Amended Tract Map - never filed

[Olin Edmundson]

I'm involved with a survey now where my clients parcel was created by a Tract Map filed in 1996. Her Westerly line is the exterior boundary of the subdivision. Extensive survey work retracing the underlying deeds prior to the subdivision reveals a 60 foot error on one end of the line. Upon further field work, an iron pipe is found just about where I'd calculate the end point of the corner in error to be. The pipe is tagged by a surveyor from the same firm who performed the tract map. Near the end of an extensive conversation with the neighboring land owner, who's family has been there for nearly 100 years, he goes into the house and pulls out a map. The map is dated 2004 and entitled Amended Tract Map, but the map was never filed. It shows the error of the previously filed map and the new correct position of the line. Multiple attempts to reach the firm have gotten no response. For what it's worth, my clients parcel is a multi-million dollar equestrian estate, but who's counting. She's ready to hop on the phone and immediately hire an attorney but I'd prefer to lead her down a less expensive and more amicable path. I've considered doing a lot line adjustment to move the line from the incorrect position on he filed tract map to the correct one but this doesn't seem right that she should have to deal with that. What now?

[steffan]

A couple of thoughts.
If the line per the map is truly in error and the position of the true line is apparently both known and unambiguous, then a lot line adjustment wouldn't seem appropriate as the true line only exists in the correct position today. The Tract Map didn't move it. Instead, the Tract Map simply failed to correctly identify the true line.

I.e., you can't move the line to the correct position because it legally never moved from the position to begin with.

As to an amending map, that portion of the SMA is a bit tricky as to what it actually allows to be corrected. On another hand however, it does allow an amending map to be filed by someone other than the original surveyor and there is a strong argument that it will impart constructive notice.

Simply filing a record of survey showing the correct position of the lines is a thought that comes to mind and an avenue I myself would consider as I am not sold that an amending map is appropriate and am fairly confident a LLA is inappropriate unless there is agreement to move lines from the true position(s) to the incorrect but relied upon lines.

Lastly, the one thing I am most curious about is level of reliance on the "bad" position(s), and any improvements, etc. If it a simple matter of filing a record of survey and everyone affected is of the opinion that there is no blood no foul, then that is one thing. However if there is a storm brewing then that is another.

[jonwheat]

I am guessing your client thinks she has something to gain if there is actually a discrepancy. She likely accepted title per the 1996 Tract Map. Could she file a quiet title action and have the original owner who filed the subdivision map quitclaim the strip in question?
Or is the amended line shown 60 feet onto your client's property? If that's the case dig into the deeds.
All shown on your Record of Survey.

[dedkad]

I don't think a LLA is entirely out of the question. If your client's lot is described as Lot 1 of Tract XXXX, then there is a paper line that is being moved, even if it is being moved back to where it was supposed to be. It's a good way to formalize the location of the lot line for future reference and all parties would sign. The other option could be the RS route and then the agency files a Certificate of Compliance for the two parcels, but I think that many agencies would shy away from this option for fear of a lawsuit unless they have some concurrence from the two property owners. If the agency wants a formal concurrence, then I think you're back to the LLA being the best route.

[Anthony Maffia]

My turn. I agree that the boundary of the tract map is subject to resurvey, and that they could only subdivide what was owned. To correct it, I'd prepare a ROS with narrative, provide it with title history to the jurisdiction, then file a certificate of compliance with a metes and bounds description of the lot, together with a quitclaim deed to the neighbor of the overlap. If the city balks or suggests a two lot parcel map, discuss it with a local land use attorney.

[Olin Edmundson]

There's been no reliance on the Tract Map line which slices through an old vineyard and olive tree orchard both of which were planted by the neighbors grandfather right after he bought the place in 1925. A Lot Line Adjustment would be a little weird and unusual but I think it could work. Rather than the traditional grant deed, you would probably use quitclaim deeds as a way to get the new line description into the record. Maybe I'm being conservative, but because of the magnitude of this error and the fact that my client holds title by reference to the recorded Tract map, it seems best that they be left with a corrected title document rather than solely a Record of Survey that shows a difference of opinion.

[steffan]

Question: Do I understand correctly in that the neighbor's land was not part of the tract map and therefore I assume his title is based on the true line not the tract map? If so, then how could he participate in a lot line adjustment when the tract map never defined his title?

Observation: If I understand the specifics enough, there is a school of thought in that there is a gap that was mistakenly never included in the division of land. Some might argue that the gap is still vested in the original owners/heirs. CLSA's Exam Guide has example problem #2 for which their published solution is a prime example of this historic school of thought.

Another school of thought is that the exterior line shown in error on the tract map was never the location intended to be subdivided to. The subdivider intended to divide his land all the way to the exterior boundary, wherever that may truly lie. If the true line is actually somewhere else, then the side lines would simply be longer or shorter then originally believed, but would represent the subdivider's intent. The deeds for the sold lots wouldn't need to be changed being as they (I presume) call for the lot # and the shortened or lengthened sidelines (as shown on a record of survey) would still be the lines of the lot.

[David Kendall]

Olin what does the amended map say to do with the excess and whose name is on the signature block? A conversation with the subdivider ought to make the intent clear. I feel like maybe it’s clear in your mind but not to us

[Olin Edmundson]

Steffan- yes, that is correct this line is on the exterior of the subdivision, so my clients parcel is described by relationship to the Tract Map while the neighbor has their original metes and bounds description. Why would this fact preclude a Lot Line Adjustment? Just as you might adjust with any two adjoining parcels. The Tract Map line creates an overlap so there is no land possibly left with the original subdivider.

David- the Amended Map simply shows the line in the correct position. Interestingly, they make no mention of why the line has changed, or depict the previous incorrect line, but it hasn't been through map check either. There are actually two different surveyors involved, but they are both from the same company.

Again, maybe a Record of Survey is all that is needed but I don't like the fact that the Tract Map is so screwed up, and both my client and the neighbor would like to end up with a completely clear bulletproof resolution that has no possibility of causing problems or uncertainty in the future. I'd prefer that the original company clear this mess up but this isn't going anywhere.

[steffan]

I see, it is an overlap, not a gap. In that case the subdivider subdivided land he never owned. He can't move a boundary from where it never truly existed. Your client owns a lot which is smaller than depicted on the tract map. He/she still owns Lot XX, so his deed doesn't need to be changed. A record of survey would show the true dimensions of Lot XX and where the true boundary has always been located. That is, as long as you are confident that the true line is where you say it is and is indisputable.
I suppose your client could file a quit-claim deed to the area of overlap, but I don't see that as a necessary event being as your client never actually owned the area of overlap.

[Peter Ehlert]

Olin, in your original post you said "She's ready to hop on the phone and immediately hire an attorney...".
Tough nut to crack.
Your/our fist job is to tell it like it is. I suppose once you have convinced her that she could spend a small fortune and probably loose, then she will back down... and perhaps assist with clearing her title.
People with $$ usually didn't get that way by being grossly unwise. Usually ;-)

I would suggest a Boundary Line Agreement of some sort... a Record of Survey showing the result would be preferable but you may have to file it first if this drags out too much.
LLA could do it, but this is not a matter that should any local agency involved in. It is what it is.

[Olin Edmundson]

Peter- thanks for the comments. I actually haven't told her that this incorrect Tract Map line would be in her favor. She didn't ask and I don't want to go there, obviously no way to win in trying to make that claim. I have explained to her that there is a problem and that we have independently verified that the Amended Tract Map line is correct. She's just one of those types that hears about a problem so just wants to go straight to an attorney to solve it. I agree that avoiding any dealings with the government agencies would be ideal so this would be a boundary line agreement if Title were to be clarified.

[Olin Edmundson]

The other thought I had would be to submit this unfiled amended map to the County Surveyor and let him handle contacting the other surveyor and possibly take it to the Board. My only concern is that it will get drug out forever and my client will be left with the problem in the interim and she wants to sell the parcel relatively soon.

[Anthony Maffia]

I've changed my mind. Send it to the board.