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Our Speaker Jerry Morris Poll Question #1 The history of legal descriptions begin with surveying in early America, which included the mapping of large unknown territories. Several Presidents were involved, cast your vote for which Presidents were early American surveyors: Why is the Legal Description so Important? 1. Adequate legal description is required for title insurance. 2. Errors in descriptions are a frequent cause of claims (hint: verify the accuracy of the legal description before the instrument is executed - An ounce of prevention is worth a pound of cure). 3
Different Types of Legal Descriptions 1. Platted Lot, Block or Tract 2. Condominiums 3. Acreage (section-land/unplatted-land) 4. Metes and bounds (perimeter description) Platted Lot, Block or Tract Example of Platted Lot: Lot 1, Block 2, Green Acres Subdivision, Plat Book 4, Page 5, of the current public records of Duval County, Florida. Example of Fractional Portion of Platted Lot: The North ½ of the West ¼ of Lot 1, Block 2, Green Acres Subdivision, Plat Book 4 Page 5 of the current public records of Duval County Florida. Example of Footage Description of Platted Lot: North 100 feet of the South 200 feet of Lot 1, Block 2, Green Acres Subdivision, Plat Book 4 Page 5 of the current public records of Duval County, Florida. Condominium Example of Condominium Legal Description: Unit 5, Building A, of the Sunrise Safari Condominium, according to the Declaration of Condominium recorded in Official Records Book 32, Page 8 of Broward County, Florida. 4
Quicksand Common Problems with Condominium Descriptions 1. Incorrect condominium name. 2. Erroneous unit, building or phase designation. 3. Prohibition on separation of unit from its share of the common elements. 718.107, Fla. Stat. US Government Survey, Government Lots - Rectangular Survey System Base Line Establishes Principal Meridian (measures points East & West) and the Base Parallel (runs East and West through Tallahassee) and measures points North & South Sets forth Section, Township and Range lines (Section 1 Township 1 North Range 26 East) Basis for all surveys in Florida Useful for locating navigable water bodies Principal Meridian Township, Range Township 1 North, Range 1 West Township 2 South, Range 3 East Township 3 South, Range 3 West R3W R2W R1W R1E R2E R3E T3N PRINCIPAL MERIDIAN T2N T1N BASE LINE T1S T2S T3S 5
Sections 6 5 4 3 2 1 7 8 9 10 11 12 18 17 16 15 14 13 19 20 21 22 23 24 SIX MILES 30 29 28 27 26 25 31 32 33 34 35 36 SIX MILES Section Land/Metes & Bounds/Perimeter Description/Running Description Describes subject property by establishing a point of beginning and running the perimeter (boundaries) of the property by angles (also called bearings) and distances. Can also describe property by boundaries Is the Legal Description Sufficient? If the description can be located by a surveyor, it is sufficient. Fla. Uniform Title Standard 21.1. Surveyor must use only the description and his tools. Correct description must be used in all current instruments. Tax Parcel ID # is not sufficient. 6
Poll Question #2 A street address is a sufficient legal description for... Sufficiency of Legal Description- Powers of Attorney Paula Principal s POA refers to all of my property. Is a specific legal description required? No. Where the intention is to authorize the execution of instruments on any real property owned by the principal, a specific description is not required. While the authority granted in POAs is strictly construed by the courts, the intention of the principal controls as regards the description of the property. Test of Sufficiency of Legal Description Beware of these Wild Animals - They are Exceptions to the Rule! Where the type of instrument permits an address, but an address may describe or include more than one parcel of land owned by the party in question, reliance upon an address can result in errors and unintended consequences. 14 Green Street Where no exception applies (description required) an instrument attempting to convey by address should not be ignored! This includes Easements! 7
Fla. Uniform Title Standard 21.3 Conveyance Described Only by Reference to Previous Recorded Document A conveyance which describes the land only by reference to a previously recorded instrument, without reciting the description set forth in the previous instrument, is valid, even though the title examiner must go to another instrument to identify the property conveyed. Fla. Uniform Title Standard 21.3 This assumes the previous recorded instrument contains an adequate description. This applies to all instruments - not just conveyances. Fla. Uniform Title Standard 21.4 If a Deed contains a specific description of the property, such as by government survey, metes and bounds, or reference to a plat, together with a statement of the acreage, the specific description prevails over the statement of acreage, unless an intent to convey a certain quantity is clearly stated. 8
Fla. Uniform Title Standard 21.4 A specific description usually controls over a more general description. Description says the South ½ of Lot 1 describes as follows, but metes and bounds description describes the South ½ of Lot 1 and the North 10 feet of Lot 2. So, the examiner must check the metes & bounds description. Metes and bounds description controls, subject to an exception Ambiguous Descriptions But Beware of the Exception to the Rule! Ambiguous Descriptions and the Carson v. Palmer Case- 190 So. 720. General description of Lot 6 v. Metes & bounds description of Lot 9. The Court in Carson v. Palmer held that where two descriptions describe completely different parcels, the description is void and the Deed Fails. Rules of Construction Monumentation/Rule of Construction Harmless Errors in Legal Description Angles/Bearings 9
Harmless Errors - Angles Thence run North 89 degrees 05 minutes 15 seconds East, along the North right of way line of Liberty Street, a distance of 100 feet to the West line of Lot 4 of Green Acres S/D, Plat book 1 page 2 of the public records of Orange County, Florida. The angle/bearing stated is along the North right of way line of Liberty Street, (a public street) so that controls the angle/bearing. Sufficient to say; Thence run Easterly along the North line of Liberty Street Other examples Section lines, Lot lines, lines locatable by the surveyor. Harmless Errors - Distances Thence run North 89 degrees 05 minutes 15 seconds East, along the North right of way line of Liberty Street, a distance of 100 feet to the West line of Lot 4 of Green Acres S/D, Plat book 1 page 2, of the public records of Orange County, Florida. The distance is stated as to the West line of Lot 4, Green Acres Subdivision, so that controls the distance. Sufficient to say to the West line of Lot 4 Other examples - Section lines, right of way lines, plat lines. Problematic Legal Descriptions - Scrivener s Affidavits To Correct Errors in Platted Descriptions or Condo descriptions that are neither harmless nor fatal- Scrivener s Affidavits, Clerk s Affidavit, Surveyor s Affidavit, Affidavit by a Title Agent Key Elements Lot/Tract or Unit Number Block or Building Number Name of Subdivision or Condo Project Plat Book/Page Reference or Condo Dec Reference 10
Concept of the Scrivener s Affidavit If the error in the name of the Subdivision/Plat or Condo Project is reasonably clear or is slight enough that no other recorded Subdivision/Plat of Condo Project is so similarly worded so as to be confused with the correct Subdivision/Plat or Condo Project, or If the Lot, Block or Condo Unit designation is correct, and any similarly worded Subdivision/Plat or Condo Project contains no such Lot, Block or Unit designation Scrivener s Affidavits Then the error in the description can be corrected by a Scrivener s Affidavit. The affidavit can be executed by the clerk of the court, a surveyor or a title professional who is familiar with the records of plats or condo declarations in that county. The affidavit sets forth the instrument containing the error, describes the error and then describes the correct description, and explains why the error is reasonably clear. Safari Scrivener Carrie Condo conveyed Unit 6, Building B, of Wild Game Condominium, according to the Declaration of Condominium recorded in Official Records Book 1, Page 2 of the Public Records of Lee County, Florida. The correct Condominium name was Wild Thing Condominium (no Condominium named Wild Game Condominium exists in Lee County). 11
Poll Question #3 Can Safari Scrivener record a Scrivener s Affidavit to correct the erroneous name? CLERK S AFFIDAVIT Problematic Legal Descriptions - Re-recorded Instruments A fatally flawed description cannot be corrected by correcting the description and re-recording the instrument. Several essential elements are lacking: The correction is not executed by the grantor The witnesses did not witness the correction The correction was not re-acknowledged A corrective instrument must be re-executed by the grantor, with new witnesses and acknowledgment, to be effective. 12
Problematic Legal Descriptions - Overlaps Overlap - An area of real property where the same lands are included in descriptions to adjacent owners. Lot 1 Overlap Lot 2 Problematic Legal Descriptions - Overlaps Where Examiner is aware of an overlap, it should not be ignored, even if subject owner appears to have superior title. Often discovered by Survey Review Problematic Legal Descriptions - Overlaps Large Areas of Physical Encroachment - Neighbor s fence encroached 40 feet into subject property. Neighbor s Deed covered the area of encroachment. It was an Overlap. Lot 1 40 ft. fence 13
Problematic Legal Descriptions Gaps Also called a Gore or Hiatus Lies between two otherwise adjacent parcels; a sort of no man s land Gap Lot 1 Lot 2 Problematic Legal Descriptions Gaps Not insured in the policy. (not included in the legal description) Caution!!! Beware of Access Issues; gap parcel may be landlocked. Lot 1 Lot 2 Lot 3 Gap Lot 4 Problematic Legal Descriptions- Litigation-Constructive Service of Process Brown v. Sohn, 276 So. 2d 501-Quiet Title Action What suffices as a description of land in deed is not sufficient to apprise defendant by publication in a law suit. Pt Lots 3, 4 recorded in DB except part in DB, OR, etc. Examiner must verify accuracy of descriptions where constructive service of process (service by publication) used. 14
Survey Review, Calls on Deed v. Survey A Wild Animal to watch out for. Disparity between calls on deed and as measured calls on the ground. Surveyor required to show differences between actual measured bearings and distances on survey. Surveyor described the lands as the North 250 ft. of Tract A, but the map shows that the actual measured distance as 256 ft. Property is landlocked! Read surveyors notes carefully. 250 ft Deed (256 ft measured) North 250 feet Tract A Public Road 250 ft Disputed Boundaries - Boundary Line Agreements Parties should refer to the same survey, and any disagreements between surveyors must be resolved. Agreement must contain conveyance language. Existing Mortgagees must join agreement in order to bind mortgagees Agent Requires Survey to resolve issues with the Legal Description A survey is sometimes necessary to resolve issues with legal descriptions or boundaries. Survey may not resolve issues, just clarify them. Agent must reserve the right to amend/make additional requirements or exceptions upon review of survey. 15
Uniform Title Standard 16.5 Wild Instruments Standard: A wild instrument is one in which none of the parties ever had a record interest. Title not unmarketable, provided: 1. It is shown on the record to be a mistake (was intended to describe other real property) or 2. Instrument has been of record 7 years and no further instruments recorded based upon the wild instrument. Wild Instruments Deed Mortgage Deed $ Bill Smith Lot 4, Green Acre S/D John Doe ABC Mortgage Lot 4, Green Acre S/D John Doe Lot 14, Green Acre S/D Is a release required? How can this problem be cured? Uniform Title Standard 16.5 Wild Instruments So, how do we clear this? If correction already of record, nothing further required. However, the correction will not be found in search of subject property, since the description is different. Record affidavit stating instrument was intended to describe property other then subject property (title agent, lender, scrivener) 16
Foreclosure/Quiet Title/Reformation Suits Where the borrower s deed or the mortgage being foreclosed has a defective description, a count for reformation may be added to complaint to have court correct, in the Final Judgment, the legal description to what was originally intended by the parties. Last owner by correct description required to be a defendant. Action in Personam - Constructive Service of Process not permitted. 20 Year Statute of limitation- FS 95.231(2) Gift Deed cannot be reformed. Where reformation not permitted, Quiet Title suit may be necessary. LEGAL DESCRIPTIONS A PRACTICAL GUIDE Jerry Morris WeTeach@fnf.com 17