the subdivision was named in the legal but no mention was made of the individual lots. It's not really a matter of the rods being in the wrong position but that I think the bank is going to want to Vacate the subdivision and start over and I was trying to decide on the proper procedure.

Survey System

Just to be clear, though, it is the simultaneous subdivision, i.e. the subdivision as a single platting or surveying operation, that is why junior and senior rights don't figure into the surveying of boundaries in the subdivision. The simultaneous subdivision is what is known in Texas as a "survey system", which means that in locating lot boundaries, each lot isn't viewed as a separate thing, but one connected to other lots by their calls and that all are to be considered without regard to the order in which the lots might have been sold off when monuments are missing and the plat calls are the basis for their replacement.

Survey System

I am preparing for a battle with the city when I request to vacate the plat. This particular city charges for right of way abandonment at market value per acre even thought they don't own it in fee simple. Also they realize a lot more income in tax revenues from the sum of the lots tax rate than from an agriculture use acreage tract.

When I inform them that we are going to vacate the subdivision instead of requesting to abandon the right of ways I expect they may not agree right away and I may need to show them they don’t have much of a choice in the matter.

Survey System

> I am preparing for a battle with the city when I request to vacate the plat. This particular city charges for right of way abandonment at market value per acre even thought they don't own it in fee simple. Also they realize a lot more income in tax revenues from the sum of the lots tax rate than from an agriculture use acreage tract.
>
> When I inform them that we are going to vacate the subdivision instead of requesting to abandon the right of ways I expect they may not agree right away and I may need to show them they don’t have much of a choice in the matter.

If the streets haven't been constructed and accepted for maintenance, there aren't any public utilities in them, and no other development is served by them, I don't think your client would have too much trouble forcing a vacation of the plat. The dedication on the plat was an offer only that hasn't been accepted by the public, it sounds. So what grounds does the city have for asserting the interest that they evidently do other than just liking to milk developers?

Survey System

The city could and probably will argue that they control the right of ways even without streets being built because they were dedicated to the public in the recorded plat. Galveston County has miles of platted right of ways that have never had any type of street in them and in many cases are fenced off. The county (in my opinion) over burdens some of these unopened dedicated roadways by building drainage ditches down the middle of them and claiming they are now drainage easements.

This is why I am checking to see if a foreclosure action has been considered a transfer and would trigger a simultaneous conveyance.

Survey System

> The city could and probably will argue that they control the right of ways even without streets being built because they were dedicated to the public in the recorded plat.

I think that under Texas law, they'd be SOL if the landowner wanted to abandon the street that had been merely offered but not accepted. I worked on a case a couple of years ago where that very topic was at issue and counsel didn't even think it was worth arguing that the sole act of dedicating a street by a subdivision a plat prevented the subdivider from withdrawing the offer before there was any acceptance of the street as dedicated.

Survey System

> This is why I am checking to see if a foreclosure action has been considered a transfer and would trigger a simultaneous conveyance.

I think that the phrase "simultaneous creation" does a better job of capturing the operative principle than "simultaneous conveyance". The ordinary absence of junior and senior in platted subdivisions comes from the fact that the parcel were all created by the same act, not the actual subsequent conveyances of the parcels.

Survey System

I need to look into that because I just assumed the right of ways became dedicated at the same instant the first lot was sold.

Dedication and Acceptance

> I need to look into that because I just assumed the right of ways became dedicated at the same instant the first lot was sold.

Here's a link to a recent opinion of the Texas Attorney General on the subject:

https://www.oag.state.tx.us/opinions/opinions/50abbott/op/2006/pdf/ga0459.pdf

Dedication and Acceptance

Thanks Kent, that is a very useful link that I feel I should have read years ago. One of my daughters is a lawyer and I asked her about a question of law and she responded she did't know and that lawyers don't need to know all the law just where to find it.

Dedication and Acceptance

> One of my daughters is a lawyer and I asked her about a question of law and she responded she did't know and that lawyers don't need to know all the law just where to find it.

I think she's definitely right about that. Questions about roads and easements are fairly specialized even within the specialty of real property law.