ALTA/NSPS "AS-Surveyed legal Description"

[Gromatici]

I haven't run into this in awhile. An attorney is asking for an "as-surveyed" legal description for an ALTA. It's a little out of the norm, but I do see it asked for sometimes. Of course I've got a boundary detail showing the measured vs. record, and in this case a Record of Survey, but they want a metes-and-bounds description of my measured data. Are we violating any laws by complying with this? I hesitate to do it, since I am guessing it will end up in the chain of title somehow, after I provide it to them.

Thanks!

[mpallamary]

It is not an uncommon request. It is an East Coast lender requirement. You should be able to write a metes and bounds description for anything. It is a security blanket for East Coast lenders. If necessary preamble it to clarify that it is not an attempt to redo the proper legal description as that cannot change through this process.

[mpallamary]

These are the same people who order mortgage surveys.

https://www.redfin.com/guides/mortgage-surveys

https://www.redfin.com/guides/mortgage-surveys

[David Kendall]

If necessary preamble it to clarify that it is not an attempt to redo the proper legal description as that cannot change through this process.

It seems to me that legal descriptions are frequently altered in the course of real estate transactions. Legal Description nuances are added or removed by attorneys and title companies. What is there in the law to stop anyone from revising a legal description? I believe the owner can transfer the property with any description he likes if he legally owns it.

My suggestion is similar to Mr Pallamary’s. Reference the previous vesting or creation document record in the new legal description to leave a trail. Be clear on intent being a retracement of the original description.

Why couldn’t you write a new description on request?

[mpallamary]

It all works.

[Jim Frame]

You can always qualify each course in the new description to the courses described in the vesting document so that your measurement values always yield to the original description, e.g. "thence continuing along the north line of said Smith parcel N 89°32'10" E 100.07 feet to the northeast corner thereof.".

[Elias French]

Regarding who is allowed to prepare legal descriptions, this was discussed on the below thread with the conclusion being that preparation of legal descriptions falls in the definition of the practice of land surveying under 8726(L). See that thread linked here if the link works:

http://clsaforum.californiasurveyors.or ... sel#p49572

[David Kendall]

Regarding who is allowed to prepare legal descriptions, this was discussed on the below thread with the conclusion being that preparation of legal descriptions falls in the definition of the practice of land surveying under 8726(L).

Yes the link worked. Thank you for the reference. Unfortunately, if land surveyors are the only people aware of this conclusion and there is no enforcement (even in Humboldt County with their County Counsel opinion) then it is going to happen and there is not much we can do before, during or after the fact.

Besides, in this case it is a land surveyor writing the new description. It sounds like it is not intended to be used for transfer but still, does anyone else dispute Pallamary's claim that "the proper legal description.... cannot change through this process"?

Why should any of us land surveyors hesitate before revising a standing legal description?

[Elias French]

You're welcome Mr. Kendall, just wanted to chime in on that point as it comes up from time to time and I used to wonder too if there wasn't something that allowed attorney's to write legals since it seems to be observed so often.

Regarding the request from Title Co to provide an updated legal based on recent measurements, I have heard of that as Mr. Pallamary alludes to as being a common practice on the East Coast and in the South. I can only imagine the motivation is only that of the Title Company to try to get the "Survey to Match the Legal"; just one more instance of the never-ending quest of the various and sundry end-users of land survey mapping products to try to make all the numbers match. Of course that leads to what I understand is the practice in these areas of every time there is an ALTA, there is a new legal created, perhaps calling to the points set/found by the most recent survey. It is hard to imagine that this couldn't create all sorts of issues related to seniority of deeds, of surveys, of legals changing every time there is a survey, etc., but perhaps it does work in its own way as I am sure Mr. Pallamary can speak toa s being more familiar with that system. And some of these states may not be recording states so perhaps that factors in.

It sounds like it is not intended to be used for transfer but still, does anyone else dispute Pallamary's claim that "the proper legal description.... cannot change through this process"?

If a new legal is prepared and delivered to Title Co, it would seem likely or at least possible it might get used for future conveyances, especially if they are being managed by said Title Co, and their goal is to replace the "bad/old" legal with a "new/good" legal that matches the survey. If it is not used for a transfer, and not recorded, does it even "exist" of record? In that case I imagine it would just appear on the ALTA and in an updated PTR perhaps and then Title Ins. Policy. In which case they would be insuring a property described using a legal not of record?

My concern would be that if the new legal were inartfully prepared, with no ref's to "being the same as" the old legal and sufficient calls, and used for a transfer, it is logical to assume it would be relied upon by future surveyors perhaps unaware that it had been altered recently, leading to possible boundary location issues. This new legal would in fact "replace" the old legal in that is now the vesting legal of record, would it not? However, isn't it also true that no legal ever "replaces" older legals; legal descriptions of land whether they change over time or not, are all dependent upon their predecessors whether that research is done by the surveyor or not. I know that I prefer to discover that a legal has not changed unnecessarily and without any explanations as to why over the decades and through many conveyances; I would prefer to find a legal that has existed in the same form for many years, as it is usually easier to "follow the trail" in those cases back the original "out" conveyances in those cases, without having to delve into the many changes over the years which frequently seem to have been done to appease Title Co.'s in the past. But it depends on the case and the particulars of course.

I would say the real question to ask is: Why change a perfectly good legal description?

Why should any of us land surveyors hesitate before revising a standing legal description?

See above. I guess at the end of the day if a new legal is prepared at request of Title, and it calls so completely to the old legal as to be entirely controlled by it, and there is a Record of Survey filed to boot, it essentially carries no weight from the Title or Survey perspective, and therefore can do no harm on those fronts whether used for conveyancing or not, and thus proves that the task itself is unnecessary to begin with, other than for the purpose of satisfying an insurance company's checklist.

[Elias French]

Good topic!

In the instances I have seen this happen it has been to ameliorate the Title Co.'s concern that future surveyors would not locate the boundaries similarly to the performing surveyor; in effect, they request the legal be "improved" to eliminate possibilities of gaps or overlaps. Or to write a perimeter description of several parcels that may have internal issues to avoid them having to Quiet Title to myriad internal slivers of land prior to development.

Then, after said legal is prepared, and used in a conveyance, Title insures based on that new legal. The new legals when recorded sometimes bear header's of "Recorded to correct errors in legal" or the like, as if they were correction deeds. They view this practice as reducing their liability and exposure. In my view it is a sort of 'whitewashing' of the past conveyances by supplanting them with glossy new legals no surveyor could possibly fail to locate, but that in reality can not supercede nor replace the old conveyances from the title nor boundary perspective. A sort of Title Co. 'practical solution' halfway between doing nothing (relying on the existing legals of long standing and survey thereof), and a full-scale Quiet Title Action. This practice always seemed a little less than ideal to me.

So this is what comes to mind for me when the request to "prepare a new legal" comes up from the Title Co... and I always hesitate a bit at the request.

But as far as I know as others have said there is nothing to prevent a Surveyor from preparing new legals in any instance, to be used in conveyances, so perhaps the real question is what is the best practice in these instances. There are narrow circumstances controlling when these can be recorded as "Correction Deeds" however, even though these restrictions don't seem to be particularly scrupulously followed by the Title Co.'s and Atty's....

I recall at the conference last year a panel of experts in Title, Survey, and Legal took questions from the audience, and in response to the question of "Must a Correction Deed be signed by the original grantor?" the Title Company person responded in the affirmative, after which the Surveyor chimed in to say that he had seen many times the Title Company record a "Correction Deed" signed solely by the present owner... My understanding is that a Correction Deed not signed by the original grantor is to no effect. However, that is a different topic for a different day.

Good luck!

[mpallamary]

As to the environment that this comes from, you should acquaint yourself with Land Court proceedings.

These laws govern things when writing and establishing land boundaries. I have performed several of these and testified in Land Court. it provides some perspective.

https://www.mass.gov/files/documents/20 ... 202019.pdf

[JMS8070]

I just had an east coast attorney just ask for a perimeter metes and bounds traverse around Lot 6 of Map 12345. I told him no I will not do it as the existing legal description is the correct and proper description of the property. I did, however, provide a note stating that the legal description (Lot 6 of Map 12345) is the same legal description as in the vesting deed, in the title report, and is the same property as shown on the face of the ALTA survey.

To support my opinion, I pointed him to the 2016 Standards, Section 6, B, ii, which states, "Except in the case of an original survey, preparation of a new description should be avoided unless deemed necessary or appropriate by the surveyor and insurer. Preparation of a new description should also generally be avoided when the record description is a lot or block in a platted, recorded subdivision."

The way I read that is if I, the surveyor, do not deem a new legal description is necessary or appropriate, then I will not prepare one. Even if it is just a perimeter mete and bounds traverse.

I realize I'm speaking of a lot from a subdivision map and not a mete and bounds deed description, but I feel that the same rationale applies. If the existing legal is correct, I do not deem a new one necessary.

Best - Marty

[David Kendall]

To support my opinion, I pointed him to the 2016 Standards, Section 6, B, ii, which states, "Except in the case of an original survey, preparation of a new description should be avoided unless deemed necessary or appropriate by the surveyor and insurer. Preparation of a new description should also generally be avoided when the record description is a lot or block in a platted, recorded subdivision."
Best - Marty

Thank you for the reference!

http://www.nsps.us.com/resource/resmgr/ ... ndards.pdf

[E_Page]

I don't think the question is "can you...", I think it is "should you prepare a description based on your measured data?"

I don't think that you should. You are right to be concerned that the new description may end up in the chain of title, beginning with the next conveyance.

It doesn't matter if you write in a qualifying statement in the preamble or qualify every course, what is likely to happen is that the attorney will transcribe your description with only the elements he or she thinks are important. The next description you're likely to see in the chain of title is a stripped down metes without bounds description based on your measured data.

I would reply that the proper description of the surveyed property is that which was provided to you. You might try educating the attorney why writing a new description based on your measured data is not a good idea, but first, you might want to find out why the attorney wants such a description. Often, they are plugging the bearings and distances into their own closure program in order to check off an item on their own due diligence list. If that's the case, offer to provide a closure report instead. That way, they know that the parcel "closes" and you avoid the problems that a new description inserted to title might cause.

[MikeT]

In Wattles book, "Writing Legal Descriptions", he notes in the appendix a list of Dos and Donts when it comes to preparing legals and one of them is "Don't change descriptions that are already on record." I've always adhered to that.