MN Property Description and the Law 2012 · • Owner-All Phases • Wording Must Be Understandable But Still Technical • Language of Surveying Profession Best To Use In Description

Property Description Property Description Interpretation and the LawInterpretation and the Law

Minnesota Society of Professional SurveyorsMinnesota Society of Professional Surveyors2012 Annual Meeting2012 Annual Meeting

February 15February 15--17, 201217, 2012

John Matonich, P.S.John Matonich, P.S.

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Note Title ChangeNote Title Change

Property Not LegalProperty Not Legal

IntroductionIntroductionGood DescriptionsGood Descriptions

•• Not Easy to WriteNot Easy to Write

•• Must Satisfy Needs of SeveralMust Satisfy Needs of Several

•• LawyerLawyer--Legal RequirementsLegal Requirements

•• TitleTitle--Adjoiner InterestsAdjoiner Interests

•• SurveyorSurveyor--LocationLocation

•• GovGov’’t Officialt Official--RecordsRecords

•• OwnerOwner--All PhasesAll Phases

•• Wording Must Be Understandable But Still TechnicalWording Must Be Understandable But Still Technical

•• Language of Surveying Profession Best To Use In Language of Surveying Profession Best To Use In Description PreparationDescription Preparation

DescriptionsDescriptions

Real Property, Legal, or Land DescriptionReal Property, Legal, or Land Description•• That Part of the Deed Devoted to the Physical That Part of the Deed Devoted to the Physical

Location of the PropertyLocation of the PropertySo unique to a particular parcel as to So unique to a particular parcel as to delineate it from any other parcel or delineate it from any other parcel or tracttractMust be written in such a manner as to Must be written in such a manner as to stand any test under law and litigationstand any test under law and litigation

Purpose of a Land DescriptionPurpose of a Land Description

►► The purpose of a Land DescriptionThe purpose of a Land DescriptionTo identify unequivocally and definitely one and only To identify unequivocally and definitely one and only one unique parcel of land.one unique parcel of land.Identification for courts and legal profession.Identification for courts and legal profession.Identification for the purpose of recovery or Identification for the purpose of recovery or retracement of boundaries.retracement of boundaries.Identification for cadastral (taxation or governmental Identification for cadastral (taxation or governmental purpose).purpose).Identification for other corollary purposes, address and Identification for other corollary purposes, address and indexing.indexing.To locate and identify encumbrances, such as To locate and identify encumbrances, such as easements and right of way.easements and right of way.

Purpose of a Land Description Purpose of a Land Description (cont(cont’’d)d)

►► Description PreparationDescription PreparationMany problems are encountered in attempting to separate Many problems are encountered in attempting to separate the legal aspects of the deed from the surveying aspects of the legal aspects of the deed from the surveying aspects of the description. These are interrelated. Before an the description. These are interrelated. Before an adequate description can be prepared the individual writing adequate description can be prepared the individual writing the description should:the description should:

Clearly understand the purpose of the description.Clearly understand the purpose of the description.Understand concern with boundaries and their location Understand concern with boundaries and their location only. What constitutes ownership is a legal question.only. What constitutes ownership is a legal question.Prepare a concise, well written description, following the Prepare a concise, well written description, following the rules of proper punctuation and correct spelling.rules of proper punctuation and correct spelling.Familiarize yourself with what courts have said relative Familiarize yourself with what courts have said relative to the various language and phrases relative to land.to the various language and phrases relative to land.

Purpose of a Land Description Purpose of a Land Description (cont(cont’’d)d)

►► These descriptions should include, but are not These descriptions should include, but are not limited to:limited to:

Meaning of words and phrases commonly used from Meaning of words and phrases commonly used from court decisions of higher jurisdictions.court decisions of higher jurisdictions.Intent. Qualifies all definitions. For example, a definition Intent. Qualifies all definitions. For example, a definition may be said to be true or hold may be said to be true or hold ““unless intent to the unless intent to the contrary can be clearly showncontrary can be clearly shown””..Common Law and Statute Law and their relationship.Common Law and Statute Law and their relationship.The writer may have certain quasiThe writer may have certain quasi--judicial functions.judicial functions.Courts generally use definitions in WebsterCourts generally use definitions in Webster’’s Unabridged s Unabridged Dictionary for common words and BlackDictionary for common words and Black’’s Law Dictionary.s Law Dictionary.The writer should familiarize himself with some Latin The writer should familiarize himself with some Latin phrases used by the legal profession.phrases used by the legal profession.

Who Should Prepare Who Should Prepare Property Descriptions?Property Descriptions?

Doctrine of IntentDoctrine of Intent

A land surveyor is often guided by the A land surveyor is often guided by the statement statement ““Follow in the footsteps of the Follow in the footsteps of the original surveyororiginal surveyor””. Description writers . Description writers should be guided by the statement should be guided by the statement ““Know Know that others must understand what you that others must understand what you write.write.””

Example of Description PurposeExample of Description Purpose

City of LapeerCity of LapeerVs.Vs.

Lapeer TownshipLapeer Township

►►DeedDeedA deed is a written instrument that transfers the A deed is a written instrument that transfers the title of property from one person to another. The title of property from one person to another. The two most common types of deeds are general two most common types of deeds are general warranty deeds and quitclaim deeds.warranty deeds and quitclaim deeds.

DefinitionsDefinitions(Per Basic Commercial Real Estate Law)(Per Basic Commercial Real Estate Law)

►► Deed RestrictionDeed Restriction•• Deed restrictions are usually imposed on a buyer of land Deed restrictions are usually imposed on a buyer of land

when the property is sold and the restrictions are included when the property is sold and the restrictions are included in the sellerin the seller’’s deed to the buyer. s deed to the buyer.

•• Restrictions are generally imposed by a property developer Restrictions are generally imposed by a property developer to maintain certain standards. to maintain certain standards.

•• Restrictions may include limits on the color an owner may Restrictions may include limits on the color an owner may paint a building, what trees one may plant, or the size of paint a building, what trees one may plant, or the size of structures to be built on the property. structures to be built on the property.

•• Deed restrictions may also be known as covenants or Deed restrictions may also be known as covenants or conditions.conditions.


►► EasementEasement•• An easement is the right to use another personAn easement is the right to use another person’’s land for a s land for a

particular purpose. particular purpose. •• There are many forms of easements. Public utility There are many forms of easements. Public utility

companies frequently have utility easements that permit companies frequently have utility easements that permit them to run gas, water, or electrical lines through them to run gas, water, or electrical lines through particular property they do not own. particular property they do not own.

•• The owner of property on a lake shore might sell to the The owner of property on a lake shore might sell to the owner of an adjacent lot without lake access an easement owner of an adjacent lot without lake access an easement to cross over to the shore. to cross over to the shore.

•• A person who owns property that is landlocked may A person who owns property that is landlocked may receive an easement from an adjacent land owner to have receive an easement from an adjacent land owner to have access in and out of the property.access in and out of the property.


►► General Warranty DeedGeneral Warranty Deed•• Generally, title is transferred desirably by a general Generally, title is transferred desirably by a general

warranty deed. A general warranty deed provides the warranty deed. A general warranty deed provides the greatest protection to the purchaser because the seller greatest protection to the purchaser because the seller pledges or warrants that he or she legally owns the pledges or warrants that he or she legally owns the property and that there are no outstanding liens, property and that there are no outstanding liens, mortgages, or other encumbrances against it. mortgages, or other encumbrances against it.

•• A warranty deed is also a guaranty of title, which means A warranty deed is also a guaranty of title, which means that the seller may be held liable for damages if the buyer that the seller may be held liable for damages if the buyer discovers that the title is defective. discovers that the title is defective.

•• A warranty deed is not substitute for title insurance, A warranty deed is not substitute for title insurance, however, as a warranty from a seller who later dies or however, as a warranty from a seller who later dies or goes bankrupt may have little, if any, value.goes bankrupt may have little, if any, value.


►► Joint TenancyJoint Tenancy•• Joint tenancy is a form of coJoint tenancy is a form of co--ownership. Although usually thought of ownership. Although usually thought of

as a way for a husband and wife to own property, there is no as a way for a husband and wife to own property, there is no requirement that joint tenants be married to one another or thatrequirement that joint tenants be married to one another or that there there be only two joint tenants. be only two joint tenants.

•• Each individual owner in joint tenancy has a right to sell, encuEach individual owner in joint tenancy has a right to sell, encumber, mber, and possess the entire property. Regardless of the number of joand possess the entire property. Regardless of the number of joint int tenants, when one joint tenant dies, the remaining joint tenantstenants, when one joint tenant dies, the remaining joint tenantsautomatically take the deceased joint tenantautomatically take the deceased joint tenant’’s share of the property by s share of the property by right of survivorship. right of survivorship.

•• In such cases, the surviving joint tenants are required to file In such cases, the surviving joint tenants are required to file a death a death certificate and an affidavit with the county recorder without hacertificate and an affidavit with the county recorder without having to ving to pay transfer taxes. pay transfer taxes.

•• A principal advantage of joint tenancy is that it allows the surA principal advantage of joint tenancy is that it allows the surviving viving joint tenant to avoid probate and death taxes.joint tenant to avoid probate and death taxes.


►►LienLien•• A lien is a charge against property that provides security for aA lien is a charge against property that provides security for a debt or debt or

obligation of the property owner. The lien holder does not own obligation of the property owner. The lien holder does not own the the property. The owner of the property may voluntarily agree to a property. The owner of the property may voluntarily agree to a lien, lien, perhaps by taking out a mortgage, or a lien can be imposed, perhperhaps by taking out a mortgage, or a lien can be imposed, perhaps aps for nonpayment of taxes. for nonpayment of taxes.

•• One of the most common liens is the mechanics lien. A mechanicsOne of the most common liens is the mechanics lien. A mechanics lien lien arises when someone furnishes labor or materials to improve a piarises when someone furnishes labor or materials to improve a piece ece of property. of property.

•• If the worker or supplier is not paid by the property owner, he If the worker or supplier is not paid by the property owner, he or she or she can file a notice of lien with the county recorder and the propecan file a notice of lien with the county recorder and the property rty owner and collect the amount owed from a subsequent sale of the owner and collect the amount owed from a subsequent sale of the property. If a property owner has paid the general contractor iproperty. If a property owner has paid the general contractor in full n full but the general contractor has not paid the subcontractors, the but the general contractor has not paid the subcontractors, the owner owner will not have to pay for the services a second time.will not have to pay for the services a second time.


►► Quitclaim DeedQuitclaim Deed•• A quitclaim deed is a deed that relinquishes to the A quitclaim deed is a deed that relinquishes to the

buyer whatever interest, if any, the seller may have in the buyer whatever interest, if any, the seller may have in the property. property.

•• A quitclaim deed gives the buyer the least protection of A quitclaim deed gives the buyer the least protection of any deed. If the seller is the sole owner of the property, any deed. If the seller is the sole owner of the property, the quitclaim deed is enough to transfer title, but the buyer the quitclaim deed is enough to transfer title, but the buyer takes a risk by accepting a quitclaim deed because it offers takes a risk by accepting a quitclaim deed because it offers the buyer no guarantee that the title is valid. the buyer no guarantee that the title is valid.

•• Quitclaim deeds are used frequently during the property Quitclaim deeds are used frequently during the property settlement phase of a marriage dissolution.settlement phase of a marriage dissolution.


►► Special AssessmentSpecial Assessment•• A special assessment is a tax levied on a piece of property to pA special assessment is a tax levied on a piece of property to pay for ay for

improvements that benefit the particular property. improvements that benefit the particular property. •• These taxes are frequently used to pay for improvements such as These taxes are frequently used to pay for improvements such as the the

streets, sidewalks, and street lighting. streets, sidewalks, and street lighting. •• Special assessments are liens on the property until they are paiSpecial assessments are liens on the property until they are paid.d.

►► Tenancy in CommonTenancy in Common•• Tenancy in common is a form of coTenancy in common is a form of co--ownership. Tenants in common, ownership. Tenants in common,

like joint tenants, share the right to possess, sell and encumbelike joint tenants, share the right to possess, sell and encumber the r the property. property.

•• Unlike joint tenants, tenants in common do not have a right of Unlike joint tenants, tenants in common do not have a right of survivorship. Upon the death of one tenant in common, his or hesurvivorship. Upon the death of one tenant in common, his or her r ownership interest passes to his or her heirs as part of the estownership interest passes to his or her heirs as part of the estate.ate.


►► TitleTitle•• Title to real estate is the right to, or ownership of, the Title to real estate is the right to, or ownership of, the

property. Title may refer to the actual ownership or to the property. Title may refer to the actual ownership or to the documentary evidence of that ownership. documentary evidence of that ownership.

•• In order to sell a piece of property, all title matters must be In order to sell a piece of property, all title matters must be cleared. Usually, this is accomplished through a title search, cleared. Usually, this is accomplished through a title search, in which a diligent search is made of all records relating to in which a diligent search is made of all records relating to the property to determine whether the owner can sell the the property to determine whether the owner can sell the property and whether there are any claims against it. property and whether there are any claims against it.

•• If any defects in the title are discovered during the title If any defects in the title are discovered during the title search, the seller is usually given time to cure the defect. search, the seller is usually given time to cure the defect. Title insurance is often taken out to protect against any Title insurance is often taken out to protect against any hidden defects in the title. hidden defects in the title.

•• There are two types of title insurance. One type protects the There are two types of title insurance. One type protects the lenderlender’’s interest in the property and the second protects the s interest in the property and the second protects the ownerowner’’s interest.s interest.


Types of DeedsTypes of Deeds

►►WarrantyWarranty►►QuitclaimQuitclaim►►Special WarrantySpecial Warranty►►TimeshareTimeshare►►TaxTax►►ForeclosureForeclosure►►Deed in Lieu of ForeclosureDeed in Lieu of Foreclosure

Warranty DeedWarranty Deed

•• A warranty deed conveys not only all the sellerA warranty deed conveys not only all the seller’’s interests s interests in and title to the property to the buyer, but also warrants in and title to the property to the buyer, but also warrants that if the title is defective or has a that if the title is defective or has a ““cloudcloud”” on it (such as on it (such as mortgage claims, tax liens, title claims, judgments, or mortgage claims, tax liens, title claims, judgments, or mechanicmechanic’’s liens against it), the seller agrees to defend the s liens against it), the seller agrees to defend the title from claims of others and the buyer may hold the title from claims of others and the buyer may hold the seller liable under sellerseller liable under seller’’s warranties. s warranties.

•• A warranty deed offers the greatest protection of any A warranty deed offers the greatest protection of any deed.deed.

Quitclaim DeedQuitclaim Deed•• In summary, if the seller of a quitclaim deed has complete ownerIn summary, if the seller of a quitclaim deed has complete ownership ship

of and clear title to the land being quitclaimed, said deed willof and clear title to the land being quitclaimed, said deed will pass pass complete and unencumbered ownership to the buyer. However, if tcomplete and unencumbered ownership to the buyer. However, if the he title is defective or has a title is defective or has a ““cloudcloud”” on it (such as mortgage claims, tax on it (such as mortgage claims, tax liens, title claims, judgments, or mechanicliens, title claims, judgments, or mechanic’’s liens against it) the buyer s liens against it) the buyer has no recourse against the seller. has no recourse against the seller.

•• More often than not, tax deeded property has encumbrances that nMore often than not, tax deeded property has encumbrances that need eed to be cured before the buyer has clear title.to be cured before the buyer has clear title.

•• A quitclaim deed requires the buyer to assume all risks; indepenA quitclaim deed requires the buyer to assume all risks; independent dent investigation of the title to the land is imperative. In a quitcinvestigation of the title to the land is imperative. In a quitclaim deed laim deed transaction, the commontransaction, the common--law doctrine of law doctrine of caveat emptorcaveat emptor ((““let the buyer let the buyer bewarebeware””) is the rule, not the exception. When we convey a deed by ) is the rule, not the exception. When we convey a deed by quitclaim deed we convey it quitclaim deed we convey it ““as isas is””, , ““where iswhere is”” without any warranties without any warranties and/or covenants of any kind.and/or covenants of any kind.

•• Prior to purchasing a tax deed, we strongly recommend that you hPrior to purchasing a tax deed, we strongly recommend that you hire a ire a qualified professional to evaluate whether the property has any qualified professional to evaluate whether the property has any physical and/or title problems.physical and/or title problems.

Special Warranty DeedSpecial Warranty Deed•• In a special warranty deed, the seller conveys title to the buyeIn a special warranty deed, the seller conveys title to the buyer r

and agrees to protect the buyer against title defects or claims and agrees to protect the buyer against title defects or claims asserted by the seller and those persons whose right to assert aasserted by the seller and those persons whose right to assert aclaim against the title arose during the period the grantor heldclaim against the title arose during the period the grantor heldtitle to the property. title to the property.

•• Furthermore, the seller guarantees to the buyer that the seller,Furthermore, the seller guarantees to the buyer that the seller,during the time he/she held title to the property, did not allowduring the time he/she held title to the property, did not allowany lien(s), charge(s), or other ensumbrance(s) to be placed any lien(s), charge(s), or other ensumbrance(s) to be placed upon the property which would adversely affect or impair the upon the property which would adversely affect or impair the buyerbuyer’’s title. s title.

•• However, the seller does not warrant against title defects arisiHowever, the seller does not warrant against title defects arising ng from conditions that existed before he/she owned the property. from conditions that existed before he/she owned the property. The exclusionary language that you might typically see in such aThe exclusionary language that you might typically see in such adeed is as follows:deed is as follows:

““AND THE SAID Grantor will only warrant and forever defend the AND THE SAID Grantor will only warrant and forever defend the right and title to the aboveright and title to the above--described property unto the said described property unto the said Grantee against the claims of those persons claiming by, throughGrantee against the claims of those persons claiming by, throughor under Grantor, but not otherwise.or under Grantor, but not otherwise.””

Timeshare DeedTimeshare Deed

•• Ownership interest providing title to your property. Fee Ownership interest providing title to your property. Fee simple. simple.

•• True property ownership with deed recorded in the county True property ownership with deed recorded in the county where the property exists. This type of property has the where the property exists. This type of property has the same rights of ownership accorded to it as other deeded same rights of ownership accorded to it as other deeded real estate. real estate.

•• The owner may sell, rent, bequeath, or give away the The owner may sell, rent, bequeath, or give away the property.property.

Tax DeedTax Deed

A deed on property issued when the A deed on property issued when the property is purchased at a public sale for property is purchased at a public sale for nonpayment or taxes.nonpayment or taxes.

Foreclosure DeedForeclosure Deed

Result of court action or foreclosure. Will Result of court action or foreclosure. Will typically take on another form (quitclaim, typically take on another form (quitclaim, special warranty, etc.).special warranty, etc.).

Deed in Lieu of ForeclosureDeed in Lieu of Foreclosure

•• A means of escaping an overly burdensome mortgage. A means of escaping an overly burdensome mortgage. •• If a homeowner canIf a homeowner can’’t make the mortgage payments and t make the mortgage payments and

cancan’’t find a buyer for the house, many lenders will accept t find a buyer for the house, many lenders will accept ownership of the property in place of the money owed on ownership of the property in place of the money owed on the mortgage. the mortgage.

•• Even if the lender wonEven if the lender won’’t agree to accept the property, the t agree to accept the property, the homeowner can prepare a quitclaim deed that unilaterally homeowner can prepare a quitclaim deed that unilaterally transfers the homeownertransfers the homeowner’’s property rights to the lender.s property rights to the lender.

EasementEasement

A right granted by one property owner to A right granted by one property owner to another to use a part of (the grantoranother to use a part of (the grantor’’s) land s) land for a specific purpose.for a specific purpose.

LicenseLicense

•• A personal privilege, unassignable and terminable at will, A personal privilege, unassignable and terminable at will, to do someone on anotherto do someone on another’’s land, which contains no s land, which contains no interest in that land, and which is not required to be interest in that land, and which is not required to be created by a conveyance. created by a conveyance.

•• Permits a specific use or specific acts to be done by the Permits a specific use or specific acts to be done by the licensee on the licensorlicensee on the licensor’’s lands, but does not convey an s lands, but does not convey an interest in that land. interest in that land.

•• Generally are revocable or for a specific time period.Generally are revocable or for a specific time period.

Research of Land Records and Research of Land Records and Related MaterialRelated Material

Both information on hand and additional Both information on hand and additional material may need to be obtained before material may need to be obtained before boundary determination may take place.boundary determination may take place.

Public SourcesPublic Sources

►► County RecorderCounty Recorder

►► AssessorAssessor

►► Planning and ZoningPlanning and Zoning

►► Information ServicesInformation Services

►► Public WorksPublic Works

►► County SurveyorCounty Surveyor

►► Court Records (Wills)Court Records (Wills)

Private SourcesPrivate Sources

►► Local SurveyorsLocal Surveyors

►► Local Title CompaniesLocal Title Companies

►► Institutional OfficesInstitutional Offices

Private CompaniesPrivate Companies

Minnesota Research Resources Minnesota Research Resources (from Georgetown University)(from Georgetown University)

Research GuidesResearch Guides

►► Minnesota Legal Research GuideMinnesota Legal Research Guide by John Tessner, et al., by John Tessner, et al., published by Hein, 2002. Ref. Desk KFM5475 .S63 2002. published by Hein, 2002. Ref. Desk KFM5475 .S63 2002.

►► Minnesota Legal ResearchMinnesota Legal ResearchA guide to legal publications and research in Minnesota A guide to legal publications and research in Minnesota published by the reference librarians at Hamline University published by the reference librarians at Hamline University Law Library. Law Library.

►► ""Minnesota Legislative History Step by StepMinnesota Legislative History Step by Step," a web guide ," a web guide from the Minnesota State Legislature. from the Minnesota State Legislature.


Statutes & LegislationStatutes & Legislation

►► Statutes/CodeStatutes/CodePrintPrint: : Minnesota Statutes Minnesota Statutes (official) & (official) & Minnesota Statutes Annotated Minnesota Statutes Annotated (unofficial) [ 4th Floor ] (unofficial) [ 4th Floor ] ElectronicElectronic: : ►► Westlaw: Westlaw: MNMN--STST--ANNANN►► LexisLexis: MINN;MNCODE : MINN;MNCODE ►► Internet: Internet: State StatutesState Statutes

►► Legislative HistoryLegislative HistoryMinnesota Session LawsMinnesota Session Laws (microfiche) (microfiche) Legislation and Bill TrackingLegislation and Bill TrackingMinnesota Statutes and Session LawsMinnesota Statutes and Session Laws""Minnesota Legislative History Step by StepMinnesota Legislative History Step by Step ," a web guide from the ," a web guide from the Minnesota State Legislature. Minnesota State Legislature. WestlawWestlaw: MN: MN--LH (1997 LH (1997 -- ) )


►► LegislatureLegislature

Minnesota State LegislatureMinnesota State Legislature

Minnesota SenateMinnesota Senate

Minnesota House of RepresentativesMinnesota House of Representatives


Regulations & AgenciesRegulations & Agencies

►► RegulationsRegulationsPrintPrint: : Minnesota Rules: Including Administrative Rules of State Minnesota Rules: Including Administrative Rules of State AgenciesAgencies (not updated since 2001) [4th Floor KFM5435 .A26] (not updated since 2001) [4th Floor KFM5435 .A26] ElectronicElectronic: : ►►Westlaw: Westlaw: MNMN--ADCADC►►LexisLexis: MINN;REGS : MINN;REGS ►► Internet: Internet: State RegulationsState Regulations

►► AgenciesAgenciesOffice of the GovernorOffice of the GovernorState DepartmentsState DepartmentsState AgenciesState AgenciesAttorney GeneralAttorney General


Cases and CourtsCases and Courts►► CasesCases

PrintPrint: : North Western ReporterNorth Western Reporter (1st, 2nd series), (1st, 2nd series), Minnesota Minnesota ReportsReports, & , & Minnesota Appeals ReportsMinnesota Appeals ReportsElectronicElectronic: : ►►Westlaw: Westlaw: MNMN--CSCS (state cases) & (state cases) & MNMN--CSCS--ALLALL (state and federal (state and federal

cases) cases) ►►LexisLexis: MINN;MNCTS (state cases) & MEGA;MNMEGA (state and : MINN;MNCTS (state cases) & MEGA;MNMEGA (state and

federal cases) federal cases) ►► Internet: Internet: Supreme Court and Court of AppealsSupreme Court and Court of Appeals

►► CourtsCourtsMinnesota State Court SystemMinnesota State Court SystemMinnesota Supreme Court OpinionsMinnesota Supreme Court Opinions (Recent) (Recent) Minnesota Court of Appeals OpinionsMinnesota Court of Appeals Opinions (Recent) (Recent) Minnesota Supreme Court and Court of Appeals Opinion ArchiveMinnesota Supreme Court and Court of Appeals Opinion Archive(1996 (1996 -- ) )


Local GovernmentLocal Government

►► City, County, and Township Web SitesCity, County, and Township Web Sites

►► County & Municipal OrdinancesCounty & Municipal Ordinances (selected)(selected)

State Bar JournalState Bar Journal

►► Bench & Bar of MinnesotaBench & Bar of Minnesota

Legal Ethics ResourcesLegal Ethics Resources

►► Minnesota Minnesota Ethics ResourcesEthics Resources

What To Look ForWhat To Look For►► Indexes to Land RecordsIndexes to Land Records•• These contain the index of all deeds and most of the other legalThese contain the index of all deeds and most of the other legal

instruments or writings affecting real property. instruments or writings affecting real property. •• Be familiar with the system used to index these many thousand Be familiar with the system used to index these many thousand

documents. documents. •• Two parts make up this index. Two parts make up this index. •• The grantor (or vendor) index The grantor (or vendor) index •• The grantee (or vendee) index. The grantee (or vendee) index. •• The grantor is the party who sells the land; the grantee is the The grantor is the party who sells the land; the grantee is the one who one who

buys it.buys it.

Listings in these indexes are chronological by date of recordingListings in these indexes are chronological by date of recording. Most . Most states use this method of indexing and filing deeds. The detailstates use this method of indexing and filing deeds. The details may s may vary somewhat from jurisdiction to jurisdiction, but the basic vary somewhat from jurisdiction to jurisdiction, but the basic information required for a title search within the system is geninformation required for a title search within the system is general.eral.

Important Elements in ResearchImportant Elements in Research

►►GrantorGrantor►►GranteeGrantee►►Date of TransactionDate of Transaction►►RestrictionsRestrictions►►EasementsEasements►►AgreementsAgreements►►ReservationsReservations►►ExceptionsExceptions

Check of Adjoining PropertyCheck of Adjoining Property

•• Adjoining deeds are checked using the most recent Adjoining deeds are checked using the most recent descriptions. descriptions.

•• Boundary lines of the subject tract are compared with Boundary lines of the subject tract are compared with those of the adjoiners to determine if any discrepancies those of the adjoiners to determine if any discrepancies exist. exist.

•• In these cases, each of the adjoinersIn these cases, each of the adjoiners’’ deeds would also deeds would also have to be checked back in time to determine the intent of have to be checked back in time to determine the intent of the original parties when the line was created. the original parties when the line was created.

•• This check is accomplished using the GranteeThis check is accomplished using the Grantee--Grantor Grantor index book to find adjoinersindex book to find adjoiners’’ descriptions to a point in time descriptions to a point in time where the line in question originated.where the line in question originated.

Junior and Senior RightsJunior and Senior Rights•• When the calls on the same lines in adjoining deeds do not When the calls on the same lines in adjoining deeds do not

agree, it is necessary to establish senior rights for the line agree, it is necessary to establish senior rights for the line in question. in question.

•• Senior rights are those rights gained by virtue of being the Senior rights are those rights gained by virtue of being the first to buy out of a tract. first to buy out of a tract.

•• The law provides that if a grantor conveys land to a The law provides that if a grantor conveys land to a grantee, he cannot later convey that same land to grantee, he cannot later convey that same land to someone else. someone else.

•• The first deed in such a case would be the senior deed and The first deed in such a case would be the senior deed and would convey the title. would convey the title.

•• Therefore, the written intentions of a later deed for Therefore, the written intentions of a later deed for property previously conveyed would only convey that property previously conveyed would only convey that portion of property reaching to the land of the senior title portion of property reaching to the land of the senior title holder.holder.

Essential Elements of a DescriptionEssential Elements of a Description

►► Intent Intent –– Any legal description must express exactly which Any legal description must express exactly which piece of land the seller intends to convey and the buyer piece of land the seller intends to convey and the buyer intends to acquire. intends to acquire.

The description must show the intent clearly so that The description must show the intent clearly so that both its buyer and the seller can understand it, and so both its buyer and the seller can understand it, and so that anyone looking at in the public records can that anyone looking at in the public records can understand its intent. understand its intent. If the description goes to court and the judge must If the description goes to court and the judge must resort to extrinsic evidence, he will determine intent by resort to extrinsic evidence, he will determine intent by the rules of construction if there is conflict in wording. the rules of construction if there is conflict in wording. For instance, monuments prevail over courses and For instance, monuments prevail over courses and distances. It may take extrinsic evidence to show distances. It may take extrinsic evidence to show natural monuments were intended.natural monuments were intended.

Essential Elements of a Description Essential Elements of a Description (Cont(Cont’’d)d)

►► Title Identity Title Identity –– Although title identity may be a Although title identity may be a legal question, there must be freedom of conflict legal question, there must be freedom of conflict with all senior properties. with all senior properties.

As a result of title, two adjoining descriptions may As a result of title, two adjoining descriptions may overlap or leave a gap. Each description may be overlap or leave a gap. Each description may be apparently correct, but not if it includes part of the apparently correct, but not if it includes part of the adjoiner. adjoiner. Calls for adjoiners are apparently safe procedures, but Calls for adjoiners are apparently safe procedures, but like exceptions, must be surveyed if it is a call in the like exceptions, must be surveyed if it is a call in the deed. This places a necessary burden on the surveyor. deed. This places a necessary burden on the surveyor. Somewhere in each description reference should be Somewhere in each description reference should be made to the source of title into the present seller.made to the source of title into the present seller.


►► Location Location –– All survey descriptions require All survey descriptions require reference to such legal identifying items or State, reference to such legal identifying items or State, County, District, etc., yet in metes and bounds County, District, etc., yet in metes and bounds descriptions the call for point of beginning that is descriptions the call for point of beginning that is accurate is required in order to properly locate the accurate is required in order to properly locate the parcel. parcel.

►► Within the elements of location the exclusion of Within the elements of location the exclusion of any one may void the description, for many states any one may void the description, for many states by statute specify the requirements of location.by statute specify the requirements of location.


►► Geometric Shape Geometric Shape –– Every description must have a Every description must have a geometric shape representing a closed figure. If geometric shape representing a closed figure. If the elements of the description fail to close, the the elements of the description fail to close, the courts will presume it is a closed figure and this courts will presume it is a closed figure and this may legally reform the description to form a may legally reform the description to form a closed parcel.closed parcel.

►► Size Size –– Area normally is an informative rather than Area normally is an informative rather than a controlling term. Its use and working in a deed a controlling term. Its use and working in a deed description is important if it is to become a description is important if it is to become a controlling term.controlling term.

Parts of a DescriptionParts of a Description

►►LocatorLocatorGeneral location (city, township, county, etc.)General location (city, township, county, etc.)

►►BodyBodyDescription of parcelDescription of parcel

►►ClosingClosingSize and restrictions (if any)Size and restrictions (if any)

Interpretation of DescriptionsInterpretation of Descriptions

►►The locatability and ground position of a The locatability and ground position of a description or the question of actual title description or the question of actual title held under description requires a true held under description requires a true analysis and interpretation of all the factors analysis and interpretation of all the factors involved, and statements made, both in the involved, and statements made, both in the instant property described and the instant property described and the surrounding properties.surrounding properties.

►►The final decision as to title of a parcel, or The final decision as to title of a parcel, or any portion of it, rests with the courts.any portion of it, rests with the courts.

Interpretation of DescriptionsInterpretation of Descriptions(Cont(Cont’’d)d)

•• The necessity of resorting to court interpretation of intent The necessity of resorting to court interpretation of intent or title may be largely avoided by the use of descriptions or title may be largely avoided by the use of descriptions which are constructed in words and terms that are which are constructed in words and terms that are unequivocal, exact and bear approval of legal precedent, unequivocal, exact and bear approval of legal precedent, mathematical definition, and engineering terminology. mathematical definition, and engineering terminology.

•• In those instances where a difference arises between legal In those instances where a difference arises between legal and engineering interpretation of terms, methods or and engineering interpretation of terms, methods or phrases, the description should be so worded that its phrases, the description should be so worded that its validity or certainty is unquestionable, regardless of the validity or certainty is unquestionable, regardless of the direction of approach in the analysis.direction of approach in the analysis.

•• Every instrument must be read from itEvery instrument must be read from it’’s s ““four cornersfour corners”” to to ascertain intent. ascertain intent.

•• If the intent is not discoverable, parol evidence must be If the intent is not discoverable, parol evidence must be introduced and considered to prevent its being void lack of introduced and considered to prevent its being void lack of certainty.certainty.

Types of DescriptionsTypes of Descriptions►► Area Area

A conveyance can be legal without a recitation area. Area is useA conveyance can be legal without a recitation area. Area is used, d, however, for the purpose of payment, records and general however, for the purpose of payment, records and general information. In general, area is strictly descriptive on an information. In general, area is strictly descriptive on an informational element, yet at times it can be converted into a informational element, yet at times it can be converted into a dimensional element that then can be converted into dimensions.dimensional element that then can be converted into dimensions.

•• i.e., i.e., ““The East 6 acres of lot The East 6 acres of lot ““becomes an element that must be becomes an element that must be converted into dimensions of 6 acres on the east side of the lotconverted into dimensions of 6 acres on the east side of the lot. . A description must be accurate, clear, concise and specific in aA description must be accurate, clear, concise and specific in all ll of its terms. The exception to this rule is where it is necessarof its terms. The exception to this rule is where it is necessary y to establish title to an uncertain area by fixing a definite to establish title to an uncertain area by fixing a definite boundary with an adjoining title. In such a case, the only boundary with an adjoining title. In such a case, the only definite boundary is accurately defined, and the remainder of definite boundary is accurately defined, and the remainder of the parcel is fixed to that. Area in itself is totally dependentthe parcel is fixed to that. Area in itself is totally dependentupon the methods of adjustment of the field measurements of upon the methods of adjustment of the field measurements of the survey that created the measurements. Minute differences the survey that created the measurements. Minute differences can be detected by the method of adjustment, i.e., Crandall can be detected by the method of adjustment, i.e., Crandall rule, transit rule, compass rule or pragmatic rule. Area can alsrule, transit rule, compass rule or pragmatic rule. Area can also o be checked using various other methods, but for all realistic be checked using various other methods, but for all realistic purposes, the only reason we adjust or balance a survey is to purposes, the only reason we adjust or balance a survey is to be able to determine area, mathematically.be able to determine area, mathematically.

Types of Descriptions (ContTypes of Descriptions (Cont’’d)d)

►►Plats Plats If a plat is to be used in interpolating a written If a plat is to be used in interpolating a written description, its relationship must be determined and description, its relationship must be determined and identified in the description. identified in the description. Legally, a plat is required to be mentioned in the Legally, a plat is required to be mentioned in the description in order to be controlling. Its correctness description in order to be controlling. Its correctness and relationship must be established. and relationship must be established. If the plat is not referred to or mentioned in the If the plat is not referred to or mentioned in the description, its presence becomes only evidence, and description, its presence becomes only evidence, and then falls under the rules of relevancy and admissibility. then falls under the rules of relevancy and admissibility.


►► CoordinatesCoordinatesAs the ability to measure more precisely is attained, As the ability to measure more precisely is attained, more corners are being described with supplemental more corners are being described with supplemental geographic and geodetic or state plane coordinates geographic and geodetic or state plane coordinates determined for their position. determined for their position. These values should never be taken as a complete These values should never be taken as a complete substitute for adequately monumented corners called substitute for adequately monumented corners called for in the conveyances and adequate courses. for in the conveyances and adequate courses. The determination of coordinate values is predicated The determination of coordinate values is predicated upon precise surveys and complicated computational upon precise surveys and complicated computational values that require specialized skills. values that require specialized skills. Until the general area is laced with adequate horizontal Until the general area is laced with adequate horizontal control geodetic coordinated should be used with control geodetic coordinated should be used with caution. caution.


►► Aliquot Parts Aliquot Parts The term aliquot means in direct proportion thereof. The term aliquot means in direct proportion thereof. That is each parcel in the boundaries of the lot or That is each parcel in the boundaries of the lot or section takes its hare of the excess or deficiency. section takes its hare of the excess or deficiency. The perfect aliquot description can convey perfect title, The perfect aliquot description can convey perfect title, but may be a nightmare to survey. but may be a nightmare to survey. If an aliquot portion is recited without an adequate If an aliquot portion is recited without an adequate survey is that the only record that can be relied on is survey is that the only record that can be relied on is that record that is recited in the official grant or patent. that record that is recited in the official grant or patent. That becomes the That becomes the ““legallegal”” area, regardless what is found area, regardless what is found at a later date. at a later date.


►► Metes and BoundsMetes and BoundsThe metes and bounds survey is perhaps the most desirable of allThe metes and bounds survey is perhaps the most desirable of alldescriptions. descriptions. The identification of the dimensions of lines into tearing, bearThe identification of the dimensions of lines into tearing, bearings ings and distances provide positive identification of that particularand distances provide positive identification of that particular line line and those corners. and those corners. A full and complete metes and bounds description, regardless of A full and complete metes and bounds description, regardless of age or origin, provides a great temptation to ignore other factsage or origin, provides a great temptation to ignore other facts of of adjoiners, title, or unwritten rights, thus increasing the possiadjoiners, title, or unwritten rights, thus increasing the possibility of bility of litigation. litigation. A monument not identified in a conveyance or instrument is not A monument not identified in a conveyance or instrument is not controlling, and becomes more evidence to be considered. controlling, and becomes more evidence to be considered. Many times maps become valuable tools in locating metes and Many times maps become valuable tools in locating metes and bounds descriptions because of the ability to present associatedbounds descriptions because of the ability to present associatedinformation that can aid in the location of the property. information that can aid in the location of the property.

Some Common Errors In Some Common Errors In Descriptions Descriptions

►►Following are some of the more frequent Following are some of the more frequent errors that scriveners of land descriptions errors that scriveners of land descriptions make. make.

►►These are not all, but they represent the These are not all, but they represent the major categories of errors that can be major categories of errors that can be expected. expected.

Some Common Errors in Descriptions Some Common Errors in Descriptions (Cont(Cont’’d)d)

►► The location is not complete. County, state, GMD, The location is not complete. County, state, GMD, Land Lot, Section, District, omitted or in error.Land Lot, Section, District, omitted or in error.

►► SurveyorSurveyor’’s dated certificate missing. Date of s dated certificate missing. Date of survey and date of plat or revised plat.survey and date of plat or revised plat.

►► Failure to note conflicts with senior deeds or Failure to note conflicts with senior deeds or senior rights; street, and encumbrances.senior rights; street, and encumbrances.

►► POB is deficient, or POC is ambiguous, and not POB is deficient, or POC is ambiguous, and not located on plat. Error in tie from POC to POB.located on plat. Error in tie from POC to POB.

Some Common Errors In Some Common Errors In Descriptions (ContDescriptions (Cont’’d)d)

►► Reversed bearings. N 60 W instead of S 60 E, or S Reversed bearings. N 60 W instead of S 60 E, or S 45 E and not 5 45 W.45 E and not 5 45 W.

►► Writing degree marks as a zero. 5 60 E for S 60 EWriting degree marks as a zero. 5 60 E for S 60 E►► Writing Writing ‘‘ and and ““ marks as feet and inches, not marks as feet and inches, not

minutes and seconds.minutes and seconds.►► When lot boundaries coincide with RJW lines, lot When lot boundaries coincide with RJW lines, lot

lines, district lines failure to call for same. Failure lines, district lines failure to call for same. Failure to recite ad joiners by name, errors in ad joiners to recite ad joiners by name, errors in ad joiners names.names.

►► Errors in recording information.Errors in recording information.


►► Failure to note errors in calls for common corners Failure to note errors in calls for common corners in chain of title or ad joiners deeds.in chain of title or ad joiners deeds.

►► Failure to note error of closure and errors in area. Failure to note error of closure and errors in area. Can use dot grid, etc. to catch large areas. Can use dot grid, etc. to catch large areas.

►► Failure to adequately describe corners by type of Failure to adequately describe corners by type of monument, size, condition and how witnessed. monument, size, condition and how witnessed.

►► Failure to properly identify witness objects to Failure to properly identify witness objects to corners. corners.


►►With water boundaries, failure to adequately With water boundaries, failure to adequately describe the boundary; high water, mean describe the boundary; high water, mean high water, shore line, top of bank, center high water, shore line, top of bank, center of the creek, contour and datum of contour. of the creek, contour and datum of contour. Error in calling for meander line for Error in calling for meander line for boundary. boundary.

Unusual DescriptionsUnusual Descriptions

1812 Probate Records1812 Probate Records

1812 Probate Records1812 Probate Records

““147 acres, 3 rods, and 19 rods after deducting whatever swamp, w147 acres, 3 rods, and 19 rods after deducting whatever swamp, water, ater, rock and road areas there may be included therein and all other rock and road areas there may be included therein and all other lands of lands of little or no value, the same being part of said deceasedlittle or no value, the same being part of said deceased’’s 1280 acre colony s 1280 acre colony grant, and the portion hereby set off being known as near to andgrant, and the portion hereby set off being known as near to and on the on the other side of Black Oak Ridge, bounded and described more in parother side of Black Oak Ridge, bounded and described more in particular ticular as follows, to wit:as follows, to wit:-- Commencing at a heap of stone, about a stoneCommencing at a heap of stone, about a stone’’s throw s throw from a certain small clump of alders, near a brook running down from a certain small clump of alders, near a brook running down off from off from a rather high part of said ridge; thence, by a straight line to a rather high part of said ridge; thence, by a straight line to a certain a certain marked birch tree, about two or three times as far from a jog inmarked birch tree, about two or three times as far from a jog in a fence a fence going around a ledge nearby; thence, by another straight line ingoing around a ledge nearby; thence, by another straight line in a a different direction, around said ledge and the Great Swamp, so cdifferent direction, around said ledge and the Great Swamp, so called;alled;

1812 Probate Records (con1812 Probate Records (con’’t)t)

Thence, in line of said lot in part and in part by another pieceThence, in line of said lot in part and in part by another piece of fence of fence which joins on to said line, and by an extension of the general which joins on to said line, and by an extension of the general run of said run of said fence to a heap of stone near a surface rock; thence, as aforesafence to a heap of stone near a surface rock; thence, as aforesaid, to the id, to the ““Horn,Horn,”” so called, and passing around the same as aforesaid, as far as so called, and passing around the same as aforesaid, as far as the the ““Great Bend,Great Bend,”” so called, and from thence to a squarish sort of a jog in 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 another fence, and so on to a marked black oak tree with stones piled piled around it; thence, by another straight line in about a contrary around it; thence, by another straight line in about a contrary direction direction and somewhere about parallel with the line around by the ledge aand somewhere about parallel with the line around by the ledge and the nd the Great Swamp, to a stake and stone bounds not far off from the olGreat Swamp, to a stake and stone bounds not far off from the old Indian d Indian trail; thence by another straight line on a course diagonally patrail; thence by another straight line on a course diagonally parallel, or rallel, or nearby so, with nearby so, with ““Fox Hollow Run,Fox Hollow Run,”” so called, to a certain marked red so called, to a certain marked red cedar tree out on a sandy sort of a plain;cedar tree out on a sandy sort of a plain;

1812 Probate Records (con1812 Probate Records (con’’t)t)

Thence, by another straight line, in a different direction, to aThence, by another straight line, in a different direction, to a certain certain marked yellow oak tree on the off side of a knoll with a flat stmarked yellow oak tree on the off side of a knoll with a flat stone laid one laid against it; thence, after turning around in another direction, aagainst it; thence, after turning around in another direction, and by a nd by a sloping straight line to a certain heap of stone which is, by pasloping straight line to a certain heap of stone which is, by pacing, just 18 cing, just 18 rods about one half a rod more from the stump of the big hemlockrods about one half a rod more from the stump of the big hemlock tree tree WHERE PHILO BLAKE KILLED THE BEAR; thence, to the corner begun aWHERE PHILO BLAKE KILLED THE BEAR; thence, to the corner begun at t by two straight lines of about equal length, which are to be runby two straight lines of about equal length, which are to be run by Some by Some skilled and competent surveyor, so as to include the area and acskilled and competent surveyor, so as to include the area and acreage as reage as herein before set forthherein before set forth””

Part of the Southeast Quarter of the Southwest Quarter and the SPart of the Southeast Quarter of the Southwest Quarter and the Southwest Quarter outhwest Quarter of the Southeast Quarter, Section 30, Township 16 North, Range 2of the Southeast Quarter, Section 30, Township 16 North, Range 2 West, Monroe West, Monroe County, Wisconsin, more particularly described as follows: CommeCounty, Wisconsin, more particularly described as follows: Commencing at the ncing at the Southwest corner of the Southeast Quarter of the Southwest QuartSouthwest corner of the Southeast Quarter of the Southwest Quarter (SE er (SE ¼¼ of SW of SW ¼¼); thence easterly along the South line of the forty, 1,102 feet); thence easterly along the South line of the forty, 1,102 feet, more or less, to GPS , more or less, to GPS waypoint, Lat. 43.827330, Long.waypoint, Lat. 43.827330, Long.--90.666967, which is the point of beginning; thence 90.666967, which is the point of beginning; thence continuing easterly along the South line of said Section 30, 1,1continuing easterly along the South line of said Section 30, 1,1592 feet, more or less, 592 feet, more or less, to GPS waypoint, Lat. 43.827326, Long.to GPS waypoint, Lat. 43.827326, Long.--90.660929; thence Northerly 487 feet, more 90.660929; thence Northerly 487 feet, more or less, to GPS waypoint, Lat. 43.82828655, Long.or less, to GPS waypoint, Lat. 43.82828655, Long.--90.661033; thence Northwesterly 90.661033; thence Northwesterly 298 feet, more or less, to GPS waypoint, Lat. 43.829516, Long.298 feet, more or less, to GPS waypoint, Lat. 43.829516, Long.--90.662515; thence 90.662515; thence Westerly 552 feet, more or less, to GPS waypoint, Lat. 43.830118Westerly 552 feet, more or less, to GPS waypoint, Lat. 43.830118, Long., Long.--90.664425, 90.664425, which is the centerline of the town road now known as Drysdale Rwhich is the centerline of the town road now known as Drysdale Road; thence oad; thence Southwesterly and Westerly along the centerline of said town roaSouthwesterly and Westerly along the centerline of said town road 820 feet, more or d 820 feet, more or less, to GPS waypoint, Lat.43.829455, Long.less, to GPS waypoint, Lat.43.829455, Long.--90.666968; thence Southerly 775 feet, 90.666968; thence Southerly 775 feet, more or less, to the point of beginning. more or less, to the point of beginning.

From a Wisconsin Deed:From a Wisconsin Deed:

Select Boundary IssuesSelect Boundary Issues

Boundaries by AgreementBoundaries by Agreement

►►Boundaries by agreement are dependent on Boundaries by agreement are dependent on finding a mutual agreement where the finding a mutual agreement where the boundary is located. boundary is located.

►►Courts often require that certain factors be Courts often require that certain factors be present before boundaries can be present before boundaries can be established based on such agreements. established based on such agreements.

►►Boundary agreements must involve lines or Boundary agreements must involve lines or corners which are uncertain or disputed. corners which are uncertain or disputed.

Boundaries by Agreement (ContBoundaries by Agreement (Cont’’d)d)

►► These agreements must set out a specific line as These agreements must set out a specific line as the boundary. the boundary.

►► They must be executed by acts of the parties They must be executed by acts of the parties occupying adjoining land and the agreement must occupying adjoining land and the agreement must include land to the agreed line. include land to the agreed line.

►► The final requirement is that the agreement be The final requirement is that the agreement be recognized for a considerable time. recognized for a considerable time.

►► This period is often equal to that required for This period is often equal to that required for adverse possession. adverse possession.

Boundaries by AcquiescenceBoundaries by Acquiescence

►► Acquiescence is similar to boundaries by Acquiescence is similar to boundaries by agreement. agreement.

►► This type of ownership is unique, however, This type of ownership is unique, however, because it does not require proof that the because it does not require proof that the boundary location resulted from an agreement. boundary location resulted from an agreement. The justification for this ownership is similar to The justification for this ownership is similar to adverse possession. adverse possession.

►► For this doctrine to be enforceable occupation For this doctrine to be enforceable occupation must be visible up to a definite marked line. must be visible up to a definite marked line.

►► A long time must have elapsed before A long time must have elapsed before acquiescence can exist. acquiescence can exist.

Boundary AgreementsBoundary Agreements

►►Boundary Lines may be changed through Boundary Lines may be changed through the execution of boundary agreements. the execution of boundary agreements.

►►In order to do so, such agreements must be In order to do so, such agreements must be entered into by all interest owners affected entered into by all interest owners affected and should be recorded in the public and should be recorded in the public records. records.

Boundary Agreements (ContBoundary Agreements (Cont’’d)d)

►►Otherwise, the change in boundary lines will Otherwise, the change in boundary lines will not be enforceable against subsequent not be enforceable against subsequent innocent purchasers for value. innocent purchasers for value.

►►However, a boundary line agreement However, a boundary line agreement entered into between owners of the oil and entered into between owners of the oil and gas leasehold estate is not binding on the gas leasehold estate is not binding on the lessors who are not parties to the lessors who are not parties to the agreement. agreement.

Mother Hubbard ClausesMother Hubbard Clauses

►►Mother Hubbard clauses were contained Mother Hubbard clauses were contained mostly in oil and gas leases in order to mostly in oil and gas leases in order to include small tracts or parcels of land owned include small tracts or parcels of land owned by the lessor that may have been missed by the lessor that may have been missed within the terms of the property description. within the terms of the property description.

►►Although such language may be expansive, Although such language may be expansive, it does not encompass ownership of it does not encompass ownership of separate, independently owned tracts of separate, independently owned tracts of land. land.

Waterway DescriptionsWaterway Descriptions

►►Generally, the sovereign holds title to the Generally, the sovereign holds title to the river beds upon the conveyance or patent of river beds upon the conveyance or patent of privately owned lands on either side. privately owned lands on either side.

►►The boundary is determined upon the The boundary is determined upon the rendition of the lines between private rendition of the lines between private ownership and the state stream bed. ownership and the state stream bed.

Waterway Descriptions (ContWaterway Descriptions (Cont’’d)d)

►►The ownership of the stream bed is The ownership of the stream bed is determined according to whether such determined according to whether such rivers or streams are considered navigable rivers or streams are considered navigable or nonor non--navigable. navigable.

►►Title to lakes or lake beds also varies by Title to lakes or lake beds also varies by jurisdiction. The rules pertaining to lakes jurisdiction. The rules pertaining to lakes are not considered applicable to marshes or are not considered applicable to marshes or swamps. swamps.

NonNon--Navigable StreamsNavigable Streams

►►Depending upon the jurisdiction, by Depending upon the jurisdiction, by statutory authority title to the bed of a nonstatutory authority title to the bed of a non--navigable stream may be held by the navigable stream may be held by the sovereign. sovereign.

►►In the absence of such legislation, a grant In the absence of such legislation, a grant of land contiguous to a nonof land contiguous to a non--navigable navigable stream is presumed to pass title to the stream is presumed to pass title to the center of the stream, unless clear language center of the stream, unless clear language to the contrary exists in the deed. to the contrary exists in the deed.

NonNon--Navigable Streams (ContNavigable Streams (Cont’’d)d)

►►This presumption exists even if the This presumption exists even if the description in the deed does not mention description in the deed does not mention the stream or calls to a point that does not the stream or calls to a point that does not correspond to the center of the stream. correspond to the center of the stream.

Navigable StreamsNavigable Streams

►► Streams may be navigable in law, but nonStreams may be navigable in law, but non--navigable in fact. navigable in fact.

►► State law varies as to the definition of navigability. State law varies as to the definition of navigability. ►► If a stream is navigable in theory or in fact, If a stream is navigable in theory or in fact,

generally title to the stream bed is held by the generally title to the stream bed is held by the state and the boundary line between the state and state and the boundary line between the state and private ownership beyond the bed of the stream is private ownership beyond the bed of the stream is the the ““gradient boundarygradient boundary””..

Navigable Streams (ContNavigable Streams (Cont’’d)d)

►►This line of demarcation is located:This line of demarcation is located:neither at flood stageneither at flood stage

nor at drought levelnor at drought levelbut is the bank that, on average, is attained by but is the bank that, on average, is attained by

the water when it washes the bank without the water when it washes the bank without overflowing. overflowing.


►►A sudden removal or deposit of riparian land A sudden removal or deposit of riparian land is called avulsion; is called avulsion;

►►whereas, accretion is the process of whereas, accretion is the process of increasing the size of property by gradual increasing the size of property by gradual and imperceptible disposition by the water and imperceptible disposition by the water of solid material, as a result of natural of solid material, as a result of natural causes, so that what was once covered by causes, so that what was once covered by water has now become dry land.water has now become dry land.


►►Accretion by reliction is the gradual addition Accretion by reliction is the gradual addition made to land by a rescission of the water, made to land by a rescission of the water, such as when the water shrinks below the such as when the water shrinks below the usual water line. usual water line.

►►Reliction is the uncovering of previously Reliction is the uncovering of previously submerged land by a permanent rescission submerged land by a permanent rescission of a body of water, rather than by mere of a body of water, rather than by mere temporary or seasonal exposure of the land. temporary or seasonal exposure of the land.

Party Walls and Line FencesParty Walls and Line Fences

►►Line fences are special cases when they Line fences are special cases when they divide properties. divide properties.

►►Known in law as division or partition fences, Known in law as division or partition fences, they are covered by statutes in all but six they are covered by statutes in all but six states. states.

►►Such a fence is built on an equal amount of Such a fence is built on an equal amount of land of each of the adjoining owners. land of each of the adjoining owners.

►►Fences built entirely on the land of one Fences built entirely on the land of one party are not division fences. party are not division fences.

Party Walls and Line Fences (ContParty Walls and Line Fences (Cont’’d)d)

►►In these cases the boundary lines prove the In these cases the boundary lines prove the fence location. fence location.

►►Fences not called for in the description of Fences not called for in the description of lines when the lines originated do not prove lines when the lines originated do not prove the lines. the lines.

►►A fence can become a line fence by consent A fence can become a line fence by consent of the owner of the land on which the fence of the owner of the land on which the fence was built. was built.

Party Walls and Line Fences (ContParty Walls and Line Fences (Cont’’d)d)

►►Land development can also involve Land development can also involve boundaries established by party walls. boundaries established by party walls.

►►Party walls are located similar to division Party walls are located similar to division fences. fences.

►►Party walls are usually built after formal Party walls are usually built after formal agreement of the concerned owners. agreement of the concerned owners.

EvidenceEvidence

►►Laws form the basis of land ownership. Laws form the basis of land ownership. Proof of the limits of this ownership Proof of the limits of this ownership requires gathering evidence by surveying requires gathering evidence by surveying the boundary. the boundary. The surveyor should remember that for The surveyor should remember that for each law there are many exceptions to each law there are many exceptions to that law. that law. Each land survey is unique and different.Each land survey is unique and different.

Evidence (ContEvidence (Cont’’d)d)

►►This is because the physical characteristics This is because the physical characteristics of the land vary and the circumstances of the land vary and the circumstances surrounding the conveyance govern the surrounding the conveyance govern the interpretation of the intentions of the interpretation of the intentions of the parties. parties.

►►The deeds located in the record search The deeds located in the record search become the basis for locating and become the basis for locating and establishing boundaries. establishing boundaries.


►►They are used to identify the true location They are used to identify the true location of monuments and courses, as originally of monuments and courses, as originally run, on the ground. run, on the ground.

►►This is to be accomplished even if the This is to be accomplished even if the measurements by the original surveyor were measurements by the original surveyor were not correct. not correct.


►►Court opinions that surveys started at Court opinions that surveys started at monuments not lawfully established or monuments not lawfully established or reestablished under the rules of evidence reestablished under the rules of evidence have no probative force.have no probative force.

►►These rules of evidence are provided for in These rules of evidence are provided for in the statue laws. This raises the issue of the the statue laws. This raises the issue of the rules of evidence. rules of evidence.

Minnesota Requirements of InterestMinnesota Requirements of Interest

►► Solar or Wind Easements (500.30)Solar or Wind Easements (500.30)Means a right, whether or not stated in the form of a Means a right, whether or not stated in the form of a restriction, easement, covenant, or condition, in any restriction, easement, covenant, or condition, in any deed, will, or other instrument executed by or on behalf deed, will, or other instrument executed by or on behalf of any owner of land or solar skyspace for the purpose of any owner of land or solar skyspace for the purpose of ensuring adequate exposure of a solar energy of ensuring adequate exposure of a solar energy system. Also means a right, whether or not stated in system. Also means a right, whether or not stated in the form of a restriction, easement, covenant, or the form of a restriction, easement, covenant, or condition, in any deed, will, or other instrument condition, in any deed, will, or other instrument executed by or on behalf of any owner of land or air executed by or on behalf of any owner of land or air space for the purpose of ensuring adequate exposure of space for the purpose of ensuring adequate exposure of a wind power system to the winds.a wind power system to the winds.

Minnesota Requirements of InterestMinnesota Requirements of Interest

►► UseUseAny property owner may grant a solar or wind Any property owner may grant a solar or wind easement in the same manner and with the same effect easement in the same manner and with the same effect as a conveyance of an interest in real property. The as a conveyance of an interest in real property. The easements shall be created in writing and shall be filed, easements shall be created in writing and shall be filed, duly recorded, and indexed in the office of the recorder duly recorded, and indexed in the office of the recorder of the county in which the easement is granted. No of the county in which the easement is granted. No duly recorded easement shall be unenforceable on duly recorded easement shall be unenforceable on account of lack of privity of estate or privity of contract; account of lack of privity of estate or privity of contract; such easements shall run with the land or lands such easements shall run with the land or lands benefited and burdened and shall constitute a perpetual benefited and burdened and shall constitute a perpetual easement, except that an easement may terminate easement, except that an easement may terminate upon the conditions stated therein or pursuant to the upon the conditions stated therein or pursuant to the provisions of section 500.20.provisions of section 500.20.

Minnesota Requirements of InterestMinnesota Requirements of Interest►► RequirementsRequirements

Include a description of subject property AND a description of Include a description of subject property AND a description of benefiting property.benefiting property.For solar easements, a description of the vertical and horizontaFor solar easements, a description of the vertical and horizontal l angles, expressed in degrees and measured from the site of the angles, expressed in degrees and measured from the site of the solar energy system, at which the solar easement extends over thsolar energy system, at which the solar easement extends over the e real property subject to the easement, or any description which real property subject to the easement, or any description which defines the three dimensional space or the place and times of dadefines the three dimensional space or the place and times of day y in which an obstruction to direct sunlight is prohibited or limiin which an obstruction to direct sunlight is prohibited or limited.ted.A description of the vertical and horizontal angles, expressed iA description of the vertical and horizontal angles, expressed in n degrees, and distances from the site of the wind power system indegrees, and distances from the site of the wind power system inwhich an obstruction to the winds is prohibited or limited.which an obstruction to the winds is prohibited or limited.Any terms or conditions under which the easement is granted or Any terms or conditions under which the easement is granted or may be terminated.may be terminated.Any provisions for compensation of the owner of the real propertAny provisions for compensation of the owner of the real property y benefiting from the easement in the event of interference with tbenefiting from the easement in the event of interference with the he enjoyment of the easement, or compensation of the owner of the enjoyment of the easement, or compensation of the owner of the real property subject to the easement for maintaining the real property subject to the easement for maintaining the easement.easement.

Conveyance Requirements (507.091)Conveyance Requirements (507.091)►► Must include who drafted instrumentMust include who drafted instrument

No instrument by which the title to real estate or any No instrument by which the title to real estate or any interest therein or lien thereon, is conveyed, created, interest therein or lien thereon, is conveyed, created, encumbered, assigned or otherwise disposed of, shall encumbered, assigned or otherwise disposed of, shall be recorded by the county recorder or registered by the be recorded by the county recorder or registered by the registrar of titles until the name and address of the registrar of titles until the name and address of the person who or corporation which drafted the instrument person who or corporation which drafted the instrument is printed, typewritten, stamped or written on it in a is printed, typewritten, stamped or written on it in a legible manner. An instrument complies with this legible manner. An instrument complies with this subdivision if it contains a statement in the following subdivision if it contains a statement in the following form: form: ““This instrument was drafted by ___________ This instrument was drafted by ___________ (name) ____________ (address).(name) ____________ (address).””This does not apply to any instrument executed before This does not apply to any instrument executed before January 1, 1970, nor to a decree, order, judgment or January 1, 1970, nor to a decree, order, judgment or writ of any court, a will or death certificate, nor to any writ of any court, a will or death certificate, nor to any instrument executed or acknowledged outside the state.instrument executed or acknowledged outside the state.

Conveyance Requirements (507.091)Conveyance Requirements (507.091)►► Must include grantee (507.092)Must include grantee (507.092)

No contract for deed or deed conveying fee title to real No contract for deed or deed conveying fee title to real estate shall be recorded by the county recorder or estate shall be recorded by the county recorder or registered by the registrar of titles until the name and registered by the registrar of titles until the name and address of the grantee, to whom future tax statements address of the grantee, to whom future tax statements should be sent, is printed, typewritten, stamped or should be sent, is printed, typewritten, stamped or written on it in a legible manner. An instrument written on it in a legible manner. An instrument complies with this subdivision if it contains a statement complies with this subdivision if it contains a statement in the following form: in the following form: ““Tax statements for the real Tax statements for the real property described in this instrument should be sent to: property described in this instrument should be sent to: ___________ (name) ____________ (address).___________ (name) ____________ (address).””Subdivision 1 does not apply to any instrument Subdivision 1 does not apply to any instrument executed before January 1, 1972, nor to a decree, executed before January 1, 1972, nor to a decree, order, judgment or writ of any court, a will or death order, judgment or writ of any court, a will or death certificate, nor to any instrument executed or certificate, nor to any instrument executed or acknowledged outside the state.acknowledged outside the state.

Contents of Decree (508.23)Contents of Decree (508.23)

►► If one or more boundary lines are judicially If one or more boundary lines are judicially determined, the land description in the decree of determined, the land description in the decree of registration shall make reference to that fact and registration shall make reference to that fact and to the location of the judicial landmarks that mark to the location of the judicial landmarks that mark the boundary lines. When any of the boundary the boundary lines. When any of the boundary lines are registered, the court administrator also lines are registered, the court administrator also shall file with the registrar a certified copy of the shall file with the registrar a certified copy of the plat of the survey which contains a certification by plat of the survey which contains a certification by a licensed land surveyor that the boundaries a licensed land surveyor that the boundaries registered have been marked by judicial landmarks registered have been marked by judicial landmarks set pursuant to the order of the court.set pursuant to the order of the court.

Registered Land SurveysRegistered Land Surveys►► The registrar of titles may require that the owner of a The registrar of titles may require that the owner of a

parcel of unplatted registered land, who conveys any part parcel of unplatted registered land, who conveys any part thereof which is not a full government subdivision, or thereof which is not a full government subdivision, or simple fractional or quantity part of a full government simple fractional or quantity part of a full government subdivision, shall first file with the registrar of titles a subdivision, shall first file with the registrar of titles a drawing in triplicate of said parcel of unplatted land, drawing in triplicate of said parcel of unplatted land, showing the tract or tracts being or to be conveyed, which showing the tract or tracts being or to be conveyed, which drawing shall be known as a drawing shall be known as a ““registered land surveyregistered land survey””..

►► The registered land survey shall correctly show the legal The registered land survey shall correctly show the legal description of the parcel of unplatted land represented by description of the parcel of unplatted land represented by said registered land survey and the outside measurements said registered land survey and the outside measurements of the parcel of unplatted land and of all tracts delineated of the parcel of unplatted land and of all tracts delineated therein, the direction of all lines of said tracts to be shown therein, the direction of all lines of said tracts to be shown by angles or bearings or other relationship to the outside by angles or bearings or other relationship to the outside lines of said registered land survey, and the surveyor shall lines of said registered land survey, and the surveyor shall place monuments in the ground at appropriate corners, place monuments in the ground at appropriate corners, and all tracts shall be lettered consecutively beginning with and all tracts shall be lettered consecutively beginning with the letter the letter ““AA””..

RequirementsRequirements

►►Shall show description of propertyShall show description of property►►Distances and bearings of all parcelsDistances and bearings of all parcels►►Prepared by a Professional SurveyorPrepared by a Professional Surveyor►►Scale no less than 1 inch = 200 feetScale no less than 1 inch = 200 feet►►Drawing 17Drawing 17”” x 14x 14”” in sizein size►►Monuments must be set in fieldMonuments must be set in field►►Shall be filed in Office of RegistrarShall be filed in Office of Registrar

Deed, Description and Survey Deed, Description and Survey Related Case LawRelated Case Law

Easement vs. DeedEasement vs. Deed

*Minnesota DNR vs. Hess*Minnesota DNR vs. Hess

*October 2004 Issue of Minnesota Real Estate,*October 2004 Issue of Minnesota Real Estate,Volume 20, No. 10Volume 20, No. 10

2006 Minn. App.2006 Minn. App.

Magnuson vs. Spearfish AviationMagnuson vs. Spearfish Aviation

707 N.W.2d 738707 N.W.2d 738

2009 Minn. Dist. LEXIS 2182009 Minn. Dist. LEXIS 218

Brausen vs. PetersonBrausen vs. Peterson

2002 Minn. App. LEXIS 13082002 Minn. App. LEXIS 1308

Morris vs. SmithMorris vs. Smith

Questions & DiscussionQuestions & Discussion

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John D. Matonich, P.S., President & CEOJohn D. Matonich, P.S., President & CEO540 S. Saginaw St., Ste. 200540 S. Saginaw St., Ste. 200Flint, MI 48502Flint, MI 48502

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Documents

MN Property Description and the Law 2012 · • Owner-All Phases • Wording Must Be Understandable But Still Technical • Language of Surveying Profession Best To Use In Description