The Gap that Swallowed the Land Surveyor
By Pean Cheneying, PLS
A client who was a custom home builder ordered a Standard Survey (survey without the benefit of a title policy) on a parcel composed of a fractional lot in a recorded subdivision created in the 30s. This particular client had ordered some small subdivisions in the past but they were redeveloping this existing fractional lot and building an expensive custom home on it. Many of the parcels within this particular subdivision were being redeveloped and the neighborhood had completely changed character over the last few years. The lots in this subdivision were typical City lots and were indicated on the subdivision map to be 50 feet wide and 100 feet deep. These particular lots in Block 6 of the subdivision were numbered 1 through 10 with Lot 1 on the Northeast corner of the Block and Lot 10 on the Southeast corner of the Block. Lot 1 through 10 was bounded on the East side by a street and on the West side by other lots in the Block numbered 11 through 20.
The subject description was for the South 47 feet of Lot 5 Block 6 and did not appear to be much of a challenge. I dispatched a field crew and they returned with some pretty good evidence including some block corners. Nothing seemed amiss and in the initial analysis the boundaries of the subject parcel seemed certain. There was an unusual condition however in that the old fence along the South boundary of the subject tract was 3 feet too far to the South, in addition there were old iron rods at that fence apparently set in the past by previous surveyors. The South adjoiner was an old day care center that had occupied the land for many years. It appeared at first blush that we may have a 3 foot gap along our Southern boundary.
The North adjoiner had a custom home being constructed on it at the time of the initial field visit. The new foundation was 3 feet North of the subject tract boundary which would be a typical side setback for new construction in this particular City. An old pinch top pipe and a new capped iron rod set by the surveyor of the North adjoiner were found marking the subject tract’s North boundary. Framing crews were busy working on the new home adjoining the subject tract to the North when my field crew left the site.
I began comparing the field evidence with the records and as a matter of course the current North and South adjoining descriptions were pulled and the chain of title for the subject tract researched by me in preparation of completing the survey.
A very interesting history of the subject tract began to emerge. The original developer of the subdivision, that this fractional lot was part of, had been unable to sell the parcels of land as the original subdivision map indicated. The original developer had instead, for one reason or another, sold fractional pieces of lots, either combining fractions of lots or only selling a fraction of lot. The developer did this piecemeal throughout the subdivision until the subdivision was fully developed. During the 80s this area had experienced an economic downturn and a single real estate speculator had managed to acquire many of these parcels within this subdivision. At one time this real estate speculator apparently owned all of the lots within the block the subject tract was part of. The real estate speculator was now selling different fractional pieces of these lots within this subdivision to developers, with different fractional descriptions than the original descriptions he had acquired these lands under. The original description the real estate speculator had acquired the subject tract under had been the South 47 feet of Lot 5 Block 6 and the adjoining (to the south) North 3 feet of Lot 6 Block 6. However when the real estate speculator conveyed the subject tract to my client (the custom home builder) he only conveyed the South 47 feet of Lot 5 Block 6.
This seemed to explain the discrepancy with the old fence and stakes being 3 feet too far to the South of the subject tract boundary. The South adjoining description (old day care center) was for all of Lot 6 Block 6. This description was recently conveyed to the day care center occupying this land for many years. Previously the day care had leased the land from the real estate speculator who conveyed them the land. The chain of title was traced a little further and the original description that the real estate speculator had acquired the land under in the 80s was for the South 47 feet of Lot 6 Block 6 only.
There was no doubt that the South adjoiner had been staked out according to the original description sometime in the past and when it was recently conveyed by the real estate speculator to the day care center it was never surveyed with the new description so there were no new stakes marking its new boundary which had now shifted 3 feet to the North of the original description the real estate speculator had acquired the land under. Even though there was no problem with the descriptions or the location of the boundaries in those conveyances I made a note to call my client and recommend that this problem be cleared up. It just looked odd on the ground with the fence being 3 feet South of the new boundary.
I turned my attention to the North boundary of the subject tract which appeared to be nothing more than an exercise in prudence given the field evidence found (capped iron rod recently set and the old pinch top pipe marking the subject tract North boundary). I was horrified when I examined the most recent description for the conveyance of the tract adjoining us to the North. This description was for the South 47 feet of Lot 4 Block 6. There was no mention of what happened to the North 3 feet of Lot 5 Block 6 as the description for the subject tract was for the South 47 feet of Lot 5 Block 6.
It became apparent that the surveyor who had surveyed the tract adjoining us to the North had staked his boundary 3 feet too far to the South (as evidenced by the capped iron rod he had set and the new foundation that was being built exactly on the South boundary for that conveyance description). There should have been a 3 foot gap between the subject tract boundary and the boundary of the tract to the North of us according to the recent conveyance descriptions. My first thought was that this problem was of no concern to me as it did not affect the subject tract’s North boundary which I was surveying. I thought I might be able to get away with a courtesy call to the surveyor of the adjoiner to the North and that would be the end of it.
This hope evaporated when I realized that the person who was developing the adjoining tract to the North was also my client according to the most recent conveyance. There was some comfort in the fact that the subject tract, the South adjoiner and the North adjoiner all had a common grantor which was the real estate speculator however I felt obligated to inform my client of this problem if what I had uncovered turned out to be true. I quickly called the surveyor of the adjoining parcel to the North and sent him the half drafted survey I was working on via email. I asked this surveyor to look at what I was seeing and tell me where I had gone wrong.
I did not immediately here back from him that day and I began to become extremely anxious thinking about the construction my client was engaging in on the adjoining tract to the North. The new structure on the North adjoner would not meet the setback line requirements and the boundary had been staked out 3 feet too far to the South. I felt I had to call my client as soon as possible or face possible ethics questions regarding my behavior. I decided to wait until the next morning to give the other surveyor time to respond. After all the other surveyor might be able to shed some light on this problem that would prove my concerns were groundless.
I was very relieved to receive a phone call early the next day from the other surveyor. He confirmed what I had on my preliminary survey I had sent him and stated that he had simply made a mistake. The other surveyor sent me a copy of a corrected survey that he was also planning to send to our common client. The other surveyor had found the pinch top pipe along the subject tract’s North boundary and assumed it was the South boundary of his tract and had proceeded to stake his tract out, 3 feet too far to the South. This did not seem too big of a problem since the real estate speculator apparently owned all the land in question. It seemed merely a problem of filing a correction deed that would include the North 3 feet of Lot 5 Block 6 from the real estate speculator to my client.
I called my client explained the problems along the North and South Boundaries of the subject tract. I told him that there were no problems with the subject tract boundary I was surveying. I thought we just had some hickeys that needed to be fixed. It seemed a matter of a couple of three correction deeds between himself, the real estate speculator and the South adjoner and the problems would be solved.
A few days went by and I was contacted to modify my survey of the subject tract to reflect a correction deed filed to convey the North 3 feet of Lot 6 Block 6 to my client from the real estate speculator and was also provided a correction deed, filed a day before that conveyance, between the day care center and the real estate speculator for the same parcel. I thought everything was in order and was relieved that the parties involved in the problem on the South boundary of the subject tract had followed my advice. I felt certain that the 3 foot gap along the North boundary of the subject tract could be fixed the same way with little or no damage to anyone including the surveyor who had made the embarrassing mistake in staking out the parcel adjoining the subject tract to the North.
A couple of weeks or so went by and I received a phone call from my client who was in a panic. The real estate speculator had refused to execute a correction deed to him for the North 3 feet of Lot 5 Block 6 because the real estate speculator said he did not own it. I had not looked at a chain of title for the North adjoiner to the subject tract because it was of no concern to me and I had a copy of the last conveyance. The North boundary of the subject tract had no conflicts and I had followed the subject tract chain of title back to the first conveyance. I was uncertain how to advise my client so I told him I would look in to it.
My client was very worried because he had a large sum of money tied up in the home he was constructing on the tract adjoining the subject tract to the North. He would complete the construction within the next week on the adjoining tract to the North and needed to sell it to recoup his investment. If he did not manage to sell the home (because it now did not meet the side yard setback requirements of the City) as soon as the construction was completed he would be wiped out. He told me any delay would place him in serious financial difficulty.
I went back to the Courthouse and traced the chain of title for the North adjoiner. I was shocked to find that no conveyance had been made by the original subdivision developer for the North 3 feet of Lot 5 Block 6. I went to the tax office and found in the old paper tax map records that the 3 foot wide sliver in question consisting of the North 3 feet of Lot 5 Block 6 was still in the name of the original subdivision developer. The subdivision developer had not paid taxes on the sliver since the 1940s but when the old paper tax maps had been digitized the tax office simply did not show the 3 foot strip on the new electronic version of the tax maps. The original subdivision developer was almost 70 years in default on the taxes to this sliver. The County and City had never done anything about it over the years, like selling this sliver at a tax sale, but had continued to carry the original subdivision developer on the tax roles as the owner. This long unpaid tax bill had reached an astronomical amount of 12 thousand dollars.
I called my client back and explained what I had found. I advised him to do one of three things.
1) Approach the taxing authority and explain to them that you wish to pay the back taxes and ask them to issue a tax deed for it.
2) Approach the taxing authority and force a tax sale of the tract and then buy it at the tax sale.
3) Since the real estate speculator had been the owner of the tracts on both sides of this 3 foot strip since the 80s have him file an affidavit of ownership by possession and then convey them a quick claim deed to the land in question. Begin paying current taxes on it and then land should be able to be insured by a title insurance firm within 5 years.
My client was furious. He was now on the verge of completing the construction of this house and had potential buyers looking at it but the title insurance firm had told him they could not insure the property or the improvements because of this problem. He was going to be financially ruined by a delay of any potential sale of this property. He complained that the surveyor who had surveyed the property carried no liability insurance and that he had no way to recover any damages from the surveyor for the erroneous survey. He did not want to pay the extra 12 thousand dollars for land he felt he already had purchased according to the survey that had been performed. He was afraid to force a tax sale because if somebody else outbid him for this sliver of land he would be over a barrel and be forced to pay an even higher price for it. He could not wait 5 years to get the property insured and needed to sell it now to keep himself financially solvent.
He asked me if there was any chance he could get another surveyor to survey the property and make the same mistake the first surveyor had. He could then take that “new” wrong survey to a “new” title insurance firm and pass the problem on to the new purchaser. I told him that the problem would not be passed on to the new purchaser in his scenario but would in fact set him up for a potential lawsuit. I advised him not to try what he suggesting and pointed out that his conversation with me created a huge liability for him in me if such a lawsuit were to take place in the future.
My client ended up approaching the taxing authority and purchasing the sliver for the 12 thousand dollars in back taxes. He pursued an action against the other surveyor and from what I understand was able to get a settlement out of him for the damages caused by his erroneous survey.
The last I heard the other surveyor has now placed his surveying business up for sale.
Thoughts