Gap/Title issue
I am working on an ALTA, and the legal description is essentially all of Gov't Lot 4 with a few excepted out parcels. The problem exception is based on a deed dimension of "58' north of the NW corner of lot 16 of gov't lot 5". The NW corner of lot 16 is also intended to the SW corner of Gov't Lot 4/NW corner of Gov't Lot 5 The subdivision of Lot 5 created multiple additional lots to fill in the space between an existing subdivision within Lot 5 and the north line of Gov't Lot 5/south line of Gov't Lot 4. I found the monumented south line of Lot 4 and the NW cor. of lot 16, which there is a 42' discrepency. The NW cor of lot 16 was established by platted distance up from a road within the Lot 5 subdivision. The road itself runs Ne'ly and the Gov't Lot line runs SE'ly so there is an apparent sliver gap based on the platted dimensions. That distance error is also a nearly perfect amount of proof that the plat dimensions were transposed. (3.07 chains recorded, I measured 3.704 chains). I'm fighting with the sellers attorney because I'm holding the south line of Gov't Lot 4 because it matches the angled line of the GLO survey and an old fence farther east than where the problem is at. This changed the deed dimension from 58' to 16'. Meaning they are losing the additional 42' of N/S road frontage that they've been occupying. I have told the attorney my defense of the south line as monumented and explained that distance discrepancies happen all the time, however he is still pushing to move the line 42' south based on the occupation, which would theoretically create a new 'SW corner of Gov't Lot 4' in the face of previously established and reaffirmed monument. I told the attorney I am of the opinion a judge will have to decide that line based on likely acquiescence, maybe adverse possession, because you only have title to Lot 4 and the title exception still physically lies within Lot 4, just a bad commencing distance. Any additional thoughts are appreciated.
Can you provide a map of the Lots and lots to help us visualize the issue?
If the owners were ok with occupation until now why not quit claim the overlap area in lot 16 without getting a judge involved? I have no problem with where your opinion of the government lot line is. I don't care for the way you phrased that the deed for lot 16 changes. It could possibly measure different than the deed says but that's not the issue. The issue is ownership and you make it sound like its on paper but not on the ground. Let the attorney fix that on paper however he will and then finish the survey. I would not take on the liability of calling the government lot line a boundary in this instance until the problem is fixed on paper. I might prepare an exhibit showing the locations of lot 16 and the government line but I would clearly indicate it's not a boundary survey. Because this is an ALTA its most important to get this fixed before a boundary is surveyed. If some other survey firm wants to take on the liability that's on them.
The attorney is now considering a quit claim deed, once it get the legal drafted for him. I've never had to deal with an attorney like this before so I'm taking notes on how to properly respond when a problem like this comes up.
The 5/8" I.R. that is 42.58' south of the section line is the problem 'NW cor of lot 16'. The E/W blue line going east from it is the platted north line of GL 5. The entire subdivision of Lot 5 has a bunch of platted vs occupied errors. I currently show Lots 14, 15 and 16 as extending north to meet the south line of GL 4
Is it fair to say lots 14, 15, and 16, of Govt Lot 5 Were subdivided by plat to the northline depicted by the 5/8" rebar 42.58' south of the intersection of the South line of Govt Lot 4? And if this is the case, the land between this subdivision line and the south line of Govt Lot 4 was never transferred to the owners of Lots 14, 15, and 16 since they purchased the platted subdivision lots. Thus you may want a quit claim deed from the owner of all of Govt Lot 5, the same owner who subdivided the lots 14, 15, and 16.
Here is the official plat copy, I got interrupted when I was about it send it with the other one
Your findings are what they are, you obviously did your due diligence and there is no moving anything based on the evidence. If the attorney wants the situation fixed, let him draft the BLAs, get them filed, then show them accordingly with an explanation. Something has to give on the legal end to make title marketable.
