Unrecorded Plats and Simultaneous Conveyance
Land use professionals have good reason to pay close attention to the twin concepts of “simultaneous conveyance” and “sequential conveyance.” These principles often shape the outcomes of court disputes where descriptions for neighboring tracts overlap. Such overlaps are often the result of poor retracement but may also arise from conflicting descriptions in original government grants. It is the original division of land that controls, rather than later re-conveyance of existing parcels.
Sequential conveyances are indicated when a common grantor sells parcels in a “piecemeal” or random manner. In these transfers, all grantees are senior to the original grantor, or to any remainder of the parent tract. Lots sold and recorded at a later date generally are considered junior to those sold earlier because the grantor – in theory – cannot sell lands already conveyed to a prior grantee. For sequential conveyances, applying a proportional solution to discrepancies is not generally acceptable. The “race-notice” and “notice” statutes found in most states further complicate matters when dealing with sequential sales from a common grantor.
Simultaneous Conveyance is Based on Intent
By contrast, evidence of intent by the grantor to create a group of lots simultaneously leads the court to view all resulting parcels as having equal validity amongst themselves. Subdivision maps are a common basis for simultaneous conveyances, but they can also arise in situations where no plat exists. Where lots are then sold by express reference to a plat or partition, the order of sale is immaterial to the seniority of the individual lot titles for purposes of determining boundaries between them.
Early court decisions establish that a call for a plat creates a legal bond between the plat and the deed; it is as if the plat were physically attached. In Proprietors of Kennebec Purchase v. Tiffany: 1 Me. 219: (1821), the Maine court observes: When land is granted or conveyed according to a certain plan, such plan, in legal construction, becomes a part of the deed…
In limited circumstances, apportion-ment of excess or deficiency may be appropriate where simultaneous conveyances are indicated. This principle is illustrated in Whitten v. Hanson, 35 Me. 435 (1853). The original co-tenants partitioned the parent tract between themselves. They hired Thomas Quimby to prepare a plan to divide the tract, but Quimby failed to view the site or perform any survey work. The resulting plan included inaccurate dimensions. The court ruled that apportionment was appropriate because the intent was to divide the entire parent parcel. The intent by the parties to create a simultaneous conveyance scenario does not require any survey.
For parcels created by simultaneous conveyance, apportioning should not be used to reject corners set by the original parties to the division. Apportionment may also at times come into conflict with theories of practical location and adverse possession.
Recorded or Not?
Recording a plat is not a prerequisite to proving simultaneous conveyances. Some situations that result in simultaneous conveyance do not require a plat, such as partition deeds, wills, and divisions of tracts between co-tenants. Ultimately, it is the intent of the parties as evidenced by the deeds, maps, and surrounding circumstances that prove the intent to create a simultaneous conveyance.
The South Carolina court recognizes the significance of unrecorded plats in determining the intent of the parties. Phillips v. Du Bose, 223 S.C. 224 (1953) notes: Incorporated in the description by express reference is a plat by E. J. Smith, surveyor, dated April 18, 1912. This apparently unrecorded plat is of important significance in the controversy although it was not introduced in evidence.
Other states agree that the intent of the parties does not depend on whether the plat is put on record. The early Missouri decision Schreiber v. Osten, 50 Mo. 513 (1872) considers the significance of two plats – one was recorded, the other was not. The first plat, duly recorded in 1851, depicted a city block divided into 16 lots. Before any lots were sold, a separate plat showing the same area divided into 17 lots was completed but not recorded. Lots 16 and 17 were then sold by deeds that did not distinguish between the two surveys.
The ultimate issue in this case was to determine which plat was controlling. Evidence indicated that the parties took possession and made improvements in accordance with the unrecorded survey. Since this case did not involve conflicting grants or notice by later purchasers, the court concluded that the unrecorded plat represented the true intent of the parties.
In Whittington v. Mann, 211 Md. 199 (1956), the Maryland court describes a very different outcome but reinforces the conclusion that the intent of the parties is not dependent of recording or lack thereof.
Filed vs. Recorded
For states that have created separate filing systems for unrecorded surveys, merely storing a map in a government-approved filing system is not synonymous with recording the plat. However, these supplemental filing systems are generally beneficial for providing more dependable access to unrecorded maps that might otherwise be unavailable.
The Wisconsin decision TJ Auto v. Twist Holdings; 851 N.W.2d 831 (2014) describes the more traditional method of recording plats in the register of deeds office, but also recognizes a second system for filing plats in the office of the county surveyor. The latter system is authorized under a separate statute and is independent of requirements associated with recorded plats. In this instance, further confusion resulted because the plats filed to the office of the county surveyor were actually stored in the register of deeds office. However, the court distinguished between the separate legislative history of the two systems and the distinctions between “filed” and “recorded” surveys.
Another borderline example appears in the Missouri decision Independent Gravel Co. v. Arne, 589 S.W.2d 652 (1979). A tax lien was filed against parcel M-16-B, a designation found only on a map filed in an unrecorded atlas. The original collection of filed maps was stored in the office of the city engineer and a second copy was kept by the county assessor. The court states a preference for references to recorded plats, but concedes the legitimacy of unrecorded maps expressly referenced by a deed.
Which Plat to Retrace?
The significance of an unrecorded survey and the potential pitfalls for later retracements is admirably illustrated in the Florida decision Willis v. Campbell, 500 So. 2d 300 (1986). In this instance, the owners of the parent tract sold an aliquot parcel and reserved a 30-foot easement along the east line of the tract. An existing fence was presumed at the time to represent the east line as per the original sale and an existing “trail road” just west of the fence was the object of the easement reservation.
A flawed 1984 retracement seemed to indicate that the old fence did not accurately reflect the eastern limits of the Campbell tract. A new fence constructed in accordance with the 1984 survey ran up the center of the old trail road.
A subsequent survey recovered evidence of a prior unrecorded subdivision of the area, known as the Cook survey. This early subdivision was consistent with the original fence line: The boundary line established by that unrecorded plat will control over a subsequent resurvey purporting to accurately locate the boundary line, if the original survey lines can be located and determined. … As stated by our Supreme Court in Akin:
In making a resurvey, the question is not where an entirely accurate survey would locate the lines, but where did the original survey locate such lines.
The court concluded that that the original subdivision controlled the locations of the disputed boundaries even though the plat was unrecorded and the original surveyor applied inappropriate standards in his original determination of the existing section lines.
The significance of a simultaneous conveyance sometimes extends beyond determining boundary locations. For example, the sequence of sales can be a factor when considering implied easements. In Mann-Hoff v. Boyer, 604 A.2d 703 (1992), the Pennsylvania court considers additional factors that may affect the outcome when considering an easement implied by prior use, including: (d) whether the claim is made against a simultaneous conveyance…
The issues discussed above highlight the absolute need for comprehensive research and for clear understanding of concepts associated with the division and sale of real estate. Surveyors and other land use professionals must also recognize the significance of various methods used to perpetuate the maps that can prove the intent of the parties.
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law can change over time and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source is an attorney admitted to the bar in your jurisdiction.