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~ ~ ~
Maryland Society of SurveyorsHunt Valley, Maryland
October 5, 2017
Presented by Gary R. Kent, PS
~ Advanced ~
Legal Description Writing
I. Background and Considerations
A. MD Statutes/Codes/Regulations
B. ALTA/NSPS Standards
C. Lender requirements
II. The Sufficient Legal Description
A. Purpose and Sufficiency
B. Do’s and Don’ts
i. Gaps and Overlaps
C. The effect of words and phrases
D. Determining or establishing intent
i. Unwritten rights
E. Determining what controls
Program Agenda
E. Determining what controls
i. References to monuments
ii. References to maps and plats
iii. Curves
iv. Water boundaries
v. Subterranean /aerial descriptions
vi. Reversionary rights
III. Types of legal descriptions (11 types)
IV. Exercises
A. Basic
B. Moderate
C. Challenging
D. Easements and 3-D
Program Agenda
§15–101.
(k) (1) “Practice land surveying” means any
service, work, documentation, or practice, the
performance or preparation of which requires the
application of special knowledge of the principles of
mathematics, the related physical and applied
sciences, and the requirements of the relevant law,
as applied to:
Background and Considerations
(i) measuring, platting, and locating lines, angles,
elevations, natural or artificial features in the air, on
the surface of the earth, in underground work, and
on the beds of bodies of water for the purpose of
determining and reporting positions, topography,
areas, and volumes;
(ii) the platting or replatting, establishing or
reestablishing, locating or relocating, or setting or
resetting the monumentation for boundaries of real
property, easements, or rights–of–way
Background and Considerations
09.13.06.08 Metes and Bounds Descriptions
A. Purpose. The purpose of a metes and bounds
description is to create a written legal description of
the subject tract of land that provides information
necessary to properly locate the property on the
ground and distinctly set it apart from all other
properties.
Background and Considerations
09.13.06.08 Metes and Bounds Descriptions
B. Result.
(1) A metes and bounds description shall indicate
the general location of the property by:
(a) Naming the particular lot or block, or other
acceptable identification within which it is located, if
the property is located in a subdivision; or
(b) By reference to the deed for the parcel being
described, and information with regard to tax or
election district, county, and state.
Background and Considerations
09.13.06.08 Metes and Bounds Descriptions
(2) The description shall also logically compile and
incorporate calls for the following:
(a) Courses and distances with a statement
regarding the basis of bearing;
(b) Adjoining record title lines, and rights-of-way as
appropriate; and
(c) Statement of the subject land area.
Background and Considerations
09.13.06.08 Metes and Bounds Descriptions
(3) The point of beginning shall be carefully chosen
and described in a manner which will distinguish it
indisputably from any other point.
(4) Curved boundaries shall include sufficient data to
define the curve, including the direction of curve,
radius, arc length, chord bearing, and chord length.
The description shall also include the identification of
nontangent curves.
Background and Considerations
09.13.06.08 Metes and Bounds Descriptions
(5) If a metes and bounds description is based upon
a boundary survey performed in accordance with
Regulation .03 of this chapter, sufficient monuments
or reference control points which were used to
determine the property lines shall be called in the
metes and bounds description.
Background and Considerations
09.13.06.08 Metes and Bounds Descriptions
(6) The metes and bounds description shall contain
a statement to the effect that a licensee either
personally prepared a metes and bounds description
or was in responsible charge over its preparation
and the surveying work reflected in it, all in
compliance with requirements set forth in Regulation
.12 of this chapter.
Background and Considerations
09.13.06.08 Metes and Bounds Descriptions
(7) The metes and bounds description shall be
signed and sealed by a surveyor who personally
prepared or was in responsible charge over the
preparation of the metes and bounds description.
Background and Considerations
2016 ALTA/NSPS Standards
Section 6.
A plat or map of an ALTA/NSPS Land Title Survey
shall show the following information….
Background and Considerations
2016 ALTA/NSPS Standards
Section 6.B.ii.
Any new description of the surveyed property that
was prepared in conjunction with the survey,
including a statement explaining why the new
description was prepared.
Except in the case of an original survey, preparation
of a new description should be avoided unless
deemed necessary or appropriate by the surveyor
and insurer.
Background and Considerations
2016 ALTA/NSPS Standards
Section 6.B.ii.
Preparation of a new description should also
generally be avoided when the record description is
a lot or block in a platted, recorded subdivision.
Except in the case of an original survey, if a new
description is prepared, a note shall be provided
stating (a) that the new description describes the
same real estate as the record description or, if it
does not, (b) how the new description differs from
the record description.
Background and Considerations
Land Title Surveys
Lenders often make demands of the surveyor
regarding legal descriptions
• Recognize what is reasonable and what is not
• How to address the issue
Lender Requirements
Land Title Surveys
John Hancock Life Insurance Company
• The surveyor is to prepare a new metes and
bounds legal description of the perimeter of the
limits of the Property with reference to record
course distances and bearings.
• If conveniently available to the surveyor, the new
description shall also reference adjoining property
owner.
Lender Requirements
Land Title Surveys
John Hancock Life Insurance Company
• The description of the Property shown on the
survey must conform to the legal description
shown in the owner’s title insurance commitment
for the Property.
Lender Requirements
Land Title Surveys
John Hancock Life Insurance Company
• The new legal description shall be followed by a
note stating that it describes the same property as
shown of record and in the title insurance
commitment.
• An example of this note is as follows:
Lender Requirements
Land Title Surveys
John Hancock Life Insurance Company
• "The foregoing legal description describes the
same property as shown in the vesting deed,
recorded at __________ and is the same property
described in Schedule A of title insurance
commitment no. __________ bearing an effective
date of _________ as prepared by
____________."
Lender Requirements
Land Title Surveys
John Hancock Life Insurance Company
• If the new perimeter legal description describes
different property, then the required note shall
explicitly describe how it varies from the record
and title insurance commitment legal description.
Lender Requirements
Land Title Surveys
John Hancock Life Insurance Company
• A metes and bounds description must comply with
the following standards:
Lender Requirements
Land Title Surveys
John Hancock Life Insurance Company
• The legal description should be a single perimeter
description of the entire Property and should
return to the Point of Beginning.
• If the Property is formed by two or more
contiguous tracts of land, the new legal shall be a
composite legal that describes the overall
boundary of all tracts.
Lender Requirements
Land Title Surveys
John Hancock Life Insurance Company
• If the Property is two or more non-contiguous
tracts of land, then a separate metes and bounds
description will be needed for each non-
contiguous portion.
Lender Requirements
Land Title Surveys
John Hancock Life Insurance Company
1. The Point of Commencement (“POC”) and/or the
Point of Beginning (“POB”) should be shown on
the survey and established by an existing
monument either marking the exact point or on
nearby reference points so its position can be
recreated by future surveyors easily and
accurately.
Lender Requirements
Land Title Surveys
John Hancock Life Insurance Company
• The POC and/or POB chosen shall comply with
local practices for the recordation of the new legal
description.
• In the absence of local mandates, the POC and/or
POB shall be points of intersection of right-of-way
or center lines of public streets or roads or at
original lot, tract or section corners.
Lender Requirements
Land Title Surveys
John Hancock Life Insurance Company
2. The sides of the Property should be described by
stating each course distance, bearing and the
bounding property owner whether owned
privately or publicly with recording reference.
In lieu of bearings, it is equally acceptable to use
the interior angle method, provided that the
beginning point is located on a public street line
or other properly fixed line or the course of the
first side is otherwise properly fixed.
Lender Requirements
Land Title Surveys
John Hancock Life Insurance Company
3. The distances, bearings and angles should be
taken from a recent on-the-ground instrument
survey by a licensed civil engineer or registered
surveyor.
Lender Requirements
Land Title Surveys
John Hancock Life Insurance Company
4. Curved sides should be described by data
including: length of arc, radius of circle for the
arc and chord distance and bearing.
5. Where a survey course is part of a dedicated
public street or road line, the course may be
described by indicating the distance and direction
the course takes along the street line from the
end of the previous course.
Lender Requirements
Land Title Surveys
John Hancock Life Insurance Company
6. All easements appurtenant to the Property must
be added to the end of the legal description using
the same identical language as contained in the
vesting document of record.
If any such legal is incorrect or inaccurate, then
the survey shall report this in a note after the
description.
Lender Requirements
Land Title Surveys
John Hancock Life Insurance Company
Additional Acceptable Descriptions
1. A description composed of lots and/or blocks
including a reference to a recorded map or plat
that shows the lots or blocks is usually adequate.
Lender Requirements
Land Title Surveys
John Hancock Life Insurance Company
Additional Acceptable Descriptions
2. Although encountered in only a few cases, a
description of a parcel bounded on all sides by
streets or alleys can acceptably refer only to the
bounding lines of the streets or alleys.
Lender Requirements
Land Title Surveys
John Hancock Life Insurance Company
Additional Acceptable Descriptions
3. A description of registered property is acceptable
if in form required by the local Torrens Act or
approved in the registration.
Lender Requirements
Purpose
• Describes the unique shape, size and location of
real property
OR
• Provides the means by which the unique size,
shape and location can be ascertained.
The Sufficient Legal Description
Sufficiency
• A competent person (professional surveyor) can
locate the described real estate on the ground
• With or without reference to extrinsic evidence
The Sufficient Legal Description
Extrinsic Evidence
• May be considered to:
• Explain the meaning of words in the conveyance
• Explain conditions existing as of the date of the
conveyance
The Sufficient Legal Description
Extrinsic Evidence
It is true that "[i]f the text of the easement is
ambiguous, extrinsic evidence may be considered
by the trial court in order to determine the scope of
the easement."
However, considering extrinsic evidence in the
absence of ambiguous language is "clearly
inconsistent with the well-established principles of
legal interpretation... and is thus incorrect.“
Blackhawk Dev. Corp. v. Village of Dexter, 700 NW 2d 364 -
Mich: Supreme Court 2005 [internal citations omitted]
The Sufficient Legal Description
Sufficient?
EXCEPTING also a piece of ground about 7 feet
wide and 14 feet long near the Northeast corner of
the West Half of the Northeast quarter of said
Section, Township and Range aforesaid.
The Sufficient Legal Description
• Be clear, concise and complete
• No abbreviations
• Confirm accuracy of caption
• Write intent into the description; do not let the
math do the work (it won’t!)
• Include a basis of bearings
• Provide adequate curve data (including tangent or
non-tangent)
• “Described in” a deed, not “Conveyed by” a deed
• “Except, however,” vs. “Subject to”
Do’s and Don’ts
• Be clear when multiple exceptions
Do’s and Don’ts
500’
Except 100 feet off the entire east side thereof.
Except 80 feet off the entire west side thereof.
100’80’
500’
Except 100 feet off the entire east side thereof.
Except 80 feet off the entire west side thereof.
100’
80’
20’
• Be clear when multiple exceptions
• Proper reference to meander line
• Proper reference to water boundary
• Include datum when referencing an elevation
• Do not include wording as to the use of an
easement in the description
• Deed vs. Measured?
• “Along the fence”
• What is on your list of do’s and don’ts?
Do’s and Don’ts
Do not include gaps or overlaps in new descriptions
unless:
• The client has written title either from a previous
owner or from a court decree
or
• An attorney will issue an opinion vouching for it
or
• A title company will insure it (in the case of a Land
Title Survey)
Gaps and Overlaps
If a description including a gap or overlap is
prepared for purposes of litigation or relating to an
attempt to resolve a problem:
• Clearly outline purpose of the description
• Be clear surveyor is not offering an opinion on title
Gaps and Overlaps
When words, or the lack of them, or the arrangement
of them, used in descriptions results in ambiguity,
both the interpretation of them and the physical
location of the boundary lines from them become
questionable.
Writing Legal Descriptions: In Conjunction with Survey
Boundary Control, Gurdon Wattles (1976)
Understanding the Effect of Words
and Phrases
• Caption
✓ General location
✓ Limits title
• Body
✓ Describe the property, or
✓ Provide the means by which it can be
identified
• Qualifications/Augmenting phrases
✓ Consider items of title vs. location
Parts of a Legal Description
As just described, the trial court in this case declared
the partial release provision ambiguous and then
sought to ascertain the intent of the parties through
the use of evidence extrinsic to the contract itself.
These actions implicate the role of the judiciary in
contract interpretation and the use of extrinsic
evidence for interpretative purposes.
Determining or Establishing Intent
Maryland law generally requires giving legal effect to
the clear terms of a contract and bars the admission
of prior or contemporaneous agreements or
negotiations to vary or contradict a written
contractual term.
Under the parol evidence rule, a written agreement
"discharges prior agreements," thereby rendering
legally inoperative communications and negotiations
leading up to the written contract.
Determining or Establishing Intent
The requirement that courts give legal effect to the
unambiguous provisions of a contract and the rule
that prohibits the admission of parol evidence for
ascertaining the parties' intent provide a necessary
legal foundation for the certainty of contracting
parties.
Colomiris v. Woods, 727 A. 2d 358 - Md: Court of Appeals
1999 [internal citations omitted]
Determining or Establishing Intent
"A deed is a contract[,]" and, "`[a]s with any
instrument, a deed must be read as a whole in order
to ascertain the grantor's intent.'"
Contracts, such as deeds, are subject to the parol
evidence rule, which precludes the use of extrinsic
evidence when interpreting unambiguous
contractual language,
but ambiguous contracts open the door to the
admission of extrinsic evidence to establish the
actual intent of the parties.
…
Determining or Establishing Intent
An ambiguity can be either patent or latent[.]
This Court has held that extrinsic evidence may not
be used to identify a patent ambiguity because a
patent ambiguity appears from the face of the
document.
However, extrinsic evidence may be used to show
that a latent ambiguity exists. . . .
…
Determining or Establishing Intent
A latent ambiguity exists when the language in a
contract appears to be clear and intelligible and
suggests a single meaning, but other facts create
the "`necessity for interpretation or a choice among
two or more possible meanings.'“
…
Determining or Establishing Intent
To verify the existence of a latent ambiguity, a court
must examine the extrinsic evidence presented and
determine if in fact that evidence supports an
argument that the contract language at issue, under
the circumstances of its formation, is susceptible to
more than one interpretation.
Then, if a latent ambiguity is found to exist, a court
must examine the extrinsic evidence again to
ascertain the meaning of the contract language at
issue.
Halberg v. PFEIFFELMANN, Mich: Court of Appeals
2012 (unpublished)
Determining or Establishing Intent
A. Right of Possession (unwritten conveyances)
B. Senior Rights (in the event of an overlap)
C. Written Intentions of Parties
1. Call for a Survey or an actual survey on which the
conveyances is based
2. Call for monuments
a. Natural
b. Artificial
3. Adjoiners
4. Distance and Direction
5. Direction or Direction
6. Area (quantity)
Brown’s Boundary Control and Legal Principles, Fifth Edition, Brown,
Robillard and Wilson, p. 307
Determining or Establishing Intent
No one has the legal right nor vested authority to
change any line of a recorded title without a new and
proper document in the recorder’s office to support
it.
Writing Legal Descriptions: In Conjunction with
Survey Boundary Control, Gurdon Wattles (1976)
Unwritten Rights/Rights of Possession
[Unwritten rights], like adverse possession, require a
court decree to be perfected.
This removes them from the boundary law principles
that the land surveyor could and should employ in
the determination of boundary location.
Jeff Lucas, Esq, PLS
Unwritten Rights/Rights of Possession
• Long-standing lines of possession may be
evidence of parol agreement or acquiescence.
• Can the surveyor change a description to match
such lines?
• Questions to consider…
• Is there any ambiguity in the description?
• Are the current owners the original parties to
the acquiescence or parol agreement?
• Are they still in agreement as to the line?
• Have they started arguing about the line?
Unwritten Rights/Rights of Possession
• If there is ambiguity in the description...
• Perhaps the long-standing line is the best
evidence of the boundary
(regardless of whether it meets the criteria for an
unwritten conveyance)
Unwritten Rights/Rights of Possession
[T]he surveyor should hesitate long before doing
anything to the disturbance of settled possessions.
Occupation, especially if long continued, often
affords very satisfactory evidence of the original
boundary when no other is attainable; and the
surveyor should inquire when it originated, how, and
why the lines were then located as they were, and
whether a claim of title has always accompanied the
possession…
The [Quasi-] Judicial Function of Surveyors, Justice Thomas
Cooley, 1881
Unwritten Rights/Rights of Possession
It is always possible, when corners are extinct, that
the surveyor may usually act as a mediator between
parties and assist in preventing legal controversies
by settling doubtful lines.
[T]he same authority that makes [the surveyor] an
officer and entrusts him to make surveys, also allows
parties to settle their own boundary lines,
and considers acquiescence in a particular line or
monument, for any considerable period, as strong if
not conclusive evidence of such settlement.
The [Quasi-] Judicial Function of Surveyors, Justice Thomas
Cooley, 1881
Unwritten Rights/Rights of Possession
For possession to be considered evidence of the
original lines…
• There was an early survey that, if located, will
control the line between the adjoiners
• The lines of possession are along the lines
surveyed or presumed to have been surveyed by
the surveyor
• Usually, but not always, a series of possessions,
in agreement with one another, substantiate one
another
Unwritten Rights/Rights of Possession
For possession to be considered evidence of the
original lines…
• Possession is an ancient matter of a former
generation (if it is of a present generation
someone can testify about its origin).
• Possession has the reputation of being on the
correct survey lines
Unwritten Rights/Rights of Possession
• Unless ambiguous, intentions of the parties come
from the written document
• Yet surveyors “Follow in the Footsteps of the
original surveyor.”
• Are those footsteps expressed within the
document?
• If the description in the document was the product
of a survey, then that source - the survey - is the
best evidence of what was intended
Determining or Establishing Intent
References to monuments
• Natural
• Artificial
• Adjoiners
Consider how the description will be interpreted if
there is a conflict between monuments
• Example…
Determining what Controls
References to maps/plats/survey
• Clear expression of intent
• Preferably of record
• What if not recorded?
Determining what Controls
References to unrecorded maps/plats/survey
• “…being that 5.64 acre parcel surveyed by Gary
R. Kent, Indiana Professional Surveyor
#80040389 and shown on a plat of survey
certified on March 31, 2017 as The Schneider
corporation Job number 2586.001 and last
revised on April 4, 2017 (all monuments
referenced herein are as set or found on the
aforesaid Kent survey), being more particularly
described as follows:…”
Determining what Controls
Curves
• Two independent elements plus direction
• Typically: radius, arc length, chord
bearing/distance, direction
• Radius, arc length, direction to/from radius point
from beginning and end of curve
• Assumed tangent if description does say
otherwise
• Non-tangent curve does not have a PC or PT
• Compound/reverse templates
Determining what Controls
Water Boundaries - considerations
• Navigable vs non-navigable
• Extent of title in the beds of navigable waters of
the state
• Common law precedent relating to calls “to” a lake
or stream
• River and Lake Boundaries (Second edition),
James A. Simpson, Plat Key Publishing, 2005
Determining what Controls
Water Boundaries – considerations in MD
• When describing a water boundary, the scrivener
must recognize how far the upland owner’s title
extends into a navigable or non-navigable stream,
lake and the nuances of tidal waters.
Determining what Controls
Water Boundaries - considerations
• Meander lines
Be very clear that the described line is, in fact, a
meander line
“… to the easterly low water line of the Crystal
River; thence meandering said low water line the
following __ courses, (1) North 13 degrees 26
minutes 00 second East a distance of 257.00
feet; (2) thence North 15 degrees 25 minutes 00
seconds West a distance of 310.00 feet; thence
…”
Determining what Controls
Aerial and Subterranean
• Vacations over/under public streets
• Tunnels
• Aerial walkways
• Underground parking garages
• Avigation rights over runways
• Be clear on the datum (avoid reliance on specific
benchmarks, or specify the elevation to be
associated with them)
• Examples in handout
Determining what Controls
Reversionary Rights - Considerations
• What is “Right of way” – easement or strip of land?
• What is “reverting?”
• Fee vs. right of way/easement
• Reversionary rights to centerline?
• Depends to where originating underlying fee
extended
Determining what Controls
Reversionary Rights - Considerations
• Apportionment of rights associated with
Vacation/Abandonment
• Equitable
• Prolongation of side lines
• Proportionate frontage
• Radial lines
• Right angles
• How to describe?
Determining what Controls
Reversionary Rights – Title considerations
• Apportionment of rights associated with
abandonment of railroads
• Who has underlying title?
• Sketch
Determining what Controls
Rights of way - Considerations
• Calls “to” a street or road…
• California rule (excludes title in non-fee
street)
• New Jersey rule (includes title in non-fee
street)
Determining what Controls
Lots and streets
• Calls to lot lines and corners vs. right of way line
Determining what Controls
78
Case Study – Plat recorded 1965
79
“Lots contiguous to shoreline of the lake shall
extend only to the shoreline of the lake to which
such lot is contiguous, as said shoreline would
be established on the date hereof if the water
elevation in said lake were at an elevation one
vertical foot above the normal pool water
elevation indicated hereon and as said
shoreline may hereafter be established by the
water at an elevation one vertical foot above
normal pool water elevation, by erosion from
said shoreline.”
Wording from plat
80
Historical Conditions
81
Current Conditions
82
“Except that part of Lot 1127 described as follows:
Beginning at the Northwest corner of Lot 1127;
thence Easterly along the North line of said lot a
distance of 25.0 feet; thence southerly and parallel
to the Westerly line of said Lot 1127 a distance of
15.0 feet; thence Southwesterly a distance of 29.18
feet to a point on the Westerly line of said Lot 1127,
25.0 feet Southerly of the Northwest corner thereof;
thence Northerly along said Westerly line 25.0 feet
to the Northwest corner and the Point of
Beginning.” [What is the problem?!]
Exception to Lot 1127 to SW adjoiner
83
Historical Conditions
84
Solution 1 - Lot line extensions based on
prorated historical 831 contour vs. 831 contour
depicted on plat
85
Solution 2 - Lot line extensions to center of
lake
86
Solution 3 - Lot line prolonged
Questions?
Gary R. Kent, PS
The Schneider Corporation
8901 Otis Avenue
Indianapolis, IN 46216
Phone - 317.826.7134
57