Cert. of Correction?

Anthony Maffia · Post by **Anthony Maffia** » Thu Apr 28, 2011 10:25 am

First, the easy question.

If the utilities are in place, then the PUE shouldn't move, and the utilities have a real interest in the PUE. If none are built, or if it was to serve adjoining parcels, then new PUEs can be dedicated by each affected lot owner. The location can't be changed on the amended map if facilities are present.

Lastly, the hard question.

An amended map may not be used to make any changes to anything that affect title interest. Even if it was a mistake, I think the gap is owned by the original land owner / subdivider, ESPECIALLY considering a monument was placed and found at that corner.

If the original subdivider cannot be located, then each owner would have to apply for quiet title action. Of course, they can probably use the land without worrying that the owner will come and complain.

Or are we working from the assumption that no one intends to keep a sliver of land?

Either way, I'd leave it in the hands of the county surveyor to decide.

cals6406 · Post by **cals6406** » Thu Apr 28, 2011 1:15 pm

(e) To show the proper location or character of any monument which
has been changed in location or character originally was shown at
the wrong location or incorrectly as to its character.

Could apply here.

E_Page · Post by **E_Page** » Thu Apr 28, 2011 3:37 pm

I can see two possible readings of Â§66469(e)

One, the boundary is shown correctly on the map, and the monument is shown at the corner. Crew goes out, finds for some reason that the monument can't be set at the corner and sets an offset instead. For some reason, that information never makes it to the map before it files.

Two, as we have here, the monument is shown in the wrong location because the boundary is shown in the wrong location.

The first one is pretty clearly a situation intended for correction by a CoC. The second one is a stretch, at best.

In Steve's case, it sounds as if it could be a case of "no harm, no foul" as long as no utilities have been placed in the easement that would move laterally, potentially placing the utilities outsode of the easement. I know that using the reasoning of "no harm, no foul" to justify a stretched interpretation of 66469(e) isn't really a valid kind of legal reasoning, but if it would work in practical terms, that is, everyone is agreeable, the platted parcels gain rather than lose, Steve's client has no desire to gain what he didn't have title to in the first place, and no utilities or other improvements need be moved, it seems a terrible waste of everyone's time, money, and effort to go through the hassle of a resubdivision.

Reading through all of 66469 though, I have to agree with Dave. This error does affect a title right and is not an error which is ascertainable from the data shown on the map. Sticking to the letter of the law, it doesn't qualify. Trying to interpret the spirit of the law to include this situation is, well, it would be a gift if the county allowed it.

Somebody more familiar with the SMA than I help me out here. Does a TM automatically expire once the PM is filed. I thought I recalled such a thing, but I might be thinking of a different state I used to work in.

Anthony Maffia · Post by **Anthony Maffia** » Thu Apr 28, 2011 3:58 pm

66469(e) would be to show an offset monument.

cals6406 · Post by **cals6406** » Thu Apr 28, 2011 4:09 pm

Or in (b) or in (d) or in (f), so I don't believe you can force it into (e).

In fact the opening paragraph says "for any of the following purpses", so each sub-paragraph must be read on its own.

Nor can you force "ascertainable from the data shown on the map" from the closing paragraph into (e) since the word "error" isn't there.

Nor can you force "alter any right, title, or interest in real property reflected on the recorded map.” from (f) into (e),

Nor can you force “…that does not affect any property right” from (g) into (e).

If this was 6" and not 6 feet, would it be a title problem? How about 3"?

If an office review of the adjoining property deed reveals a 6' bust that can be confirmed by a title officer, is this a "patent" or "latent" ambiguity?

I can see situations where I could argue that amendment of the map is appropriate.

Not sure about this one because of the easement, I have no knowledge of occupation or any changes in occupation based upon the map, the configuration of the parcels, etc.

land butcher · Post by **land butcher** » Thu Apr 28, 2011 9:14 pm

Isn't this what title companies and their legal experts are supposed to resolve?

E_Page · Post by **E_Page** » Fri Apr 29, 2011 8:09 am

Keith,

"Wrong" and "incorrectly" are descriptive words for "error". But I can see room for interpretation because they did not specifically use the word "error" in (e) but could have easily worked it in, and specifically defined the limit of the definition of the word "error" at the end of the section as it is to be interpreted in this section.

I've seen a few CoC's that stretch the limit of what they are to be used for. This situation wouldn't go beyond some others I've seen.

Dave Karoly, PLS · Post by **Dave Karoly, PLS** » Fri Apr 29, 2011 12:15 pm

I like Danner's point.

Nothing happens in real property without a conscious, intentional action by the owner. Did the subdividing owner intentionally retain a triangular piece of property? Apparently not. Therefore the triangular piece is already attached to the parcel it adjoins and no property right changes. The correction is just that; a correction to show the actual location of the boundary which is mischaracterized on the Parcel Map.

The flip side of that is the Parcel Map carries constructive notice so the interested parties may have to acknowledge the correction; I'm not sure. If the owner to the north does not claim the triangle, the original subdivider does not know about it and the tax assessor does not show an additional unit of ownership in the original subdivider (really an illegal and unintentional subdivision) then it probably does not exist as a separate unit and I would vote for the parcel owner to the south as the most likely owner. The PUE is not affected, not relevant and I would suggest it is located in its platted location.

But I don't deal with the SMA because I work for an exempt agency so take that for what it is.

Dave Karoly, PLS · Post by **Dave Karoly, PLS** » Fri Apr 29, 2011 12:22 pm

Steve I would favor a R/S showing the correct boundary of Parcel X with a note explaining the situation. I wouldn't pull the old monument; I would simply set another. I think the common law principle is that Parcel X already extends to the outer boundary of what was the subdivider's property and therefore there is no change to title and no need to change the description and no need for corrective deeds or even title company affidavits.

As I said, though, my only concern about this is there is a PM with constructive notice on file so fixing this may be a little more difficult than it really should be because California has turned subdividing property into an overly complicated red-tape disaster.

cals6406 · Post by **cals6406** » Fri Apr 29, 2011 1:47 pm

Which allows even greater flexibility on an Amending Map and provides for a new public hearing if needed.

Can you make a new offer of dedication on an amending map? (with all the necessary signatures and certificates.)

Can you revise a PUE on an amending map? (with all the necessary signatures and certificates.)

If the title company is willing to provide the Parcel Map Guarantee,
all current property owners (and owners of interest) are willing to sign,
and the involved agency agrees, why not?

JoeC · Post by **JoeC** » Fri Apr 29, 2011 2:35 pm

Steve – what in the world made you look at the deed to the underling parcel? Is that just great research or did you have reason to guess the context of the map?

After reading all this it sounds like the monuments on the ground agree with the PM. Therefore I think the map should hold and unfortunately there is a gap.

How much of a gap? Is the NE corner of the parcel on the east line of the original underlying land? If not the gap may be bigger than you think.

A simple fix might be to have the original owner deed the gap to the adjacent owners and file a Cert. of Compliance. The PUE would remain as per the PM and unfortunately utilities would have nowhere to go because of the 6 foot finding, the PUE would just dead-end at the east property line.

I would think the County or City would be quick to abandon that portion of the PUE and have it rededicated.

Something to think about.

Dave Karoly, PLS · Post by **Dave Karoly, PLS** » Sat Apr 30, 2011 9:41 am

Respectfully to everyone even though I am infallible (kidding about that, I'm only 99% infallible), it is a very Surveyor attitude to think there is a gap but I think the common law and evidence is against such an opinion.

There is no evidence that the subdivider intended to keep and create what I will call the mystery parcel no one knew about (or gap if you prefer) so I will say that Parcel X gets the gap since no one else seems to be entitled to it.

Dave Karoly, PLS · Post by **Dave Karoly, PLS** » Sat Apr 30, 2011 3:17 pm

I mean the following with all due respect.

If the gap does not exist how is the Land Surveyor closing it? If the intention of the subdivider was to subdivide all of his land then how is there a gap? There isn't a gap in my opinion. I am fully aware of Brown's text. I don't see evidence of a gap. The mistaken Parcel Map indicates a single line. If we are creating a triangular remainder parcel then where is it on the map?

Granted, for me (not meaning anyone else), talk is cheap. I am not the surveyor here but I'm just saying I don't see a gap. I have no power to close a gap or eliminate an unknown remainder parcel but I do have the responsibility to determine whether it exists in the first place.

The owner (who has the power to create parcels or not in compliance with the SMA) did not cause this problem; the PM Surveyor (not Steve) did. The PM Surveyor had no authority to create an additional parcel particularly one that no one knew about. So how can it be that Steve can't close the gap but the original Surveyor could create a gap? That doesn't make sense.

Maybe I am just confused but I just don't see a gap; I see a mistake.

I have no problem with understanding the exam problem or Brown's but sometimes the conventional wisdom is not correct.

Dave Karoly, PLS · Post by **Dave Karoly, PLS** » Sat Apr 30, 2011 3:29 pm

I have Brown's 4th. The only case he references under Section 12.42 is a Washington case which actually favors the lack of existence of a gap. He gives an example of College Park Unit #2 but it appears to be just his opinion; not a case. There is no footnote.

In order for a gap to exist then you would have to say that the subdivider (the only person with authority to create lots) intentionally created an extra lot. Say the PM was 2 lots (clearly shown and labeled and signed by the owner). There is clear evidence of 2 lots. But in order for the gap (really an extra lot) to actually be in existence you are having to say that the subdivider intentionally created an 3rd lot which would be a violation of the SMA. How can the subivider intentionally do something that he did not even know about (a mistake by the Surveyor who didn't even know about it because it was a mistake)?

Dave Karoly, PLS · Post by **Dave Karoly, PLS** » Sat Apr 30, 2011 5:25 pm

Mr. Wooley, I appreciate your comments on the remedy. I can't comment on the SMA because I rarely if ever encounter it in my working life. I obviously would not opine on whether a Cert of Correction or Ammending Map would be sufficient in this case. I would think a third party surveyor could survey the parcel to the north and set another monument at the correct corner leaving this problem where it belongs which is in the PM property.

I would say if this were to stand for many years and be discovered it would not be unlikely that a court would hold to the monumented boundary of the Parcel Map despite the underlying Deed. This has actually happened in California thought the case I am aware of is not published and the situation is a little different.

Dave Karoly, PLS · Post by **Dave Karoly, PLS** » Sat Apr 30, 2011 5:38 pm

Regarding the 100'x100' parcel:
The situation posed states nothing about physical evidence on the ground so I will procede as if there is none.

First, the original Grantor believes he has a 100' parcel. Acting on this belief he grants Blackacre the east 50' in 1942 (54 years prior to the survey). This is not a problem because obviously there is plenty of ground. Therefore Blackacre gets a 50' wide parcel.

Second, the original Grantor grants the west 50' to Whiteacre in 1950 (46 years prior to the Survey). It doesn't seem stretching very much to assume the original Grantor subtracted 50 from 100 and arrived at 50 and this is evidence that his intent was to unload the rest of his property. I assume also (although not given) that it is likely the tax assessor only shows two parcels. Therefore given no other information it is my opinion that Whiteacre receives the remaining east 55'. Grantor has been out of the picture for at least 46 years and there is no evidence that he intentionally kept a 5' wide parcel in the middle given.

Early in my career the firm I worked for actually came across a similar situation when doing a Subdivision and the Title Company tried to clear it up by finding the heirs of the long dead grantor. They never could find any heirs and eventually just insured the gap in the current subivider. In this case Blackacre's and Whiteacre's parcels had returned to common ownership.

Stephen Johnson · Post by **Stephen Johnson** » Sat Apr 30, 2011 8:04 pm

With common ownership, the location of the East line of the "West 50 Feet" becomes irrelevant as the title company eventually decided. Until the latest owner decides to sell off or encumber part of the property in such a way the two deeds come into play. Then the fun begins again.

I have done surveys where a similar situation was a real situation.

I also found a real Gap/gore about 30 years ago, both in the deeds and physically on the ground. I never did find out the final disposition as it did not directly affect the property we were surveying.

tharris · Post by **tharris** » Sat Apr 30, 2011 8:49 pm

I agree with Mr. Woolley that an Amended PM, much less a Certificate of Correction, are not appropriate tools to resolve the situation described by Mr. Gardner. A LLA/Merger would work as would another Parcel Map, given a situation where the original subdivider still owns the parcel in question. This might also be a handy tool to clearly and definitively handle relocating the dedication, given no utilities or such occupy the existing easement.

As to the 100' x 100' lot, I will take the bait. Based on the facts as presented, there is a 5' strip that the original subdivider still has an interest in. I only have Brown's Boundary (5th ed.) available to me at the moment, so I will have to stick with referencing it...
With regards to intent, the only thing we can go from is the written intent of the deeds (11.15) which are unambiguous. Section 13.11 also more or less restates this exact situation and is clear that a gap is created by the deeds as written.

Stephen Johnson · Post by **Stephen Johnson** » Sat Apr 30, 2011 10:57 pm

NO GAP

The senior deed is 50'. The junior deed is what is left.

Dave Karoly, PLS · Post by **Dave Karoly, PLS** » Sun May 01, 2011 7:22 am

Since Steve is not surveying the Parcel Map parcel I think he could simply survey his client's property, set the rear corner in the correct place per the Deed and file his Record of Survey. If enough years pass and reliance has happened it is not inconceivable that the established rear corner of Steve's client is the location of the mistaken rebar but I don't think that has happened from what I know about the problem.

The PM surveyor has a problem to resolve as to how to correct the situation. I'm glad it is not me.

land butcher · Post by **land butcher** » Sun May 01, 2011 11:06 am

The 100 x 100, the obvious intent was to split the property, but then we have to keep the lawyers and courts busy.

99% of laws and court cases would not exist if we could just agree on common sense. But in Dave's example one of the owners would probably want all 5 feet instead of settling for 2.5ft.

Today's paper has a fine example of this "go to court" attitude.

CA has a agency called the "Commission on State Mandates" that determines if agencies are due extra money because of a new State law. This agency made a decision approving reimbursements to San Diego County. Our State, which created this agency, is challenging their decision in court.
Why create a agency then not adhere to it's findings, no wonder our State is broke.

Lee Hixson · Post by **Lee Hixson** » Mon May 02, 2011 5:29 am

Dave.........that scenario was exactly what I found in my survey of those lots in Marysville last year. I left the gap as is. None of the owners wanted to pay for a Quiet Title action. Other surveyors tried to talk me out of the gap/overlap situation, telling me that "it wasn't their intention for a gap" and that therefore I should adopt a solution that eliminated it.

But as Dave said, we don't have that freedom--the legal descriptions involved had no internal conflicts or problems of any kind. They simply did not match each other.

Dave Karoly, PLS · Post by **Dave Karoly, PLS** » Tue May 03, 2011 4:45 pm

I agree, the land surveyor has no authority to close the gap just as the land surveyor has no authority to move a boundary line or eliminate a parcel on a whim. The land surveyor only has responsibility to properly determine the boundary but no power to enforce it.

I doubt you will find case law on point because in order to have case law you have to have a dispute which results in a trial court decision which is appealed and results in an appellate decision. Appellate Courts generally rule on the law not on the facts. Since the original grantor does not know that he still owns a 5' wide parcel why would he be suing anyone?

I think you will find case law that more or less indicates actual intent is paramount. How do you determine intent? By interpreting the words of the deed in light of the evidence found. Is there intent on the part of the original grantor to retain a 5' wide parcel? I don't see evidence of intent to keep a 5' parcel but I do see evidence of the intention to dispose of all of the land (100' record divided by 2). I see this as a question of fact which is what we do, not a question of law.

I hope I don't sound too argumentative and I would like to hear Mr. Wooley's lecture on the subject because I may be persuaded that I am incorrect on this point.

bwatkins · Post by **bwatkins** » Wed May 04, 2011 2:13 pm

If this is a recent parcel map and the original subdivider can be located it could be dealt with by a conditional certificate of compliance. The triangular parcel (not a gap) is in effect a non-conforming parcel (created without conforming to the Subdivision Map Act). The original subdivider could apply for a certificate of compliance and the City could condition the certificate of compliance to complete property line adjustments (with the Parcel Map lot that should have included this area) to bring the parcel into compliance with the Map Act. Just a thought.

bwatkins · Post by **bwatkins** » Wed May 04, 2011 2:35 pm

You would not get a certificate of compliance on the triangle as a separate parcel, that's the reason it would be conditioned to do the property line adjustments. The Parcel exists, it's not a gap, it's a non conforming parcel. In order for the triangle to conform it must dealt with through a process to make it conforming. That's where the condition to accomplish a property line adjustment comes in. After the property line adjustment and the recording of deeds, all is well and all conforms.

California Surveyors Forums

Cert. of Correction?

66469(e)

I do not see the word "error" in 66469(e)

See also 66472.1