LEGAL ASPECTS OF LAND SURVEYING

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1 LEGAL ASPECTS OF LAND SURVEYING By: Dr. Tony Nettleman Copyright Nettleman Land Surveying, INC (2016) Fig: Welcome Picture YOUR SPEAKER Surveying All My Life Began Working with Attorneys Went to College After Private Practice, Came Back 1

2 THREE WORLDS OF SURVEYING Business Legal Technical Fig: World of Surveying bubble diagram TODAY Legal World Fig: Legal World bubble TOPICS FOR OUR LECTURE Court Systems History of Boundaries Boundary Creation Ownership Principles Estates in Land Conveyances Adverse Possession 2

3 COURT SYSTEMS Fig: Three Branches of Government graphic COURT SYSTEMS Fig: State and Federal courts HISTORY OF BOUNDARIES Fig: Prehistoric boundaries Fig: Modern boundaries 3

4 HISTORY OF BOUNDARIES Fig: Indian Land for Sale newspaper ad BOUNDARY CREATION By Action By Words By Law BOUNDARY CREATION Original Surveyors Create All Other Surveyors Follow Fig: Cartoon surveyor 4

5 OWNERSHIP PRINCIPLES Fig: Deed in old script Deeds and Descriptions OWNERSHIP PRINCIPLES Chain of Title (US) Torrens (AU, NZ, etc) ESTATES IN LAND Fig: Estates in Land diagram 5

6 ESTATES IN LAND Fig: Magic Words graphic Using the Magic Words CONVEYANCES Simultaneous Sequential xxxxx xxxxxx 7/8/16 6

7 ADVERSE POSSESSION Fig: Adverse possession dinosaur comic ADVERSE POSSESSION Fig: Adverse possession checklist rooftops HISTORY OF BOUNDARIES History of boundaries from the cavemen to modern times including how land is described and conveyed 7

8 BOUNDARIES ENJOY A LONG HISTORY IN BOTH MYTHOLOGY AND JUDAIC CHRISTIAN HISTORY THE SPOKEN WORD Fig: Cave Drawings TERMINUS: THE GOD OF BOUNDARIES Fig: Statue of Terminus 8

9 BIBLICAL REFERENCES TO BOUNDARIES Proverbs 22:28 Remove not the ancient landmark, which thy fathers have set. Deuteronomy 19:14 Thou shalt not remove thy neighbors landmark which they of old time have set, in thine inheritance which thou shalt inherit, in the land that Jehovah thy God giveth thee to possess it. Deuteronomy 27:17 cursed be he that removeth his neighbor's landmark. And all the people shall say, amen. Job 24:2 Some remove the landmarks; they seize and devour flocks. Zechariah 2:1 2 I lifted up mine eyes again, and looked, and behold a man with a measuring line in his hand. Then said I, Whither goest thou? And he said unto me, to measure Jerusalem, to see what is the breadth thereof, and what is the length thereof. Ezekiel 42:16 19 He measured on the east side with the measuring reed five hundred reeds, with the measuring reed round about. He measured on the north side five hundred reeds with the measuring reed round about. He measured on the south side five hundred reeds with the measuring reed. He turned about to the west side, and measured five hundred reeds with the measuring reed. 7/8/16 A LAND SURVEYOR CREATES LAND BOUNDARIES, WHICH ARE DETERMINED BY LEGAL PRINCIPLES THE SURVEYOR S ROLE Locate Title Boundaries Locate Limits of Possession Locate The Limits Of The Claim Of Right Locate Improvements Locate And Describe Rights In Property 9

10 How Are Boundaries Created? Words Acts Laws Boundaries are Created Only Once Fig (a) and (b): Two land survey plats HISTORIC RITUALS OF BOUNDARIES Fig: Community Comes Out in Yearly Ritual 10

11 A DESCRIBED CLOSED BOUNDARY IDENTIFIES A CLAIM OF RIGHT TO ANY PROPERTY INTEREST THROUGH A CLAIM OF TITLE WRITTEN TITLE Fig: Certificate of Title of Dept of AG Conquest SOURCES OF TITLE Royal grants from a foreign power Grants of original crown lands from one of the original states Grants or patents from the U.S. government of public domain lands Newly created lands 11

12 William the Conqueror Fig: Portrait of William the Conqueror 1066 Fig: Cartoon of England being invaded in 1066 DOMESDAY BOOK Fig: Drawing of the Domesday book 12

13 STATUTE TO PREVENT FRAUDS The following types of contracts must be in writing to be enforceable: 1. contracts for the sale or lease of, or a mortgage on, real property (e.g., land, fixtures); 1. contracts that cannot be performed within one year after the date the contract was formed; 1. collateral contracts, such as promises to answer for or guaranty the debt or duty of another person; 1. promises made in consideration of marriage (i.e., prenuptial agreements); and 1. contracts for the sale of goods valued at $500 or more. ANY LAND TRANSFER MUST BE IN WRITING Fig: Dollhouse contracts for the sale or lease of, or a mortgage on, real property (e.g., land, fixtures); THERE ARE SEVERAL TYPES OF BOUNDARIES MACRO MICRO 13

14 MACRO BOUNDARY DISPUTES Fig: Old Map of Britain MICRO BOUNDARIES Fig: Neighbors arguing across fence TAKEAWAYS The Surveyor must be able to understand title but should refrain from giving opinions as to title issues A surveyor should never go beyond the words of the document What boundaries are is a question of law Where boundaries are is a question of fact 14

15 CREATING BOUNDARIES Boundaries can be created in many ways. But once they are created, they cannot be changed or altered. Your primary job is follow, not to re create How Are Boundaries Created? By Action By Words By Law Boundary Survey BY ACTION Creation of corners Drawing a plat 15

16 Legal Description BY WORDS Patent Easement conveyance BY LAW Statute Common law LAND OWNERS MAY SUB DIVIDE PARCELS IN ANY MANNER NOT INCONSISTENT WITH THE LAW 16

17 SUBDIVIDING PARCELS A landowner may divide a parcel as he pleases A land survey is not required But a valid legal description must exist And poor descriptions or monumentation leads to problems THERE CAN ONLY BE ONE ORIGINAL SURVEY THAT CREATES THE BOUNDARIES OF A PARCEL ONE ORIGINAL SURVEYOR The land boundary is created only once That creation occurs when the transfer document is executed, such as: Patents Deeds Plats??? 17

18 CREATING NEW BOUNDARIES New sequential conveyances: slice off a piece of the farm New simultaneous conveyances: asphalt grandpa s fields and create a subdivision Court decisions: three brothers that once owned a one lot now own three (partitioning) NO SURVEYOR OR COURT HAS THE LEGAL AUTHORITY TO ALTER OR MODIFY A BOUNDARY LINE ONCE IT IS CREATED. IT CAN BE INTERPRETED ONLY FROM THE EVIDENCE OF WHERE THAT BOUNDARY IS LOCATED BASED ON THE FOOTSTEPS OF THE ORIGINAL SURVEYOR ORIGINAL SURVEYS According to the US Supreme Court, original surveys are unassailable through the courts It is not your responsibility to "correct" an "error" in the original survey Merely because an original surveys angles and distances do not harmonize with your own measurements does not indicate a blunder Report the discrepancies but do not disregard them 18

19 ORIGINAL SURVEYS There are two types of surveys: originals and retracements Once created, the surveyor or parcel owner cannot alter those boundaries Original surveyors created, retracing surveyors follow THE FOOTSTEPS OF THE ORIGINAL SURVEY ARE THE EVIDENCE LEFT ON THE GROUND AS WELL AS THE DOCUMENTATION IDENTIFYING THE GROUND EVIDENCE THAT THE ORIGINAL SURVEYOR CREATED FOLLOWING THE FOOTSTEPS Instructions given to surveyors Any prior surveys Field notes Monuments on the ground Produced items such as plat or map 19

20 PRIORITY OF CALLS 1) Lines actually run on the ground by the creating surveyor(s) 2) Natural monuments or landmarks 3) Artificial monuments and established lines, marked or surveyed 4) Calls for adjoining tracts that are senior in title 5) Calls for courses and distances 6) Designation of quantity NATURAL MONUMENTS Fig: Stream Fig: Hill ARTIFICIAL MONUMENTS Fig: BLM Monument in Concrete Fig: BLM Monument in Concrete 20

21 SENIOR PARCELS Fig: Subdivision Plat (1) Fig: Subdivision Plat (2) COURSES AND DISTANCES Fig: Polygon Traverse Fig: Old Fieldnotes AREA Fig: Subdivision Plat (3) 21

22 OWNERSHIP, TRANSFER, AND DESCRIPTION OF REAL PROPERTY Understanding the basic principles of ownership, transfer and description are essential for determining rights and interests in land. PRINCIPLE 1 The grantor can only convey what he owns to the grantee If the person conveys 200 acres but only owns 160 acres, then only 160 acres is transferred If the person owns a half interest as TIC, then only a half interest is conveyed SOURCES OF TITLE Conquest or peace treaty Patent Deed Adverse possession Prior appropriation Eminent domain Involuntary alienation 22

23 UNWRITTEN RIGHTS Although title must be transferred in writing (according to the Statute of Frauds), some unwritten rights may be altered Adverse possession Boundary by agreement Estoppel LAND OWNERS MAY TRANSFER PARCELS IN ANY MANNER NOT INCONSISTENT WITH THE LAW TRANSFER OF REAL PROPERTY Voluntary Involuntary Inheritance 23

24 TRANSFER OF REAL PROPERTY Back in the Day: Feoffment, a symbolic delivery Today: conveyance (deed) or inheritance (will) Statute of Frauds QUITCLAIM DEED Fig: Quitclaim Deed WARRANTY DEED Fig: Warranty Deed 24

25 EASEMENT DEED Fig: Old Torn Easement Conveyance A VALID TRANSFER OF LAND REQUIRES A PROPER CONVEYANCE MECHANISM AND A VALID DESCRIPTION DEED AND DESCRIPTION Deed: instrument or document by which a property interest in conveyed Description: text inside deed that defines the interest(s) being conveyed 25

26 VALID DEED Properly executed and delivered Parties of sufficient legal capacity Consideration Signatures VALID DESCRIPTION It depends! In Florida, a legal description is valid if the description of the land conveyed in a deed is such that a surveyor, by applying the rules of surveying, can locate the same. Or property description is valid so long as the instrument itself shows that the parties were contemplating a particular piece of property, rather than an unspecified piece of property, or alternative descriptions, or property to be obtained later. Connelly v. Smith, 97 So. 2d 865 Historically a deed is valid if a surveyor could have taken the instrument at the time it was drafted, & using only the information contained in it & incorporated by reference, locate the particular parcel of property described. If the surveyor could not make this determination, the instrument was a nullity. 26

27 Bajrangiy, Magnethel, Enterprises, Inc., 589 So. 2d 416, 419 Modern view deed valid if "description is sufficient if the reference to the property in the deed is such that the court, by pursuing an inquiry based upon the words of reference, is able to identify the particular property to the exclusion of all other property." VALID DESCRIPTION NE ¼ OF SW ¼ OF SECTION 28, TOWNSHIP 1 N, RANGE 3 E NE ¼ OF SW ¼ OF SECTION 38, TOWNSHIP 1 N, RANGE 3 E NE ¼ OF SW ¼ OF SECTION 28 LOT 3, BLOCK 1, WINDSOR PALMS SUBDIVISION LOT 3, BLOCK 1 WHO OWNS WHAT? O to A in 1994, then O to B in A never took possession or recorded. O to A in 1994, then O to B in A recorded in O to A in 1994, then O to B in B recorded in

28 WHAT IS GOOD TITLE? Legal Title + Equitable Title = Perfect Title Property title and mortgage security are two documents 28

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