New Deeds After Subdivision?

[Warren Smith]

It is quite common to enter into a contract of sale during the processing of the conditions of approval of the tentative map for the lots shown on the final map.

The descriptions will, of necessity, be incomplete until the Map Book and Page(s) can be obtained at recordation. And, certainly, there ought to be a rescission clause if, for any reason, the final map is not completed.

Warren Smith

[Ian Wilson]

When the owner(s) wish to convey a parcel or lot to a different owner, a land use attorney is commissioned by the owner(s) to prepare a deed for the property in question. At the close of escrow the deed is recorded and becomes part of the public record.

Quite true. One of the purposes of the subdivision map is that it acts in a way similar to a Torrens Land Registry system. The boundaries of the subdivision and the internal lots are approved by local jurisdiction and guaranteed by a title company.

The map also provides an excellent way to described large numbers of lots in an orderly fashion. Lot X of PM ABCDE is a lot easier than describing each lot.

However, as John points out, the descriptions are not usually prepared until the initial sale of the lots.

As far as commissioning an attorney to prepare the deed, they are authorized to prepare the coversheets of the deed. Only a land surveyor or pre-’82 civil can prepare the legal description, even a lot and map description. Review §8726 of the PLS Act for reference:

8726. A person, including any person employed by the state or by a city, county, or city and county within the state, practices land surveying within the meaning of this chapter who, either in a public or private capacity, does or offers to do any one or more of the following:
(l) 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.
(m) Creates, prepares, or modifies electronic or computerized data in the performance of the activities described in subdivisions (a), (b), (c), (d), (e), (f), (k), and (l)

It is quite common to enter into a contract of sale during the processing of the conditions of approval of the tentative map for the lots shown on the final map.

The descriptions will, of necessity, be incomplete until the Map Book and Page(s) can be obtained at recordation. And, certainly, there ought to be a rescission clause if, for any reason, the final map is not completed.

Warren Smith

Unfortunately, this is quite common. Unless the contract is specifically loaded with rescission clauses and disclaimers, the DRE takes a dim view of selling lots before they are created.

I have dealt with many subdivisions where the final map didn’t look much like the early tentative maps.



Ian

[PLS7393]

alb7921, is this for personal info, or is there a specific issue at hand?

As Ian mentioned the preparation of the initial set of legal descriptions becomes a bigger issue at hand. There are many title companys and lawyers who don't follow §8726 of the PLS Act. I've been told that title companys can re-write an exisiting legal descripton (ver batom) (sp), if there are no changes, but we all have seen descriptions that leave something out. The initial set of descriptions are more important to me, and who wrote them.

[Jim Frame]

Ian wrote:

"Only a land surveyor or pre-’82 civil can prepare the legal description, even a lot and map description."

If this is true -- and a quick review of the statute would seem to support the notion -- then §8726(l) must be the most frequently ignored section of the PLSA. I've never heard of a land surveyor being involved in the preparation of deeds for new subdivision lots, nor do I see a need for it.

Thinking out loud here, §8726(l) only applies to the preparation of deeds "in connection with" the establishment of a boundary or the subdivision of land. (There are other applicable subsections, but c and d are the ones most germane to common subdivisions.) Once the boundary is established or the subdivision accomplished, does §8126(l) no longer apply? That is, if no new lines -- i.e, those that would require surveying expertise to describe -- are being described, can anyone legally prepare a description?

Interesting subject. My guess is that the subsection hasn't been tested with regard to new subdivision lot descriptions, and I don't believe a court would uphold the notion that a land surveyor is required to describe "Lot 1 of Shady Acres, Book 1 of Maps, page 1."

[PLS7393]

You would think that Jim, but how many times have you seen a simple description messed up because the title company's use typist that don't understand the nature of our profession and transposed numbers?

Would it be a problem if you were buying Lot 23 of a newly developed "Shady Acres", (Book 1 of Maps, page 1), but your deed says Lot 32? Even a simple lot and block description needs a Land Surveyors seal, in my opinion. At least there would be accountability that way, and it would get corrected in a timely manner.

[Gromatici]

I knew of a situation where there was a "lot split"; Parcel A and B per the map. However, one of the two parcels had a deed that said "Parcel B of Parcel Map...." and the other was a metes and bounds but matched the map data and had recorded a couple of months BEFORE the map did.

I wondered why this happened and how. Both are houses of worship so I figured that the people involved were anxious to get a loan or something. Here are a couple of questions:

1. Did the M&B parcel violate the SMA?
2. Is the M&B deed senior to the other parcel?
3. Can you answer yes to one and not the other?

Fortunately the measured vs. record is within hundredths, but it did raise some questions in my mind. One of those questions is WHO wrote the legal description? I wouldn't think the LS would, so maybe the Title Company under pressure to close the deal?

[Jim Frame]

Keith Nofield wrote:

"You would think that Jim, but how many times have you seen a simple description messed up because the title company's use typist that don't understand the nature of our profession and transposed numbers?"

I've seen it many times, but it's merely the result of a quality control deficiency in the transcription process. I doubt that anyone would argue that only a land surveyor may transcribe a description, so let's examine §8726(l) more closely:

"Determines the information shown or to be shown within the description of any deed..."

Note that it doesn't require the descriptions to be written by a licensed land surveyor, only that the surveyor "determine" the information to be shown. I suspect that this requirement can be met by a directive from a licensed land surveyor to the subdivider or title company to the effect that the description of each lot in the new subdivision follow the format set forth in an included example description. The example would include the necessary recitals of state, county, city (if applicable), lot, block (if applicable) and map filing information. Then the subdivider or title company could write the descriptions, inserting each lot number in turn, without violating the statute.

All of which begs the question: How does the new subdivision lot description process work in practice? I've never been involved in it. Has anyone else here seen how it's done? I'm not thinking of little mom-and-pop subdivisions, but rather the mass production developments that involve hundreds or thousands of lots. Who actually compiles the descriptions, and under whose direction?

[D Ryan]

I think title companies (escrow officers or title officers) are writing those descriptions. I also think they get them right 99% of the time, so it doesn't bother me that they are writing them. In fact, title officers I know are pretty astute at also getting all the appurtenant easements included.

For this type of description (lot no./map bk-pg), I still like to see the township/range/section in the caption. This allows one to tell at a glance if it's miles from your project of interest without having to obtain a copy of the map.

Dave

[Lehmann]

Who can write Legals?

A few years back Roy Minnick wrote up a paragraph or two re: just that.

[(i) Determines the information shown or to be shown within the description of any deed, trust deed or other document prepared for the purpose of describing the limit of real property in connection with any one or more of the functions described in dubdivisions (a) to (f), inclusive.]


" From the above citation Chapter 817, Section 1, with added subsection (i), which I have added above, the preparation of land descriptison falls within the practice of Land Surveying, and it appears that only land surveyors can prepare descriptions.

However, Section 5 of Chapter 817 contains an important provision:

SEC.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.

Subsection (i), taken together with Section 5, confirms that title persons may write land descriptions, or perform the other duties falling within the tasks under section (i), as long as they are practicing within the provisions of the two codes. Part 6 (commencing with Section 12340) of Division 2 of the Insurance Code are provisions governing the practice of title insurance. Part 1 (commencing with Section 10000) of Divison 4 of the Business and Professions Code...These section often shed light on legislative intent; in this case the purpose was to declare that existing law, as it applied to the practice of law, title insurance, and real estate was not changed by the amendment to the code."



From Minnicks "notes for the 1998 edition of Laws for the California Surveyor"

[Jim Frame]

That clarifies things a lot. Can you provide a more specific reference to Chapter 817? I'd like to read the full text.

Thanks!