Property Description Interpretation and the Law
Minnesota Society of Professional Surveyors 2012 Annual Meeting February 15-17, 2012
John Matonich, P.S.
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Note Title Change
Property Not Legal Introduction Good Descriptions • Not Easy to Write • Must Satisfy Needs of Several • Lawyer-Legal Requirements • Title-Adjoiner Interests • Surveyor-Location • Gov’t Official-Records • Owner-All Phases • Wording Must Be Understandable But Still Technical • Language of Surveying Profession Best To Use In Description Preparation
Descriptions
Real Property, Legal, or Land Description • That Part of the Deed Devoted to the Physical Location of the Property ¾So unique to a particular parcel as to delineate it from any other parcel or tract ¾Must be written in such a manner as to stand any test under law and litigation Purpose of a Land Description
► The purpose of a Land Description To identify unequivocally and definitely one and only one unique parcel of land. Identification for courts and legal profession. Identification for the purpose of recovery or retracement of boundaries. Identification for cadastral (taxation or governmental purpose). Identification for other corollary purposes, address and indexing. To locate and identify encumbrances, such as easements and right of way.
Purpose of a Land Description (cont’d)
► Description Preparation Many problems are encountered in attempting to separate the legal aspects of the deed from the surveying aspects of the description. These are interrelated. Before an adequate description can be prepared the individual writing the description should: Clearly understand the purpose of the description. Understand concern with boundaries and their location only. What constitutes ownership is a legal question. Prepare a concise, well written description, following the rules of proper punctuation and correct spelling. Familiarize yourself with what courts have said relative to the various language and phrases relative to land. Purpose of a Land Description (cont’d) ► These descriptions should include, but are not limited to: Meaning of words and phrases commonly used from court decisions of higher jurisdictions. Intent. Qualifies all definitions. For example, a definition may be said to be true or hold “unless intent to the contrary can be clearly shown”. Common Law and Statute Law and their relationship. The writer may have certain quasi-judicial functions. Courts generally use definitions in Webster’s Unabridged Dictionary for common words and Black’s Law Dictionary. The writer should familiarize himself with some Latin phrases used by the legal profession.
Who Should Prepare Property Descriptions? Doctrine of Intent
A land surveyor is often guided by the statement “Follow in the footsteps of the original surveyor”. Description writers should be guided by the statement “Know that others must understand what you write.”
Example of Description Purpose
City of Lapeer Vs. Lapeer Township Definitions (Per Basic Commercial Real Estate Law)
►Deed A deed is a written instrument that transfers the title of property from one person to another. The two most common types of deeds are general warranty deeds and quitclaim deeds.
Definitions (Per Basic Commercial Real Estate Law)
► Deed Restriction • Deed restrictions are usually imposed on a buyer of land when the property is sold and the restrictions are included in the seller’s deed to the buyer. • Restrictions are generally imposed by a property developer to maintain certain standards. • Restrictions may include limits on the color an owner may paint a building, what trees one may plant, or the size of structures to be built on the property. • Deed restrictions may also be known as covenants or conditions. Definitions (Per Basic Commercial Real Estate Law)
► Easement • An easement is the right to use another person’s land for a particular purpose. • There are many forms of easements. Public utility companies frequently have utility easements that permit them to run gas, water, or electrical lines through particular property they do not own. • The owner of property on a lake shore might sell to the owner of an adjacent lot without lake access an easement to cross over to the shore. • A person who owns property that is landlocked may receive an easement from an adjacent land owner to have access in and out of the property.
Definitions (Per Basic Commercial Real Estate Law) ► General Warranty Deed • Generally, title is transferred desirably by a general warranty deed. A general warranty deed provides the greatest protection to the purchaser because the seller pledges or warrants that he or she legally owns the property and that there are no outstanding liens, mortgages, or other encumbrances against it. • A warranty deed is also a guaranty of title, which means that the seller may be held liable for damages if the buyer discovers that the title is defective. • A warranty deed is not substitute for title insurance, however, as a warranty from a seller who later dies or goes bankrupt may have little, if any, value. Definitions (Per Basic Commercial Real Estate Law) ► Joint Tenancy • Joint tenancy is a form of co-ownership. Although usually thought of as a way for a husband and wife to own property, there is no requirement that joint tenants be married to one another or that there be only two joint tenants. • Each individual owner in joint tenancy has a right to sell, encumber, and possess the entire property. Regardless of the number of joint tenants, when one joint tenant dies, the remaining joint tenants automatically take the deceased joint tenant’s share of the property by right of survivorship. • In such cases, the surviving joint tenants are required to file a death certificate and an affidavit with the county recorder without having to pay transfer taxes. • A principal advantage of joint tenancy is that it allows the surviving joint tenant to avoid probate and death taxes.
Definitions (Per Basic Commercial Real Estate Law) ►Lien • A lien is a charge against property that provides security for a debt or obligation of the property owner. The lien holder does not own the property. The owner of the property may voluntarily agree to a lien, perhaps by taking out a mortgage, or a lien can be imposed, perhaps for nonpayment of taxes. • One of the most common liens is the mechanics lien. A mechanics lien arises when someone furnishes labor or materials to improve a piece of property. • If the worker or supplier is not paid by the property owner, he or she can file a notice of lien with the county recorder and the property owner and collect the amount owed from a subsequent sale of the property. If a property owner has paid the general contractor in full but the general contractor has not paid the subcontractors, the owner will not have to pay for the services a second time. Definitions (Per Basic Commercial Real Estate Law)
► Quitclaim Deed • A quitclaim deed is a deed that relinquishes to the buyer whatever interest, if any, the seller may have in the property. • A quitclaim deed gives the buyer the least protection of any deed. If the seller is the sole owner of the property, the quitclaim deed is enough to transfer title, but the buyer takes a risk by accepting a quitclaim deed because it offers the buyer no guarantee that the title is valid. • Quitclaim deeds are used frequently during the property settlement phase of a marriage dissolution.
Definitions (Per Basic Commercial Real Estate Law)
► Special Assessment • A special assessment is a tax levied on a piece of property to pay for improvements that benefit the particular property. • These taxes are frequently used to pay for improvements such as the streets, sidewalks, and street lighting. • Special assessments are liens on the property until they are paid. ► Tenancy in Common • Tenancy in common is a form of co-ownership. Tenants in common, like joint tenants, share the right to possess, sell and encumber the property. • Unlike joint tenants, tenants in common do not have a right of survivorship. Upon the death of one tenant in common, his or her ownership interest passes to his or her heirs as part of the estate. Definitions (Per Basic Commercial Real Estate Law) ► Title • Title to real estate is the right to, or ownership of, the property. Title may refer to the actual ownership or to the documentary evidence of that ownership. • In order to sell a piece of property, all title matters must be cleared. Usually, this is accomplished through a title search, in which a diligent search is made of all records relating to the property to determine whether the owner can sell the property and whether there are any claims against it. • If any defects in the title are discovered during the title search, the seller is usually given time to cure the defect. Title insurance is often taken out to protect against any hidden defects in the title. • There are two types of title insurance. One type protects the lender’s interest in the property and the second protects the owner’s interest.
Types of Deeds
►Warranty ►Quitclaim ►Special Warranty ►Timeshare ►Tax ►Foreclosure ►Deed in Lieu of Foreclosure Warranty Deed
• A warranty deed conveys not only all the seller’s interests in and title to the property to the buyer, but also warrants that if the title is defective or has a “cloud” on it (such as mortgage claims, tax liens, title claims, judgments, or mechanic’s liens against it), the seller agrees to defend the title from claims of others and the buyer may hold the seller liable under seller’s warranties. • A warranty deed offers the greatest protection of any deed.
Quitclaim Deed • In summary, if the seller of a quitclaim deed has complete ownership of and clear title to the land being quitclaimed, said deed will pass complete and unencumbered ownership to the buyer. However, if the title is defective or has a “cloud” on it (such as mortgage claims, tax liens, title claims, judgments, or mechanic’s liens against it) the buyer has no recourse against the seller. • More often than not, tax deeded property has encumbrances that need to be cured before the buyer has clear title. • A quitclaim deed requires the buyer to assume all risks; independent investigation of the title to the land is imperative. In a quitclaim deed transaction, the common-law doctrine of caveat emptor (“let the buyer beware”) is the rule, not the exception. When we convey a deed by quitclaim deed we convey it “as is”, “where is” without any warranties and/or covenants of any kind.
• Prior to purchasing a tax deed, we strongly recommend that you hire a qualified professional to evaluate whether the property has any physical and/or title problems. Special Warranty Deed • In a special warranty deed, the seller conveys title to the buyer and agrees to protect the buyer against title defects or claims asserted by the seller and those persons whose right to assert a claim against the title arose during the period the grantor held title to the property. • Furthermore, the seller guarantees to the buyer that the seller, during the time he/she held title to the property, did not allow any lien(s), charge(s), or other ensumbrance(s) to be placed upon the property which would adversely affect or impair the buyer’s title. • However, the seller does not warrant against title defects arising from conditions that existed before he/she owned the property. The exclusionary language that you might typically see in such a deed is as follows: “AND THE SAID Grantor will only warrant and forever defend the right and title to the above-described property unto the said Grantee against the claims of those persons claiming by, through or under Grantor, but not otherwise.”
Timeshare Deed
• Ownership interest providing title to your property. Fee simple. • True property ownership with deed recorded in the county where the property exists. This type of property has the same rights of ownership accorded to it as other deeded real estate. • The owner may sell, rent, bequeath, or give away the property. Tax Deed
A deed on property issued when the property is purchased at a public sale for nonpayment or taxes.
Foreclosure Deed
Result of court action or foreclosure. Will typically take on another form (quitclaim, special warranty, etc.). Deed in Lieu of Foreclosure
• A means of escaping an overly burdensome mortgage. • If a homeowner can’t make the mortgage payments and can’t find a buyer for the house, many lenders will accept ownership of the property in place of the money owed on the mortgage. • Even if the lender won’t agree to accept the property, the homeowner can prepare a quitclaim deed that unilaterally transfers the homeowner’s property rights to the lender.
Easement
A right granted by one property owner to another to use a part of (the grantor’s) land for a specific purpose. License
• A personal privilege, unassignable and terminable at will, to do someone on another’s land, which contains no interest in that land, and which is not required to be created by a conveyance. • Permits a specific use or specific acts to be done by the licensee on the licensor’s lands, but does not convey an interest in that land. • Generally are revocable or for a specific time period.
Research of Land Records and Related Material
Both information on hand and additional material may need to be obtained before boundary determination may take place. Public Sources
► County Recorder
► Assessor
► Planning and Zoning
► Information Services
► Public Works
► County Surveyor
► Court Records (Wills)
Private Sources
► Local Surveyors
► Local Title Companies
► Institutional Offices Private Companies Minnesota Research Resources (from Georgetown University)
Research Guides
► Minnesota Legal Research Guide by John Tessner, et al., published by Hein, 2002. Ref. Desk KFM5475 .S63 2002.
► Minnesota Legal Research A guide to legal publications and research in Minnesota published by the reference librarians at Hamline University Law Library.
► "Minnesota Legislative History Step by Step," a web guide from the Minnesota State Legislature.
Minnesota Research Resources (from Georgetown University) Statutes & Legislation
► Statutes/Code Print: Minnesota Statutes (official) & Minnesota Statutes Annotated (unofficial) [ 4th Floor ] Electronic: ► Westlaw: MN-ST-ANN ► Lexis: MINN;MNCODE ► Internet: State Statutes
► Legislative History Minnesota Session Laws (microfiche) Legislation and Bill Tracking Minnesota Statutes and Session Laws "Minnesota Legislative History Step by Step ," a web guide from the Minnesota State Legislature. Westlaw: MN-LH (1997 - ) Minnesota Research Resources (from Georgetown University)
► Legislature Minnesota State Legislature Minnesota Senate Minnesota House of Representatives
Minnesota Research Resources (from Georgetown University)
Regulations & Agencies
► Regulations Print: Minnesota Rules: Including Administrative Rules of State Agencies (not updated since 2001) [4th Floor KFM5435 .A26] Electronic: ► Westlaw: MN-ADC ► Lexis: MINN;REGS ► Internet: State Regulations ► Agencies Office of the Governor State Departments State Agencies Attorney General Minnesota Research Resources (from Georgetown University) Cases and Courts ► Cases Print: North Western Reporter (1st, 2nd series), Minnesota Reports, & Minnesota Appeals Reports Electronic: ► Westlaw: MN-CS (state cases) & MN-CS-ALL (state and federal cases) ► Lexis: MINN;MNCTS (state cases) & MEGA;MNMEGA (state and federal cases) ► Internet: Supreme Court and Court of Appeals
► Courts Minnesota State Court System Minnesota Supreme Court Opinions (Recent) Minnesota Court of Appeals Opinions (Recent) Minnesota Supreme Court and Court of Appeals Opinion Archive (1996 - )
Minnesota Research Resources (from Georgetown University)
Local Government
► City, County, and Township Web Sites
► County & Municipal Ordinances (selected)
State Bar Journal
► Bench & Bar of Minnesota
Legal Ethics Resources
► Minnesota Ethics Resources What To Look For
► Indexes to Land Records • These contain the index of all deeds and most of the other legal instruments or writings affecting real property. • Be familiar with the system used to index these many thousand documents. • Two parts make up this index. • The grantor (or vendor) index • The grantee (or vendee) index. • The grantor is the party who sells the land; the grantee is the one who buys it.
Listings in these indexes are chronological by date of recording. Most states use this method of indexing and filing deeds. The details may vary somewhat from jurisdiction to jurisdiction, but the basic information required for a title search within the system is general.
Important Elements in Research
►Grantor ►Grantee ►Date of Transaction ►Restrictions ►Easements ►Agreements ►Reservations ►Exceptions Check of Adjoining Property
• Adjoining deeds are checked using the most recent descriptions. • Boundary lines of the subject tract are compared with those of the adjoiners to determine if any discrepancies exist. • In these cases, each of the adjoiners’ deeds would also have to be checked back in time to determine the intent of the original parties when the line was created. • This check is accomplished using the Grantee-Grantor index book to find adjoiners’ descriptions to a point in time where the line in question originated.
Junior and Senior Rights
• When the calls on the same lines in adjoining deeds do not agree, it is necessary to establish senior rights for the line in question. • Senior rights are those rights gained by virtue of being the first to buy out of a tract. • The law provides that if a grantor conveys land to a grantee, he cannot later convey that same land to someone else. • The first deed in such a case would be the senior deed and would convey the title. • Therefore, the written intentions of a later deed for property previously conveyed would only convey that portion of property reaching to the land of the senior title holder. Essential Elements of a Description
► Intent – Any legal description must express exactly which piece of land the seller intends to convey and the buyer intends to acquire. The description must show the intent clearly so that both its buyer and the seller can understand it, and so that anyone looking at in the public records can understand its intent. If the description goes to court and the judge must resort to extrinsic evidence, he will determine intent by the rules of construction if there is conflict in wording. For instance, monuments prevail over courses and distances. It may take extrinsic evidence to show natural monuments were intended.
Essential Elements of a Description (Cont’d) ► Title Identity – Although title identity may be a legal question, there must be freedom of conflict with all senior properties. As a result of title, two adjoining descriptions may overlap or leave a gap. Each description may be apparently correct, but not if it includes part of the adjoiner. Calls for adjoiners are apparently safe procedures, but like exceptions, must be surveyed if it is a call in the deed. This places a necessary burden on the surveyor. Somewhere in each description reference should be made to the source of title into the present seller. Essential Elements of a Description (Cont’d)
► Location – All survey descriptions require reference to such legal identifying items or State, County, District, etc., yet in metes and bounds descriptions the call for point of beginning that is accurate is required in order to properly locate the parcel. ► Within the elements of location the exclusion of any one may void the description, for many states by statute specify the requirements of location.
Essential Elements of a Description (Cont’d)
► Geometric Shape – Every description must have a geometric shape representing a closed figure. If the elements of the description fail to close, the courts will presume it is a closed figure and this may legally reform the description to form a closed parcel. ► Size – Area normally is an informative rather than a controlling term. Its use and working in a deed description is important if it is to become a controlling term. Parts of a Description
►Locator General location (city, township, county, etc.)
►Body Description of parcel
►Closing Size and restrictions (if any)
Interpretation of Descriptions
►The locatability and ground position of a description or the question of actual title held under description requires a true analysis and interpretation of all the factors involved, and statements made, both in the instant property described and the surrounding properties. ►The final decision as to title of a parcel, or any portion of it, rests with the courts. Interpretation of Descriptions (Cont’d) • The necessity of resorting to court interpretation of intent or title may be largely avoided by the use of descriptions which are constructed in words and terms that are unequivocal, exact and bear approval of legal precedent, mathematical definition, and engineering terminology. • In those instances where a difference arises between legal and engineering interpretation of terms, methods or phrases, the description should be so worded that its validity or certainty is unquestionable, regardless of the direction of approach in the analysis. • Every instrument must be read from it’s “four corners” to ascertain intent. • If the intent is not discoverable, parol evidence must be introduced and considered to prevent its being void lack of certainty.
Types of Descriptions
► Area A conveyance can be legal without a recitation area. Area is used, however, for the purpose of payment, records and general information. In general, area is strictly descriptive on an informational element, yet at times it can be converted into a dimensional element that then can be converted into dimensions. • i.e., “The East 6 acres of lot “becomes an element that must be converted into dimensions of 6 acres on the east side of the lot. A description must be accurate, clear, concise and specific in all of its terms. The exception to this rule is where it is necessary to establish title to an uncertain area by fixing a definite boundary with an adjoining title. In such a case, the only definite boundary is accurately defined, and the remainder of the parcel is fixed to that. Area in itself is totally dependent upon the methods of adjustment of the field measurements of the survey that created the measurements. Minute differences can be detected by the method of adjustment, i.e., Crandall rule, transit rule, compass rule or pragmatic rule. Area can also be checked using various other methods, but for all realistic purposes, the only reason we adjust or balance a survey is to be able to determine area, mathematically. Types of Descriptions (Cont’d)
►Plats If a plat is to be used in interpolating a written description, its relationship must be determined and identified in the description. Legally, a plat is required to be mentioned in the description in order to be controlling. Its correctness and relationship must be established. If the plat is not referred to or mentioned in the description, its presence becomes only evidence, and then falls under the rules of relevancy and admissibility.
Types of Descriptions (Cont’d)
► Coordinates As the ability to measure more precisely is attained, more corners are being described with supplemental geographic and geodetic or state plane coordinates determined for their position. These values should never be taken as a complete substitute for adequately monumented corners called for in the conveyances and adequate courses. The determination of coordinate values is predicated upon precise surveys and complicated computational values that require specialized skills. Until the general area is laced with adequate horizontal control geodetic coordinated should be used with caution. Types of Descriptions (Cont’d)
► Aliquot Parts The term aliquot means in direct proportion thereof. That is each parcel in the boundaries of the lot or section takes its hare of the excess or deficiency. The perfect aliquot description can convey perfect title, but may be a nightmare to survey. If an aliquot portion is recited without an adequate survey is that the only record that can be relied on is that record that is recited in the official grant or patent. That becomes the “legal” area, regardless what is found at a later date.
Types of Descriptions (Cont’d)
► Metes and Bounds The metes and bounds survey is perhaps the most desirable of all descriptions. The identification of the dimensions of lines into tearing, bearings and distances provide positive identification of that particular line and those corners. A full and complete metes and bounds description, regardless of age or origin, provides a great temptation to ignore other facts of adjoiners, title, or unwritten rights, thus increasing the possibility of litigation. A monument not identified in a conveyance or instrument is not controlling, and becomes more evidence to be considered. Many times maps become valuable tools in locating metes and bounds descriptions because of the ability to present associated information that can aid in the location of the property. Some Common Errors In Descriptions
►Following are some of the more frequent errors that scriveners of land descriptions make. ►These are not all, but they represent the major categories of errors that can be expected.
Some Common Errors in Descriptions (Cont’d)
► The location is not complete. County, state, GMD, Land Lot, Section, District, omitted or in error. ► Surveyor’s dated certificate missing. Date of survey and date of plat or revised plat. ► Failure to note conflicts with senior deeds or senior rights; street, and encumbrances. ► POB is deficient, or POC is ambiguous, and not located on plat. Error in tie from POC to POB. Some Common Errors In Descriptions (Cont’d)
► Reversed bearings. N 60 W instead of S 60 E, or S 45 E and not 5 45 W. ► Writing degree marks as a zero. 5 60 E for S 60 E ► Writing ‘ and “ marks as feet and inches, not minutes and seconds. ► When lot boundaries coincide with RJW lines, lot lines, district lines failure to call for same. Failure to recite ad joiners by name, errors in ad joiners names. ► Errors in recording information.
Some Common Errors in Descriptions (Cont’d)
► Failure to note errors in calls for common corners in chain of title or ad joiners deeds. ► Failure to note error of closure and errors in area. Can use dot grid, etc. to catch large areas. ► Failure to adequately describe corners by type of monument, size, condition and how witnessed. ► Failure to properly identify witness objects to corners. Some Common Errors in Descriptions (Cont’d)
►With water boundaries, failure to adequately describe the boundary; high water, mean high water, shore line, top of bank, center of the creek, contour and datum of contour. Error in calling for meander line for boundary.
Unusual Descriptions 1812 Probate Records
1812 Probate Records
“147 acres, 3 rods, and 19 rods after deducting whatever swamp, water, rock and road areas there may be included therein and all other lands of little or no value, the same being part of said deceased’s 1280 acre colony grant, and the portion hereby set off being known as near to and on the other side of Black Oak Ridge, bounded and described more in particular as follows, to wit:- Commencing at a heap of stone, about a stone’s throw from a certain small clump of alders, near a brook running down off from a rather high part of said ridge; thence, by a straight line to a certain marked birch tree, about two or three times as far from a jog in a fence going around a ledge nearby; thence, by another straight line in a different direction, around said ledge and the Great Swamp, so called; 1812 Probate Records (con’t)
Thence, in line of said lot in part and in part by another piece of fence which joins on to said line, and by an extension of the general run of said fence to a heap of stone near a surface rock; thence, as aforesaid, to the “Horn,” so called, and passing around the same as aforesaid, as far as the “Great Bend,” so called, and from thence to a squarish sort of a jog in another fence, and so on to a marked black oak tree with stones piled around it; thence, by another straight line in about a contrary direction and somewhere about parallel with the line around by the ledge and the Great Swamp, to a stake and stone bounds not far off from the old Indian trail; thence by another straight line on a course diagonally parallel, or nearby so, with “Fox Hollow Run,” so called, to a certain marked red cedar tree out on a sandy sort of a plain;
1812 Probate Records (con’t)
Thence, by another straight line, in a different direction, to a certain marked yellow oak tree on the off side of a knoll with a flat stone laid against it; thence, after turning around in another direction, and by a sloping straight line to a certain heap of stone which is, by pacing, just 18 rods about one half a rod more from the stump of the big hemlock tree WHERE PHILO BLAKE KILLED THE BEAR; thence, to the corner begun at by two straight lines of about equal length, which are to be run by Some skilled and competent surveyor, so as to include the area and acreage as herein before set forth” From a Wisconsin Deed:
Part of the Southeast Quarter of the Southwest Quarter and the Southwest Quarter of the Southeast Quarter, Section 30, Township 16 North, Range 2 West, Monroe County, Wisconsin, more particularly described as follows: Commencing at the Southwest corner of the Southeast Quarter of the Southwest Quarter (SE ¼ of SW ¼ ); thence easterly along the South line of the forty, 1,102 feet, more or less, to GPS waypoint, Lat. 43.827330, Long.-90.666967, which is the point of beginning; thence continuing easterly along the South line of said Section 30, 1,1592 feet, more or less, to GPS waypoint, Lat. 43.827326, Long.-90.660929; thence Northerly 487 feet, more or less, to GPS waypoint, Lat. 43.82828655, Long.-90.661033; thence Northwesterly 298 feet, more or less, to GPS waypoint, Lat. 43.829516, Long.-90.662515; thence Westerly 552 feet, more or less, to GPS waypoint, Lat. 43.830118, Long.-90.664425, which is the centerline of the town road now known as Drysdale Road; thence Southwesterly and Westerly along the centerline of said town road 820 feet, more or less, to GPS waypoint, Lat.43.829455, Long.-90.666968; thence Southerly 775 feet, more or less, to the point of beginning.
Select Boundary Issues Boundaries by Agreement
►Boundaries by agreement are dependent on finding a mutual agreement where the boundary is located. ►Courts often require that certain factors be present before boundaries can be established based on such agreements. ►Boundary agreements must involve lines or corners which are uncertain or disputed.
Boundaries by Agreement (Cont’d)
► These agreements must set out a specific line as the boundary. ► They must be executed by acts of the parties occupying adjoining land and the agreement must include land to the agreed line. ► The final requirement is that the agreement be recognized for a considerable time. ► This period is often equal to that required for adverse possession. Boundaries by Acquiescence
► Acquiescence is similar to boundaries by agreement. ► This type of ownership is unique, however, because it does not require proof that the boundary location resulted from an agreement. The justification for this ownership is similar to adverse possession. ► For this doctrine to be enforceable occupation must be visible up to a definite marked line. ► A long time must have elapsed before acquiescence can exist.
Boundary Agreements
►Boundary Lines may be changed through the execution of boundary agreements. ►In order to do so, such agreements must be entered into by all interest owners affected and should be recorded in the public records. Boundary Agreements (Cont’d)
►Otherwise, the change in boundary lines will not be enforceable against subsequent innocent purchasers for value. ►However, a boundary line agreement entered into between owners of the oil and gas leasehold estate is not binding on the lessors who are not parties to the agreement.
Mother Hubbard Clauses
►Mother Hubbard clauses were contained mostly in oil and gas leases in order to include small tracts or parcels of land owned by the lessor that may have been missed within the terms of the property description. ►Although such language may be expansive, it does not encompass ownership of separate, independently owned tracts of land. Waterway Descriptions
►Generally, the sovereign holds title to the river beds upon the conveyance or patent of privately owned lands on either side. ►The boundary is determined upon the rendition of the lines between private ownership and the state stream bed.
Waterway Descriptions (Cont’d)
►The ownership of the stream bed is determined according to whether such rivers or streams are considered navigable or non-navigable. ►Title to lakes or lake beds also varies by jurisdiction. The rules pertaining to lakes are not considered applicable to marshes or swamps. Non-Navigable Streams
►Depending upon the jurisdiction, by statutory authority title to the bed of a non- navigable stream may be held by the sovereign. ►In the absence of such legislation, a grant of land contiguous to a non-navigable stream is presumed to pass title to the center of the stream, unless clear language to the contrary exists in the deed.
Non-Navigable Streams (Cont’d)
►This presumption exists even if the description in the deed does not mention the stream or calls to a point that does not correspond to the center of the stream. Navigable Streams
► Streams may be navigable in law, but non- navigable in fact. ► State law varies as to the definition of navigability. ► If a stream is navigable in theory or in fact, generally title to the stream bed is held by the state and the boundary line between the state and private ownership beyond the bed of the stream is the “gradient boundary”.
Navigable Streams (Cont’d)
►This line of demarcation is located: neither at flood stage nor at drought level but is the bank that, on average, is attained by the water when it washes the bank without overflowing. Navigable Streams (Cont’d)
►A sudden removal or deposit of riparian land is called avulsion; ►whereas, accretion is the process of increasing the size of property by gradual and imperceptible disposition by the water of solid material, as a result of natural causes, so that what was once covered by water has now become dry land.
Navigable Streams (Cont’d)
►Accretion by reliction is the gradual addition made to land by a rescission of the water, such as when the water shrinks below the usual water line. ►Reliction is the uncovering of previously submerged land by a permanent rescission of a body of water, rather than by mere temporary or seasonal exposure of the land. Party Walls and Line Fences
►Line fences are special cases when they divide properties. ►Known in law as division or partition fences, they are covered by statutes in all but six states. ►Such a fence is built on an equal amount of land of each of the adjoining owners. ►Fences built entirely on the land of one party are not division fences.
Party Walls and Line Fences (Cont’d)
►In these cases the boundary lines prove the fence location. ►Fences not called for in the description of lines when the lines originated do not prove the lines. ►A fence can become a line fence by consent of the owner of the land on which the fence was built. Party Walls and Line Fences (Cont’d)
►Land development can also involve boundaries established by party walls. ►Party walls are located similar to division fences. ►Party walls are usually built after formal agreement of the concerned owners.
Evidence
►Laws form the basis of land ownership. Proof of the limits of this ownership requires gathering evidence by surveying the boundary. The surveyor should remember that for each law there are many exceptions to that law. Each land survey is unique and different. Evidence (Cont’d)
►This is because the physical characteristics of the land vary and the circumstances surrounding the conveyance govern the interpretation of the intentions of the parties. ►The deeds located in the record search become the basis for locating and establishing boundaries.
Evidence (Cont’d)
►They are used to identify the true location of monuments and courses, as originally run, on the ground. ►This is to be accomplished even if the measurements by the original surveyor were not correct. Evidence (Cont’d)
►Court opinions that surveys started at monuments not lawfully established or reestablished under the rules of evidence have no probative force. ►These rules of evidence are provided for in the statue laws. This raises the issue of the rules of evidence.
Minnesota Requirements of Interest
► Solar or Wind Easements (500.30) Means a right, whether or not stated in the form of a restriction, easement, covenant, or condition, in any deed, will, or other instrument executed by or on behalf of any owner of land or solar skyspace for the purpose of ensuring adequate exposure of a solar energy system. Also means a right, whether or not stated in the form of a restriction, easement, covenant, or condition, in any deed, will, or other instrument executed by or on behalf of any owner of land or air space for the purpose of ensuring adequate exposure of a wind power system to the winds. Minnesota Requirements of Interest
► Use Any property owner may grant a solar or wind easement in the same manner and with the same effect as a conveyance of an interest in real property. The easements shall be created in writing and shall be filed, duly recorded, and indexed in the office of the recorder of the county in which the easement is granted. No duly recorded easement shall be unenforceable on account of lack of privity of estate or privity of contract; such easements shall run with the land or lands benefited and burdened and shall constitute a perpetual easement, except that an easement may terminate upon the conditions stated therein or pursuant to the provisions of section 500.20.
Minnesota Requirements of Interest
► Requirements Include a description of subject property AND a description of benefiting property. For solar easements, a description of the vertical and horizontal angles, expressed in degrees and measured from the site of the solar energy system, at which the solar easement extends over the real property subject to the easement, or any description which defines the three dimensional space or the place and times of day in which an obstruction to direct sunlight is prohibited or limited. A description of the vertical and horizontal angles, expressed in degrees, and distances from the site of the wind power system in which an obstruction to the winds is prohibited or limited. Any terms or conditions under which the easement is granted or may be terminated. Any provisions for compensation of the owner of the real property benefiting from the easement in the event of interference with the enjoyment of the easement, or compensation of the owner of the real property subject to the easement for maintaining the easement. Conveyance Requirements (507.091)
► Must include who drafted instrument No instrument by which the title to real estate or any interest therein or lien thereon, is conveyed, created, encumbered, assigned or otherwise disposed of, shall be recorded by the county recorder or registered by the registrar of titles until the name and address of the person who or corporation which drafted the instrument is printed, typewritten, stamped or written on it in a legible manner. An instrument complies with this subdivision if it contains a statement in the following form: “This instrument was drafted by ______(name) ______(address).” This does not apply to any instrument executed before January 1, 1970, nor to a decree, order, judgment or writ of any court, a will or death certificate, nor to any instrument executed or acknowledged outside the state.
Conveyance Requirements (507.091)
► Must include grantee (507.092) No contract for deed or deed conveying fee title to real estate shall be recorded by the county recorder or registered by the registrar of titles until the name and address of the grantee, to whom future tax statements should be sent, is printed, typewritten, stamped or written on it in a legible manner. An instrument complies with this subdivision if it contains a statement in the following form: “Tax statements for the real property described in this instrument should be sent to: ______(name) ______(address).” Subdivision 1 does not apply to any instrument executed before January 1, 1972, nor to a decree, order, judgment or writ of any court, a will or death certificate, nor to any instrument executed or acknowledged outside the state. Contents of Decree (508.23)
► If one or more boundary lines are judicially determined, the land description in the decree of registration shall make reference to that fact and to the location of the judicial landmarks that mark the boundary lines. When any of the boundary lines are registered, the court administrator also shall file with the registrar a certified copy of the plat of the survey which contains a certification by a licensed land surveyor that the boundaries registered have been marked by judicial landmarks set pursuant to the order of the court.
Registered Land Surveys
► The registrar of titles may require that the owner of a parcel of unplatted registered land, who conveys any part thereof which is not a full government subdivision, or simple fractional or quantity part of a full government subdivision, shall first file with the registrar of titles a drawing in triplicate of said parcel of unplatted land, showing the tract or tracts being or to be conveyed, which drawing shall be known as a “registered land survey”. ► The registered land survey shall correctly show the legal description of the parcel of unplatted land represented by said registered land survey and the outside measurements of the parcel of unplatted land and of all tracts delineated therein, the direction of all lines of said tracts to be shown by angles or bearings or other relationship to the outside lines of said registered land survey, and the surveyor shall place monuments in the ground at appropriate corners, and all tracts shall be lettered consecutively beginning with the letter “A”. Requirements
►Shall show description of property ►Distances and bearings of all parcels ►Prepared by a Professional Surveyor ►Scale no less than 1 inch = 200 feet ►Drawing 17” x 14” in size ►Monuments must be set in field ►Shall be filed in Office of Registrar
Deed, Description and Survey Related Case Law Easement vs. Deed
*Minnesota DNR vs. Hess
*October 2004 Issue of Minnesota Real Estate, Volume 20, No. 10
2006 Minn. App.
Magnuson vs. Spearfish Aviation
707 N.W.2d 738 2009 Minn. Dist. LEXIS 218
Brausen vs. Peterson
2002 Minn. App. LEXIS 1308
Morris vs. Smith Questions & Discussion
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