Volume 1 Number 3
Title Tips by Tute
|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.
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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