One Dropped Word Leads a Long-Term Surveying Problem
The building was located on two 25 x 120-foot lots (Lot 1 on the north and 2 on the south) platted in the late 1890s. The original owner constructed a single-family residence straddling the common lot line.
In 1992 the property was purchased by Short who renovated and converted the building into a duplex. The new lot line was formed by the interior party wall which had been constructed over parts of both lots. Two new legal descriptions were prepared and used to convey fee-simple ownership initially to Smith on the north and Harris on the south.
The opening paragraph of the Smith description identified the property as being located in parts of Lot 1 and 2 and followed with a metes-and-bounds description of the new parcel. The description began at the southwest corner of Lot 1, the followed the west, north, east and south lot lines to the intersection with the east building wall. From that point the description followed the party wall back and forth over both Lots 1 and 2 to the intersection with the west building wall and then followed the south line of Lot 1 to the point of beginning.
Good so far.
The second legal was for the Harris property on the south. The Harris description used the same introductory paragraph as Smith over portions of Lots 1 and 2 but inserted the word “except” after the introduction and then followed with the same Smith metes and bounds description.
Still good? Turns out not so much.
In 1995 Harris deeded to Brown, but then came the problem. The scrivener somehow dropped the word “except” between the introductory paragraph and the metes and bounds paragraph. Consequently the Smith property, in which Harris had no interest, was actually described in the deed. A survey was not conducted. The mistake went unnoticed. In 2005 Brown deeded to White using the same legal with again no survey. My client intended to purchase from White in 2013.
The survey crew completed the field work based on the address in the title commitment. Obviously the field work would have been the same for either property. The drawing was completed by a technician and submitted to me for review. I’m one of those old-timers who actually reads the legal description and draws the property out by hand. I caught the problem.
There was no technical problem with the description. It was everything the text books call for; concise, complete, accurate and completely free of ambiguity. In fact it was due to the well-written legal description there was no doubt that in 1995 Harris deeded property to Brown he did not own. Consequently Brown deeded to White property that he did not own.
This was the point I realized that I had not, heretofore, “seen it all.”
The property was also an illegal subdivision under Colorado Law. That I had seen before. Many times. An administrative plat would remedy that problem with little difficulty so that was the least of concerns. The obvious legal remedy for the ownership problem was a law suit to quiet the title. That didn’t sit well with me from an equity standpoint given the circumstances.
The mistake that mattered was clearly a typographic error. There was no suggestion of an attempt to defraud. Harris, Brown and White each took occupation of the same property and had each, individually paid property taxes on the same property continuously over more than 20 years consistent with the records in the assessor’s office. There had been no intervening claims or known documents in all that time. Certainly estoppel doctrine would make short work of any future claim from Harris or Brown. It seemed to me there must be a better cure that resorting to a law suit.
I reviewed Titles 12 and 38 of the Colorado Revised Statures and title standards promulgated by Colorado, Ohio and Florida to develop a good understanding of the potential remedies prior to discussing the circumstances with the client. The two remedies available I could come up with would be either a correction deed or an affidavit.
The correction deed was problematic given the timing in the chain-of-title. It was unlikely that the concerned parties would be readily available after a 13-year lapse. The affidavit seemed the better approach to correcting an obvious, typographical error. There are two types of affidavits under Colorado law. A scrivener’s affidavit (CRS 38-35-109 (5)) and an affidavit of correction (CRS 38-51-111).
The scrivener’s affidavit would arguably be the most direct. An attorney would file the document simply adding the word “except” following the introductory paragraph. On the other hand, the affidavit of correction submitted by a surveyor could correct the mistake adding a new metes-and-bounds description of the southern property.
The difficulty is that while either affidavit would provide notice of the clarification of the intent in a recorded deed, neither would directly remedy the defect. Moreover, neither affidavit would be part of the chain of title. Consequently, constructive notice would not necessarily be provided. Apparently there was no satisfactory approach short of a quiet title action.
This was not a high-value property. My sense was the client would not move forward with the project under the circumstances. That of course was not my problem except for the fact I have always felt a professional obligation, or call it a challenge, to harmonize property conflicts. In this case, I hadn’t. I had fallen short of my goal.
I phoned the client and provided him with my findings. A conference call ensued with the seller, the title company and the attorney’s involved on all sides. During the call the consensus developed that there was no ready, straight-forward approach to sell the property other than a law suit to quiet the title.
As I suspected my client’s interest quickly evaporated. I was instructed to stop work and submit an invoice for the work completed to date. So it goes.
It seems to me that from the surveyor’s perspective this problem was probably unforeseeable. In hindsight it would have been better to avoid the use of “except” in favor of a more affirmative description of the property itself. Less than an hour’s work writing a new metes-and-bounds would have saved a great deal of trouble. The old adage that “if something can go wrong, it will” proved true in this case.
There is a case to be made to using identical language for the two descriptions that share a common line. Having said that, based on this experience I will tend to use the more affirmative approach in describing property in the future.
I did point out in the conference call that if a survey had been conducted for the previous conveyances then this situation would have been avoided. I went on to offer the advice that a surveyor should always be part of every land transaction. I can’t count the number of times I have offered that exact advice over the years. The response this time was no different than those countless other occasions – everyone pretended they didn’t hear me.
Since the ALTA survey was never produced, I didn’t invoice the full fee on this project. I did however gain a better understanding of the limitation of affidavits. I had filed affidavits of correction but always just to correct a typographical error in one of my own work products. To be honest, the chain-of-title implications had never occurred to me.
I continue to believe that the land surveyor has an obligation to harmonize property conflicts that goes beyond the technical aspects of the profession. It was unfortunate that I wasn’t able to develop a more reasonable remedy for the circumstances. If the reader is aware of some aspect I missed, I would be grateful if that information could be passed along. One final thing I learned.
No matter how long you’ve been in practice, never, ever, think you’ve seen it all.
Jim Jones is in private practice in Denver, Colorado. He has worked in land surveying and civil engineering in Colorado since 1971. His focus is on the legal aspects of land surveying with the goal of enhancing the status of the profession with both the public and colleagues.