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Irwin Law
Irwin Law, Attorney
Category: Legal
Satisfied Customers: 7279
Experience:  Lawyer & Real Estate Broker, 30+ years, foreclosure, land contracts, inheritance, probate.
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Surveyor and title agent say that legal description is wrong

Customer Question

surveyor and title agent say that legal description is wrong after I closed on property
Submitted: 1 year ago.
Category: Legal
Expert:  LawTalk replied 1 year ago.

Good afternoon,

I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today. In order to give you a clear and concise answer, I will need some additional information about the circumstances, please.

1. Help me to understand. How can you make a claim against title insurance if the title company refused to enact the policy in the first place?

2. Did you get a warranty deed with the property or did you buy it as is?

3. Which legal description was wrong---the deed as written for the sale to you, or the seller's deed?

4. How much loss of real estate are you talking about? What did the amended deed do to your ownership rights?

Doug

Expert:  LawTalk replied 1 year ago.

This seems like a very crucial matter for you, and your questions and issues suggest that an in-depth conversation might better suit your needs. If you are interested, I can offer you a phone conference as opposed to continuing in this question and answer thread. I will make that offer to you after I get this posted to your question thread. All you need do is accept the offer if you would like me to call. Let me know if you don't want a call and I can continue here.

Thanks in advance,

Doug

Expert:  LawTalk replied 1 year ago.

I am unable to further assist you in this matter, and I am going to opt out of your question and open this up for other professionals.

Your question is being placed back in the question list for other professionals to see, and to respond to. You do not have to stay online for the question to be active. Should another professional pick it up, you should be alerted by email unless you actively disable this feature.

There is no need for you to reply at this time as this may "lock" your question back to me, thus inadvertently delaying other professionals' access to it.

I apologize for any inconvenience and wish you well in your future.

Doug

Expert:  N Cal Atty replied 1 year ago.

New Expert here.

In which State is the property located?

Is the seller available to sign a corrected deed?

Customer: replied 1 year ago.
New Jersey, Seller sold me 25 by 100 lot and now the question is if everyone verifies that it is a 25 by 98 lot, how would I be compensated and what liability would my attorney, sellers attorney, seller and title agent have for signing off on one legal description and then deciding it is another.
Expert:  N Cal Atty replied 1 year ago.

I'm going to opt out and let a NJ Expert take over.

Expert:  Irwin Law replied 1 year ago.

Hello. A third expert here. A sale of real estate is initiated with a purchase agreement. The P/A describes what you agreed to purchase and what the seller contracted to sell. How was the property described in the P/A. Was it a street address? A metes and bounds legal description, which contained directions and line measurements? A numbered lot in a subdivision? How does the legal description on your deed differ from the legal description in the purchase agreement? You question can't be answered until all the technical facts are disclosed.

Customer: replied 1 year ago.
In the P/A it was described by the street address and block and lot number. The legal description on deed has metes and bounds.
Expert:  Irwin Law replied 1 year ago.
That is interesting. So the lot shown on the recorded plat is 25 x 100, but an actual survey shows it to be 25x 98? Was the lot & block number shown on the deed at all? After the legal on the deed, did it say what the acreage or square footage size is? Was that followed by "more or less"? Which legal description was shown on the title insurance commitment that you received prior to closing. Did the title insurance commitment contain a standard survey exception? Was the survey done before or after the closing, and if after, why not before if the square footage was critical? As you can see, your question raises many other questions, and I'm sure there will be a few more. If you intend to consult an attorney over this issue, you may wish to have a more personal conversation here first. I will offer that option.
Customer: replied 1 year ago.
Survey was done before closing and it and all paperwork, deed, mortgage ect stated lot was 25x100. The surveyor didnt put in rear property markers before closing, a month later they did and then somene removed them. Then surveyor came back and reset rear markers because he said they made a mistake and set one too wide. The next day the surveyor called and said that maybe the lot was 25x98 because he looked at the tax map.A month and a half later I finally got the title insurance policy stating that it was contingent on recording an amended deed to correct the legal description from 25X100 to 25x98.
Expert:  Irwin Law replied 1 year ago.

What is happening is that Title Companies never insure the quantity of land without a survey showing that exact amount. There is a standard survey exception in every title commitment that is designed to prevent liability arising from exactly the circumstance that you described here. The fact that the survey work was botched both prior to and following closing really throws everything out of joint legally speaking. You said that the P/A had a lot number but the deed has metes & bounds. That doesn't make sense, esp. with lawyers involved. It defeats the purpose of a plat, which is also based on a survey. The title company will issue the policy insuring only what the deed conveys, not what was stated in the purchase agreement. So when the corrected deed is recorded, that negates any claim against the title company. There is not enough information to assess potential liability on the part of other professionals who were involved in the deal. There may also be a difference between the lot size, as platted versus the lot size as surveyed. In any case, an actual staked or corner survey may or may not override the plat description, and this becomes a contest between surveyors to find where the exact and correct property line is. If the warranty deed that you received stated the lot size as 100' x 25', you possibly have a breach of warranty claim against the seller. In my opinion, there would have to be a pile of money involved in that two foot strip to warrant legal action against anyone.
I hope that this information is helpful and that you will enter a positive rating. That is the only way I will be compensated for assisting you. Bonuses are appreciated too. I will be happy to answer follow-up questions which relate to this one. Also, since we are not acting as your attorney be sure to confirm our information with a local attorney. Thanks for choosing JUST ANSWER.
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Customer: replied 1 year ago.
my best option is to not sign anything until they figure it out, apparently they dont seem to care if the title chain is clouded so I don't need to worry about whether or not deed is correct as long as it says I own what mortgage says I own. The 2 feet makes a difference between conforming 2-4 family lot (is a legal 2 family at this time, mybplan is to make it into a 3 family), and a lot where only a single family townhouse can be built in the event the structure is destroyed and needs permits to be rebuilt.
Expert:  Irwin Law replied 1 year ago.
Actually, it's not a title issue. It's a quantity of land issue, if anything. I have an idea for you, but I need to know if the original recorded plat shows your lot measurement to be 100x25. Plus, due to the time spent, I would want to speak with you directly about it and would require the Additional Services be accepted.
Customer: replied 1 year ago.
The legal description was recorded as part of the deed and attached to the recorded mortgage. The original plot map from 1895, which is referenced in all previous deeds in the legal description, shows the lot as 25 in front and 98 feet on each corner lot. The only place the dimensions of 25x100 appear are on the legal description tied to the 2003 mortgage of the seller i bought it from. If it is not a title issue, then why would the title company want to re record the deed to correct the legal description? Why did no one bother looking at these documents that I found out 2 1/2 months after the fact where all included in the Title Commitment? And if the survey is incorrect who is to say whether the improvements (the two family house) are even wholly on the lot?
Expert:  Irwin Law replied 1 year ago.

If it is not a title issue, then why would the title company want to re record the deed to correct the legal description?

The title company won't issue insurance for a description that is different than what is on your deed. IOW you bought 98x25 they won't insure you for 100x25. It would be like insuring a car that is already wrecked. When the deed is corrected to show 98 x 25 they will insure your title. The only place the dimensions of 25x100 appear are on the legal description tied to the 2003 mortgage of the seller i bought it from. Your seller's deed and mortgage could not have increased the size of the lot. Those instruments apparently contained erroneous legal descriptions. If the original plat was 98 x 25, then that is what you bought. There is a contract law doctrine whereby a contract may be cancelled based upon mutual mistake. If you wish to cancel and recover your money based on that theory, you should consult a local real estate lawyer. I know this is not the answer that you wanted to hear, but if I said anything different, it could mislead you into spending a lot of money in a losing cause.

I hope that this information is helpful and that you will enter a positive rating. That is the only way I will be compensated for assisting you. Bonuses are appreciated too. I will be happy to answer follow-up questions which relate to this one. Also, since we are not acting as your attorney be sure to confirm our information with a local attorney. Thanks for choosing JUST ANSWER.

Expert:  Irwin Law replied 1 year ago.

If it is not a title issue, then why would the title company want to re record the deed to correct the legal description?

The title company won't issue insurance for a description that is different than what is on your deed. IOW you bought 98x25 they won't insure you for 100x25. It would be like insuring a car that is already wrecked. When the deed is corrected to show 98 x 25 they will insure your title. The only place the dimensions of 25x100 appear are on the legal description tied to the 2003 mortgage of the seller i bought it from. Your seller's deed and mortgage could not have increased the size of the lot. Those instruments apparently contained erroneous legal descriptions. If the original plat was 98 x 25, then that is what you bought. There is a contract law doctrine whereby a contract may be cancelled based upon mutual mistake. If you wish to cancel and recover your money based on that theory, you should consult a local real estate lawyer. I know this is not the answer that you wanted to hear, but if I said anything different, it could mislead you into spending a lot of money in a losing cause.

I hope that this information is helpful and that you will enter a positive rating. That is the only way I will be compensated for assisting you. Bonuses are appreciated too. I will be happy to answer follow-up questions which relate to this one. Also, since we are not acting as your attorney be sure to confirm our information with a local attorney. Thanks for choosing JUST ANSWER.

Expert:  Irwin Law replied 1 year ago.
HELLO AGAIN. I hope that my Answer has been helpful. If you need more information, please send me a Reply. If not, I hope that you will enter a positive rating for my Answer so that I can receive credit for assisting you. Thanks again for using JUST ANSWER.