Volume 1 Number 3




Title Tips by Tute

Volume 1, Number 3
Fall 1995

Dear Readers:

Tute needs your help! What are the burning issues in title examination today? Tute has (perhaps) grown old and jaded by the plethora of problems dealt with over the years. My problems may not be your problems.

Perhaps in our fast-paced, modern environment of fax machines and e-mail, you need an answer yesterday, and think a question that wont see an answer until the next edition (in six to eight weeks) isn't worth sending in. I assure you, it is! You already may have an answer, but title examiners across our Commonwealth are still in the dark. One of them may go behind you on that problem title, and not knowing what you know, raise an objection. Far better to spread that knowledge around than to have to pull your file in five or six years trying to remember then what you know now.

Anticipatingly yours,


Dear Tute:

I recently did a title exam for a parcel of acreage. The property had been survey in 1949. A 1991 survey, prepared in connection with the last transaction in the chain of title, showed that the property had grown.

On the 1991 plat, the front and rear lines are within a foot of the dimensions shown on the 1949 plat. The side lot lines are bout 30 feet longer in 1991 than in 1949. The rear corners on the 1991 plat are depicted by the surveyors as monumented by, "iron pin found." On the 1949 plat, the corners were both cedar stakes. The front corners in 1991 are on a public road and are not monumented by the surveyor notes, "iron pin found" approximately 30 feet away from the right of way line. On the 1949 plat, the front corners were a stone and a stake. No mention was made of the road on that plat.

On one of the side lot lines, the line continues another 20 feet to a hub. When I looked for a plat of the neighbor's land, I couldn't find one that also showed the land that I was searching. Both parcels were carved out of what was more than 200 acres in the 1930s. On that plat, the road seems to be curving away from where I think my property is.

Do I have a real problem, or are modern surveys better than the older ones? What can I do to help explain to my underwriter what I think I see?

Confused and Bewildered

Dear Confused:

    To begin with, you receive the coveted Tute "Way-to-go Award" for a sharp pair of eyes and the willingness to look at the documents you find in the chain of title. Tute too has seen parcels of land swell and shrink with the passage of time, and it is an area that almost requires the title examiner to be certified psychic reader to reach a decision. But, you have pointed to a couple of interesting facts that lead me to think you have indeed uncovered a problem.

You found a set of pre-existing monuments on the 1991 plat. They were located 30 feet from the roadway, approximately the same distance as the discrepancy between the two plats. This is a powerful clue. Surveyors don't set permanent monumentation without a reason. Your reference to an additional 20 feet to the hub on the older plat is another indication.

Tute would not rely on the more modern survey simply because it was newer. While attending a seminar, Tute heard a surveyor say that he loves all the electronic gadgetry because it is so precise. He added that now when he is wrong, he is "precisely wrong." The point he was making is that accuracy has very little to do with precision. Just as there are variations in quality among title examiners, there are variations in quality among surveyors. New is not necessarily improved.

To explain the problem to your underwriter, you are going to have to continue the process you have already started. Each boundary of this property needs to be checked against the boundary of the adjoining properties. Because you aren't sure where the street is, check the owners across the street, too. Look for surveys of their property and plot out the metes and bounds descriptions looking for points of identity, or discrepancy, with your parcel's boundaries. Look at how the property was divided from its hundreds of acres origin to its current configuration. Look for gaps or overlaps between properties. Once you have that information in hand, you should be able to explain or show your findings to the underwriter in understandable language.


PS to Confused's boss. I'll bet you haven't gotten a lick of work out of Confused while this problem was hanging around. Don't begrudge the time; it will almost certainly save you litigation expense and the cost of purchasing a strip of land to cure the title if you insure the larger quantity of ground.

Dear Tute:

On a recent title examination, I found a deed from a Special Commissioner, appointed during a partition suit in 1987. The property was claimed by 32 different people. Even though there was a title report in the suit file, my boss made me do the whole thing over again. Why?

No, I'm Not Really Lazy

Dear Yes You are Too:

To begin with a small rule from the Civil Procedure rules, a court does not have jurisdiction over someone who is not a party to the litigation before it. The only way you will know if there were only 32 owners is by doing the title yourself.

It may be that the land records are silent on deaths, heirs, and the other things that are necessary to decide if those 32 are the only ones with an interest. Your title work may show four people, or it may show 50. You will need to review the Chancery file in detail to see what evidence was presented regarding the ownership, and whether or not it aggress with your work.

Also, you will need to review the suit for the service of process on all the owners. If some of them were never made parties to the suit, their interest was not disposed of y the court, and is still outstanding. Notwithstanding Virginia Code 8.01-113, which provides that a purchaser at a judicial sale shall not have the title disturbed unless within 12 months from the confirmation of the sale that sale is set aside or appealed, this code section does not defeat the title of someone who is not a party to the suit and should be. Mountain Mission School, Inc. v. Buchanan Realty Corp., 207 Va. 518 (1966), Forrer v. Brown, 221 Va. 1098 (1981).

Another small rule, this one from personal experience. If you don't do the work, and you accept someone else's work at face value, it becomes your work, and you are responsible for it if it is wrong. The statute of limitations has run on the attorney who did the title work in 1987. Your owner's title policy is forever.




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