simultaneous Conveyance

[VANCE]

Here is my question

Mr. Smith owns the SW 1/4 of the SW 1/4 of Section 34 and
the NW 1/4 of the SW 1/4 of section 34 on different deeds. (2 legal parcels)

In 1954 Mr. Smith subdivides the SW 1/4 of the SW 1/4 into 5 parcel with a parcel map and does not sell any of them.


In 1960 he subdivides the NW 1/4 of the SW 1/4 into 5 parcels and sells parcels 2-4.

To date all parcels are sold and are under different ownership.

A recent survey reviles an overlap between the 1954 and 1960 subdivisions.

My first thought is that the 1954 subdivision is "senior" to the 1960 subdivision.

Others are saying since the original owner retained the 1954 subdivision and sold parcels from the 1960 Subdivision, than the 1954 subdivision is "Junior"

My thinking is a Simultaneous Conveyance is created at the time the parcel map is filed with the County Recorder, not when the lots were first sold.

There is no occupation issues or evidence of possession lines.

Thanks

[Jim Frame]

My take is that the 1954 subdivision is nominally senior, but that all lots in the 1960 subdivision that were sold by the subdivider while he held title to the 1954 lots would automatically acquire the overlap. From Brown, 2nd ed., §5.6:

"A subdivider who incorrectly describes the boundaries of a subdivision but owns all the lands monumented conveys title to the land improperly described."

In this case I think the principle would apply even if no monuments were set for the 1960 lots prior to the time of sale. The subdivider is presumed to know what he's selling, and the latent ambiguities in dimensions are to be construed most strongly against him.

.

[Lehmann]

Vance,
Is this a theoretical issue? Parcel Maps didn't exist in 1954 through 1972. Were the lots perhaps really shown on a R/S, but then sold out by Deeds (making them sequential)? If not by a true "map", recognized by the local authority, then sequential rules.

[Ian Wilson]

Frank:

A number of jurisdictions actually had Parcel Map Ordinances in place well before March 4, 1972. The City of San Mateo had one in place since the late '40s.

In such cases, I'd lean toward Jim's explanation.

[VANCE]

So here is the situation.

The Bowers subdivided a portion of their land in 1954 (see attached maps) and did not sell any of the lots.

In 1960, the Bowers subdivided the remaining portion of their lands (a separate parcel)and started to sell the lots from the 1960 map.

Both maps were prepare by the same surveyor, so all should be well, but
upon a field visit we find iron pipes with tags from both surveys (by the same surveyor) that overlap the two subdivisions by 17.5'. (in this case it is lot 3 of the 1960 map and lot 11 of the 1954 map). All the deeds reference their respective maps.

Who is entitled to the overlap.

I say lot 11 of the 1954 map (simultaneous conveyance is created at the time the map is filed, not when a lot is sold).

Remember possession is not an issue.

Is my thinking on track, or am I missing something.

Thanks

[Peter Ehlert]

your simultaneous conveyance theory is only effective between the lots created in the same subdivision. the overlap is between two separate subdivisions... research the parent parcels: one is probably senior to the other.

the fact that Howard surveyed both is off point, and the fact that the owners of both subdivisions is the same also off point if the parent parcels have their own linage.

more facts = different answer!

BTW: the 1954 map did convey an interest in land at the time of recording... see the owners statement: dedication to the public

[E_Page]

I agree with Jim.


Edit to answer Peter: I think that the fact that the parent parcels prior to the subdivisions and the lots of the subdivisions at the time of sale were owned by the same party is the point. That owner sold the nominally junior lot according to its subdivision while retaining the nominally senior lot. In such a case, I would think that the courts would construe against the grantor, because, as Jim stated, he would have been presumed to know of the overlap of the two surveys.

The dedication to the public is a moot point as the same land was dedicated to the same entity (the public) on the 1960 map as on the 1954 map. The public has it either way. In fact, the way I'm reading this, the public is benefitted more by the 1960 map, as that RW is wider.

Do you have reference to the contrary?

[VANCE]

So what I'm reading is Lot 11 of the 1954 maps would receive its full share even though the original subdivider owned that lot when lot 3 of the 1960 map was sold or is it the other way around?

Thanks for all your help.

[Peter Ehlert]

Evan: I do not see facts presented to support either theory.
I contend that if the two parent parcels have differing linage (not the result of a simultaneous conveyance) then one is senior. The rights of that parcel would flow with the land, common owner or not.
something does not meet the eye here...

regardless, there appears to be a cloud... this is where the boundary surveyor does more research and recommends a boundary agreement.

[Ric7308]

I think one thing to consider is that the 1954 Map was the first portion of the parent parcel subdivided out and the 1960 Map was the remaining portion of the original parent parcel.

Which lends validity to what Peter was suggesting about Lot 11 from the 1954 Map receiving full coverage, while the overlaped portion would be reduced.

Of course, this all sounds good on paper...

[7702]

"Mr. Smith owns the SW 1/4 of the SW 1/4 of Section 34 and
the NW 1/4 of the SW 1/4 of section 34 on different deeds. (2 legal parcels)"

Your problems may be worse than you thought. According to the surveyor, portions of section 27 and 28 were subdivided, not section 34! =p

[7702]

"upon a field visit we find iron pipes with tags from both surveys (by the same surveyor) that overlap the two subdivisions by 17.5'."

That's how clever land surveyors circumvent those pesky minimum lot size requirements!

Actually, for what it's worth, I'm siding with Jim and Evan on this one because of the common ownership at the time of the 1960 plat (and what Jim says). I think that the 1960 plat may act to effectively replat the 1954 plat, giving full dimensions to the lots within the latter plat.

[VANCE]

My main question is when is a simultaneous conveyance created?

When the map gets filed (recorded)?
or
When an owner sells a lot?

I believe (boundary control 5th 11.3) it's when the map gets filed. Deeds to the parcels reference their respective maps. The subdivider could have amended or re-subdivided, but instead filed subdivision No. 2.

For the most part this is a hypothetical question, it just happened to get discovered while working in the area. pinning down an old section line for work to the east.

Funny part is I was told that the field crew tied in a pipe that had a reference to a section corner (NE corner lot 11, 1954 per an amended map, nothing to do with the lots) and while walking back to the truck literally tripped over the monument that was 17.5' southeasterly of the northeast corner. Out of curiosity both maps got calculated and overlayed and sure enough their is the overlap.


FYI both monuments fit nicely to their respective maps (within a few hundredths).

[Surveyor826]

This paragraph is in response to the last question only:
All the parcels are Simultaneously CREATED when the map is recorded and thus each parcel has equal standing with the others. When those parcels are CONVEYED is not really an issue. Of course as has been mentioned the subdivision exterior is another matter.


Your problem brings up another issue I have had occasion to discuss with surveying colleagues: is this a surveying problem (question) or a Title problem? I feel its a title issue, and will usually send it to Title experts for them to sort out. (Like Surveyors, some Title Officers are better than others)
Not that surveyors are not qualified to investigate and reach a conclusion on the question, but the Title experts have better and easier access to the records necessary to properly evaluate the question and come to a conclusion.
Its also what they get paid to do. I will review their evidence and ensure I agree, and I usually I do.

[Jim Frame]

"some Title Officers are better than others"

From what I've seen in the last 20 years, the expert title officer is rapidly going the way of the dodo. The massive consolidation in the title industry -- at least as it has been implemented in California -- has put a double-whammy on the title officer situation. On the one hand, most of the local and regional title plants have been subsumed into state and national digitized records warehouses. The detailed hand-drawn color-coded title maps adorned with decades of annotations that the local title officer knew like the back of his hand probably got tossed into the trash along the way, and the data warehouses only serve up a limited subset of the documents that were once available at the local plants. On the other hand, almost all the old-time title officers who knew just about everything there was to know about properties in their areas of practice are now dead or retired. The replacement generation is much quicker to shrug their shoulders at the tough title questions, since they don't have the deep knowledge of the properties that their predecessors had, and their document resources are limited to whatever the droids in the digital plant can produce.

In my opinion, the roles of land surveyor and title officer are reversing, if they haven't already reversed. While in the past we would go to them for answers to tricky title questions, more and more they're asking us to make the case one way or the other. I think we need to be prepared to pick up the burden.

.

[Ian Wilson]

Very well said, Jim.

-

[Ben Lund]

At the time of the 1954 subdivision, aren’t the lots simultaneously CREATED by the Subdivision Map and then simultaneously CONVEYED to the original owner?

[Ian Wilson]

No. Ben, you can't convey land to yourself in California.

Easy dodge: change the entity slightly. Ian Wilson conveys to Ian Wilson as a married man.

The parcels are all created the moment the map records. In fact, I tell my clients to be very careful onthe day of recording as the lines extend all the way from the center of the Earth to outer space. If they're standing on one of the lines, they might get hit by the line forming.

-

[7702]

Ben,

Yes, the lots in a subdivision are simultaneously created at the time of recording.

I suppose you could view the lots as being simultaneously "conveyed" to the original owner at the time of recording, even though no property is actually changing hands since they already own it. It's just being reconfigured and redescribed (minus any dedications and other conveyances).

I'm not sure of your concern regarding this, since normally there aren't any junior/senior rights issues associated with platted lots within the boundaries of a subdivision, regardless of when the lots are conveyed.

*My computer keeps bogging down. I see Ian posted first. I guess we more or less agree.*

[Ben Lund]

I think I agree with Jim who quoted from brown:
"A subdivider who incorrectly describes the boundaries of a subdivision but owns all the lands monumented CONVEYS title to the land improperly described."

I have a stupid question. Who owns the lots when the subdivision is created? After subdivision, doesn’t the owner of the parent parcel now own Lot 1-5 (versus owning the parent parcel)? Is this considered a conveyance?

If it is considered a conveyance, then applying Jim’s solution, Lot 11 (from the 1954 Map) would get the overlap.

If it is not considered a conveyance, then applying Jim’s solution, Lot 3 (from the 1960 Map) gets the overlap because this is the first conveyance to a different party and (like Jim pointed out) “the latent ambiguities in dimensions are to be construed most strongly against him.”

Some other thought: When the line in question is a subdivision line, I would think it would be prudent to identify what relationship the parent parcels had to each other (whether they were created simultaneously or sequentially). It seems that normally locating a subdivision line means locating the parent parcels as they were described and surveyed at the time of creation. With that information you can compare how the 1954 and 1960 subdivision boundaries compare to the 2 parent parcel boundaries (this is where I agree with what Peter is saying).

In this case, however, maybe it doesn’t matter the relationship between the shared line of the parent parcels.

[Ian Wilson]

Ben: It is not considered a conveyance in the conventional means. It is simply the original owner's land now described in mulitple parts. If you think about any subdivision maps you've processed, there are no deeds filed that "transfer" ownership of any of the parcels to the owner of the original parent parcel. The subdivision map merely gives the originla owner to convey the parts to others. The parcels exist as separate entities th emoment the map records.

In this case, the senior of the maps would likely be held as the senior parcel in terms of boundary.

Tink about selling the north 500 feet of a parcel first and then the south 500 feet next. if the lot is only 900' deep, the first parcel gets the land conveyed; the second parcel gets stuck with what's left.

Same principle involved.

-

[E_Page]

"After subdivision, doesn’t the owner of the parent parcel now own Lot 1-5 (versus owning the parent parcel)? "

Yes.


"Is this considered a conveyance?"

No. And the distinction is important. The same party still owns the same land, albeit described differently than before the subdivision. When the subdivision records, all of the lots, rights of way, and easements are created at the same instant. That is not the same thing as being conveyed. The only portion(s) conveyed at that instant are any rights of way, easements, and/or other parcels dedicated by the map.

All of the newly created lots have the same standing as any other lot within the subdivision.

The principle at work here is based upon the fact that the same subdivider who was behind the 1954 map, owned the underlying parcels, and had retained ownership of the affected lots at least up until the time that the subsequent map recorded in 1960.

The 1960 map, overlapping portions of the 1954 map still owned by the original owner (having never conveyed them), effectively resubdivided that overlapped portion. The only part technically unaffected would have been the right of way which had been dedicated to the public and conveyed as the lots, etc. had been created. But all of that dedication falls inside of the dedication from the adjoining map, so has no practical effect.

It doesn't appear to me that this edge of the 1954 subdivision was a boundary of one of the parent parcels, but a line which had no direct relationship to the outer boundary of the parent parcel(s), and that the 1960 map was a subdivision of a portion of the remainder of whatever was left over after the 1954 subdivision.

Since both 1/4s were owned in common at the time of the 1954 subdivision, the lineage or chain of title of those parcels becomes meaningless to this issue. One owner owned it all, subdivided some of it, and retained ownership of some of the lots adjoining his remainder parcel. He later subdivided the remainder (or a portion of it), and although the map doesn't plainly show it (this is a latent ambiguity - not apparent on the face of the document), he also resubdivided a portion of the lots he retained from the 1954 subdivision.

Of all those lots that he still owned from the 1954 and the 1960 subdivisions, he sold those from the 1960 subdivision 1st, according to the 1960 map. They were created later, so nominally junior, but conveyed first, becoming senior.

Had the subdivider sold the 1954 lots prior to the 1960 subdivision, then the principle that one cannot sell (or subdivide) what one does not own would have been in effect. Instead, there is no principle which states that once a landowner subdivides his land, that he cannot resubdivide it. So in this case, whether he intended to or not, he did effectively resubdivide it.

I hope that helps rather than muddying things up.

[dmi]

I am waiting for the fun to begin, some folks come along and buy and occupy according to the 1954 map and someothers buy and occupy to the 1960 map. Some time later the folkscome along and buy lotss in the middle and decide to have it surveyed cuz the fences look kind of funny,,,

[VANCE]

Thanks for all of your opinions, still young in my surveying career (taking my PLS exam in less than 3 weeks) and I like it when issues like these come up, it helps me learn what is happening in the “real worldâ€￾ not just what is “supposeâ€￾ to happen based on text books, state and local laws. This case is not uncommon and I can bet it will come up again.

Thanks

[Peter Ehlert]

this is where the boundary surveyor does more research and then will probably recommend a boundary agreement.

do the right thing and let all the parties know what you do and keep this thing out of court... everybody looses then.