Advanced Legal Description Writing · 2018. 4. 2. · Lenders often make demands of the surveyor ... • Explain the meaning of words in the conveyance • Explain conditions existing

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Maryland Society of SurveyorsHunt Valley, Maryland

October 5, 2017

Presented by Gary R. Kent, PS

~ Advanced ~

Legal Description Writing

I. Background and Considerations

A. MD Statutes/Codes/Regulations

B. ALTA/NSPS Standards

C. Lender requirements

II. The Sufficient Legal Description

A. Purpose and Sufficiency

B. Do’s and Don’ts

i. Gaps and Overlaps

C. The effect of words and phrases

D. Determining or establishing intent

i. Unwritten rights

E. Determining what controls

Program Agenda

E. Determining what controls

i. References to monuments

ii. References to maps and plats

iii. Curves

iv. Water boundaries

v. Subterranean /aerial descriptions

vi. Reversionary rights

III. Types of legal descriptions (11 types)

IV. Exercises

A. Basic

B. Moderate

C. Challenging

D. Easements and 3-D

Program Agenda

§15–101.

(k) (1) “Practice land surveying” means any

service, work, documentation, or practice, the

performance or preparation of which requires the

application of special knowledge of the principles of

mathematics, the related physical and applied

sciences, and the requirements of the relevant law,

as applied to:

Background and Considerations

(i) measuring, platting, and locating lines, angles,

elevations, natural or artificial features in the air, on

the surface of the earth, in underground work, and

on the beds of bodies of water for the purpose of

determining and reporting positions, topography,

areas, and volumes;

(ii) the platting or replatting, establishing or

reestablishing, locating or relocating, or setting or

resetting the monumentation for boundaries of real

property, easements, or rights–of–way


09.13.06.08 Metes and Bounds Descriptions

A. Purpose. The purpose of a metes and bounds

description is to create a written legal description of

the subject tract of land that provides information

necessary to properly locate the property on the

ground and distinctly set it apart from all other

properties.



B. Result.

(1) A metes and bounds description shall indicate

the general location of the property by:

(a) Naming the particular lot or block, or other

acceptable identification within which it is located, if

the property is located in a subdivision; or

(b) By reference to the deed for the parcel being

described, and information with regard to tax or

election district, county, and state.



(2) The description shall also logically compile and

incorporate calls for the following:

(a) Courses and distances with a statement

regarding the basis of bearing;

(b) Adjoining record title lines, and rights-of-way as

appropriate; and

(c) Statement of the subject land area.



(3) The point of beginning shall be carefully chosen

and described in a manner which will distinguish it

indisputably from any other point.

(4) Curved boundaries shall include sufficient data to

define the curve, including the direction of curve,

radius, arc length, chord bearing, and chord length.

The description shall also include the identification of

nontangent curves.



(5) If a metes and bounds description is based upon

a boundary survey performed in accordance with

Regulation .03 of this chapter, sufficient monuments

or reference control points which were used to

determine the property lines shall be called in the

metes and bounds description.



(6) The metes and bounds description shall contain

a statement to the effect that a licensee either

personally prepared a metes and bounds description

or was in responsible charge over its preparation

and the surveying work reflected in it, all in

compliance with requirements set forth in Regulation

.12 of this chapter.



(7) The metes and bounds description shall be

signed and sealed by a surveyor who personally

prepared or was in responsible charge over the

preparation of the metes and bounds description.


2016 ALTA/NSPS Standards

Section 6.

A plat or map of an ALTA/NSPS Land Title Survey

shall show the following information….



Section 6.B.ii.

Any new description of the surveyed property that

was prepared in conjunction with the survey,

including a statement explaining why the new

description was prepared.

Except in the case of an original survey, preparation

of a new description should be avoided unless

deemed necessary or appropriate by the surveyor

and insurer.



Section 6.B.ii.

Preparation of a new description should also

generally be avoided when the record description is

a lot or block in a platted, recorded subdivision.

Except in the case of an original survey, if a new

description is prepared, a note shall be provided

stating (a) that the new description describes the

same real estate as the record description or, if it

does not, (b) how the new description differs from

the record description.


Land Title Surveys

Lenders often make demands of the surveyor

regarding legal descriptions

• Recognize what is reasonable and what is not

• How to address the issue

Lender Requirements

Land Title Surveys

John Hancock Life Insurance Company

• The surveyor is to prepare a new metes and

bounds legal description of the perimeter of the

limits of the Property with reference to record

course distances and bearings.

• If conveniently available to the surveyor, the new

description shall also reference adjoining property

owner.

Lender Requirements

Land Title Surveys


• The description of the Property shown on the

survey must conform to the legal description

shown in the owner’s title insurance commitment

for the Property.

Lender Requirements

Land Title Surveys


• The new legal description shall be followed by a

note stating that it describes the same property as

shown of record and in the title insurance

commitment.

• An example of this note is as follows:

Lender Requirements

Land Title Surveys


• "The foregoing legal description describes the

same property as shown in the vesting deed,

recorded at __________ and is the same property

described in Schedule A of title insurance

commitment no. __________ bearing an effective

date of _________ as prepared by

____________."

Lender Requirements

Land Title Surveys


• If the new perimeter legal description describes

different property, then the required note shall

explicitly describe how it varies from the record

and title insurance commitment legal description.

Lender Requirements

Land Title Surveys


• A metes and bounds description must comply with

the following standards:

Lender Requirements

Land Title Surveys


• The legal description should be a single perimeter

description of the entire Property and should

return to the Point of Beginning.

• If the Property is formed by two or more

contiguous tracts of land, the new legal shall be a

composite legal that describes the overall

boundary of all tracts.

Lender Requirements

Land Title Surveys


• If the Property is two or more non-contiguous

tracts of land, then a separate metes and bounds

description will be needed for each non-

contiguous portion.

Lender Requirements

Land Title Surveys


1. The Point of Commencement (“POC”) and/or the

Point of Beginning (“POB”) should be shown on

the survey and established by an existing

monument either marking the exact point or on

nearby reference points so its position can be

recreated by future surveyors easily and

accurately.

Lender Requirements

Land Title Surveys


• The POC and/or POB chosen shall comply with

local practices for the recordation of the new legal

description.

• In the absence of local mandates, the POC and/or

POB shall be points of intersection of right-of-way

or center lines of public streets or roads or at

original lot, tract or section corners.

Lender Requirements

Land Title Surveys


2. The sides of the Property should be described by

stating each course distance, bearing and the

bounding property owner whether owned

privately or publicly with recording reference.

In lieu of bearings, it is equally acceptable to use

the interior angle method, provided that the

beginning point is located on a public street line

or other properly fixed line or the course of the

first side is otherwise properly fixed.

Lender Requirements

Land Title Surveys


3. The distances, bearings and angles should be

taken from a recent on-the-ground instrument

survey by a licensed civil engineer or registered

surveyor.

Lender Requirements

Land Title Surveys


4. Curved sides should be described by data

including: length of arc, radius of circle for the

arc and chord distance and bearing.

5. Where a survey course is part of a dedicated

public street or road line, the course may be

described by indicating the distance and direction

the course takes along the street line from the

end of the previous course.

Lender Requirements

Land Title Surveys


6. All easements appurtenant to the Property must

be added to the end of the legal description using

the same identical language as contained in the

vesting document of record.

If any such legal is incorrect or inaccurate, then

the survey shall report this in a note after the

description.

Lender Requirements

Land Title Surveys


Additional Acceptable Descriptions

1. A description composed of lots and/or blocks

including a reference to a recorded map or plat

that shows the lots or blocks is usually adequate.

Lender Requirements

Land Title Surveys



2. Although encountered in only a few cases, a

description of a parcel bounded on all sides by

streets or alleys can acceptably refer only to the

bounding lines of the streets or alleys.

Lender Requirements

Land Title Surveys



3. A description of registered property is acceptable

if in form required by the local Torrens Act or

approved in the registration.

Lender Requirements

Purpose

• Describes the unique shape, size and location of

real property

OR

• Provides the means by which the unique size,

shape and location can be ascertained.

The Sufficient Legal Description

Sufficiency

• A competent person (professional surveyor) can

locate the described real estate on the ground

• With or without reference to extrinsic evidence


Extrinsic Evidence

• May be considered to:

• Explain the meaning of words in the conveyance

• Explain conditions existing as of the date of the

conveyance


Extrinsic Evidence

It is true that "[i]f the text of the easement is

ambiguous, extrinsic evidence may be considered

by the trial court in order to determine the scope of

the easement."

However, considering extrinsic evidence in the

absence of ambiguous language is "clearly

inconsistent with the well-established principles of

legal interpretation... and is thus incorrect.“

Blackhawk Dev. Corp. v. Village of Dexter, 700 NW 2d 364 -

Mich: Supreme Court 2005 [internal citations omitted]


Sufficient?

EXCEPTING also a piece of ground about 7 feet

wide and 14 feet long near the Northeast corner of

the West Half of the Northeast quarter of said

Section, Township and Range aforesaid.


• Be clear, concise and complete

• No abbreviations

• Confirm accuracy of caption

• Write intent into the description; do not let the

math do the work (it won’t!)

• Include a basis of bearings

• Provide adequate curve data (including tangent or

non-tangent)

• “Described in” a deed, not “Conveyed by” a deed

• “Except, however,” vs. “Subject to”

Do’s and Don’ts

• Be clear when multiple exceptions

Do’s and Don’ts

500’

Except 100 feet off the entire east side thereof.

Except 80 feet off the entire west side thereof.

100’80’

500’

Except 100 feet off the entire east side thereof.

Except 80 feet off the entire west side thereof.

100’

80’

20’

• Be clear when multiple exceptions

• Proper reference to meander line

• Proper reference to water boundary

• Include datum when referencing an elevation

• Do not include wording as to the use of an

easement in the description

• Deed vs. Measured?

• “Along the fence”

• What is on your list of do’s and don’ts?

Do’s and Don’ts

Do not include gaps or overlaps in new descriptions

unless:

• The client has written title either from a previous

owner or from a court decree

or

• An attorney will issue an opinion vouching for it

or

• A title company will insure it (in the case of a Land

Title Survey)

Gaps and Overlaps

If a description including a gap or overlap is

prepared for purposes of litigation or relating to an

attempt to resolve a problem:

• Clearly outline purpose of the description

• Be clear surveyor is not offering an opinion on title

Gaps and Overlaps

When words, or the lack of them, or the arrangement

of them, used in descriptions results in ambiguity,

both the interpretation of them and the physical

location of the boundary lines from them become

questionable.

Writing Legal Descriptions: In Conjunction with Survey

Boundary Control, Gurdon Wattles (1976)

Understanding the Effect of Words

and Phrases

• Caption

✓ General location

✓ Limits title

• Body

✓ Describe the property, or

✓ Provide the means by which it can be

identified

• Qualifications/Augmenting phrases

✓ Consider items of title vs. location

Parts of a Legal Description

As just described, the trial court in this case declared

the partial release provision ambiguous and then

sought to ascertain the intent of the parties through

the use of evidence extrinsic to the contract itself.

These actions implicate the role of the judiciary in

contract interpretation and the use of extrinsic

evidence for interpretative purposes.

Determining or Establishing Intent

Maryland law generally requires giving legal effect to

the clear terms of a contract and bars the admission

of prior or contemporaneous agreements or

negotiations to vary or contradict a written

contractual term.

Under the parol evidence rule, a written agreement

"discharges prior agreements," thereby rendering

legally inoperative communications and negotiations

leading up to the written contract.


The requirement that courts give legal effect to the

unambiguous provisions of a contract and the rule

that prohibits the admission of parol evidence for

ascertaining the parties' intent provide a necessary

legal foundation for the certainty of contracting

parties.

Colomiris v. Woods, 727 A. 2d 358 - Md: Court of Appeals

1999 [internal citations omitted]


"A deed is a contract[,]" and, "`[a]s with any

instrument, a deed must be read as a whole in order

to ascertain the grantor's intent.'"

Contracts, such as deeds, are subject to the parol

evidence rule, which precludes the use of extrinsic

evidence when interpreting unambiguous

contractual language,

but ambiguous contracts open the door to the

admission of extrinsic evidence to establish the

actual intent of the parties.

…


An ambiguity can be either patent or latent[.]

This Court has held that extrinsic evidence may not

be used to identify a patent ambiguity because a

patent ambiguity appears from the face of the

document.

However, extrinsic evidence may be used to show

that a latent ambiguity exists. . . .

…


A latent ambiguity exists when the language in a

contract appears to be clear and intelligible and

suggests a single meaning, but other facts create

the "`necessity for interpretation or a choice among

two or more possible meanings.'“

…


To verify the existence of a latent ambiguity, a court

must examine the extrinsic evidence presented and

determine if in fact that evidence supports an

argument that the contract language at issue, under

the circumstances of its formation, is susceptible to

more than one interpretation.

Then, if a latent ambiguity is found to exist, a court

must examine the extrinsic evidence again to

ascertain the meaning of the contract language at

issue.

Halberg v. PFEIFFELMANN, Mich: Court of Appeals

2012 (unpublished)


A. Right of Possession (unwritten conveyances)

B. Senior Rights (in the event of an overlap)

C. Written Intentions of Parties

1. Call for a Survey or an actual survey on which the

conveyances is based

2. Call for monuments

a. Natural

b. Artificial

3. Adjoiners

4. Distance and Direction

5. Direction or Direction

6. Area (quantity)

Brown’s Boundary Control and Legal Principles, Fifth Edition, Brown,

Robillard and Wilson, p. 307


No one has the legal right nor vested authority to

change any line of a recorded title without a new and

proper document in the recorder’s office to support

it.

Writing Legal Descriptions: In Conjunction with

Survey Boundary Control, Gurdon Wattles (1976)

Unwritten Rights/Rights of Possession

[Unwritten rights], like adverse possession, require a

court decree to be perfected.

This removes them from the boundary law principles

that the land surveyor could and should employ in

the determination of boundary location.

Jeff Lucas, Esq, PLS


• Long-standing lines of possession may be

evidence of parol agreement or acquiescence.

• Can the surveyor change a description to match

such lines?

• Questions to consider…

• Is there any ambiguity in the description?

• Are the current owners the original parties to

the acquiescence or parol agreement?

• Are they still in agreement as to the line?

• Have they started arguing about the line?


• If there is ambiguity in the description...

• Perhaps the long-standing line is the best

evidence of the boundary

(regardless of whether it meets the criteria for an

unwritten conveyance)


[T]he surveyor should hesitate long before doing

anything to the disturbance of settled possessions.

Occupation, especially if long continued, often

affords very satisfactory evidence of the original

boundary when no other is attainable; and the

surveyor should inquire when it originated, how, and

why the lines were then located as they were, and

whether a claim of title has always accompanied the

possession…

The [Quasi-] Judicial Function of Surveyors, Justice Thomas

Cooley, 1881


It is always possible, when corners are extinct, that

the surveyor may usually act as a mediator between

parties and assist in preventing legal controversies

by settling doubtful lines.

[T]he same authority that makes [the surveyor] an

officer and entrusts him to make surveys, also allows

parties to settle their own boundary lines,

and considers acquiescence in a particular line or

monument, for any considerable period, as strong if

not conclusive evidence of such settlement.

The [Quasi-] Judicial Function of Surveyors, Justice Thomas

Cooley, 1881


For possession to be considered evidence of the

original lines…

• There was an early survey that, if located, will

control the line between the adjoiners

• The lines of possession are along the lines

surveyed or presumed to have been surveyed by

the surveyor

• Usually, but not always, a series of possessions,

in agreement with one another, substantiate one

another


For possession to be considered evidence of the

original lines…

• Possession is an ancient matter of a former

generation (if it is of a present generation

someone can testify about its origin).

• Possession has the reputation of being on the

correct survey lines


• Unless ambiguous, intentions of the parties come

from the written document

• Yet surveyors “Follow in the Footsteps of the

original surveyor.”

• Are those footsteps expressed within the

document?

• If the description in the document was the product

of a survey, then that source - the survey - is the

best evidence of what was intended


References to monuments

• Natural

• Artificial

• Adjoiners

Consider how the description will be interpreted if

there is a conflict between monuments

• Example…

Determining what Controls

References to maps/plats/survey

• Clear expression of intent

• Preferably of record

• What if not recorded?


References to unrecorded maps/plats/survey

• “…being that 5.64 acre parcel surveyed by Gary

R. Kent, Indiana Professional Surveyor

#80040389 and shown on a plat of survey

certified on March 31, 2017 as The Schneider

corporation Job number 2586.001 and last

revised on April 4, 2017 (all monuments

referenced herein are as set or found on the

aforesaid Kent survey), being more particularly

described as follows:…”


Curves

• Two independent elements plus direction

• Typically: radius, arc length, chord

bearing/distance, direction

• Radius, arc length, direction to/from radius point

from beginning and end of curve

• Assumed tangent if description does say

otherwise

• Non-tangent curve does not have a PC or PT

• Compound/reverse templates


Water Boundaries - considerations

• Navigable vs non-navigable

• Extent of title in the beds of navigable waters of

the state

• Common law precedent relating to calls “to” a lake

or stream

• River and Lake Boundaries (Second edition),

James A. Simpson, Plat Key Publishing, 2005


Water Boundaries – considerations in MD

• When describing a water boundary, the scrivener

must recognize how far the upland owner’s title

extends into a navigable or non-navigable stream,

lake and the nuances of tidal waters.


Water Boundaries - considerations

• Meander lines

Be very clear that the described line is, in fact, a

meander line

“… to the easterly low water line of the Crystal

River; thence meandering said low water line the

following __ courses, (1) North 13 degrees 26

minutes 00 second East a distance of 257.00

feet; (2) thence North 15 degrees 25 minutes 00

seconds West a distance of 310.00 feet; thence

…”


Aerial and Subterranean

• Vacations over/under public streets

• Tunnels

• Aerial walkways

• Underground parking garages

• Avigation rights over runways

• Be clear on the datum (avoid reliance on specific

benchmarks, or specify the elevation to be

associated with them)

• Examples in handout


Reversionary Rights - Considerations

• What is “Right of way” – easement or strip of land?

• What is “reverting?”

• Fee vs. right of way/easement

• Reversionary rights to centerline?

• Depends to where originating underlying fee

extended


Reversionary Rights - Considerations

• Apportionment of rights associated with

Vacation/Abandonment

• Equitable

• Prolongation of side lines

• Proportionate frontage

• Radial lines

• Right angles

• How to describe?


Reversionary Rights – Title considerations

• Apportionment of rights associated with

abandonment of railroads

• Who has underlying title?

• Sketch


Rights of way - Considerations

• Calls “to” a street or road…

• California rule (excludes title in non-fee

street)

• New Jersey rule (includes title in non-fee

street)


Lots and streets

• Calls to lot lines and corners vs. right of way line


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Case Study – Plat recorded 1965

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“Lots contiguous to shoreline of the lake shall

extend only to the shoreline of the lake to which

such lot is contiguous, as said shoreline would

be established on the date hereof if the water

elevation in said lake were at an elevation one

vertical foot above the normal pool water

elevation indicated hereon and as said

shoreline may hereafter be established by the

water at an elevation one vertical foot above

normal pool water elevation, by erosion from

said shoreline.”

Wording from plat

80

Historical Conditions

81

Current Conditions

82

“Except that part of Lot 1127 described as follows:

Beginning at the Northwest corner of Lot 1127;

thence Easterly along the North line of said lot a

distance of 25.0 feet; thence southerly and parallel

to the Westerly line of said Lot 1127 a distance of

15.0 feet; thence Southwesterly a distance of 29.18

feet to a point on the Westerly line of said Lot 1127,

25.0 feet Southerly of the Northwest corner thereof;

thence Northerly along said Westerly line 25.0 feet

to the Northwest corner and the Point of

Beginning.” [What is the problem?!]

Exception to Lot 1127 to SW adjoiner

83

Historical Conditions

84

Solution 1 - Lot line extensions based on

prorated historical 831 contour vs. 831 contour

depicted on plat

85

Solution 2 - Lot line extensions to center of

lake

86

Solution 3 - Lot line prolonged

Questions?

Gary R. Kent, PS

The Schneider Corporation

8901 Otis Avenue

Indianapolis, IN 46216

Phone - 317.826.7134

[email protected]

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Documents

Advanced Legal Description Writing · 2018. 4. 2. · Lenders often make demands of the surveyor ... • Explain the meaning of words in the conveyance • Explain conditions existing