I'm working on a boundary survey with some quirks that are somewhat new to me.
I have a deed from 1980 where Owner A sells their parcel while excepting out a small piece which they retain (my survey is on the retained piece).
In 2006 there is a special warranty deed for this retained parcel from Fannie Mae to Owner B.
Owner B is still the current owner and the county assessor has no record of any owner, not Fannie Mae and not even Owner A, prior to Owner B.
1.) It looks like special warranty deeds are often used in instances of foreclosure, so I'm assuming that's what happened to this retained piece some time after 1980. Does that sound like a reasonable assumption? (I have a title commitment for the property and there is no mention of a foreclosure in it)
2.) The special warranty deed uses the same description as the 1980 deed which called to the centerline of the highway fronting the property except it excepts out the right of way of the highway. So I guess Fanny Mae now owns a 25 foot wide strip of land they can't use. 🤦♂️
Special Warranty Deeds aren't all that special. They are more of an instrument to protect the seller from defects. That's probably why it was used here. As far as the right of way, you might want to bring that up, now's the time to clear it up if it was unintentional. Possibly a corrective deed might do that.
What is special about a Special Warranty Deed is the warranty, not the deed.
Special Warranty Deeds are routine documents around here. I wouldn't attach any particular significance to its use.
I recall that you are in Idaho? I could point you at Oregon case law about retention of narrow strips of land like this. In short, the Oregon court has consistently ruled numerous times that there was no intention to retain narrow strips that could be of no particular use to the vendor. This has specifically included strips of right of way. I'll bet that Idaho has similar cases.
....I'll bet that Idaho has similar cases.
From the Oregon case of Buell v. Mathes (1949):
... The reason for the general rule raising a presumption of title to the center line of a highway is based upon the view that the seller of land could ordinarily have no object in retaining a narrow strip of land which is subject to the rights of others and which would be of no value to him when separated from adjoining property. See MacCorkle v. City of Charleston, 105 W. Va. 395, 142 S. E. 841, 58 A. L. R. 231. It has also been held that the presumptive rule:
“ * * * was adopted to guard against the bootless and almost objectless litigations that might spring up to vex and harass the owners of land adjacent to public highways if the title to the land in the highway, with its attendant right to use this land in any way which did not interfere with the rights of the public, should remain in the original owner of the land.” Spence v. Frantz, 195 Wis. 69, 217 N. W. 700.
2.) The special warranty deed uses the same description as the 1980 deed which called to the centerline of the highway fronting the property except it excepts out the right of way of the highway. So I guess Fanny Mae now owns a 25 foot wide strip of land they can't use. 🤦♂️
Does the deed except out the right of way (easement) of the highway, or the underlying fee ownership? The wording of the exception in the deed is critical, here.
One great thing about surveying is the opportunity to fix descriptions that have issues by doing a complete survey and new description. This probably isn't a situation where that fix is possible with a survey.
Leaving a strip will cascade down over the years. The GIS will be either show the strip and try and figure out the owner or it will be completely flummoxed and show a blank, could go either way. If there is an owner shown then there needs to be a tax, no one will pay the tax so then a Sherriff's sale. No one buys it so it could end up owned by the City/County who probably doesn't even want a fee property mixed in with an easement. It's much cleaner to keep in private hands with an easement for the right of way.
We've had a bunch of similar situations, clearly stating the property line to be centerline is usually the best solution. This gives the owner rights to the road and if the road is altered or vacated the owner has more control over the resulting configuration of the land. The way the OP's description reads,,,it's not ideal.
The Special Warranty Deed could have been used for that reason or there might be other questions about the title.
Just says right of way. The right of way in this area is a prescriptive easement.
I'll have to search for Idaho case law on the issue because that would definitely clear up the situation.
Just says right of way. The right of way in this area is a prescriptive easement.
I'll have to search for Idaho case law on the issue because that would definitely clear up the situation.
I don't think you need to look up case law. The deed description is quite clear. The parcel is described out to the center line of the highway, with the right of way of the highway (easement) being an exception from the conveyance. There is no fee ownership strip of land being retained here under the highway.
@peter-lothian How are you interpreting it that way? The easement isn't theirs to except out in the first place, so I think the only way to read it is excepting the fee ownership of the underlying land.
I think the use of the word of "excepting" suggests to you an affirmative act. I believe that the intent was merely to call attention to the pre-existence of the highway right of way.
I believe that the intent was merely to call attention to the pre-existence of the highway right of way.
The impression I get is they couldn't be bothered to investigate whether the right of way was fee or easement and so they made an assumption that it was fee and excepted out whatever dimension the right of way happened to be.
The impression I get is they couldn't be bothered to investigate whether the right of way was fee or easement and so they made an assumption that it was fee and excepted out whatever dimension the right of way happened to be.
They chose to use the wording "EXCEPTING THEREFROM U.S. Highway #30 right of way."
If they had made such an assumption and wanted to exclude the fee ownership, they could have worded it,
"EXCEPTING THEREFROM the land within U.S. Highway #30." The choice of wording to indicate the right of way (an easement) and not the entirety of land rights is significant.
I like Peter's interpretation. They explicitly excepted right of way. So they did not transfer right of way. Granted they had no rights to right of way to transfer. I like the concept of separating easement row of way from fee ownership. Since they did not except out fee ownership and only excepted out easement right of way, I would argue the fee belongs to the new owner. I'm also willing to bet Fannie Mae had no intention of retaining any portion of this property after the sale. Either way, the buyer should own in fee to the centerline of this Hwy. Arguing Peter's interpretation solves the issue and thus why it so appeals to me. Too bad the buyer was unsophisticated and had no representation that was sophisticated enough to see the problem with the deed and get it solved prior to closing the transaction. If he was represented by an agent, I would press the agent to resolve the issue on their dime.
State Highway in Oregon is generally acquired and held in fee simple. I think that is commonly the case in other states. That makes a big difference. If the highway right of way is in fee, then all this about title to the right of way, which is an easement, passing with the adjoining parent property does not apply.
But then you say that the right of way is prescriptive? What's up with that?
I'm also willing to bet Fannie Mae had no intention of retaining any portion of this property after the sale.
Completely agree. Other opinions in the office at the moment are that we cannot argue with the face of the document which appears to create a strip
But then you say that the right of way is prescriptive? What's up with that?
To be a public road in Idaho it has to be dedicated to the public or simply used by the public and maintained at the expense of the public for 5 or more years. This highway appears to fall into the latter category, but I'm doing a deeper dive into highway records to see if the state ever acquired it in fee. Other nearby surveys don't show any sort of fee ownership, but it certainly won't hurt to double check.
If they excepted a Right of Way that is an easement, then the ownership of the strip goes to the Grantee. A right was excepted, not the land.