A client contacted me to survey two adjoining waterfront lots in an older subdivision. He was advised by his title people to get a survey. No acreage was shown on the original survey due to being waterfront.
I performed the work, some corners were missing, I placed new points, made my new plat, notified him of my findings, including the acreage and sent him copies. A couple of days after the deed was recorded, I was at the courthouse and wanted to get the new reference. I found it, reviewed the deed, and found no reference to my new plat. The original lot description was only copied from the previous deed and reference made to the 1950s subdivision.
I contacted the client...he was angry, mostly for the fact that he paid the title folks a lot of money and paid for a survey at their urging...and they didn't include it in the deed.
The paralegal response was that they don't record a survey unless the surveyor asks for it, then a partner weighed in that the seller would only want to transfer title by the same deed that they acquired the parcel.
Well, gee, why get a survey after all???
I was provided an unrecorded "title survey" from the 90s, that purported to have found corners that are no longer there, some of them overboard....I established new points on the lines and would expect a future surveyor to be able to find and use them as evidence to my client's line.
I looked back at some other work I did in the last year and also found where my new survey was not recorded...just a copied description.
Yes, Virginia allows "title surveys", with requirements less than a boundary survey, but, I do not do "title surveys".
Its done and over with now, but, I am looking for the words to respond to the fact that a "seller would only want to transfer title by the same deed that they acquired the parcel".
A client contacted me to survey two adjoining waterfront lots in an older subdivision
I would not want the deed changed if it was me. Lots 1 and 2 of the Waterfront Subdivision would still be how I would prefer to see it described. The survey shouldn't change the legal description, just show the evidence that retraced it: it would still just be Lots 1 and 2.
I don't understand why the description needed to change or why the drawing couldn't be filed as an exhibit, but title people here do the same thing to me.
Get the description and strip out the drawing when they file the legal, even when it's a new parcel and the drawing is referenced on the description.
They say that the drawings just cause problems.:-@
You bring up a good example of a major difference in how things are done in different parts of the country and per two different types philosophies.
One is that the original description is the original definition of the land being transferred. The same land is transferred over and over again with the intent of granting the same property in the exact same location as the original description. One school of thought is that the original description is the legal description of the land regardless of more modern descriptions.
The other school of thought is that when you have it surveyed, you discover more direct and precise measurements at the time you did the survey, as well as setting or finding new monuments that weren't in place at the time of the first/original description. updating the description keeps the new description modern. That includes new areas due to changing rivers or other waterfronts.
Around here, often times a parcel of land is transferred with the same metes-and-bounds description that the original parcel was described as. We often "deposit" plats to show our measurements and our interpretation of where those original lines fall on the ground. Unless a lawyer or title person changes the legal description for a new transfer, the land is transferred by reference to the original description and/or using the same description language verbatim. The retracements can be done by utilizing the previously-deposited plats as well as reviewing the chain of title and the original description.
My view is that if I can put the legal description on the ground in a unique manner then it is a good legal description and should be maintained. My interpretation of that legal description is available when I record my survey.
Have been told that when you make the drawing an attachment to your property description the drawing will be recorded when the property description is used in the new deed.
I can't count the times my new survey and many others by other surveyors were not used in the new deeds.
To not record a new survey makes it a crap shot when you are finding monuments that are not of record.
0.02
I guess that I feel (maybe erroneously) that a deed with a plat attached or referencing a plat is superior to a deed with a copied description. I feel that the plat should be attached in order to be placed in the chain. I concede that yes, the original may function to transfer title, and yes, a description does not need to be redone with every sale.
I interpreted the deed and collected and interpreted the ground evidence of the description...and yes the evidence has changed over time. The evidence, in the form of the plat, should be preserved by the recording.
What say you in mandatory recording states? Is the recording involved with title, or is it purely for surveyors use only?
Descriptions in Deeds
The countryman, who, by good fortune, political shrewdness or chicanery, has been exalted above the common people by an election to Justice of the Peace, and therefore is entitled to be dubbed “’Squire,” and authorized to sit in judgment on his neighbors, tie hymenial knots, etc., is looked upon by his fellow citizens as a truly great man; one whose opinion on all matters, from the building of a rail fence to the revision of the American tariff, is unimpeachable. He is called upon to make out a deed for a piece of property one of his neighbors has sold another; and the “’Squire,” with a full realization of his eminent fitness and ability to properly prepare papers of this and all other kinds, goes to work, and presently evolves a description something like this: “Beginning on the bank of the creek, thence following the creek to the brush fence that burned up last spring, thence to the old black stump, about 50 yards, thence running by the fox den to the northwest corner of Jones’ tater patch, and then along the fence to near where Smith’s portable sawmill stood, then by the path leading to the foot log over the creek, and then to the place of beginning, and being the same ground used by Brown as a pasture lot.” The “’Squire” knows perfectly well that this description is all right, for he has accurately described the whole boundary, as he can prove by every person acquainted with the premises. He hands the deed to the grantor, who is well satisfied; satisfied for two reasons: First, because he has the utmost confidence in the “Squire’s” ability to draw a good deed, and the “’Squire” has assured him that it was all right; Second, he is satisfied because it only cost 50 cents, whereas it would have cost two or three dollars to have had a survey and correct description. The grantee is also satisfied, and for the same reason as the grantor’s first; and he takes the deed to the County Auditor and he sees nothing wrong. To all appearance it is perfect, and he makes the transfer. It is now taken to the Recorder, who observes it has all the legal requirements, such as consideration, wife’s signature, etc.; and he collects his fee, and soon a copy of this magnificent document, this splendid product of the “Squire’s” futile brain, has become a part of the county records. If the grantor and grantee had any misgivings about the document before, they are all removed now; and they are absolutely certain of its soundness. For had it been wrong, the Auditor or Recorder would have noticed the error, and pointed it out, but it has passed through without a single criticism, and there can be no doubt about its validity.
There is a class of persons, who, through suspicion of fraud or trickery, make it a rule to deed away property by precisely the same calls as were used in the deed to them. A case of this kind, with which we are pretty well acquainted, having had something to do with it, occurred right here at Columbus, in which the grantor declined to make a deed except with identically the same description as that contained in the deed to him. The result of this practice is easily seen; once right always right, or once wrong always wrong.
Our statutes should require, and make a part of each conveyance of real estate, a complete plat of the premises conveyed. This plat should show the connection of its lines with recorded lines; should give the course and distance of each of its boundaries where it is at all possible, and give all witnesses taken to corners.
R. S. Weitzell – Presented to the Ohio Society of Surveyors and Civil Engineers - 1885
😉
i agree, Mr. Harris !!
Mark,
I have mixed feelings on the issue. It seems to me that if the same piece of property is being passed on in total grantee to grantor, then they can only transfer what they owned to begin with. If a surveyor comes along and determines the boundary in a different position than I would determine the same description, then there is a conflict as to exactly what the intention was when transferring the second deed with a changed description. It seems like the sketch and new description done by a surveyor is done in order to help perpetuate the original position of the property, but does that mean that a new transfer should be changing the description of what is being transferred?
Having said all of that, there are a couple of flaws that should probably be straightened out when properties are being transferred. It is known that "for a legal description to be adequate, it needs to be identifiable on the ground". If an original transfer is "inadequate" due to the fact that it has ambiguities in which two different surveyors could come up with two different solutions, that legal description should be "repaired". It seems that the best way to repair something like that would be to possibly work on a boundary line agreement between the owner and the adjacent owner(s). If there is uncertainty in a boundary line, since the line is between two owners, then there must be uncertainty in the adjoiner's common line. Rewriting the description without correcting the ambiguity with the respective adjoiners would not remedy the problem either.
In my view, like Bruce says, if you can lay out the original description on the ground, it is adequate. If you can't rewriting it without a more complete remedy is not sufficient.
I like the idea of the surveyor publishing a land survey plat (as they're known in CO. that delineates his interpretation of the boundary. It can be used to perpetuate the boundary without harming the original deed description.
Sorry if I babbled or repeated myself a bit, I was kind of thinking as I typed.
Tom
People here use Deeds to transfer property and Surveys to find out where their boundaries are located on the ground.
But then here the Surveyor files the Survey for the information of future generations.
What I will say is I never let anyone else be responsible for recording my surveys. When final payment is in hand, I record the survey. Only then will I release a new description which refers to the survey of record. I discuss this with the client and anyone else he wants prior to signing the contract. If anyone doesn't like that, so be it, find another surveyor.
:good:
Good succinct post.
But the filed survey does not impart constructive notice, so the owner may not know if there was a survey completed without checking records they may not be aware of.
What I have done on a few properties was,
"Lots X & Y of such subdivision recorded in such volue in some county and state.
Also being described by metes and bounds as follows...."
Brad Luken, LS
(AZ, CA, NV & OR)
:good:
I learned this a long time ago...
I thought a document recorded in public records was notice.
I like that.
btw Was it called the "Ohio Society of Surveyors and Civil Engineers" with the Surveyors having the top billing back then?
Surely not...
""Lots X & Y of such subdivision recorded in such volue in some county and state.
Also being described by metes and bounds as follows....""
NEVER!!
Surely not...
NEVER. I totally agree.
"Its done and over with now, but, I am looking for the words to respond to the fact that a "seller would only want to transfer title by the same deed that they acquired the parcel"."
Why would the seller want to warrant anything else? It is the buyer who will decide if what is shown on the survey is what they want to purchase (or what they thought they were contracting for).
Even if a new description is used, the attorneys will probably put in there that it is the same as....
Some crappy deed descriptions truly need to be fixed. In PLSSia we encounter too many cases of oldtime scriveners replacing a term like "Government Lot 4 in Section 3" with "the northwest quarter of the northwest quarter of Section 3". They are not the same thing. Many times the entire northwest quarter, for example, has come into a single ownership. At that time, a seller could convey the northwest quarter of the northwest quarter of Section 3 as he would if it were in a Section 16 or any other standard section. I've seen it done quite a few times. Physical evidence clearly proves the intention, which may be vastly different from the dimensions one would get if locating Government Lot 4. Allowing someone who intends to convey precisely whatever Government Lot 4 is supposed to be under the mistaken terminology of a quarter of a quarter is pure foolishness and should be fixed ASAP, once discovered.