Title vs. Boundary

> Any ideas for when I speak with this guy would be greatly appreciated. Thanks!

Why not just print off the landmark boundary cases decided in your state in which the court declined to hold course and distance as exactly controlling (which is, I assume, what the individual in question thinks should exactly control any resurvey)? There should be a ton of cases. Just give them to him and tell him that the object of a resurvey is to determine boundary locations in a manner most consistent with the settled principles of law recognized in your state, assuming that is actually what surveyors are expected to do there.

http://slsiforum.info/index.php?mode=thread&id=164809#p164893

I love the way Mr. Stahl explains it.

Steve

Dang it. I was going to recommend you give him the old "Me surveyor, you not surveyor" reasoning, but, you are getting some good advice here already.

One problem many surveyors have is the inability to say what we mean, on the first try. We know in our heart what we need to say yet it rarely comes out so clearly to other people.

Thanks for your great replies. Mr. Cow, you hit the nail on the head! I KNOW what I mean, but explaining it in a calm, rational, coherent manner for non-surveyors, LAWYERS in fact, who just KNOW they're correct, is tough, especially for someone like myself who's much more comfortable spending the day in the woods surveying than meeting in an attorney's office. Should be great fun! :'(

His rational is that he's certifying title

I think that you should in form him that he's certifying title, as to ownership, and you are certifying as to location. He's confused...... It's not that hard to explain if you make it simple.

> His rational is that he's certifying title
>
> I think that you should in form him that he's certifying title, as to ownership, and you are certifying as to location. He's confused...... It's not that hard to explain if you make it simple.

"He", and many of "them", believe that the title goes with the location: if the boundary appears to be different then what is in their description, then that means there will be some space (gap/overlap) between old and new, and that this will mess up their title certification. Even when you explain that it is in fact the same property, the same land as always, they just don't get it. Even when you explain the doctrines of acceptance and acquiescence, they still don't get it. But, as Kent implies, invariably when these things go to court, the courts find in favor of mutually accepted boundaries, around here usually in the form of ancient stone walls or really old fences. These things, especially the walls, were built for several purposes, one of which was often to mark the boundary between parcels. A farmer from 1832 says "north 32° along the wall 87 rods" in a deed to a buyer, and the title guy wants to see that exactly our surveys. Well, the 87 rods is really 1,452.36', but the wall has several small angle points in it, which will be shown on the plan. It's the same wall, there's no question it's the correct wall, and yet these guys don't get it. I kind of like JB's thoughts about not changing the actual description, but it seems like that would leave its own special kind of mess. I DO like the "meaning and intending" clause, and that's what is used most often around here. And even with a note on the plan stating that the plan creates no new boundaries, it still is difficult for these guys to "get it".

The issue of "not getting it" seems to play a big part in pin cushion corners. If all surveyors "got it", there would be no pin cushions, but it's quite obvious that's not the case, judging by the number of pin cushion pics and threads on this board. If we can't even get our own profession on the correct page here, how can we get non-surveyors on board?

I've not had a problem with it myself. The title examiner certifies ownership, who is asking that they also certify descriptions or locations?

Anytime this has come up it has be satisfied by the clause "being the same parcel as described..."

If they question further ask them to stamp your survey. I mean, we are certifying location, and location can be described innumerous ways but still only exist in one place. They are certifying ownership, which can have differing types, too, but the underlying premise remains the same.

Dtp

I kind of like JB's thoughts about not changing the actual description, but it seems like that would leave its own special kind of mess.

Not really if you think about.

So often the metes portion of a description is what is used to create "additional" monuments on the ground or even the dreaded virtual monument (ties to non-existent "correct" corners) that we create a mess trying to hold the exact geometry laid out in a description.

Now you rewrite it and cause the same issue in reverse.

Getting those ideas out of surveyors heads is the real key. Do the survey, show what is retraced on your plat, include the record description and you will be good, why redo the description?

If something is really wrong bring it to your clients attention but a difference in bearings and distances aren't usually that large an issue

So what if the deed gives the metes and bounds from 1953, and goes on to say "The premises herein described contain about 3.1 acres and are the same as those designated Parcel B on a survey plat entitled 'blah blah blah' prepared by John Doe, dated November 24, 2013, and recorded as plat 923 in the land records of the town of Podunk"?

Does the mention within the deed of a survey with the latest and greatest measurements cause the kind of problems Mr. Stahl was concerned about?

Sounds as if you are dealing with a real noob to the business.

Of course you have to handle it carefully as it is a client.

I would keep any explanations very simple:

"We are better able to measure and describe parcels today due to the availability of tools and technology not in existence when the previous description was written."

"We must follow state laws not in effect when the previous description(s) were written."

"These factors make it easier for a parcel owner and a future surveyor to understand where the parcel boundaries exist on the ground."

We must separate the idea of a deed from the idea of a description. The deed can and often does include agreements and can cover issues that aren't just about the description. Nothing stops the deed from also including the new survey, for instance the description can be shown as Exhibit A and the plat as Exhibit B and they can both be filed together. Not sure how it works in your area, but I do that quite a bit here. Also, the survey can be filed as a Record of Survey and these are getting much easier to cross reference.

I was going to keep my trap shut, but....

I've never been very good at it.

I have the bad habit of "shocking" some clients that call and want me to "show them what they own". I explain I cannot do that. That is a title issue. I always tell them when they figure out (or get a copy of a document that describes) what it is they own; call me. I'll be more than happy to perform a survey.

imho:
Title to real property is the culmination and legality of ownerships; chain of title.
The boundary, of course, is the physical location of the extremities of that property described in deed.

Just as Title Examiners find an uncrossed "I", or a "T" that wasn't dotted, we find things deemed important to us as Surveyors. These are what we indicate on our survey. We are no more responsible for the location of an existing boundary than the examiner is for an unfiled deed in 1947. But it may be important and is noted.

A man has a title to a '57 Buick. Wants someone to tell him it's ok. Someone "surveys" the vehicle. It has the proper VIN all right, but it's a '56. A small detail, but an example of "Title vs. Reality".

I was going to keep my trap shut, but....

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. - JB Stahl

Correct. When you follow a chain of title, you can appreciate this reasoning better. The original conveyance is what it is (not was).

I was going to keep my trap shut, but....

> 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. - JB Stahl
>
> Correct. When you follow a chain of title, you can appreciate this reasoning better. The original conveyance is what it is (not was).

The obvious problem with the quote, though, is that it fails to recognize that the land described does not change simply because a modernized description actually accurately describes the shape and location of the tract on the ground in relation to survey markers that are known to exist.

What in best practice happens is that the description is a dual one, as in "being that same land conveyed to Original Grantee by Original Grantor" and referencing the instrument where that original grant may be found of record, but then proceeding to actually identify that tract conveyed in the remote past in a way that is useful.

What good is owning land that cannot be located on the ground with any certainty? None or less than none?

Naturally, some modernized descriptions will be the product of surveyors who were in too much of a hurry or who were operating at some other deficit, but the common sense idea is that "being that same land conveyed ..." expresses the grantor's intention fairly clearly and leaves mistakes in the modern description easily corrected by some later surveyor who actually IS able to find the lines and corners of the tract that the surveyor in a hurry could not.

The folks who are afraid that lightning will strike if a description is modernized appear to rely upon some map being recorded that purports to show what the actual shape and location of the property is as determined by modern resurvey. So they agree with the idea, but for some perverse reason don't want to carry it to its ultimate conclusion of having the public records reflect the same.

I would think from reading the Stahl posts over the years that he just doesn't like the idea of boundaries being fixed and determinable and so would like for every resurvey to be a newly stitched together alteration of the shape and location of a real property estate that will only be good until the fences are rebuilt again. Keeping the description vague and ambiguous serves that purpose well.

I was going to keep my trap shut, but....

> I have the bad habit of "shocking" some clients that call and want me to "show them what they own". I explain I cannot do that. That is a title issue. I always tell them when they figure out (or get a copy of a document that describes) what it is they own; call me. I'll be more than happy to perform a survey.

Oh come on now. They are speaking English, and it's pretty clear that they want you to show them where the legal description on their title falls on the ground. I disagree with getting into some "lawyer-speak" about title vs. boundary. I say, don't worry; if they ask you to "show them what they own" and you mark their boundaries, I highly doubt that you will get sued if they find out that they technically don't own title to their deed. That would be a title issue. Just use your own "legal-ese" on your contract to make it clear that you aren't insuring title but only certifying to the boundary location.

Or that's what I think anyway.

I was going to keep my trap shut, but....

"What" you own is often different than "Where" it is located on the ground. Title and survey metes and bounds descriptions often are not one in the same verbatim.

I was going to keep my trap shut, but....

> "What" you own is often different than "Where" it is located on the ground. Title and survey metes and bounds descriptions often are not one in the same verbatim.

bstoffy, I agree. I would go into that discussion with the client if it looked like it was necessary after digging into the job. But if I got a call, and someone wanted me to stake what they owned, I would not go into some philosophical discussion regarding the title vs. the boundary at least at that stage. The "legal" description of what the owner owns, is attached to their deed. Typically they want an expert to show them where that lies on the ground and they should be able to call a land surveyor and hire him or her to do that.

Maybe I'm wrong on this, but that is my take.

Follow Up

I finally had the meeting with the client, the client's regular attorney, and the title attorney. Long story short, the title attorney stated that if he certified title to a property that had a survey plan that differed from the record description, HE COULD BE DISBARRED! He said that in these cases, a boundary line agreement MUST be done. He spoke as though this were very elementary knowledge, as if everyone should know this. He said the only exception would be with a bounding description. I told him that if this truly is the case, then most rural boundary surveys in a colonial state would result in boundary line agreements, and that is NOT the case. I've never heard of this. I asked him if he was involved in ALTA surveys, and he replied that he'd done a few, and minimized the issue. I've done my share of ALTA's, the point of which is to deal with all the title issues as well as boundary issues, and most times the survey plan does not reflect the deed verbatim, and those attorneys working with me on those were fine with it. Wish I knew an experienced attorney who could weigh in on this.:-S

Follow Up

What a pain!

Are there huge differences between record and measured?
Did you label both record and measured on the plat?

I would guess that the "title attorney" has either done very few closings and seen nothing other than a mortgage survey OR never carefully inspected a survey plat before.
The field of Law is huge, like Surveying. Lawyers, just like surveyors, begin their career, get involved with some parts of the profession, and really have no clue about other parts. Most (them and us) would be nearly incompetent to dabble in some areas without coaching by a seasoned mentor.
I have a couple attys. that ask for help dealing with clients. Usually it turns out that the atty. is very adept with transactions but has No Clue about the actual land description or the mapping, it kinda makes their head spin.

Perhaps relabel with record data Bold and measured data in a smaller font?

good luck!