Title versus Survey
Glen Tanner, PLS
Copyright 2012- All Rights Reserved
Only a Registered Alabama Land Surveyor can tell you where property is located on the ground, yet Alabama Land Surveyors aren’t the only ones that read and interpret deeds, Attorneys and Title Companies also do. Attorneys can write boundary and legal descriptions for warranty deeds, but Land Surveyors can only write boundary descriptions and not legal descriptions for warranty deeds , yet it is up to the Land Surveyor to interpret the deed and put it on the ground and this is where the problem lies, Title versus Survey.
How many times have you heard this? Your survey is incorrect, it doesn’t match the deed, please correct it to match the deed, it is messing up our Title. How many of you as surveyors would go back and set irons to match the deed, even if you have found all the original corners and your survey reflects what you found? How many of you do any research or do you survey by the deed and what the Lawyer and Title company tell you to do? How many of you ever considered that the deed they gave you was in error and not your survey?
In 1980 a man decided to give his son a parcel of land to build a house. The son hired a Registered Alabama Land Surveyor and had a survey performed and deed made and recorded. Sometime between 1981 and 2006 the son refinanced his house, he gave the Mortgage Company a copy of his deed and the Mortgage Company didn’t require a new survey and used the old survey done in 1980, having the son sign a Surveyors Waiver, prepared a new deed and closed the loan.
It is now early 2007, the son bankrupted, the Mortgage Company started foreclosure procedures on the property. Late 2007 the Mortgage Company hired a Registered Alabama Land Surveyor to do an up dated survey on what they are foreclosing on. End of 2007 the Land Surveyor started to survey the property being foreclosed on based upon the deed given to him. The Land Surveyor found ALL the original corners set by the Original Land Surveyor and discovered an error in the tie to the property on the deed and the access easement given to him.
The Land Surveyor prepared a new survey reflecting the correct location of the property on the ground, which matched the Original Land Surveyor within a tenth or two and his survey and the access as it has always existed, the old access easement went thru a pond and a house and never existed as called for in the deed. The Land Surveyor called the Attorney about the errors in the deed he found concerning the original deed versus the deed provided to him. The Land Surveyor delivered his survey to the Attorney. It is now January 2008, the Mortgage Company sold the property to a new property owner by Trustee Quitclaim Deed Of Real Estate, based on their foreclosure legal and claim of Title. The new owner took possession of the property and house.
Three years has past and it is now 2011, the new property owner wanted to sale his property. The new property owner, a family member to the son that bankrupted, hired me, a Registered Land Surveyor, to perform a new survey. He met me at the property and showed me all the corners, including the ¼ corner. He was aware of the error but wasn’t sure what the problem was. He had a copy of the survey that had been performed before he purchased it. The new property owner provided me with a copy of his new deed and the survey that had been given to him at the purchase of the property. Knowing the Land Surveyor, I called him and discussed the problem and what I had found., he explained that he had found the same problem. How he called those involved at that time about the situation , how he explained it to the Attorney and Mortgage Company the discrepancy he found in the deed provided to him and what was on the ground. After our discussion, I prepared a survey and turned it over to the property owner, the closing Attorney himself.
A week has past and 30 minutes before they’re suppose to be closing on the property I had just surveyed, I get a fax from the Closing Attorney’s office that had been sent to them by the Title Company. The fax had a plot made by the Title Company of the foreclosure deed overlaid on my survey, so I called the Attorney’s office to see what was up. The Attorney’s assistant said; “Mr. Tanner, the Title Company plotted your survey against the foreclosure deed and your in error. Can you tell us what the problem is and fix your survey?” I explained that there wasn’t anything wrong with my survey and that I found all the Original property corners that were set by the Original Land Surveyor and DEED, along with the fact that it also matched the survey made by the Land Surveyor who performed the foreclosure survey and a copy they provided me with.The assistant insisted that the Title Company wanted to know why my survey didn’t match the foreclosure deed, because it was messing up their Title to the house and property.
I explained that there wasn’t anything wrong with my survey and it came close to matching the two previous Land Surveyors and that the Attorney closing the property pointed out all the property corners, that the problem was in the Title work and the Mortgage deed was prepared without a survey. The deed prepared without a survey had a typing error in it and when foreclosed on the Attorney, Mortgage Company and Title Company ignored the Original deed and Original Land Surveyor. Then the Attorney, Mortgage Company and Title Company chose to ignore the second Land Surveyor that they had themselves HIRED and his survey. The Attorney, Mortgage Company, and Title Company used the bad deed knowing it had errors , so they could keep their so called Title straight.
The property that the Title Company keeps insisting on having clear Title to doesn‘t get the house they have foreclosed on and sold . The Attorney’s assistant then asked if I new how far back they would have to research to find the Original deed or what year the error was made. My reply was; “ I don’t do Title search, that is up to the Attorney and the Title Company, not the Land Surveyor“.Two weeks later the Attorney closed the property, using the new survey and boundary description and new access easement that I had prepared.
Doesn’t seem to me that was a Title problem, but a problem with who and how they did their warranty deed, WITHOUT a Registered ALABAMA LAND SURVEYOR doing the boundary description or a new updated survey.How many bad deeds or foreclosures have been done without a survey or the boundary description was written by an Attorney without a survey made by a Registered Alabama Land Surveyor? If only a Land Surveyor can tell you where property is located on the ground, then only a Registered Alabama Land Surveyor should prepare descriptions for warranty deeds, not by Attorneys who care only about the Mortgage Company and Title Companies rights and interest ,not the property owners right and interest and without an updated survey by a Registered Alabama Land Surveyor. How do they know if their deed or Title is correct.
I, have over 30 years of hands on experience and experties in dealing with bad or incorrect Deeds, I have read hundreds of Deeds and never come across so many bad Deeds, until the last five to ten years when the Banks and Mortgage Companies started letting Property Owners use a Surveyors Waiver or the Affidavit In Lieu Of Survey And Affidavit Of No New Improvements, and not requiring an updated survey or a legal description written by a Registered Land Surveyor.
Remember, the Title Company will only cover those problems that show up on an updated survey. The Surveyors Waiver or the Affidavit In Lieu Of Survey And Affidavit Of No New Improvements put ALL the responsibility, or damages that may occcur, on the Home Owner, not the Title Company, Attorney or the Mortgage Company, their held Harmless, even if the Home Owner has Title Insurance.
Keep your deeds straight and your Title clear, hire a Registered Alabama Land Surveyor first.
Glen Tanner, PLS
Copyright Reserved 2011