Understanding Land Surveys, Legal Descriptions and Boundaries. Benjamin J. Moorman, RLS

Transcription

1 Understanding Land Surveys, Legal Descriptions and Boundaries Benjamin J. Moorman, RLS

2 PERFORMING BOUNDARY SURVEYS Phases: 1. Negotiation with Client and Project Planning 2. Research of Records and Documents 3. Field Work 4. Computation and Analysis of Evidence 5. Presentation of Results

3 PERFORMING BOUNDARY SURVEYS (Retracement Surveys or Surveys Based Upon the Record) PHASES: 1. NEGOTIATION WITH CLIENT & PROJECT PLANNING A. Initial contact and appraisal of problem, client needs and type of survey. B. Evaluation of costs and schedule. C. Agreement/Contract with client.

4 A. Initial contact and appraisal of problem, client needs and type of survey. - a survey to locate prior survey lines, record lines and possession lines? -a survey to divide property into smaller parcels a subdivision? -a survey to locate title lines (either written or unwritten property rights)? NOTE: Should never agree to do this except under the direction of an attorney and/or the court.

5 B. Evaluation of costs and schedule. -ascertain difficulties from record description and site walk if possible. -use experience from work in same area and from previous similar surveys. -consider capabilities of surveyor (personnel/ equipment/ experience). -fixed price/ hourly/ range/ competitive bid? -terms of payment

6 C. Agreement/Contract with client. -agree to do only services you are capable of --- legally and physically. -if there is an offer/ consideration/ acceptance --- it s a contract! -oral vs. written --- law will try to enforce either. -better if written because both parties know responsibilities and what to expect --- caution with wording, interpretation and assumptions. (SEE ENGAGEMENT LETTER)

7 2. RESEARCH OF RECORDS AND DOCUMENTS Objective; gather all available written evidence of title and monument location SOURCES OF INFORMATION A. Public Records B. Other Public or Private Sources C. Organization and Analysis of Research D. Reconnaissance (walk) of Site

8 2. RESEARCH OF RECORDS AND DOCUMENTS Objective; gather all available written evidence of title and monument location The Surveyor is held responsible to examine all recorded writings, plats, maps and commonly known sources of written information that might disclose evidence of property location. -Obtain from client a copy of his/her deed and any other pertinent information he/she may have in their possession. -Obtain copies of recorded deeds, plats, maps, probate records, and documents affecting the property whether they are called for in the conveyance or not. -Obtain copies of all recorded abutter conveyances --- deeds, plats and writings. - Obtain copies of data affecting the property from known private sources

9 SOURCES OF INFORMATION A. Public Records give Constructive Notice acceptable to courts. -Tax Assessor s Office ---Town/City/County (often first place to go) List or Index of names and parcels assessed Tax or Assessor s Maps (to determine who the abutters are) -Recorder of Deeds Office --- County/City Circuit Court Grantor-Grantee Index Deed Books Plat Books State Highway Maps and Plats Original Grants and other documents -Recorder of Probate Records --- County/City Circuit Court Probate Index Records of Probate Court Docket Record

10 B. Other Public or Private Sources (to supplement, help explain or fit together) -Abstractor s offices and title companies (or thru attorney) -private survey plats, field notes, survey reports -Public utility maps -Railroad maps and plats -Sanitation district easement maps -Power company R/W plans -Local highway or public works dept. R/W plans -County/City Surveyor s Office

11 C. Organization and Analysis of Research -Examine and check consistency of data gathered (try a chain of boundary) -Plot and check mathematical closures -Analyze and form preliminary judgments or conclusions -- may suggest more research -Plan reconnaissance of site

12 D. Reconnaissance (walk) of Site -Look for called and uncalled for evidence -Flag up evidence if appropriate -Plan field work/traverse NOTE: Common reasons for boundary disputes, litigation and actions against the surveyor are: -Not searching records sufficiently to discover all recorded facts. -Not hunting long enough and thorough enough to discover all called for original monuments or unable to analyze their correct original position. -Ignorance of boundary survey law and legal terms

13 3. FIELD WORK A. Reconnaissance B. Measurements C. Field Documentation D. May return to field after compilation and analysis of evidence

14 A. Reconnaissance -If a project surveyor or a competent crew chief is involved with the field work, it is probably more efficient to perform the reconnaissance during the same trip as the field measurements. -after discovery of the first monument or line of possession the first process of searching and measuring can often be done simultaneously measurements can indicate likely places to search (use of hand-held computers with cogo capability can enhance this process greatly) -often testimony of interested and uninterested parties can be valuable in your search - - testimony of competent uninterested witnesses as to original monument locations can sometimes be used in court.

15 B. Measurements -Take necessary measurements to tie together all found evidence, including: -all monuments (called for and uncalled for) -lines of possession (ex: fences, stone walls, shrub/tree lines, etc.) -improvements (ex: structures, utilities, drives, roads, etc.) -natural features (ex: rivers, streams, significant breaks in grade, drainage ditches, etc.) -Typically utilize traversing techniques with side shots -accuracy required depends on location of parcel: urban, rural, etc. -Category I, 1/10,000 closure in urban & subdivision -Category II 1/7,500 closure in suburban & subdivision -Category III 1/5,000 closure in all other & rural settings -plus other requirements in each category -specifications on a particular contract may be more stringent -GPS supplemented by traversing is a possible alternative -Title and Mortgage Surveys have additional or different requirements

16 C. Field Documentation - Very important aspect often neglected, avoid erasures. - Significant worth to you, your client and possibly other surveyors - Often called for by courts in boundary disputes.

17 D. May return to field after compilation and analysis of evidence -To search for more evidence or to set new monumentation

18 4. COMPUTATION AND ANALYSIS OF EVIDENCE A. Computations B. Comparison and Analysis of Field and Record Evidence C. Weight of Authority of Conflicting Boundary Rights and Evidence D. Consider Applicable Laws, Procedures and History

19 A. Computations -Reduce field data taking into account gross and systematic errors -Compute traverse and GPS closures. If closures are acceptable perform adjustments by the most appropriate method and place survey on an appropriate coordinate system. -Compute side shot positions for all evidence found and located -Compute closures for all pertinent record and transform (translate, rotate and scale as appropriate( to same coordinate system as survey or survey to same system as record) -If available, import the above field and record information into a CAD environment or do it all in CAD (caution). This will greatly aid your analysis.

20 B. Comparison and Analysis of Field and Record Evidence -Compare inverses of field evidence with record inverses or values. -Consider angular as well as linear relationships between field and record. -Try to keep in mind or ascertain the intent of the parties to each conveyance. -As you compare and consider and keep in mind the Weight of Authority of Conflicting Boundary Rights and Evidence.

21 C. Weight of Authority of Conflicting Boundary Rights and Evidence. 1. Unwritten Rights 2. Senior Rights 3. Written Intent of Parties a. Call for a Survey (otherwise stands on own merit) b. Call for Monuments 1. Natural 2. Artificial 3. Record (call for an abutter may be sign of senior rights c. Call for Direction and/or Distance d. Call for Coordinates e. Call for Area The above subject to intent of parties involved or specific exclusion or call Caution: meaning and intending phrase is important here.

22 D. Consider Applicable Laws, Procedures and History -Must know and apply state specific laws and rules Riparian Rights Reversionary Rights Recording Statutes Subdivision Regulations (if applicable) Direction vs Distance -Must know or determine agency monumentation and platting procedures TDOT Power Companies & TVA Gas Companies Railroads Local department of public works Other state and federal agencies and other utilizes -What is history or reputation relative to: Local surveyors work and records Found monumentation called for and uncalled for How were parcel(s) created and monuments set

23 5. Presentation of Results A. Plat of Survey B. Written Description for Surveyed Parcel C. Surveyor s Report D. A Professionally Written Letter of Transmittal E. Invoicing and Post Project Activity

24 A. Plat of Survey -should always strive to provide -typically required by state licensing board standards -there is a lot of variation in style from one surveyor to the next, but content should be consistent -develop your own checklist as a minimum use state standards

25 B. Written Description for Surveyed Parcel -not always necessary or required, depends on situation -sometimes requested to be included on boundary plat or title survey

26 C. Surveyor s Report -typically written for complicated or problem cases, not always necessary -some state standards require them with a provision for exclusion -title surveys typically require their own surveyors' report form to be submitted with plat

27 D. A Professionally Written Letter of Transmittal -totally optional -depends on company s or organizations policy and procedures -good way to document and report status of project to all involved -another way to exhibit professionalism

28 E. Invoicing and Post Project Activity

29 Survey Types & Requirements (1) General Property Surveys (2) Mortgage Loan Inspections (3) Property Descriptions By: Benjamin J. Moorman Benchmark Associates, Inc., President Hardin Valley Road, Knoxville, Tennessee Telephone: (865) Facsimile: (865)

30 SURVEY TYPES AND REQUIREMENTS A Land Surveyor shall comply with the minimum requirements provided below for all surveys and Survey Plats or Survey Maps prepared therefrom. (1) General Property Surveys. (a) A Survey Map or Survey Plat shall be a copy, print or tracing, and shall be dated and stamped or sealed and signed by a Registered Land Surveyor, in compliance with applicable law.

31 (1) General Property Surveys (continued) (b) A Survey Map or Survey Plat shall have a title and contain the following information: 1. A descriptive location of the property, or vicinity map, and corner of the property must be tied by bearing and distance either: * to a corner of a subdivision, or * to a tract from which the property is carved, or * to a permanent identifiable corner, or * to a nearby permanent identifiable reference point. A corner of the property may be tied to the nearest road intersection by distance only. In the case of a formation of a new tract, a tie must be made by bearing and distance to an identifiable corner of the parent tract. 2. The city or district, county, and the state where the property is located;

32 (1) General Property Surveys (continued) (b) A Survey Map or Survey Plat shall have a title and contain the following information (continued): 3. The name of the grantor or grantee of the property, or the name of the person who requested or required the Survey Map or Survey Plat;

33 (1) General Property Surveys (continued): (b) A Survey Map or Survey Plat shall have a title and contain the following information (continued): 3. The name of the grantor or grantee of the property, or the name of the person who requested or required the Survey Map or Survey Plat;

34 (1) General Property Surveys (continued) (b) A Survey Map or Survey Plat shall have a title and contain the following information (continued): 4. The date of the Survey Map or Survey Plat; 5. A graphic scale and numeral scale;

35 (1) General Property Surveys (continued) (b) A Survey Map or Survey Plat shall have a title and contain the following information (continued): 4. The date of the Survey Map or Survey Plat; 5. A graphic scale and/or numeral scale;

36 (1) General Property Surveys (continued) (b) A Survey Map or Survey Plat shall have a title and contain the following information (continued): 6. The name, registration number, address and telephone number of the Land Surveyor; and

37 (1) General Property Surveys (continued) (b) A Survey Map or Survey Plat shall have a title and contain the following information (continued): 6. The name, registration number, address and telephone number of the Land Surveyor, and 7. A certification on the face of the final Survey Map or Survey Plat as to the category of survey and the ratio of precision of the unadjusted survey, which shall have the following minimal content: * Certification as to Category I,II, III, IV; * Ratio of Precision of the unadjusted survey; * Statement that the survey was done in compliance with current Tennessee Minimum Standards of Practice; * Signature; and * Registration number.

38 (1) General Property Surveys (continued) (c) The north arrow shall be shown, and shall be correlated with, the courses or bearings, with the source of reference clearly indicated.

39 (1) General Property Surveys (Continued) (c) (d) The north arrow shall be shown, and shall be correlated with, the courses or bearings, with the source of reference clearly indicated. All property lines shall be defined by horizontal distances and bearings, and shall be plotted to the scale shown in the title block

40 (1) General Property Surveys (continued) (e) Where a boundary is formed by a curved line, the curve shall be defined with the length and radius of each curve, together with elements necessary to mathematically define each curve in the description. When intersecting boundary lines are non-radial or non-tangential, the chord bearing and distance shall be shown. (f) The land surveyor shall show the widths or center-lines of easements and rights-of way which are obvious and apparent to him and also the survey shall be completed using the relevant recorded deeds to the property, but shall show pertinent information, such as easements, joint driveways, etc. as described in Rule (7).

41 (1) General Property Surveys (continued) (f) The land surveyor shall show the widths or center-lines of all easements and rights-of-way which are obvious and apparent to him and also the survey shall be completed using the relevant recorded deed to the property, but shall show pertinent information, such as easements, joint driveways, etc. as described in Rule (7).

42 (1) General Property Surveys (continued) (g) Boundaries formed by water course shall be located and plotted to the scale shown in the title block. Traverse lines and/or offset lines used to close water course boundaries shall be shown, plotted to scale and defined by bearing and distance.

43 (1) General Property Survey (continued) (h) Monumentation requirements 1. New property monuments shall be composed of material(s) suitable to perpetuate the position and location of the monument. A notation on the Survey Map or Survey Plat shall state whether the monuments were found or set, and in addition, the statement shall indicate the material and size of the monument found or set. 2. Metal monuments shall be no less than one-half (1/2) inch in diameter; concrete monuments shall be no less than four (4) inches in diameter and shall contain ferrous or magnetic material; and both shall be no less than eighteen (18) inches in length unless some impregnable material is encountered. 3. The type of monument (old or new) shall be indicated on the Survey Map or Survey Plat along with the size and type of material. No monument should be placed if, in the opinion of the Land Surveyor, the existing monument, whether original or not, is found undisturbed and adequate to perpetuate the position and can be reasonably made to conform to the angle point in the boundary. Large or indefinite monuments which cannot be measured to within the positional accuracy requirements contained herein, such as trees, rock piles or fence corners, will be marked with witness monuments as deemed necessary by the Land Surveyor.

44 (1) General Property Survey (continued) (h) Monumentation requirements (continued): 4. When conditions warrant setting a reference for a monument on an offset, the location shall be selected so that the monument reference lies on a line of the survey, or a prolongation of such line. 5. New metal or concrete monuments placed shall have a cap with the Land Surveyor s registration number or company name stamped upon it. In the case of placement of a concrete marker, the marker shall have a permanent mark for the survey point and shall have the Land Surveyor s registration number or company name attached or stamped upon it. 6. Survey points that do not divide land ownership, such as point of intersection (P.I.), centerline of watercourse, etc. may be established with or without monumentation at the Land Surveyor s discretion.

45 (1) General Property Surveys (continued) (i) In the compilation of a composite Survey Map or Survey Plat, the Land Surveyor shall indicate and cite the source of all lines copied from a previous survey on the Survey Map or Survey Plat, and qualify the Survey Map or Survey Plat as prepared from other Sources and does not represent a current survey.

46 (1) General Property Surveys (continued) (j) The names of adjoining land owners and deed references, if available at property assessor s office, and/or lots and/or block numbers and highways, streets and named waterways shall be shown.

47 (1) General Property Surveys (continued) (k) The point of beginning in the metes and bounds description prepared by the Land Surveyor shall be shown on the Survey Map or Survey Plat of the survey (except in the case of a subdivision plat).

48 Mortgage Location Surveys and Mortgage Loan Inspections

49 Nonmonumentation procedures authorized as closing or loan surveys. Notwithstanding any other provision of law to the contrary, all limited nonmonumentation procedures or practices such as mortgage loan inspections, mortgage loan certificates, mortgage title inspections and improvement loan certificates, shall be authorized as closing or loan surveys. [Acts 1990, ch 1026, 66.] (SEE MORTGAGE LOCATION SURVEYS)

50 Mortgage Loan Inspection Is a Mortgage Loan Inspection (MLI) a survey?: No, it isn t. But when you ask a property owner if they have a survey of their property, quite often they will say yes and produce a MLI plan. Any that I have been shown state on the plan, as required, that it is not a boundary survey. Unfortunately, many people don t read the disclaimers on the plan, or don t understand the difference between a boundary survey and a MLI. In accordance with the rules, disclaimers are added stating that no monuments were set and that any plan produced is NOT a boundary survey. The task of preparing MLI s was placed with the licensed land surveyor. The MLI product issued to the bank/attorney/title insurer is different in each state. The product delivered in Tennessee is a sketch, signed and sealed by a surveyor, of the property which shows: a. The buildings and improvements b. Possible encroachments c. Flood hazard zones d. Zoning requirements. The title source (deed) and location of the property are also referenced. The MLI plan is prepared after a site visit to the property and is based on measurements taken at the site. The plan must state that it is NOT a boundary survey. The plan is signed and sealed by the surveyor.

51 Reading, Plotting and Revising Land Descriptions

52 I. A Description is NOT a Deed BOUNDARY DESCRIPTONS A. A Deed is a legal document used to convey real property from one entity to another. Most common deeds are Warranty and Quit-Claim Deeds. Others include Sheriff s, Tax, Easement, Right-of-Way, Mortgage, Correction, and other special purpose deeds. B. A description is a statement included in, or attached to, or referenced from a deed, and that describes the location and boundary dimensions of the real property or property rights being conveyed. C. Our discussion here is in reference to writing good descriptions, not trying to understand poorly written existing descriptions as when you are doing research

53 II. Parts of a Description A. Caption provides a general location of the property. As a minimum it should contain the Town/City, Township and County in which the property is located. Additional information is sometimes provided depending on local legal and surveying practice. B. Body provides specific location and dimensions (often metes & bounds) of the real property or real property interests being conveyed.

54 C. Qualifying Clauses can add to, take away, or further explain rights and interests affecting the property Augmenting Clause adds rights and/or real property to what has been described. Exclusionary Clause takes away (excepts) rights and/or real property from what has been described. Encumbering Clause points out rights or interests others may have in the land. Meaning and Intending Clause to state a particular intent the grantor wants to give to the description (important). Being Clause is used to restate description in another more concise form and is used to give title identity to the parcel being described.

55 D. Suggested Format Example Example Format for a Metes and Bounds Description With Main Parts of Description Identified CAPTION OF DESCRIPTION: A certain lot or parcel of land with the buildings thereon, known as 627 Main Street, in the Town of Mayberry, 3 rd Magisterial District, Fife County, State of Tennessee, said land being situated on the westerly side of Main Street, also known as U.S. Route 522, and said land being part of Tract 27, shown on a plat of Lambert s point, recorded in Map Book 3, Page 24, in the Register of Deeds Office of Fife County, and more particularly bounded and described as follows:

56 BODY OF DESCRIPTION: BEGINNING at a 5 square concrete monument on the westerly line of said Main Street, said street having an apparent right-of-way width of 60 ft., said monument is located South 873 feet more or less, along the westerly line of said Main Street from the intersection of said westerly line with the southerly line of Beach Road, and said monument being located at the southeasterly corner of land conveyed to Earl B. Brown by deed recorded in Deed Book 1236, page 147 in said Register of Deeds Office; THENCE S W along the westerly line of Main Street ft. to a 5/8 rebar at the northeasterly corner of land conveyed to Herman Jones by deed recorded in Deed Book 1553, Page 431 in said Register of Deeds Office; THENCE N W along the northerly line of said Jones, ft. to a 5/8 rebar on the easterly line of Kellam Road, said road having an apparent right-of-way width of 40 ft.;

57 BODY OF DESCRIPTION CONTINUED: THENCE along the easterly line of Kellam Road defined by a curve concave in a westerly direction, said curve having an arc length of ft., a radius of ft., and a chord bearing and distance of N E, ft. to a 5/8 rebar on the easterly line of said Road at the southeasterly corner of other land conveyed to Grantor by deed from John R. Douglas recorded in Deed Book 1056, Page 718 in said Register of Deeds Office; THENCE N E along the easterly line of said land of Grantor, ft. to a 1 iron pipe; THENCE continuing N E along the easterly line of said land of Grantor 5 ft. more or less, to the high water line of the Penobscot River; THENCE northeasterly along the high water line of the Penobscot River as it meanders, 159 ft. more or less to the southerly line of said Brown;

58 BODY OF DESCRIPTION CONTINUED: THENCE departing said high water line S E along the southerly line of said Brown, 5 ft. more or less to a 1 iron pipe, said pipe being N E, ft. from the previously mentioned iron pipe; THENCE continuing S E along the southerly line of said Brown, ft. to the Point of beginning. The above described land containing acres more or less. The above bearings are referenced to True North. The above described land is depicted on a plat entitled General Property Survey of Land of John R. Douglas:, dated September 9, 1987, by O.R. Bean, R.L.S. and recorded in Map Book 25, Page 17 in said Register of Deeds Office.

59 AUGMENTING CLAUSE: TOGETHER WITH a certain right of way, appurtenant to the above described land, crossing the land of said Brown, said right of way being more specifically described in a deed to Grantor recorded in Deed Book 1354, Page 292 in said Register of Deeds Office. ENCUMBERING CLAUSE: RESERVING a certain drainage easement granted to the Town of Mayberry, said easement being more specifically described in a deed to Town of Mayberry, Tennessee from John R. Douglas recorded in Deed book 981, Page 401 in said Register of Deeds Office.

60 BEING CLAUSE: BEING the same premises conveyed to this Grantor from John R. Douglas by deed recorded in Deed Book 1056, Page 721 in said Register of Deeds Office. End of description

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66 Understanding Ethical Issues in Real Estate Law

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78 ACKNOWLEDGEMENTS: Rules of Tennessee State Board of Examiners for Land Surveyors Chapter Standards of Practice Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys as adopted by American Land Title Association and National Society of Professional Surveyors (a member organization of the American Congress on Surveying and Mapping) Chapter Rules of Professional Conduct