July 17, 2018
Author: Richard Marks
Legal Descriptions “Back in the Day” (In England):
Too many years ago, a conveyance of real property was accomplished by the seller and the buyer physically walking around the entire perimeter of the land that was to be sold and observing the monuments at each corner (known in those days as “bounds”), or if a monument was lacking, the buyer and seller would set one. In later years, the process became known as the planting of a feud or fee,
accompanied by a ceremony of the seller picking up a piece of stone or twig from the land and physically handing it over to the buyer, thus symbolizing the finalization and consummation of the transfer. This was common in England but the new visitors to America did not establish this practice. It was not until about 1640 in Plymouth Colony, in 1639 in Connecticut, and 1641 in Massachusetts that the law required a notice of the conveyance of the land to be recorded. This was a system of public transfer and public disclosure and it was copied by other areas across the United States and later became a part of each state’s laws – including California.
The Times They Are A Changing:
Through time, however, the use of sections, quarter sections and lots in sections with a township and range number and the name of the Meridian made the description of land much easier and faster. In most conveyances in California, that is what we use today to publically record transfers of real property. Deeds are deposited, “recorded” and indexed so that the public can investigate them and retrieve any particular document for review.
The process to which we assign the recording of a document is also known as “giving constructive notice”. Another way of saying it is that, upon inquiry into the notice of circumstances as to a particular fact, the person who deals with the land has constructive notice of the fact itself in all cases in which a reasonably prudent man, by proceeding with his/her inquiries, might have learned of such fact.
The preparation of legal descriptions is the business of the Licensed Land Surveyor (Business & Professions Code §8726 (l)) or Civil Engineers with a registration no. 33965 or lower who became registered January 1, 1982 or before under Bus. & Prof. Code §8726 (e). But a title examiner must often determine what form the report, guarantee or policy description should take, and very often interprets
descriptions to determine the effect of recorded documents on the title under examination. See Wattles, Writing Legal Descriptions (1976).
Just How Important is the Legal Description?:
One of the first details to look for in analyzing any description is the matter of sufficiency. Are there enough references to documents in the public records, including maps, and are they, in turn sufficient? A lack of, or insufficient, description of monuments, both artificial and natural (see below), can also create indefiniteness. Ambiguity, the mother of title defects, whether it be in the distance given, or in the description of the southerly quarter, or in the material given for reference, or the absence of facts, all helps to diminish and negate the value to the seller, buyer and lender using the description. And, as many a seller and buyer have found, insufficiency can even void a conveyance.
A description of land that cannot be located renders a contract void. Roberts v. LeBrain (1952) 113 Cal2d 712. A deed with a long description containing one small error may convey hundreds of acres of property by mistake [it happens all the time]. An inadequate description of acreage within a larger tract owned by the grantor may create a tenancy in common to the larger tract. Certainly not intended by the Grantor, for certain. Despite these risks, the common practice of lawyers and real estate agents is to identify land simply by reference to a street address, sometimes even in formal contracts. This practice sometimes causes the title examiner to question the submitted information when the property in question does not appear to fit the address or does appear to include several tax parcels variously identified. When the title examiner questions whether the description found 1s the same description of the property in question, he/she may require written verification prior to the issuance of a policy of title insurance.
The language employed in descriptions is technically rigid and sometimes very difficult to understand, let alone explain. The Wattles publication (supra) points out the need for consideration of all available information to develop a "majority probability of all conditions". (Writing Legal Descriptions §3.16). An illustration of the importance of an adequate legal description appears in Bryant v. Blevins (1994) 9 Cal 4th 47 that accompanies this program (acquiescence or title by agreed boundary doctrine does not apply if public records provide a sufficient legal description). The case provides an example of how a surveyor interprets description language. Also see Wood v. Mandrilla (1914) 167 Cal. 607 and a case that it cites: Jones v. Pashby (1886) 62 Mich. 614 on the meaning of "half'. Read it. You will understand how important it is to be precise when it comes to reviewing, describing and preparing legal descriptions – a real science.
The title examiner should check the description he/she intends to use for clerical errors. One method of double?checking descriptions is to (1) use the starter description for report purposes (“the starter policy”) , but compare it with the deed out of the subdivider ? noting on the starter policy which page was compared; (2) later, the title examiner or title officer may compare the description contained on documents submitted for recording with a copy of the deed out of the subdivider. This practice avoids a problem that sometimes results from a common escrow practice. The escrow officer often types the description on the deed to record ? copying it directly from the latest "vesting" deed, without checking the description on the "vesting" deed against the description on the report.
From a title standpoint, the legal description is straightforward. But, when and if the legal description is off an inch, or a few inches, or mis?describes the tract, trouble lies ahead for the buyer who may use the legal description in the future. And the lender too who may ultimately foreclose using the incorrect legal description.
If a division of land is contemplated, or off?record data is submitted for description, or in any order involving extended coverage near an ocean, lake, river, etc., serious consideration must be given to the form of the legal description and to any appropriate exception from coverage to be shown.
Exceptions from Description:
The title examiner should be careful not to copy language into the description that perpetuates past operative language in a reservation of interest. For example, if a recorded deed or starter policy contains the best available complete description in the search, the title examiner may wish to copy the entire description for use in the report. But language such as "reserving to the grantor herein ... " should
never be included. Re?writing of the exception may be necessary. However, the title officer should always check with his/her advisory title officer. Changing a legal description is always a possibility. But also a possibility for error and great consequences. Naturally, easement interests are appropriately shown in Schedule B as exceptions from coverage and not in Schedule A as exceptions from the legal
Vacated Street Portions:
Conveyance of a lot passes title to any street adjoining said lot to the centerline, unless the record indicates the contrary (Civ. Code §§. 1112, 831, and Code of Civil Procedure §2077). But for title insurance purposes, the street portion must be expressly described if it is intended that it be covered. A street created by subdivision map is a legal monument. A description of a part of a lot shown on a
subdivision map, for example: ..... the Southerly 50 feet of Lot2 ... " is a call for measurement from the Northerly line of the street adjoining on the South. See Earl v. Dutour (1919) 181 Cal 58 (the street and the lot were considered two distinct and separate terms, the owner having no right to possession or occupancy of any street portion). See also: Ferris v. Emmonds (1931) 214 Cal 501. (By custom, it was commonly understood in Pomona that measurements were made to the centerline of the street). Some maps state that the measurements shown are from the street centerlines. Other maps do not so state, but an examination of other pertinent documents may reveal that measurements are calculated from the street centerlines.
A Nice Street Description:
An acceptable form for description of such street portion is: "that portion of the northerly half of the (fifteen foot) alley adjoining said land
on the (south), vacated by ordinance recorded ... that would pass with conveyance of said (lot)."
A title insurance policy may not include coverage for title in the adjoining streets unless the street portIons are properly described. (Murray v. Title Insurance & Trust Co. (1967) 250 Cal App 2d 248) – a case that prompted a change in the position of the relevant title policy provision ? and see, for example, the definition of "Land" in the 1992 ALTA Owner's Policy: "Land ? the land described or referred to in Schedule [AJ [C], and improvements affixed thereto which by law constitute real property. The term "land" does not include any property beyond the lines of the area described or referred to in Schedule [Al [C], nor any right, title, interest, estate or easement in abutting streets, roads, avenues, alleys, lanes, ways or waterways, but nothing herein shall modify or limit the extent to which a right of access to and from the land is insured by this policy. "
Although public streets are usually easement interests encumbering privately owned fee title, the title examiner should not overlook the possibility that the record may prove that the fee is publicly owned (although this is very rarely due to sovereign immunity, an offer to dedicate by separate recorded instrument cannot be presumed to expire by law). (Code of Civil Procedure §771.010 provides a conclusive presumption that a proposed dedication was not accepted after a 25?year period, upon certain conditions. But the statute applies only to dedication by map not by separate recorded instrument. Also, see Government Code §66477.2 (a) .
If vacated street portions are to be included in the report or policy description, an investigation is first be made to ascertain the date upon which and manner in which the street was created.
Easements existing prior to the creation of the street should be considered, as well as franchise rights granted by the street proprietor and reserved in the ordinance of vacation. The street proprietor may have granted trail rights. Such trail rights should be considered even if not reserved in the ordinance of vacation. Private rights may be retained by owners in the tract and are subject to being preserved by a recording within two years after the vacation (Street & Highways §§8352, 8353).
Documenting Correction of Description Errors or Omission:
The common practice of re?recording a document to correct a description error is convenient, but not usually effective. In most cases, the document containing the error was valid and effective, but contains an omission or an incorrect reference. To place a corrective document in the chain of title, it is sometimes necessary to record a document from the grantee back to the grantor, along with a concurrent document from the grantor to the grantee. When reviewing recitals, the title examiner should bear in mind that the original document should probably be treated as an effective instrument containing a defect. Therefore, a recital should not state, for example. that: "the deed is being corrected ...... but rather that: "the description error is being corrected ... ".
An error contained in a deed of trust description should be corrected by a modification, a rerecording. Re?recording creates a potential chain of title problem and also creates a second recording reference thereby inviting a further error or omission at the time of reconveyance. Re?recording a trust deed these days is also expensive due to the lenders' fondness for the long form. $78.00 per rerecording becomes a large expenditure when it occurs 100 times per year.
Natural monuments refer to so?called permanent objects in nature, such as rivers, streams, ponds, lakes, beaches and shores (Hicks v. Coleman (1864) 25 Cal. 122. It is hard to describe a mountain but a land surveyor, who is qualified, can do it with precision and with knowledge. Artificial boundaries are things made by man or marks imposed upon things by man (Wise vs. Burton (1887) 73 Cal. 166.
Even a party wall can be a boundary. If a party wall is specifically mentioned and called for in the legal description as a boundary, it is a monument (artificial) according to the rule that “monuments control calls from distances”.
Neighbors: Can We Just Get Along?:
It is easy to characterize that two neighbors who adjoin one another have various rights and various burdens. Two property owners may have mutual rights of access along their boundary line or may have certain designated burdens that are associated with co?ownership of shrubs, fences, trees, structures and the like. Throughout California cities, structures and buildings for residential or commercial use have been built with zero?lot line construction including a common wall built on the boundary of the parcel and used for structural support for each building on each parcel.
A party wall in California is a matter of private agreement. “A party wall is always, at least in [California], such by agreement.” (Western Granite & Marble Co. v. Knickerbocker (1894) 103 C. 111 and the newer decision in Scott v. Lippman (1940) 40 Cal.App. 2d 317. And a party wall can be created by statute per Civil Code §801(12) via an easement for a party wall.
A boundary fence can create a boundary dispute. Because people sometimes “just can’t get along”, there are disputes over fences, gates, hedges, shrubs, trees, wall, etc. usually because they were placed by a previous owner in a location other than on the correct boundary. When Mr. Homeowner on the north decides to build his custom pool and discovers that Ms. Homeowner on the South has a fence that encroaches upon Mr. Homeowner’s pool, disputes are created, litigation is started and tempers rise.
Maintenance of the common boundary wall, fence, or other structure separating the two neighbors, is subject to Civil Code §841. Without a written agreement, the two neighbors are mutually bound equally to maintain (1) the boundaries and monuments between them, and (2) the fences between them, unless one of them chooses to let his or her land remain unfenced; in which case, if that owner later encloses it, he or she must refund to his neighbor a reasonable “just” proportion of the real value, at that time, of any division fence made by the latter. And, of course, the “neighborly” obligations imposed on the two homeowners by Civil Code §841 can be modified with an access agreement, a license agreement, or a number of other written agreements. Or, the two homeowners can deem the boundary as a shared easement and be bound by Civil Code §845(b) which requires the maintenance responsibilities and obligations be allocated “proportionately to the use made of the easement by each owner” or “pursuant to the terms of any agreement entered into by the parties for that purpose.” Trees can even be used as a boundary line per Civil Code §834 that states: “Trees whose trunks stand partly on the land of two or more coterminous owners, belong to them in common.”
Richard D. Marks, Esq. - Thanks to Lawrence LaCombe for portions of his material used herein with his permission.