Once I filed four surveys of different configurations before the landowner finally used the last one for conveyance to a different party.?ÿ I got paid four times, also.
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I can picture the following scenario occurring if forced to go with the method promoted by the courthouse employees in the OP:
Seller (S):?ÿ Hello, sir.?ÿ I may I help you?
Buyer (B):?ÿ Yes.?ÿ I was told you had a house and some land for sale and we are checking into what is available as we need to land somewhere as we are moving here from out of state.
S:?ÿ Great.?ÿ The situation is that my mother passed away recently and none of the heirs have any interest in keeping the house but we would like to hold on to as much of the rest of the property as possible.
B:?ÿ Interesting.?ÿ How much land will go with the house?
S:?ÿ We don't know.
B:?ÿ Where will the boundaries be"
S:?ÿ That depends on what you want to buy and what you are willing to pay for it.
B:?ÿ What are you thinking?
S:?ÿ That depends on what you are thinking.?ÿ The County Sanitation Code says it needs to be a minimum of three acres in size to accommodate standard sanitary septic systems, such as septic tank and lateral lines or a lagoon.?ÿ So, it will be at least that big.
B:?ÿ Where would the boundaries be for that three acre tract?
S:?ÿ We don't know yet.
B:?ÿ Why not?
S:?ÿ Because we would need to hire a licensed boundary surveyor to establish those lines for us.?ÿ If he does that, he is required by state law to file his survey plat with the county and the county won't let him file his survey plat unless I simultaneously record a deed using his description of the boundaries.
B:?ÿ I'm thinking we might like to have something around six to ten acres total.?ÿ Where would those boundaries be?
S:?ÿ Sorry, again, but we don't know now.?ÿ You and I would have to agree on certain limits and agree on a price and sign a contract that you definitely will buy at a certain price before I call in the surveyor to set the boundaries that aren't fixed.
B:?ÿ What are fixed boundaries?
S:?ÿ Well, the west side?ÿ probably should follow the property line between this place and the neighbor's place.?ÿ We aren't sure, but that might be pretty close to that big maple tree over there.?ÿ We can only sell you what we own.?ÿ The north property line is somewhere about the middle of the road you drove down to get here.?ÿ Those are fixed boundaries.?ÿ Anything else we agree to will determine the final boundaries and the final area.
B.?ÿ Is that gorgeous maple tree on this property?
S:?ÿ We don't really know??ÿ But, the survey will answer that question for you.
B.?ÿ Let's say we can agree on those two fixed lines plus one that runs east from about that old well house over there until it gets to a point even with that line of blackberry bushes headed towards the road.?ÿ How much do you want for that?
S:?ÿ I don't know.?ÿ My instructions from the other heirs is to get $11,000 per acre plus $105,000 for the house and, if part of the tract sold, another $25,000 for the barn.
B:?ÿ So what's your best guess at a total figure?
S:?ÿ I don't know.?ÿ I have no idea what an acre is.
B:?ÿ So, you don't know what you want to sell and you don't know how much the total cost to me would be?
S:?ÿ No, sir, I don't.?ÿ Not until the surveyor gets out here and surveys it for us, but that's not going to happen until we agree and sign a contract binding both of us to the deal.
B:?ÿ This has been an interesting adventure, sir, but I think we will pass on this and go somewhere that allows us to get the survey done and then decide if we can come to terms.?ÿ Goodbye, and good luck.
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In Montana, their are a few different forms of certificates of surveys.?ÿ
If you go out and perform a retracement survey of an old deed for a parcel of land of land being "that portion of Section 12, being North of highway 123234. Bringing more particularly described as (insert surveyed legal description). The COS is filed and no need for deeds to be transferred. Very similar to what a Record of Survey is referred in other states.
You can also perform a certificate of survey to transfer a parcel to an immediate family member. Which you then, in most counties are required to immediately transfer to the individual named in the landowners dedication. This requires the filing of deeds with the COS transferring the parcel to the named individual family member. This historically has been available to transfer to another individual immediately. In a few days this will no longer be allowed, due to a soon to be signed piece of legislation. A holding period will be required, unless a county allows immediate transfer. That's a whole different conversation and can of worms.
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Another form of certificate of survey is the boundary line adjustment, this is also recorded as a COS if it is outside of a platted subdivision. You move the allowed lines and file a COS for the newly named tracts. If the lines moved involve lots without common ownership, you are required to file deeds with it to keep title intact. The question comes up if the parcels are owned by the same person, can you move lot lines and not file new deeds. Then at a point later in time, convey one of the new lots and record the deed at that. This is where the biggest difference is between counties. Some require deeds to be filed even if the lots are under common ownership. State statute only requires the filing of deeds when the line moved is between adjacent property owners. Also due to our illustrious legislature here in MT, you can now only adjust boundaries between lots under common ownership. You accidently build half a garage on your neighbors lot......hello major subdivision and the whole 9 yards. But like I said previously, that's a whole different conversation.?ÿ
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Just a quick summary of what a "Certificate of Survey" is in Montana. It's not exactly a specific type of survey.
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As for preparing the deeds in Montana, I wouldn't touch it with a ten foot stick.?ÿ
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You bring up another issue or two. Do Surveyors or Attorneys perform Title Reports and insure their Deeds with Title Insurance?
No they don't.
@jpb Neither have been signed by the Governor yet, I haven't heard if they made it out of the Senate yet. I've not heard about the Boundary Line Adjustment change. I don't think Counties have the option on the Family Transfer. It can't be transferred for 2 years. Major Subdivisions require a Professional Engineer. All Land Surveyors will be able to do is search pins and construction stake if you're correct.
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Sad but true.?ÿ The conference committee slid the boundary line adjustment in. You can click on the link and download the current bill. The bill is on the way to the governor, hopefully this train wreck gets vetoed.
@jpb?ÿ Thanks for the great overview of what "Certificate of Survey" means in MT.?ÿ You addressed something I was wondering - if it referred to retracements as well.?ÿ Good to hear that at least in that case a new deed is not required!
Big key in the OP would be if preparation of the deed by a third party would be considered practice of law.?ÿ I didn't read the whole list, the document at the following address seems to indicate that in most states it falls squarely in the practice of law.
Couldn't get link to work, search of "Document-Preparation-Matrix-Logo_Update.pdf" should get a list of states with commentary on if the preparation of deeds falls into the practice of law.
@lurker you beat me to it, writing a legal description falls with the expertise of a Surveyor, I write them routinely for title companies.?ÿ Writing a deed is practicing law.
According to the Department of Justice and department of commerce?ÿincluding preparation of deeds in the definition of practicing law is overly broad.
A quick search of a pdf of compiled state laws didn't find any current state law with such a prohibition. I did not read them all, but the 2015 DOC/DOJ opinion appears to bar states from taking that aporoach.
The 2015 DOJ opinion was addressing this issue specifically. The finding was this is an overly broad restriction interfering with commerce. I haven't found anything authoritative after 2015, but I haven't looked extensively. I'll look deeper Monday when I have a bigger screen and keyboard.
Where I work a surveyor writing a deed would be practicing law without a license. You could get into big trouble.
A lot of cities and counties in California provide boilerplate deed cover sheets for various types of transactions. Some municipalities want you to fill in the pertinent information, others do it themselves. So it's a mixed bag here.
I believe the language of the boundary description, "Exhibit A", should be prepared by a licensed surveyor, but there are exceptions here.?ÿ
Fuchs v Wachovia Mort. Co. Says otherwise if you mean New York. I have not found an authoritative statement later than 2015 for the States I work in. The strongest statement I see in the States I've checked is the preparation is not practicing law, but advising others of legal rights and duties is. The latter primarily relates to deeds of trust.
The courts appear to have taken heed of the DOJ opinion. Of course you need to form your own opinion. I would absolutely concede holding a license does not qualify us to prepare deeds any more than any other task. Develop competence and follow the law. I'll do the same.
The strongest statement I see in the States I've checked is the preparation is not practicing law, but advising others of legal rights and duties is.
In Maryland, a non-attorney can prepare as many deeds as they want; recording them is another matter entirely:
Maryland Code [Real Property ??3-104(f)(1)] requires an attorney to certify that any deed, mortgage or deed of trust has been prepared by an attorney or under an attorney??s supervision, or a certification that the instrument was prepared by one of the parties named in the instrument, in order to record the instrument.
@ric-moore--this looks like one possibility.
8730 The following persons are not required to be licensed under this chapter:
(c)?ÿAny officer or employee of an electric, gas, or telephone corporation, as defined in Sections 218, 222, and 234, respectively, of the Public Utilities Code, with annual revenues of twenty-five million dollars ($25,000,000) or more, whenever he or she prepares a legal description of an easement for utility distribution lines and service facilities, provided the following conditions are met:
(1)?ÿEach description identifies the corporation that prepared the description and states that it was prepared pursuant to this exemption.
(2)?ÿEach corporation has in its employ, or on contract, an individual authorized to practice land surveying who shall be responsible for establishing criteria for determining the qualifications of technical specialists preparing those legal descriptions, specifying the format and information to be shown on maps or documents containing those descriptions, and capable of answering questions regarding the preparation of those descriptions.
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JW
@j-dub - ok, that was the only section that I am aware of that would be considered by some as an "exception".?ÿ Really isn't an exception because the section requires responsible charge by a person licensed to practice land surveying.
