legal aspects of land surveying 2018.… · three worlds of surveying fig: world of surveying...

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CN | www.CNettleman.net CN | www.CNettleman.net

LEGAL ASPECTSOF

LAND SURVEYING

By:

Dr. Tony Nettleman

Copyright Nettleman Land Surveying, INC (2016) ©

CN | www.CNettleman.net

Fig: “Welcome” Picture


YOUR SPEAKER

• Surveying All My Life

• Began Working with Attorneys

• Went to College

• After Private Practice, Came Back

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THREE WORLDS OF SURVEYING

Fig: World of Surveying bubble diagram

Business

TechnicalLegal


TODAY…

Fig: Legal World bubble

Legal

World


TOPICS FOR OUR LECTURE

• Court Systems

• History of Boundaries

• Boundary Creation

• Ownership Principles

• Estates in Land

• Conveyances

• Adverse Possession

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COURT SYSTEMS

Fig: Three Branches of Government graphic


COURT SYSTEMS

Fig: State and Federal courts


HISTORY OF BOUNDARIES

Fig: Prehistoric boundaries Fig: Modern boundaries

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Fig: Indian Land for Sale newspaper ad


BOUNDARY CREATION

• By Action

• By Words

• By Law


BOUNDARY CREATION

• Original Surveyors Create

• All Other Surveyors Follow

Fig: Cartoon surveyor

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OWNERSHIP PRINCIPLES

Deeds and Descriptions

Fig: Deed in old script


OWNERSHIP PRINCIPLES

• Chain‐of‐Title (US)

• Torrens (AU, NZ, etc)


ESTATES IN LAND

Fig: Estates in Land diagram

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ESTATES IN LAND

Using the Magic Words Fig: Magic Words graphic


CONVEYANCES

• Simultaneous

• Sequential


xxxxx

xxxxxx

7/8/16

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ADVERSE POSSESSION

Fig: Adverse possession dinosaur comic


ADVERSE POSSESSION

Fig: Adverse possession checklist rooftops



History of boundaries from the cavemen to modern times including how land is described and conveyed

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BOUNDARIES ENJOY A LONG HISTORY IN BOTH MYTHOLOGY

AND JUDAIC‐CHRISTIAN HISTORY


THE SPOKEN WORD

Fig: Cave Drawings


TERMINUS: THE GOD OF BOUNDARIES

Fig: Statue of Terminus

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Proverbs 22:28 Remove not the ancient landmark, which thy fathers have set.

Deuteronomy 19:14 Thou shalt not remove thy neighbors’ landmark which they of old time have set, in thine inheritance which thou shalt inherit, in the land that Jehovah thy God giveth thee to possess it.

Deuteronomy 27:17 cursed be he that removeth his neighbor's landmark. And all the people shall say, amen.

Job 24:2 Some remove the landmarks; they seize and devour flocks.

Zechariah 2:1‐2 I lifted up mine eyes again, and looked, and behold a man with a measuring line in his hand. Then said I, Whither goest thou? And he said unto me, to measure Jerusalem, to see what is the breadth thereof, and what is the length thereof.

Ezekiel 42:16‐19 He measured on the east side with the measuring reed five hundred reeds, with the measuring reed round about. He measured on the north side five hundred reeds with the measuring reed round about. He measured on the south side five hundred reeds with the measuring reed. He turned about to the west side, and measured five hundred reeds with the measuring reed.

7/8/16

BIBLICAL REFERENCES TO BOUNDARIES


A LAND SURVEYOR CREATES LAND BOUNDARIES, WHICH ARE

DETERMINED BY LEGAL PRINCIPLES


THE SURVEYOR’S ROLE

• Locate Title Boundaries

• Locate Limits of Possession

• Locate The Limits Of The Claim Of Right

• Locate Improvements

• Locate And Describe Rights In Property

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How Are Boundaries Created?

• Words

• Acts

• Laws


Boundaries are Created Only Once

Fig (a) and (b): Two land survey plats


HISTORIC RITUALS OF BOUNDARIES

Fig: Community Comes Out in Yearly Ritual

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A DESCRIBED CLOSED BOUNDARY IDENTIFIES A CLAIM OF RIGHT TO ANY PROPERTY INTEREST THROUGH A

CLAIM OF TITLE


WRITTEN TITLE

Fig: Certificate of Title of Dept of AG


SOURCES OF TITLE

• Conquest

• Royal grants from a foreign power

• Grants of original crown lands from one of the original states

• Grants or patents from the U.S. government of public domain lands

• Newly created lands

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William the Conqueror

Fig: Portrait of William the Conqueror


1066

Fig: Cartoon of England being invaded in 1066


DOMESDAY BOOK

Fig: Drawing of the Domesday book

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STATUTE TO PREVENT FRAUDS

The following types of contracts must be in writing to be enforceable:

1. contracts for the sale or lease of, or a mortgage on, real property (e.g., land, fixtures);

1. contracts that cannot be performed within one year after the date the contract was formed;

1. collateral contracts, such as promises to answer for or guaranty the debt or duty of another person;

1. promises made in consideration of marriage (i.e., prenuptial agreements); and

1. contracts for the sale of goods valued at $500 or more.


ANY LAND TRANSFER MUSTBE IN WRITING

“contracts for the sale or lease of, or a mortgage on, real property (e.g., land, fixtures);”

Fig: Dollhouse


THERE ARE SEVERAL TYPES OF BOUNDARIES

• MACRO

• MICRO

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MACRO BOUNDARY DISPUTES

Fig: Old Map of Britain


MICRO BOUNDARIES

Fig: Neighbors arguing across fence


TAKEAWAYS

• The Surveyor must be able to understand title but should refrain from giving opinions as to title issues

• A surveyor should never go beyond the words of the document

• What boundaries are is a question of law

• Where boundaries are is a question of fact

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CREATING BOUNDARIES

Boundaries can be created in many ways. But once they are created, they cannot be changed or altered. Your primary job is follow, not to re‐create


How Are Boundaries Created?

• By Action

• By Words

• By Law


BY ACTION

• Boundary Survey

• Creation of corners

• Drawing a plat

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BY WORDS

• Legal Description

• Patent

• Easement conveyance


BY LAW

• Statute

• Common law


LAND OWNERS MAY SUB‐DIVIDE PARCELS IN ANY MANNER NOT INCONSISTENT WITH THE LAW

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SUBDIVIDING PARCELS

• A landowner may divide a parcel as he pleases

• A land survey is not required

• But a valid legal description must exist

• And poor descriptions or monumentation leads to problems


THERE CAN ONLY BE ONE ORIGINAL SURVEY THAT CREATES THE BOUNDARIES OF A PARCEL


ONE ORIGINAL SURVEYOR

• The land boundary is created only once

• That creation occurs when the transfer document is executed, such as:

– Patents

– Deeds

– Plats

– ???

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CREATING NEW BOUNDARIES

• New sequential conveyances: slice‐off a piece of the farm

• New simultaneous conveyances: asphalt grandpa’s fields and create a subdivision

• Court‐decisions: three brothers that once owned a one lot now own three (partitioning)


NO SURVEYOR OR COURT HAS THE LEGAL AUTHORITY TO ALTER OR MODIFY A BOUNDARY LINE ONCE IT IS

CREATED. IT CAN BE INTERPRETED ONLY FROM THE EVIDENCE OF WHERE THAT BOUNDARY IS LOCATED BASED ON THE

FOOTSTEPS OF THE ORIGINAL SURVEYOR


ORIGINAL SURVEYS

• According to the US Supreme Court, original surveys are unassailable through the courts

• It is not your responsibility to "correct" an "error" in the original survey

• Merely because an original surveys angles and distances do not harmonize with your own measurements does not indicate a blunder

• Report the discrepancies but do not disregard them

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ORIGINAL SURVEYS

• There are two types of surveys: originals and retracements

• Once created, the surveyor or parcel owner cannot alter those boundaries

• Original surveyors created, retracing surveyors follow


THE FOOTSTEPS OF THE ORIGINAL SURVEY ARE THE EVIDENCE LEFT ON THE GROUND AS WELL AS THE DOCUMENTATION IDENTIFYING THE GROUND EVIDENCE THAT THE ORIGINAL

SURVEYOR CREATED


FOLLOWING THE FOOTSTEPS

• Instructions given to surveyors

• Any prior surveys

• Field notes

• Monuments on‐the‐ground

• Produced items such as plat or map

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PRIORITY OF CALLS

1) Lines actually run on the ground by the creating surveyor(s)

2) Natural monuments or landmarks

3) Artificial monuments and established lines, marked or surveyed

4) Calls for adjoining tracts that are senior in title

5) Calls for courses and distances

6) Designation of quantity


NATURAL MONUMENTS

Fig: Stream Fig: Hill


ARTIFICIAL MONUMENTS

Fig: BLM Monument in Concrete Fig: BLM Monument in Concrete

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SENIOR PARCELS

Fig: Subdivision Plat (1) Fig: Subdivision Plat (2)


COURSES AND DISTANCES

Fig: Polygon Traverse Fig: Old Fieldnotes


AREA

Fig: Subdivision Plat (3)

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OWNERSHIP, TRANSFER, AND DESCRIPTION OF

REAL PROPERTY

Understanding the basic principles of ownership, transfer and description are essential for determining rights and

interests in land.


PRINCIPLE 1• The grantor can only convey what he owns to the grantee

• If the person conveys 200 acres but only owns 160 acres, then only 160 acres is transferred

• If the person owns a half interest as TIC, then only a half interest is conveyed


SOURCES OF TITLE• Conquest or peace treaty

• Patent

• Deed

• Adverse possession

• Prior appropriation

• Eminent domain

• Involuntary alienation

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UNWRITTEN RIGHTS

• Although title must be transferred in writing (according to the Statute of Frauds), some unwritten rights may be altered

• Adverse possession

• Boundary by agreement

• Estoppel


LAND OWNERS MAY TRANSFERPARCELS IN ANY MANNER NOT INCONSISTENT WITH THE LAW


TRANSFER OF REAL PROPERTY

• Voluntary

• Involuntary

• Inheritance

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TRANSFER OF REAL PROPERTY

• Back‐in‐the‐Day:

– Feoffment, a symbolic delivery

• Today: conveyance (deed) or inheritance (will)

– Statute of Frauds


QUITCLAIM DEED

Fig: Quitclaim Deed


WARRANTY DEED

Fig: Warranty Deed

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EASEMENT DEED

Fig: Old Torn Easement Conveyance


A VALID TRANSFER OF LAND REQUIRES A PROPER CONVEYANCE

MECHANISM AND A VALID DESCRIPTION


DEED AND DESCRIPTION

• Deed: instrument or document by which a property interest in conveyed

• Description: text inside deed that defines the interest(s) being conveyed

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VALID DEED

• Properly executed and delivered

• Parties of sufficient legal capacity

• Consideration

• Signatures


VALID DESCRIPTION

• It depends!

• In Florida, a legal description is valid “if the description of the land conveyed in a deed is such that a surveyor, by applying the rules of surveying, can locate the same.”

• Or…property description is valid “so long as the instrument itself shows that the parties were contemplating a particular piece of property, rather than an unspecified piece of property, or alternative descriptions, or property to be obtained later.”


Connelly v. Smith, 97 So. 2d 865

• Historically…a deed is valid if a surveyor could have taken the instrument at the time it was drafted, & using only the information contained in it & incorporated by reference, locate the particular parcel of property described. If the surveyor could not make this determination, the instrument was a nullity.

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Bajrangiy, Magnethel, Enterprises, Inc., 589 So. 2d 416, 419

• Modern view…deed valid if "description is sufficient if the reference to the property in the deed is such that the court, by pursuing an inquiry based upon the words of reference, is able to identify the particular property to the exclusion of all other property."


VALID DESCRIPTION

• NE ¼ OF SW ¼ OF SECTION 28, TOWNSHIP 1 N, RANGE 3 E

• NE ¼ OF SW ¼ OF SECTION 38, TOWNSHIP 1 N, RANGE 3 E

• NE ¼ OF SW ¼ OF SECTION 28

• LOT 3, BLOCK 1, WINDSOR PALMS SUBDIVISION

• LOT 3, BLOCK 1


WHO OWNS WHAT?

• O to A in 1994, then O to B in 2000. A never took possession or recorded.

• O to A in 1994, then O to B in 2000. A recorded in 1995.

• O to A in 1994, then O to B in 2000. B recorded in 2006.

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WHAT IS GOOD TITLE?

• Legal Title + Equitable Title = Perfect Title

• Property title and mortgage security are two documents

legal aspects of land surveying 2018.… · three worlds of surveying fig: world of surveying...

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