Gaps

[Jim Frame]

I don't often encounter a real title gap, but I have one on my plate right now. Two parcels, contiguous according to the Assessor, both unambiguous and locatable, but with almost 5 feet between them (a bit of that on the adjoiner side might be taken up by rights acquired in connection with long-term occupation). My client's parcel is only 35' wide, so it might be worth pursuing for development flexibility, but at this point I've advised them of the situation and will just sit back and see what happens.

[Peter Ehlert]

title gap Vs description gap Vs three parcels?
tell us more

[Jim Frame]

tell us more

Block in an 1869 subdivision. The block was retraced in 1897 and again in 1958, with a couple of partial retracements since then. It measures within a few hundredths of record, with angles at 90°. 12 lots on a 320' street frontage, lots are 26.67' wide.

The adjoiner's land is described in her deed as Lot 5, which begins 106.67' (26.67' x 4) from the southeast block corner. Deed is from 2011, I haven't done any further title research on her parcel.

My client's parcel is M&B; it begins 66.50' from the SE block corner and is 35.18' wide (I'm simplifying -- omitting a jog on the east side -- but it's all 90°, it closes and the west side is a straight shot). The description doesn't include any ties to the east line of Lot 5. This description is consistent in multiple documents going back to at least 1957 (client provided a page from a 1957 title policy).

The AP map depicts my clients parcel as contiguous with Lot 5. The client provided an unsigned and old (but undated) map that looks kind of like a cross between a survey map and an AP map that shows the 66.5' dimension from the east side of the block, and shows the parcel contiguous with Lot 5, but doesn't show parcel dimensions.

66.50' + 35.18' = 101.68'; 106.67' - 101.68' = 4.99'. Who owns the west 5 feet of Lot 4?

If my client wants to pursue this I'll run a title chain on both parcels back to a common grantor and see what we're dealing with. The house on Lot 5 is very close to (maybe on, maybe even over a smidge) the east line of Lot 5, so that'll be an issue no matter who holds title to the gap. But as things stand, I've finished my work except for the Record of Survey, and I'm content to leave it there unless the client wants to spend the money to investigate.

[Peter Ehlert]

OK, got it. Thanks

The client has not requested a resolution, and you have not made one.

question: is a Record of Survey required or necessary?
I am leaning to Nope

sure, it's great to get your preliminary findings on record, but the cost to the owner may not be of value to them

[Jim Frame]

is a Record of Survey required or necessary?

The partial retracements (partial in that they only show the street on one side of the block) aren't all in agreement -- the 2008 map would make the block long by 0.28', while the 2020 map would make it short by 0.55'. (Multiple maps that surveyed the street on the east side all agree.) The 1956 map shows the entire block as record, and calls one of the lot corners as being "2.7' E. of W. edge of 8"x8" conc. fence post." The post is still in place, but if I hold the west face as 2.7' from the lot corner it makes the block long by 0.7'. If I hold the *east* face as 2.7' from the lot corner then the block is record east-west. I'm treating the 1956 call to the fence post as a typo, should have been 2.7' from east face instead of 2.7' from west face.

Plenty of material discrepancies to trigger a Record of Survey.

[PLS7393]

Depending the cause and necessity, I'm thinking a ROS will be required to at least show what your professional opinion is.
I know you'll address and show lines of occupation, deed lines, and subdivision lines.
Your client is in good hands ! ! !
Cleaning up the gap could be a different story, good luck!

[David Kendall]

I don't often encounter a real title gap, but I have one on my plate right now. Two parcels, contiguous according to the Assessor, both unambiguous and locatable, but with almost 5 feet between them (a bit of that on the adjoiner side might be taken up by rights acquired in connection with long-term occupation).

I found a similar situation in May 2020. Mine was from a 1958 subdivsion near a beach that was well monumented. There was a deed description of a partial subdivision lot and another to the south that didn't quite meet, leaving a 6' gap. At first I thought it was a scrivener's error in the deeds and I didn't trace it back too far but I spoke with the neighborhood old-timer who lived adjacent to the gap. He was a widower and they had inherited the property from the wife's parents. He had no information. The prior owner of the client's lot was deceased as well. I was trying to avoid establishing this line to avoid triggering RS but I did notice this odd double gate between the two lots with 6' between the two gates. The area of the gap was fenced and impassable due to overgrown shrubs. I thought it was likely a research problem. I presume someone had lingering title to the pathway if we traced it back. No one was willing to pay me to resolve it properly so I left it alone

There was a rumor that one of the other neighbors was raising a ruckus over a pathway to the beach. I never spoke with that neighbor. The path did not provide beach access but it headed in the right general direction. That was all I could ever guess for intent

gap 2.jpg

gap1.jpg

[DWoolley]

Jim:

In the event your client wants to try to acquire the property, what is your plan?

The challenge for me has been finding the original owner, heir, successor or assign. Five feet seems like a bonafide gap in title. Interesting the assessor didn't pick up five feet in 35'.

DWoolley

[Jim Frame]

In the event your client wants to try to acquire the property, what is your plan?

First step would be to run the chains back to a common grantor, which should disclose what happened. Next step would depend on what happened. I wouldn't promise my client anything regarding ultimate outcome. That's about all the plan I have at the moment.

[mpallamary]

Have you considered having one of the parties execute a quitclaim deed? Discretion is the better part of valor? Have you asked the assessor how the area has been assessed? Adverse possession may have ripened.

[mpallamary]

Settle, not battle.

[DWoolley]

There is a decent chance the chain of title will show an error in a description i.e. the east 50 feet was actually conveyed originally as the east 55 feet and for some inexplicable reason the five feet was dropped in error. The problem can be solved with a correction deed or worse case, go through the process of deed reformation.

If the original owner is around, providing they are cooperative, it can be resolved with a quit claim of interest. If the original owner is not around or is uncooperative you can perform a Lot Line Adjustment or Parcel Map with your owner and the adjacent owner and subdivide their untitled interest out of the property. Some process needs to be completed to incorporate the five feet into the current vesting deed. There is some potential liability for the land surveyor, but it is manageable. The concern is the uncooperative owner tries to file a claim for the five feet. It would be a tough claim without the assessor's recognition the property exists and the owner not protecting their rights. Last thought, to move the original owner in the right direction remind them that in the event something bad happens on that property, including the adjacent property, their "ownership" would make them a party to any lawsuits.

Or you can simply leave it where you found it if the owners do not wish to resolve the issue. The land surveyor should certainly write a letter to the client explaining the situation - including a napkin sketch - and caution them from building in the area or using the five foot line to determine their setbacks.

Thanks for sharing the situation. Please keep us posted on the outcome.

DWoolley

[ekparian]

If no owner is identified and you could get a title company to help, couldn't you have your client do a quiet title action to claim the property?

[dedkad]

If no owner is identified and you could get a title company to help, couldn't you have your client do a quiet title action to claim the property?

Yes, this. I don't think a LLA or quitclaim is appropriate if it is truly a gap since the adjoiners may not have the right to sign the LLA or quitclaim for the gap area.

[Jim Frame]

I'm not familiar with the process, but if no owner is identified, I wonder if the Assessor would have first claim on the property, as taxes would be long delinquent. If that were the case, then the gap parcel would likely be sold to the state and auctioned off as with any other delinquent property.

[David Kendall]

I'm not familiar with the process, but if no owner is identified, I wonder if the Assessor would have first claim on the property, as taxes would be long delinquent. If that were the case, then the gap parcel would likely be sold to the state and auctioned off as with any other delinquent property.

Seems logical but I have never found tax assessors to be that proactive or clever. Also I believe the assessor would have to complete the quiet title action as well in order to assume title and subsequently convey same. If they would do this, in most cases it would probably be simpler to wait for the lot to come up at auction than to perform the QTA. I would expect the market value to be pretty low for a 6' x 150' strip of land. Practically no one but the two neighbors would bother to bid on it anyway. Different story entirely if your gap lot could be considered buildable

[Jim Frame]

I believe the assessor would have to complete the quiet title action as well in order to assume title and subsequently convey same.

I ran into a similar situation in a different county about 15 years ago. One owner sold 2 parcels by deed in the mid-1940s, describing both from a remote POB, but screwed up and created a 10-foot gap on paper. Occupation clearly showed that there was no gap, but at some point (1960s?) the Assessor picked up on i the gap and created a separate tax parcel, listing the original grantor as owner. The grantor ignored the tax bills, so the parcel was auctioned off. This happened a couple of times over the years, Shortly before I got involved the parcel was auctioned again, but this time my client's neighbor bought it and tried to move his fence to the new line, which runs down my client's driveway about a foot from her house. Lawyers were brought in, some surveying happened (pro bono), but last I heard there was no getting around the fact that the auction had created the gap parcel and it was now owned by the neighbor.

If a quiet title action ever occurred, it didn't show up in the title reports.

[David Kendall]

the Assessor picked up on i the gap and created a separate tax parcel, listing the original grantor as owner. The grantor ignored the tax bills, so the parcel was auctioned off.

If a quiet title action ever occurred, it didn't show up in the title reports.

Interesting. Nice move! I have never seen a QTA court judgment document show up in a title report. It sounds to me like what the assessor did there was in fact a sort of quiet title action where they were able to easily identify the original owner and act on that information. If they were all that easy then a savvy surveyor might just send a letter to the assessor's office describing the situation then sit back and wait five years for the auction to come up.

The quiet title actions I have seen (one or two only) involve long lists of unknown heirs to ancient families and attempts to serve any known heirs with court summons. I imagine that the research and due diligence court paperwork is where the great expense arises. Assessment rolls can be a valuable tool in performing said research

[mpallamary]

See attached.