The lack of coincidence of the boundary lines of adjoining properties may produce the existence of either gaps or overlaps.
An overlap is characterized by a shortage of land that impedes two or more tracts of land from being harmoniously juxtaposed. In any overlap situation, there is an overlapping tract and an overlapped tract, though it is not uncommon for a tract to participate of the dual condition of overlapping and overlapped.
Subject Property Overlaps An Adjoining Property
If the land to be insured overlaps an adjoining property, it is necessary to:
- Determine the exact description and dimension of the overlap.
- Require the acquisition of the overlap tract by:
- A conveyance duly executed by all the owners, parties in interest, lienors and encumbrancers of the tract;
- The execution of a proper boundary line agreement (with adequate conveyancing language) executed by the owners, parties in interest, lienors and encumbrancers of both tracts; or
- Proper judicial proceedings in which all the owners, parties in interest, lienors and encumbrancers of the tract are named as parties defendants.
- If acquisition through any of the above described methods is not possible, it will be necessary to take exception as to the area upon which the overlap occurs.
Caveat: In overlapping situations, no attempt should be made to:
- Apply either the apportionment theory or the remnant theory.
- Rely on adverse possessory rights
Adjoining Property Overlaps On The Property To Be Insured
If the land to be insured is overlapped by an adjoining property, it is necessary to:
- Determine the exact description and dimensions of the overlap.
- Except that portion of the property to be insured upon which the overlap occurs by showing a specific exception in Schedule B. In the alternative, the legal description needs to be amended accordingly.
Caveat: In this kind of situation, no title insurance coverage can be given to any mortgagee of the property being insured.