Traversing the Law
August 1, 2006
In my last column (July 2006), I attempted to explain in about 2,000 words how to make a boundary determination that will win in court.
One of the suggestions I made was that flawed legal descriptions should be rewritten to remove ambiguities, thereby aiding future surveyors in their retracement efforts and avoiding needless conflict and possible litigation over issues that in many cases simply do not exist. This idea needs a bit more amplification.
Setting the StageWhen it comes to the surveyor interpreting deeds and reconciling what is written with what is on the ground, there are three broad scenarios. In the first case, the writing matches, with little trouble, the situation on the ground. There is little left to interpret. In my experience, this most often happens in the lot and block situation. In the second case, a clear and unambiguous deed shows some major discrepancies with the situation on the ground. Again, little is left up to interpretation. Any following surveyor would come to the same results--a a bona fide encroachment of some sort. The third case is an interpretation problem. Due to the calls in the deed (or lack thereof) and the recovered evidence on the ground, the deed is subject to one or more interpretations. Of these three scenarios, only the third one would be a candidate for rewriting the legal description contained in the deed.
In every surveying situation, there will always be some room for interpretation. Even in the first scenario, where the survey is of a lot in a subdivided block with original corners in place, surveyors will still set new monuments right next to existing monuments as a manifestation of their interpretation of the true location of the boundary lines in question. Other surveyors might use designations such as "map" and "measure" or "deed" and "field" to reveal these minor interpretation problems to their clients and title examiners.
In the second scenario where the occupation doesn't match the description in the deed, the writing is clear and unambiguous, and the calls in the description when applied to the evidence recovered on the ground leave very little to interpretation, we either have an encroachment on our hands or occupancy rights that have ripened into legal rights.1 This is not a situation subject to simply rewriting the legal description. This is a situation that will ultimately need to be resolved either through litigation (e.g., quiet title action) or through some sort of agreement (e.g., boundary line agreement). That is, if the owner wants insurable title (more on that subject later).
The third scenario suggests that the description needs to be rewritten to conform to the reality on the ground. Due to flawed writing or changed conditions on the ground, two surveyors will produce two different results from the same description, and if a third surveyor is hired, there will be a third interpretation. In many of these cases, two or more surveyors have already made two or more interpretations as witnessed by the pincushion corners found in place.
The cases that fall within this scenario are as wide and varying as the land itself. It could be Ma Kettle's 5 acre aliquot parts description. Ma Kettle and her ancestors have been living on their property for 150 years. Her great-great-great grandfather actually staked the boundaries with Farmer Brown, the grantor, when he bought the property in 1856. The survey problem, of course, is during the ensuing 150 years the world continued to turn. Today, one surveyor will hold Ma Kettle's position, another will break down the section and set new corners, and another will apply some other hybrid resolution. Even though Ma Kettle and her ancestors have been on the same chunk of ground for 150 years, she now has three monuments at each of her corners. This is the situation rife with pincushion and litigation possibilities. And this is when rewriting the legal description of the property should be given serious consideration.
Legal SufficiencyOne conflict that is built into our system of land transfer is that the threshold for what constitutes "legal sufficiency" of the description of real property is very low. Any first year real property student with one class on legal descriptions under his belt can probably write a legal description that the law would consider sufficient. So can landowners. "Farmer Brown's Estate," under the right circumstances, could be a legally sufficient description of property. "Farmer Brown's Estate, on Old Kentucky Road, in Nassau County, Virginia" would, in all likelihood, be a legally sufficient description of real property. The built-in conflict is that there is no requirement in the law that the legal description in the deed of conveyance match the occupation on the ground.
When lawyers and landowners write their own descriptions of real property without the benefit of a survey, we are almost guaranteed that the writing will not match the ground conditions.
Another conflict built into our system is that the one most qualified to write the legal description of real property isn't qualified, in most jurisdictions, to prepare the deed of conveyance. This is considered the practice of law. Even in those jurisdictions where the preparation of deeds isn't considered the practice of law, or where it's considered minor and the legal profession turns a blind eye to it, people in the market for real property do not naturally turn to the land surveyor to prepare the deed of conveyance. They go to a real estate professional or a lawyer who generally sees the survey as just another expense to, and a possible delay in, the closing of a real estate deal.
As we are well aware, there is also no requirement that property be surveyed. And many properties aren't, at least during the lifetime of the owner of the estate. But eventually, maybe years, maybe decades, or even centuries later, survey results are added to the mix and the conflicts manifest themselves. Why doesn't the law require that these conflicts be worked out at the original transfer of the property? Because the law expects the land surveyor to resolve this conflict, if possible, without resorting to litigation.
Sometimes litigation can't be avoided, other times it can be, and the surveyor plays a pivotal role in determining when it does and doesn't happen. The surveying community has formed into two camps: the surveyors who see themselves and the profession as problem-solvers, and the surveyors who see themselves and the profession as problem-finders.
The Pros and the ConsLet's jump into the pros and cons of rewriting legal descriptions. Some will advocate that this should never be done. "Once a description is written and a conveyance is made using that description, no matter how poorly it was written, it is rarely advisable to change it, except by agreement deed between the interested land owners and parties in interest or by court order. Generally, the object in changing a poor description is to include additional terms and descriptions that may make the future location of the property more certain or to correct errors that were discovered in the original document. But who is to say what may be added without changing the original intent of the description?"2 These are also the people who tell surveyors, "It is our belief that property rights, including property boundaries, are legal questions and as such are not addressed by land surveyors. Surveyors locate boundaries, or land boundaries or deed lines; they do not and cannot locate property rights."3
Clearly these authors are in the problem-finders' camp. The reality is that the courts and the legal system as a whole consistently look to the land surveyor for answers to these difficult questions. And clearly, the only professional situated with all of the answers is the professional land surveyor.
Unfortunately, the land surveyor in many instances creates problems that in reality do not exist. This happens, most often, in the situation where interpretation is given too much latitude. And this happens, most often, when surveyors attempt to interpret legal descriptions that are flawed. And oftentimes that flawed description is allowed to flow through the record--uncorrected--for years, decades and even centuries. Allowing flawed descriptions to continue forward through the chain is actually inviting litigation, not avoiding it. On this point I must disagree with my learned colleagues: I believe it's the surveyor's professional obligation to correct mistakes and flaws, thereby helping to ensure peaceable enjoyment of real property. If not, why do we need surveyors? Let every landowner get his remedy in court.
The primary difficulty with rewriting legal descriptions isn't that original intent may be lost. After 21 years of occupancy, intent is conclusively established in any jurisdiction in the country. The primary problem is whether the title company will insure the property based on the new description. The standard practice today seems to be to hold the description, no matter how flawed, and reveal every blemish on the face of the survey. In many instances this is still good advice, and in many situations is all that needs to be done, especially in jurisdictions where the results of the survey are published in some way, such as recording.
In many other jurisdictions, however, the consequences of this course of action have created more problems than it has resolved. For the immediate transaction that the survey was commissioned for, a survey prepared in this manner is very conducive to a smooth title transaction. The title company is happy, the lawyers are happy (although they probably require extra attention to explain what the differences mean), the buyer is happy, the seller is happy, everybody is happy. Turn the page. Next surveyor comes along with this flawed description, not privy to the previous interpretation, and makes a new interpretation and determination of the location of the boundary lines. Can you say pincushion? Actually, we should hope that a pincushion corner is all that results. Unfortunately for the landowners involved, this situation often results in litigation, costing them thousands of dollars and unlimited pain, suffering and enmity.
Another pitfall with rewriting legal descriptions is that if not properly done, the rewritten legal description creates more problems than it solves. But if the task were easy, the world wouldn't need professional land surveyors to solve these problems. So what do the title companies want to see in order to insure the property based on a rewritten legal description? Unfortunately, there is no pat answer. It depends on the title company involved, the individual title examiner, or the attorney giving an opinion of title--too many variables to have a standard answer. The bottom line is whatever the title company is willing to insure is OK. So the obvious first stop is a conversation with the title company involved with the transaction about your plans to rewrite the description of the property.
If you are left to your own devices, the best course of action is to rewrite the description in a way that assures the examiner or attorney writing an opinion that you are describing the same property that appears in the chain. You could start out with a complete recitation of the flawed description followed by a "more particularly described as" description of the property. This works fine in most circumstances and will usually satisfy the most cantankerous title examiner.
Another approach is to cite all of the deeds that constitute the subject property in the rewritten description. If the property is fully described by one or more deeds, this must include all of the deeds that are applicable. If the property is fully described by applying conveyances that have taken place over the years, then all of the conveyed parcel must be cited and excepted. The next task to accomplish is the whole reason for rewriting in the first place: monument the calls, bound the calls, call out adjoiners by citation, and leave huge footprints behind for the next surveyor to follow.
Be Part of the SolutionThe bottom line on rewriting legal descriptions is that, contrary to what some commentators have suggested, it is a good practice under the right circumstances and will lead to less litigation, not more. And the courts, attorneys (to a lesser extent) and the general public expect that the surveyor is actually working on the resolution of these problems, not creating problems that in reality don't exist.
There will always be a certain level of conflict between the written conveyance and the situation on the ground. It's the surveyor's job to resolve the great majority of these conflicts and to preserve the integrity of the nation's property boundaries. This must include the recognition of property rights, interpretation of property law as decided in case law and established by statute, an application of the principles of land surveying, and a working professional relationship with others involved in real property transactions. The surveyor must also be a valuable contributor to the integrity of the written record of property transactions, including rewriting flawed descriptions of property. It's a question of when, not if, that flawed description will result in needless conflict between adjoining landowners, or worse, litigation. Being anything less than a valuable contributor makes the surveyor a part of the problem, not a part of the solution.
Neither the author nor POB intends this column to be a source of legal advice for surveyors or their clients. The law changes and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.