Legal Descriptions

Gromatici · Post by **Gromatici** » Mon Nov 19, 2012 8:07 pm

How do you tell attorneys that the legal description they prepared is not up to "par" and that they legally can't wright it anyway? Seems like I've been witness to a lot of attorney's deciding to write these themselves and forgo having a surveyor do this. - Don't panic, it's just been a couple recently.

When you try to "lead" them tactfully towards using a surveyor they tell you the the Title Officers took a look at it and think it's fine.

Lee Hixson · Post by **Lee Hixson** » Tue Nov 20, 2012 5:22 am

The near sighted leading the far sighted?

Best approach: explain exactly what word/phrase they are misusing and why.

Stan_K · Post by **Stan_K** » Tue Nov 20, 2012 7:02 am

Woodcutter - I am not finding your Chapter 817 and 805. Please point me in the correct direction.

I have been taught and the way I read Section 8726 (l), only PLS or pre-82 CE can write descriptions.

Ric - Care to voice the Boards opinion?

pls7809 · Post by **pls7809** » Tue Nov 20, 2012 7:29 am

Attached is a PDF of the Editor's Notes to the 2004 edition of Laws For The California Surveyor

T. S. Higgins · Post by **T. S. Higgins** » Tue Nov 20, 2012 7:37 am

Stan_K wrote:Woodcutter - I am not finding your Chapter 817 and 805. Please point me in the correct direction.

I have been taught and the way I read Section 8726 (l), only PLS or pre-82 CE can write descriptions.

Ric - Care to voice the Boards opinion?

According to the 34th edition of Laws for the California Surveyor (Minnick/Cuomo), in 1988 the legislature enacted chapter 817, which added subsection (i) to 8726. However, 817 included a note under section 5: "The amendment in Section 1 of this act is declaratory of existing law and is not intended to restrict the practice of persons licensed to practice law in California, nor is it intended to be applicable to persons licensed pursuant to Part 6 (commencing with Section 12340) of Division 2 of the Insurance Code, nor to persons licensed pursuant to Part 1 (commencing with Section 10000) of division 4 of the Business and Professions Code, so long as those persons engage in the respective practice of their profession, but who may coordinate work pursuant to subdivision (k) of Section 8726 of the Business and Professions Code.

Many people take this to mean that Title Officers and Lawyers are therefore authorized to write legal descriptions, but in the case of Title Officers at least, I don't see any part of the Insurance Code that authorizes them to do so; this clause would then appear to have no effect on them regarding writing descriptions.

Perhaps someone else can come up with a code section that indicates otherwise, but I'm not seeing the relevancy of Chapter 817 specifically for preparing legals, at least in the case of Title Officers.

land butcher · Post by **land butcher** » Tue Nov 20, 2012 2:58 pm

Woodcutter wrote:If this is true and you can document it. Plus you are certain the the "not up to par" performance will result in harm, i.e. title issues,

then I believe, as a licensed surveyor, you have an obligation to stop such substandard practice.

If the attorney's in question are operating outside of their expertise, then you should take action. The following link should be of help:

http://calbar.ca.gov/Attorneys/LawyerRegulation.aspx

If they screw it up, then hire another atty to sue the one that wrote the legal. Then you can find out the atty's limit of liability vs the surveyor's.

Gromatici · Post by **Gromatici** » Thu Nov 22, 2012 9:34 am

Thank you for the thoughtful replies. Sounds like an attorney can wright the legal description? The only issue I have is that I'm in the proposal stage and I'm trying to steer them towards having it done right vs the cheap quick way (can you just sign this?). I've always been very careful to suggest to my client to retain an attorney to handle the "cover page" and "agreement issues" part of the legal description that I'm handling for them. Unfortunately the same due diligence doesn't seem to be going the other way.

I've seem a lot of ambiguous legal descriptions in my time and I suspect that there were not written by a surveyor (we're talking recent history here)

Ric7308 · Post by **Ric7308** » Fri Nov 23, 2012 7:40 am

I find the subject of this thread interesting and disagree with those of you that believe an attorney, title officer, or relator is authorized to perform those actions defined under 8726(i).

Let's start with looking at the language that was inserted by the legislators:

"Determines the information shown or to be shown within the description of any deed, trust deed, or other title document prepared for the purpose of describing the limit of real property in connection with any one or more of the functions described in subdivisions (a) to (f), inclusive."
(bold emphasis is mine)

First of all, do you agree that subdivisions (a) to (f) are defined as land surveying (with the exception of (a) and (b) being duplicated under the PE Act)? I suspect that most if not all of you would agree that those subdivisions are considered land surveying, and therefore it would be reasonable to expect that licensed land surveyors retain the sole authority to perform those functions.

Note: incidently, I do not see why "...,trust deed,..." was included in this language...wouldn't it just be inclusive of "...any deed..."? I suspect this is the result of some legislator honoring a commitment to either the title insurance industry, real estate industry, or mortgage industry. I personnally cannot determine any significant difference.

Next, let's look at the provision that was added when this language was chaptered by the legislators:

"The amendment in Section 1 of this act is declaratory of existing law and is not intended to restrict the practice of persons licensed to practice law in California,..."

"...declaratory of existing law..." - that tells me that the legislators saw fit to clarify existing law that was already in place. Land surveyors have written legal descriptions for many years and attorneys have prepared "deeds, trust deeds, and title documents..." for many years prior to this amendment.

"...nor is it intended to be applicable to persons licensed pursuant to Part 6 (commencing with Section 12340) of Division 2 of the Insurance Code, nor to persons licensed pursuant to Part 1 (commencing with Section 10000) of Division 4 of the Business and Professions Code, so long as those persons engage in the respective practice of their profession, but who may coordinate work pursuant to subdivision (k) of Section 8726 of the Business and Professions Code.

I believe this language was included to clarify that while the preparation of the actual "legal description" is defined as land surveying which requires licensure as a land surveyor, the inclusion of the legal description in any title document (original or otherwise) falls under the authority of those other persons (attorneys, title insurance companies, licensed realtors) as long as those other persons are practicing within the scope of their respective regulated practices.

I've personally had this discussion with several attorneys (outside inquiries and disciplinary cases) while employed with the Board and have yet to receive a tangible argument in opposition.

Simply put, land surveyors are tasked with the responsibility of preparing and providing appropriately written legal descriptions in accordance with other land surveying purposes to protect the public's interest. And those other licensed professions are tasked with the responsibility of appropriate use of those legal descriptions for the purposes of practicing law, risk managment for title insurance and real estate transactions, all for the purposes of protecting the public's interests.

mpallamary · Post by **mpallamary** » Sun Nov 25, 2012 3:07 pm

I agree with Ric. I am of the opinion that only land surveyors are authorized to prepare land descriptions. Note:when Roy Minnick and Paul Cuomo and I wrote "Advanced Land Descriptions" we used this term instead of "Legal Descriptions." It has been my experience that most smart attorneys would rather have a land surveyor prepare a description. I have pressed this issue with title companies and any of them that deal with me agree with me either out of exhaustion or agreement. I always tell attorneys that they are not authorized to prepare land descriptions. I agree that they can prepare the operative terms of the legal document - just not the description of the real property.

land butcher · Post by **land butcher** » Sun Nov 25, 2012 5:09 pm

IIRC decades ago a law was passed to get the writing of legal descriptions out of the hands of those would were not qualified to write them and those that got paid by the word and into the hands of Land Surveyors only.

Like the "Do not call" list, you can have a law but if is not enforced then there is no law. There are professionals and agencies that put themselves above the law until forced to comply.

Then there are the unlicensed agency desc checkers, but that's another long story.

mpallamary · Post by **mpallamary** » Sun Nov 25, 2012 7:45 pm

A simple way to get a more substantial opinion is for CLSA to ask for a Legislative Counsel's opinion. Years ago when I was more active in CLSA matters, that is what we did. Who is a legislative friend to CLSA these days? http://legislativecounsel.ca.gov/

Jim Frame · Post by **Jim Frame** » Sun Nov 25, 2012 8:35 pm

I'm skeptical about the notion that lawyers aren't legally permitted to write property descriptions. I'd prefer they not do it, but I think the argument that they aren't *allowed* to faces some potent opposition.

California grants attorneys a very broad range of authority. The practice of law includes "the preparation of legal instruments and contracts by which legal rights are secured." Since the parcel description can be considered the heart of a deed, it's a very small step to say that the drafting of the description falls within the purview of legal practice.

.

mpallamary · Post by **mpallamary** » Mon Nov 26, 2012 8:50 am

Get a legislative counsel opinion. Refer the question to the leg committee.

Lee Hixson · Post by **Lee Hixson** » Mon Nov 26, 2012 10:50 am

mpallamary wrote:Get a legislative counsel opinion. Refer the question to the leg committee.

I agree. We should address the distinction between "legal description" and "land description." This should be clarified. It is a rare attorney--very rare--who has the training and foundation of a surveyor for this particular item. And, sadly, those in the title industry with adequate expertise are becoming rarer as we speak.

pls7809 · Post by **pls7809** » Mon Nov 26, 2012 2:23 pm

Thanks for your explanation Ric. I had always thought descriptions were for surveyors only and then someone sent me that PDF I posted above and then I was confused to say the least and never clear on it since. I never came across the situation to need to question it, but now I have some good info to throw back in case I need to.

desert turtoise · Post by **desert turtoise** » Tue Nov 27, 2012 5:13 pm

A description was sent to me a few years ago; someone at a title company invented a "Lot A", apparently to simplify a description and begin a lot line adjustment process. The description was actually recorded, even though to this day there exists no such "lot A" or lot line adjustment parcel map or plat.
Yep, they should be regulated, they are harming the public.

Stephen Johnson · Post by **Stephen Johnson** » Mon Dec 03, 2012 7:43 am

Mr. Wooley,

I am a little surprised that a Texas attorney took it upon him/her self to write a description. It has been illegal and enforced for 25+ years for an attorney to write descriptions in Texas, though I know such is not the case in too many other states.

land butcher · Post by **land butcher** » Mon Dec 03, 2012 12:19 pm

In the mid 80's we did a bunch of ALTA's for a company based in TX. Most were lot and block descriptions.
The atty's wanted the desc to read like a M&B and be able to follow it around the map boundary, they could not accept NE as being the same as SW. We later found out they were rewriting the deeds into M&B and recording them.
Required us to write some really long descs to keep the desc as close to a L&B as we could so that gaps and overlaps that occur in M&B could not happen.

Stephen Johnson · Post by **Stephen Johnson** » Tue Dec 04, 2012 10:42 am

Mr. Woolley,

Most deeds in Texas and Oklahoma are a Warranty Deed of some sort.

As to this Jack leg attorney, he should have been brought up on filing a fraudulent document. Filing a tax map as a survey plat!! Idiot!

Sunburned_Surveyor · Post by **Sunburned_Surveyor** » Wed Dec 05, 2012 7:18 am

I'm glad I checked in on the forum this morning. This is an awesome thread! I've had the same question as Gromatici for a long time.

Thank you!

Landon

generosecrans · Post by **generosecrans** » Thu Dec 13, 2012 8:36 am

Very lively threads. Thanks to all for not only your thoughts, but for the various references. Great reading. I stated reading two days ago looking for a clear answer.

My opinion in the simplest of terms with respect to my license, for what it's worth: Only Land Surveyors and pre '82 Civil Engineers can prepare legal/land descriptions. So, until a complaint is filed and/or the the Board decides to take up the matter, some attorneys and title officers will continue to prepare descriptions until some authority tells them that they cannot.

And, while doing some research I stumbled onto a link that contained a letter from Ohio's Board of Registration regarding who can prepare legal descriptions. Google "20090527 Preparation of legal descriptions" and scroll down once you get there.

Stephen Johnson · Post by **Stephen Johnson** » Thu Dec 13, 2012 12:25 pm

On recorded subdivisions, any competent title officer can write a correct legal description of a lot.

The competent title lawyer may also be able to do so in the transaction you described.

There is a problem that there are very few competent title lawyers and most other descriptions beyond lot & block are beyond the capabilities of most title officers.

Ergo, the majority of legal descriptions for use in deeds need to be written by surveyors. In some states that is mandatory. To reduce the amount of title problems caused by bad descriptions, in all probability, all deed descriptions should be written by surveyors.

sic is est ostendo

Lee Hixson · Post by **Lee Hixson** » Tue Dec 18, 2012 11:44 am

Dave...

I like the look of that seal. (I wasn't aware that it could be modified/added to.)

pls7809 · Post by **pls7809** » Wed Dec 19, 2012 6:24 am

Hi Lee,

The Board Rules Section 411 "The seal shall be of a design similar to those shown below and shall bear at minimum those elements specified above."

The elements specified above are your name and license number.

That infers to me that we can add, as long as it has the minimal info and isn't made into a square or triangle shape or something.

Mine has three stars in it.

JMS8070 · Post by **JMS8070** » Wed Dec 19, 2012 8:28 am

Dave - Why add that statement?

To me it borders on discussing rights within the legal description which I always try to stay clear of. Additionally, it feels like a "no kidding" statement: of course the land described is subject to all matters of record, at what point is land not subject to all matters of record.

What happened to the skull and crossbones?

California Surveyors Forums

Legal Descriptions

Legal Descriptions

Thank you

I disagree

Awesome Thread

Ask two surveyors and you'll get three answers

Subject to all matters of record, if any.