California Surveyors Forums

Posted: **Wed Jul 20, 2022 5:17 pm**

My understanding is that in case of a title defect, it may be necessary to go through a quiet title action before a a subdivision can move forward.

But I am a little bit fuzzy on details, and a (very) small part of me thinks maybe I am wrong.

Is anyone here familiar with code snippets which govern this or case law which sets precedent? I want to say this is codified somewhere in the SMA.... but I am at a loss where.

Posted: **Wed Jul 20, 2022 5:20 pm**

It depends on the nature of the defect.

Posted: **Wed Jul 20, 2022 7:54 pm**

Have you reviewed the Marketable Record Title Act portion of the Civil Code?

Posted: **Wed Jul 20, 2022 10:07 pm**

mpallamary wrote: Wed Jul 20, 2022 5:20 pm It depends on the nature of the defect.

Correction deed recorded in 1950's, intended to correct a legal description, while it corrected a legal description is missing a grantee acceptance. If this deed is ever challenged and fails, one of 5 parcels in a the newly subdivided 25 acre property (finance parcels) can end up with a roughly 50'x50'x50' triangular overlap.

Just general logic tells me this needs to be remedied before a subdivision should be able to proceed.

Whatever recommendations I give will be reviewed by the county surveyor and then forwarded to the surveyor of record.

Obviously, I'm not going to be the final word on recommendations and actions here, but I'm still interested in learning more about the process, since we have a good variety of experts in here.

My gut feeling is to suggest to the surveyor of record to recommend that his clients attorney review this, and recommend title clearing action. What I gather the title company said is, go ahead and subdivide, we will insure title as it is (or are looking for someone else to take on the decision making responsibility).

Neighboring parties are not hostile. Neither condition will, surprisingly, disturb any long standing lines of occupation. Both parties have stayed some distance away from this 'no man's land' triangle.

Recently (10 years ago) filed record of survey by another surveyor already disclosed the issues, and as expected it did not clear the title. That wasn't it's function.

Posted: **Wed Jul 20, 2022 10:21 pm**

Steve Martin wrote: Wed Jul 20, 2022 7:54 pm Have you reviewed the Marketable Record Title Act portion of the Civil Code?

Interesting. In this case it hinges on whether the correction deed (for a legal description error) from 1950's actually passed title. I was reading about correction deeds, and they have to have all elements that a regular grant deed has. This one is missing grantee acceptance.
This is a defect larger than a scrivener error, or an obvious legal description blunder and trying to determine whether this deed passed title is outside of Land Surveying sphere of expertise. We know just enough to signal that there might be a problem.

Posted: **Thu Jul 21, 2022 4:55 am**

I would start with a title company and see if they will insure it. If there is an issue I would see if they will endorse around it.

Posted: **Thu Jul 21, 2022 4:57 am**

Actually what you may be talking about is "reformation." There is also an element of time.

I believe a Land Surveyor can navigate a solution.

Posted: **Thu Jul 21, 2022 5:31 am**

Start with a title company. Begin with a preliminary report and then, perhaps a litigation guarantee.

Posted: **Thu Jul 21, 2022 9:11 am**

mpallamary wrote: Thu Jul 21, 2022 4:57 am Actually what you may be talking about is "reformation." There is also an element of time.

I believe a Land Surveyor can navigate a solution.

Interesting. For me this would be out of the area of expertise - for now. Sounds like good learning opportunity.

Posted: **Thu Jul 21, 2022 9:27 am**

I do this in concert with a title company and often an attorney. At the risk of modesty, I am far more acquainted with these topics than anyone else. It is not uncommon for a sitting judge to refer litigants to me to assist in resolving the complaint.

This is why I feel so strongly about continuing education and enhancing the role of a Land Surveyor.

For those who like measuring things, hobbyists are taking work away from us everyday.

Posted: **Fri Jul 22, 2022 8:32 am**

CBarrett wrote: Wed Jul 20, 2022 10:21 pm Interesting. In this case it hinges on whether the correction deed (for a legal description error) from 1950's actually passed title. I was reading about correction deeds, and they have to have all elements that a regular grant deed has. This one is missing grantee acceptance.

I don't see many deeds that include grantee acceptance.... It seems common for grant deeds to include grantor signature only, same for easements.

I have discussed this before with and attorney, I was trying to figure out if I could grant an easement to a neighbor even if they didn't want the easement. I suppose it is possible but it would be hard to defend the action in court. I feel that the system is flawed in this way. I have also composed a legal description for a correction deed which I felt should have been acknowledged by the other party affected by the correction but it was not required.

CBarrett will you please post a reference for your information regarding correction deeds?

It seems that in your situation, a quitclaim from the adjoining party should suffice to efficiently quiet title. Sure the original grantor may be long gone but the current occupant of the parcel in question should be able to release claim to the affected portion. Ideally the solution would be explained on the subdivision map

Posted: **Fri Jul 22, 2022 10:29 am**

mpallamary wrote: Thu Jul 21, 2022 9:27 am I do this in concert with a title company and often an attorney. At the risk of modesty, I, and other surveyors, are far more acquainted with these topics than most attrorneys.

This is why I feel so strongly about continuing education and enhancing the role of a Land Surveyor.

For those who like measuring things, hobbyists are taking work away from us everyday.

Posted: **Fri Jul 22, 2022 1:25 pm**

David Kendall wrote: Fri Jul 22, 2022 8:32 am
CBarrett wrote: Wed Jul 20, 2022 10:21 pm Interesting. In this case it hinges on whether the correction deed (for a legal description error) from 1950's actually passed title. I was reading about correction deeds, and they have to have all elements that a regular grant deed has. This one is missing grantee acceptance.
I don't see many deeds that include grantee acceptance.... It seems common for grant deeds to include grantor signature only, same for easements.

I have discussed this before with and attorney, I was trying to figure out if I could grant an easement to a neighbor even if they didn't want the easement. I suppose it is possible but it would be hard to defend the action in court. I feel that the system is flawed in this way. I have also composed a legal description for a correction deed which I felt should have been acknowledged by the other party affected by the correction but it was not required.

CBarrett will you please post a reference for your information regarding correction deeds?

It seems that in your situation, a quitclaim from the adjoining party should suffice to efficiently quiet title. Sure the original grantor may be long gone but the current occupant of the parcel in question should be able to release claim to the affected portion. Ideally the solution would be explained on the subdivision map

I don't have a specific reference handy on the correction deed. When I googled about correction deeds, I got hundreds of hits on google and about a dozen I read and scanned through all said that the correction deed HAS to have all the elements as the original deed. Also in my specific deed case there is also an RS from 10 years ago where the surveyor's narrative specifically says that the deed is missing the acceptance.
When I think about it logically it makes sense, without acceptance, one could sell you half an acre of land, and then 6 years later file a correction deed and say, oh I only meant to say 1/4 of an acre.... and as long as you record it, boom, legal correction. That would open the door for a lot of fraud.

Easement deed is just like any other grant deed, I would expect that it needs acceptance. I bet if you try to grant an easement to your neighbor across your lawn, which comes with, (among other things) the express responsibility to mow your lawn as well, you couldn't legally do it without them accepting this deal. That would be entrapment. Isn't that why all of the easements we dedicate on maps, to the city or occasional water district etc, have to be accepted. Most of those come with a set of responsibility, to either provide appropriate public use area (streets etc. built per code) or built out and functional utility system. Those easements come with a greater responsibility than a neighbors footpath, or a balcony encroachment. I suppose with many balcony encroachments we have prescriptive easements that came into being by years of implied acceptance.

Back to the case in my example, the correction deed literally moves property lines bout 50 feet to the north and about 40-50 feet to the east. There was a qualifying call missing for one of the measurements to go along a lot line, and a second distance had a 30-ish foot bust in length. Lines of occupation (thankfully) show yet another, I suppose bust, where the senior rights occupant did not build out his yard and a house far enough to overlap with either of the lines with issues (suggesting another alternative interpretation of the legal, which has to do with whether you take the street centerline intersection or right of way line intersection to be the lot corner.) Today we automatically assume right of way intersection to be the lot corner. Underlying map is from 1917. It shows road easements - not accepted. so what did they mean to call NE'ly corner of lot 10 at the time deed was written - subsequent surveyors of this area do not agree on the interpretation of that tidbit?

Yes, a solution would be some sort of a perfecting deed action, since there is no conflict between the owners. Of course, there is also a risk that sometimes when people learn of the excess land they maybe own, it suddenly becomes contentious. ..... And then a surveyor gets named in a lawsuit and gets in trouble for trying to practice law.

Posted: **Fri Jul 22, 2022 1:43 pm**

here is a snippet from an already recorded map.
Red and non-hatched triangle are two possible interpretations of the original (uncorrected deed).
cross hatched is a more recent interpretation of the correction deed. Older interpretation of the corrected deed would actually fit the fence. Yellow is the land to be subdivided, owned by a local housing agency. Next door owner is a fairly nice house.

My personal opinion right now is that they need to clear the title of a risk of the original deed (red line) being contested at any time in the future. Anything less would not be a good thing.

Capturetri.JPG

Posted: **Fri Jul 22, 2022 2:13 pm**

My recollection is that the recording of the deed (presumably by the grantee or their agent) constitutes implied acceptance.

If the recording was performed by the grantor or a third party then I expect that the grantee could protest the transaction

Posted: **Fri Jul 22, 2022 2:35 pm**

Ok, I can see how grantee's possession and recording of the document could be interpreted as implicit acceptance, even if not written on the face of the document.

The correction deed I have has no indication of grantee handling it. It is notarized by grantors notary and the recorded document is to be mailed to the grantor's notary.
It is a quitclaim deed. It does have the original grantors of the pre-correction deed, but no chain of title showing if they really owned that land at the time of the quitclaim. Logically and realistically, I don't see why they wouldn't own it, but when we are talking about evidentiary continuity, it is not there (as submitted for review).

Hmm, I have never actually had to record a document myself - is the identity of the person recording the document verified by recorders office? On of the big reasons we have notarized signatures is for fraud prevention. I can see someone with the mindset of a Bensen Syndicate writing a correction deed, and having their 'runner boy' go and record the deed pretending to be a grantee.
I am a little bit jaded on that one, my ex embezzled a large chunk of my retirement about 10 years ago (40K) by forging my signature on the power of attorney paperwork. Since it didn't have to be notarized, too bad... I didn't catch it until a year later, and beyond he said she said I had no recourse.

Posted: **Sat Jul 23, 2022 7:26 am**

I would start with a title company and see if they will insure it.

Start there, but don't go very far with it. A couple of years ago I showed a title officer that his description included some land that was owned by another party and asked if he was going to issue a revised report. His response was that he wasn't going to revise the report, and that "it's better to insure too much land than too little."

Posted: **Sat Jul 23, 2022 2:03 pm**

Jim Frame wrote: Sat Jul 23, 2022 7:26 am
I would start with a title company and see if they will insure it.
Start there, but don't go very far with it. A couple of years ago I showed a title officer that his description included some land that was owned by another party and asked if he was going to issue a revised report. His response was that he wasn't going to revise the report, and that "it's better to insure too much land than too little."

The fact that a title company will insure something doesn't mean anything. They are just playing the odds; never forget that it is only insurance. I had a recent case in which the surveyor showed a new subdivision boundary over land to which his client did not have title. When they could not provide evidence that their client owned the portion in question, I told them I wouldn't sign the map as it was not technically correct. They found a title company that said they would insure it. I said that isn't evidence. They finally went through a quiet title action.

Posted: **Sat Jul 23, 2022 2:11 pm**

It is called "insurance" for a reason. We are not in the risk business. The reason one should approach a title company is for risk avoidance.

A little knowledge can go a long way.

http://www.insurance.ca.gov/01-consumer ... urance.cfm

Posted: **Sat Jul 23, 2022 2:11 pm**

What Does Title Insurance Cover?
Two basic types of title insurance policies are available to owners of real property in California: (1) a standard coverage policy and (2) an extended coverage policy.

A standard policy insures primarily against defects in title which are discoverable through an examination of the public record. This includes defects in title or recorded liens or encumbrances, such as unpaid taxes or assessments, and defects due to lack of access to an open street. A standard policy also covers an additional, limited number of risks that are not discoverable through a search of the title plant or public records.

The extended policy provides greater coverage than the standard policy. Generally, the extended policy provides the same coverage as the standard policy, but also insures against defects, liens, encumbrances, easements, and encroachments and conflicts in boundary lines that are not reflected in the public records. Since an extended policy covers many "off-record" defects in title, the insurer will typically require a survey of the property to be insured.

Since title insurance is required by your lender, the lender should specify the type of lenders policy required.

Endorsement Options

You may also purchase, at an additional cost, optional endorsements to cover risks that are not included in the standard or extended coverage title insurance policies. Endorsements are available to provide coverage against environmental protection liens, enforcement of covenants, conditions and restrictions, damage due to water and mineral development, accuracy of boundaries, and other potential risks. Endorsements may also add additional named insureds, such as your inter vivos trust (which some call a "living trust").Be sure to discuss available optional endorsements with your title company or its title marketing representative. Certain endorsements are required by the lender and will be automatically ordered by the title or escrow company.

Posted: **Sat Jul 23, 2022 5:20 pm**

Title Insurance can't fix anything.
The very best they can do, very reluctantly, is write a check.
.
There was a time when they avoided risk, so they kept records, copious amounts. And they provided public access to them.
Those days are long gone

Posted: **Sat Jul 23, 2022 6:38 pm**

Peter Ehlert wrote: Sat Jul 23, 2022 5:20 pm Title Insurance can't fix anything.
The very best they can do, very reluctantly, is write a check.
.
There was a time when they avoided risk, so they kept records, copious amounts. And they provided public access to them.
Those days are long gone

Yes, they are almost worthless these days. I would not rely on them for anything important.

Posted: **Sun Jul 24, 2022 11:28 am**

My role in this is that of a mapchecker, trying to advise whether this is an acceptable solution to move forward with a subdivision.

I am not convinced that this is clear enough to be, ready to move forward with a subdivision.

I am noticing in recent years many title companies would rather assume the risk than push for quiet title actions. Must be cheaper to do it that way.

Posted: **Wed Jul 27, 2022 11:24 am**

It is my understanding that a grantee's acceptance of a deed or easement is only required if the grantee is a public agency. See Government Code 27281. Acceptance is not required for a private transaction, only "delivery" of the deed to the grantee is required. Lots of good info here: https://www.dre.ca.gov/files/pdf/refbook/ref07.pdf

Regarding your boundary issue, could you do a lot line adjustment to address the overlap to avoid quiet title action? The LLA agreement would include language that both parties quitclaim their rights to any area that is not a part of their newly described lots.

Posted: **Wed Jul 27, 2022 12:20 pm**

You may want to look here:

Sent from an attorney.

A deed/conveyance requires an acceptance (Cal.R.E.4th, §8:49).

California Surveyors Forums

Quieting title for a subdivision

Quieting title for a subdivision

Re: Quieting title for a subdivision

Re: Quieting title for a subdivision

Re: Quieting title for a subdivision

Re: Quieting title for a subdivision

Re: Quieting title for a subdivision

Re: Quieting title for a subdivision

Re: Quieting title for a subdivision

Re: Quieting title for a subdivision

Re: Quieting title for a subdivision

Re: Quieting title for a subdivision

Re: Quieting title for a subdivision

Re: Quieting title for a subdivision

Re: Quieting title for a subdivision

Re: Quieting title for a subdivision

Re: Quieting title for a subdivision

Re: Quieting title for a subdivision

Re: Quieting title for a subdivision

Re: Quieting title for a subdivision

Re: Quieting title for a subdivision

Re: Quieting title for a subdivision

Re: Quieting title for a subdivision

Re: Quieting title for a subdivision

Re: Quieting title for a subdivision

Re: Quieting title for a subdivision