Every conveyance, mortgage, or document relating to the transfer, encumbrance, or location of land requires a precise and locatable description of the area involved for purposes of identification and recordation. Some type of description is necessary in every instrument dealing with land areas where a location of the same is a factor in the terms of the instrument. It is self-evident that a correct, definite, and precise legal description is the only possible basis upon which a title insurance company can insure titles to land.
Any description of land, in order to be locatable, must have a base of location, either by reference to geographical coordinates, lines of a government township survey, ranch boundaries or corners, recorded subdivision, adjoining lands of record, or to any point or line which can be identified as to its relation with other lands of record. A description of land is void for want of certainty, or may be considered valid only as between the parties to the instrument on assumption that the language of the description discloses to the parties the actual intent thereof.
It may be summarized that the essential features of legal descriptions are the following:
- Precision of statement of items involved.
- Complete definition of all terms.
- Susceptibility of proper legal and engineering interpretation.
- Freedom from conflict in recitals.
- Freedom from conflict with descriptions of adjoining areas.
- Definite showing of intent to describe land in full.
- Mathematical and physical accuracy of dimensions.
- Physical locatability through accurate analysis of its terms.
- Clarity of expression.
- Freedom from excess verbiage and redundancy.
- Brevity without uncertainty or ambiguity.
Monuments are of various kinds, some natural and some artificial. Natural monuments, as the term signifies, are those created by nature: trees, rivers and lakes. Artificial monuments are those created by persons; for example, highways, section corners, quarter corners and boundaries, or a stone or other permanent marker, properly located and witnessed.
Every description must refer to one or more monuments, whether legal or physical. The reference to physical monuments is often omitted and may not adversely affect the interpretation of the description, particularly if the record references carry recitals of physical monuments or the description implies their existence.
Physical monuments may become legal monuments when recited in conveyances, shown on instruments of record, or so declared by a court of competent jurisdiction.
Methods For Curing Defective Or Imprecise Legal Descriptions
After a good legal description has been drawn (generally as the product of a survey), the most utilized methods in curing defective or imprecise legal descriptions are the following:
- Proper judicial proceedings
- Execution and recording of certain real estate documents:
- Boundary line agreements
- Quitclaim Deeds
- Correction Deeds
- Reformation Deeds
Items To Be Considered When Insuring A Legal Description
The following is a checklist of items and possibilities that require consideration when insuring a legal description. Their existence may necessitate additional requirements or raise special exceptions.
Have the abutters' rights of direct access been conveyed or condemned?
Is there legal access to and from the property?
Is the access through an easement, and if so, is the easement valid?
Is the access limited?
Is the access pedestrian only and not vehicular?
Is the access through a body of water?
Is the access predicated upon the common ownership of two or more parcels?
Is there any accreted land comprising a portion of the property?
If there is any, is it being excepted or is it being insured?
Is acreage content shown, usually shown as "more or less??
Boundary Line Agreement
Have any of the boundary lines of the property been established by a boundary
Is it necessary to execute a boundary line agreement in order to establish one of the boundary lines of the property?
Is there a cemetery the property?
Is the boundary line of a cemetery one of the boundary lines of the property?
Is the Company being asked to insure contiguity?
Has any area within the perimeter of the property been formally or informally dedicated or marked for the purposes of street, road, park, public area, public use, beach, resort area, school, church, public square, etc.?
Is the legal description defective, erroneous, or insufficient?
Is there any easement or mention thereof contained in the descriptions?
Does the description contain any exception?
Is there any gap affecting the perimeter of the property?
Is there any gap between the property and any adjoining land?
Does the property border on a navigable or non-navigable lake?
Is there any mineral or mineral interest being excepted or reserved?
Is any monument being used to describe one of the boundaries of the property?
Vacated portion of highway, road, avenue, street
More Or Less
Is the phrase "more or less? contained in the description?
Does the property overlap on adjoining property?
Does the adjoining property overlap on the property?
Are any of the boundaries of the property affected by a party wall agreement?
Is the property within the recorded plat of a subdivision?
Public or Private Roads
Is any part of the property within a public or private road? Is a right-of-way line of any public or private road one of the boundaries of the property?
Is there a railroad right-of-way across the property?
Is a railroad right-of-way line one of the boundaries of the property?
Does the description contain any reservation?
Does a navigable or nonnavigable river form one of the boundary lines of the
Does a navigable or nonnavigable river flow through the property?
Vacated Streets, Road or Alleys
Is there a portion of a vacated street, road, or alley within the perimeter of the property or adjacent to the property?
Special Considerations In Regard To Legal Descriptions
Vagueness and indefiniteness subject some legal descriptions to judicial scrutiny in order to determine their sufficiency. For title insurance purposes, indefinite descriptions are uninsurable. The following are examples of indefinite descriptions:
- By Popular Name
"The Lost Twenty Acres"
"All the land I own in Flower County, Paradise State"
- Street Address
"1025 Rose Avenue, Carnation City, Flower County, Paradise State"
- Adjoining Owners Without Recording Data
"On the North by the land of John Doe, on the East by the land of Ted Thompson, on the South by the land of Phil Johnson, and on the West by the land of Mary Phillips"
- Indefinite Tie
"... to the West line of the grantor's land"
- Unsold Lots
"All my unsold lots in the Blackacre Subdivision"
"All the land in my possession"
- "All of my land not previously conveyed"
More Or Less
In a legal description of real property, insertion of the phrase "more or less"
is an indication that its dimensions are approximate.
Computation of Area
In the event the legal description furnished to you contains computation of the acreage or square footage of the land to be insured, you should either delete the statement of acreage or square footage or you should add the phrase "more or less" after the computation of acreage or square footage in the policy description.
Changes or modifications in descriptions contained in instruments that have been on record for long periods of time is hazardous and not recommended.
Ideally, there should be no attempt to change, amend, or modify an old description; however, insurability often makes it necessary.
Remember that any change to be made must be based on the information shown on a recent survey, and that careful consideration must be given to the possibilities of boundary line dispute, gaps, or overlaps.
One practical and expedient method to eliminate the possible existence of boundary line problems is achieved by ascertaining the precise locations and dimensions of the boundaries of the adjoining property, and then, using those as the boundaries of the property to be insured. In this regard, obtain copies of the last deeds of record of those properties with common boundaries. These instruments are known as reference deeds. Utilization of reference deeds in the establishment of the boundary lines of a property minimizes the possibility of any boundary line problem.
Rules Of Construction
The application of the rules of construction in the interpretation of a legal description is not a function of title insurance.
When the meaning and extent of a legal description is unclear, ambiguous, or uncertain, no attempt should be made to apply or utilize any rule of construction for the purposes of insuring.
With very few exceptions, application of the rules of construction of documents must be judicially determined.
Survey Is Necessary For The Purpose Of Redrafting A Legal Description
If a survey is necessary for the purposes of redrafting a legal description of the property to be insured, the title commitment must contain the following requirement:
The Company must be furnished with a certificate of survey made by a competent and qualified surveyor in accordance with the "(name of the State) Minimum Standards for (Property) (Property Boundary) Surveys" establishing the exact boundaries of the premises in question with reference to the Government Survey and any other topographical feature.
In this connection, the Company reserves the right to redraft, if necessary, the legal description of the property to be insured or to raise any exception it may deem necessary.
Undivided or Fractional Interest In The Property
When insuring an undivided or fractional interest, the legal description must be preceded by the undivided or fractional interest (one-third, one-fourth, one-half, one-twentieth) being insured.
An undivided one-fiftieth interest in and to the following described property:
"____________" (legal description).
Note: It is necessary to ascertain that the sum of the several fractional interests adds up to one hundred percent.
See Tenancy in Common.