Error in Grant Deed

[PE_PLS]

I am working on a Record of Survey for a client, and it seems there is an error in the legal description that I am inexperienced in addressing.

The current owner purchased the property in 2003
The previous owner purchased the property in 1994

When the current owner purchased the property in 2003 an exception was added to the deed saying: "excepting therefrom that portion conveyed by deed recorded July 2, 1942, in Book 432, Page XXX Marin County records.

Here's the problem. First, that book and page refers to a piece of land completely unrelated to the parcel. Second, I also looked up the recording date to see if I could find any land that was granted on or near our parcel from the date called out in 1942 and found nothing. Third, it would seem if there was an exception from 1942 it would show up on the deed from 1994 when the previous owner purchased the property. I've checked prior deeds and this exception isn't on any of them.

It seems that there was an error on the part of whoever prepared the grant deed in 2003 and this exception was added inadvertantly.

What to do?

[goodgps]

The first glance would seem an error is likely, however, when you researched the bk 432 page xxx deed, did it have any relations to the 1994 owner ?

Sometimes, when a trust is drawn up, the "whole" of the entitlements are lumped together in a bucket as if they are one group.

Now if/when the owner or trustors sell off a parcel, this "bucket" of entitlements appear. An omission statement may be added in order to clarify to the trust and the buyers, that they are only purchasing the described property. its kinda wakky but the thought process stems from lawyer think.

I have seen exceptions on deeds that describe property in Nevada !

I'm not declaring this to be the case for your situation, however, it may have happened that way.
Another reason, is simply a title person trying to pound out documents for a hot sale and simply getting overwhelmed.

If the deed lists a title number or title company (and theyre still in business)
you may wish to call them to see if this is a simple typo.

Another way to review the situation, is to have your client dig up his title report to see how that reads.

I hope you find the answer.

"good"

[PE_PLS]

"good"

you bring up a "good" point about a trust. I went back and looked at the deed from 1942 and that isn't the case. I do think it was a title co. mistake and I will try and see if I can find the co. and ask them about it.

Would this be a case where a corrective grant deed would need to be filed if indeed it was a mistake? What is the process for a corrective grant deed?

[mpallamary]

What you are referring to is called "reformation." Section 3399 of the Civil Code provides, "When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved, so as to express that intention, so far as it can be done without prejudice to rights acquired by third persons, in good faith and for value."

It is well settled that the remedy of reformation is equitable in nature and not restricted to the exact situations stated in section 3399. (Demetris v. Demetris (1954) 125 Cal.App.2d 440, 443.)

If I was you and if there are no disputes between the parties and no reason to contest your conclusions and opinions, you should seek to "reform" or correct the deed. I would consult with a title company and get their concurrence and then obtain the consent of the affected parties.

The law provides a process and remedy for mistakes and errors as everything does not have to be litigated.

Good luck.

[PE_PLS]

An additional thought/question:

Is it necessary to have a corrected deed for me to continue on and file my ROS, can I simply note that the exception does not affect the subject parcel?

I know that for current and future owners it would be beneficial to have a corrected deed and a clear title but for the purposes of the ROS is this necessary?

Can the correcting of the deed be treated as a seperate issue since even with the error it does not affect the boundaries of the subject parcel? Or would you wait to get this rectified before filing the ROS?

[Ben Lund]

I would say that you don't have to wait until the description is revised. "Does not affect the subject parcel" is good enough for me. Is it possible the Book and Page is coming from a different source like, official records versus deeds?

[mpallamary]

My recommendation, if I may offer it, is to do everything you can before filing the ROS. Of all the documents you have control over, the ROS is the most superior. In situations like this, I try to do as much as I can through the other mechanisms and tools available to the general populace. Remember that a lot of folks such as attorneys and title people and property owners can prepare and record deeds and instruments. They cannot file a Record of Survey. If nothing else, in addition to being a great tool to document everything, an ROS is a great tool to clean things up. If, after all the necessary paperwork is filed, there is something that does not suite you or adequately reflect your opinions and recommendations, you always have the ROS to backfill. With regards to the function of the ROS, unlike a series of disparate deeds and recorded instruments that can only be obtained by a title search and/or a chain of title, you can tie everything together on the ROS, sort of a one stop shopping for this matter.

Good luck.

[pls7809]

Another reason why this site is great. I am in this same situation also. I am surveying a parcel that is a 50' x 140' portion of a 132' x 330' lot in OC.

My client's deed from 2002 says this: Lot 6, Tract XXX

The adjoiner's deed from 2008 says: The SW'ly 82' of Lot 6, tract XXX.

Plus there is a subdivsion from 2000 over the NW 75' of the SE 150' of Lots 5 and 6. And there's another parcel that's the SE 75' of the SE 150' of Lots 5 and 6.

So I went back in the records to two owners before my client and their deed for the same parcel as my client says: Lot 6, Tract XXX, except the SW 82' and the SE 150'.

It appears when the 2nd previous owner sold to the guy my client bought from, the legal was chopped down to Lot 6 only. I'm talking with the title company right now about doing the correction deed before doing my RS.

[Ian Wilson]

Ah yes, you see, legal descriptions are such simple things. Anyone can write them, really. They aren't that important, either. That's why the "typing pool" at the title company gets tasked to write them or merely copy them from the previous generation.

After all, why bother with some $150/hour uppity land surveyor when we can get the same work done by one the the "girls" in the typing pool for $6.50/hour? And in a few minutes instead of few days these "professionals" take!

Ridiculous what these land surveyor folks charge.

(Tongue FIRMLY planted in my cheek!!!)


BTW - I'm dealing with a set of no less than 16 (YES! SIXTEEN) Quitclaim Deeds filed to get rid of an easement. Unfortunately, the orderin which the deeds were recorded not only DIDN'T get rid of the easement, it actually solidified it! All that was needed was one document, carefully writtenand properly recorded, to get the job done.

[goodgps]

I agree about getting the deed corrected prior to filing your record of survey.

Get the title company on it asap as they are most likely bogged down with foreclosures.

If the title company no longer exists, your client may have to hire someone to "fix" the legal, just like mpallamary says. (implies)
I believe it is a simple typo error in this case.

I still wonder how the legal compares with the title report.

I think you certainly can preceede with the survey process in the mean time.
and if the situation cannot be cleared in a timely manner, place a note on your map as Ben (indicates)

Situations like this, is why we remove the term "slam-dunk" from describing potential jobs.

good

[PE_PLS]

Turns out it was a typo....now the question is, who pays to get this corrected. Is this something the title co. should take care of out of their own pocket, or is this the owner's responsibility?

[mpallamary]

You do. That is what a professional LS does. It is like going to the doctor. You get a check up and advise your patient he/she needs surgery. You give them the diagnosis and they make the call. Sometimes there is insurance and sometimes there is not. If the error is a typo and the title company insured it, they are on the hook. If not, you should send a letter informing the patient of your diagnosis and you would recommend a minor procedure. They need to see if they have insurance or not.

Good luck

[Dave Karoly, PLS]

A friend of mine purchased a ag property, about 5 acres. It has an M&B description. He showed it to me and it didn't close by a lot. Looking at the AP map and the description I said I think you're missing a couple of courses.

I instructed him in how to find the previous Deeds in the Recorder's office. He went over there, he found his predecessor's deed WITH the problem and the one before that with the correct description.

He took that to his Title Company and they got it fixed.

[goodgps]

I have to disagree slightly with mpallimary about the part where "you do"

the title company who created the error is on the hook to file a correction deed and pay for the recording and handling costs.

That being said . . . and to agree with Ian (the great) When I find an errant deed, such as the one found by D K, I usually type up a Legal description and send it to the title company for their use, RATHER than let a title company employee try to fix it. This of course is done after good research. Or in Daves case, a copy of the good deed can be supplied for the title company to act upon. Thats as far as I take it.

Now If I have a typo on one of Mine. . . then it gets fixed on my dime.

Well meaning scriveners can write legals with good intent gone bad.
I have a gooey one right now where an original land owner wanted to secure a certain acreage (maybe). all other deeds sold-off have descriptions that may leave a gap or make an overlap.

A map has been filed to his east on the "gap" line. another map is currently underway on the west side and i'm waiting to see the surveyors interpretation.
More on that later.

Write a deed to annex Canada. They make good beer 8-}

[Ben Lund]

Speaking of errors on grant deeds....

Our client hired us to do a grading plan. Another company was doing a lot line adjustment. After reviewing the LLA, I found some major mistakes in the legal but no mistakes on the plat. I called the company that did the LLA and they “fixed” the legal and rerecorded the LLA.

When I received the copy of the rerecorded LLA, I found they had fixed about half of the mistakes. There still were multiple “to” calls and bearings and distance mistakes (i.e. missing courses, repeat courses, and “to” calls in the wrong place).

I called up the surveying company again and showed them the mistakes. They then called the City for advice and the LS plan checker said, don’t do anything. Maybe the plan checker thought a retracing surveyor could figure out the discrepancies using the plat as evidence. I definitely lost some respect for both the surveying company and the plan checker.

[goodgps]

Ben,

What really troubles me about this situation, is the fact that the "preparer" doesnt recognise an error when pointed out. To consult with the City, may demonstrate incompetence, as to the simple understanding of the process itself.

Example; if a steak is cooked rare, but ordered medium well, it is returned to the kitchen, where a competent cook corrects the problem. He wouldnt simply ask the waitress to sample the steak and report if it is cooked properly ? So the waitress says, "leave it out for the next shift to correct"

Our work is not a popularity contest with a public agency, our work is our work. period. The PA helps a great deal but it is still our work.


harrumph !!