If the boundary lines of adjoining properties do not describe exactly the same location, gaps or overlaps may occur.
An overlap occurs when the description of one adjoining tract actually puts part of that tract onto the second tract. A gap occurs when two adjoining properties do not actually adjoin along their common line. Of course since lines can meander, one property can overlap in some places and be over-lapped in others.
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. A current survey might be helpful. You should ask the surveyor to provide you with a written report outlining which lines are senior and which are junior and why.
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.
In overlapping situations, no attempt should be made to:
Apply either the apportionment theory or the remnant theory. (This theory is a method of where the surveyor prorates the problem across a portion or entire tract of land, but only between original or properly reconstructed corners. Since determining the original corners is a difficult and expensive task, we will not routinely accept such actions as having been done.)
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. (See prior discussion regarding a survey)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 with express approval of a Texas Underwriting Counsel, the South West States Regional Underwriting Counsel or the National Legal Department.
NOTE: Where gaps rather than an operlap exists, access and contiguity may both be affected.
T-19 Series of Endorsements
Procedural Rule P-50 (and P-50.1) provide for T-19 (Loan Policy), T-19.1 (Owner’s Policy) (and T-19.2 and T-19.3) Endorsements. The premium for this series of Endorsements is set out in R-29. T-19 and T-19.1, items 3, 4, 5, and 6, deal with overlapping of improvements. This coverage negates the use of express insurance for such matters.