Shouldn't a Prelim contain all relevant references?

[Lee Hixson]

My title company has me stumped. I need some advice before I get back to them.

In a nutshell, it appears to me that the title company is trying to shift the burden to me to decide what conveyances do, or do not, impact the subject parcel. If necessary I will attach the legal description, but it really boils down to a generic question so I will start with a summary.

Parcel 1: It is a metes & bounds description of a 112-acre parcel. Following the description is a list of 4 exceptions where strips were granted to various railroad companies.

But here's the kicker: following the 4 exceptions there is this unusual qualifying clause: "Excluding from exceptions a, b, c, and d, above those portions thereof which have been deeded back to XYZ Corporation."

(Note: this strange clause appears in both the vesting deed and the PTR.)

So, obviously, over time some of the railroad strips (or rather, portions of them) were abandoned and granted back to the private owner.

But these mysterious "excluded portions" are not defined in the PTR. They don't list any references and there are no descriptions. I have repeatedly requested that the title company provide me with a list of those conveyances so that I know exactly which portions were deeded back by the railroad companies.

In effect, they are telling me it's my problem. They said they can't plot these "portions" because they don't know how to interpret stationing on old railroad maps. But that's not the issue. I can plot them, but first you have to give them to me. Why should I be the one to decide which conveyances are pertinent?

Isn't that their obligation? Am I missing something?

[Ian Wilson]

Ask them for a dollar one unlimited indemnity policy at no cost To you for each of the exclusions naming you as full insured and giving you the right to choose your own counsel to defend any lawsuits arriving fom their negligence. That'll perk up their ears.

[Lee Hixson]

m4man......The current Assessor's Map shows a single strip. However, my research so far indicates 3 or 4 additional strips granted over time, with various slivers added here and there (to fill in gore areas?)...a veritable patchwork of spur lines that ran into this old sugar factory. Obviously, as needs changed, portions were abandoned. What emerges so far is that, at one time, it resembled a mini-railroad station yard. The neighbor says that only the main line is still being used--as a parking space for unneeded cars.

[Jim Frame]

"In effect, they are telling me it's my problem."

Title companies aren't in the business of protecting landowners, they're in the business of collecting premiums and minimizing payouts ("managing risk"). In the old days (20+ years ago) the focus of their risk management was the maintenance of local title plants available for the use of local title officers who understood where these properties were located and how each title transfer affected them. Then someone in the industry figured out that they didn't really need to understand all those messy title details; they could make more money by consolidating the local title plants into regional data centers, and dumping the local title officers in favor of regional execs who are title officers in name only. Sure, they lost comprehensive local title knowledge in the process, and access to the maps and documents supporting that knowledge got kind of sketchy because the changeover to regional plants resulted in a bunch of unreadable scans, misidentified documents and ill-trained low-wage back office staff, but since their costs dropped dramatically while premiums remained the same, the bottom line looked a lot better. Title insurance went from a prevention-based business to more of a pure gambling play.

The title companies also discovered that their loss of title expertise had the happy effect of shifting liability onto surveyors. The latter group used to look to the title companies as knowledgeable resources, and many surveyors had trouble adjusting to the new reality. Unable to obtain detailed title information from the title companies, many surveyors chose to wing it when sticky title matters arose, hoping that nothing went wrong. When something expensive cropped up, the title company could point to the surveyor and say, "He did it." And often he had.

From a California surveyor's perspective, title companies are little more than bloated paper pushers now. Prelims (and, presumably, many of the resulting policies) often fail to pick up encumbrances, and sometimes the estate itself is incorrectly described. Obtaining information on anything out of the ordinary is like pulling teeth. Remember when you could just call Customer Service and get copies of documents? Ancient history.

So yeah, they're telling you it's your problem. And you'd better be careful how you go about solving it, as the title company most definitely doesn't have your back. Caveat agrimensor.

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[Anthony Maffia]

Discuss the problem with the client and their attorney, and let them understand how the title company is dropping the ball. They'll either make the title company jump or fire them.

You can also research yourself, because the list of company names for the sugar plan is probably small. But even if you do, I'd add a cya note explaining the limitation of the boundary survey.

[land butcher]

We ALTA'd a bunch of sugar beet plants once and yes, they look like mini RR yards.

I forget which company owned the plants at the time and we did not go as far north as Yuba City IIRC. But maybe some old ALTAs are laying around somewhere.

RR info is hard to get and hard to plot.

Title companies, per the last page of fine print, have limited their liability to the amount of title ins on each policy. They are basically useless these days.

[E_Page]

The identification of what is owned by your client according to record is a matter of title. That is the title company's purview, and is a determination that most surveyors should not attempt to make, especially if you are not contracted specifically to perform that research.

You need to place the responsibility of determining the basis of written title firmly back in the title company's lap. I like Anthony's idea of applying pressure on them through the party paying the bills.

I also like Ian's idea (if you have sufficient confidence in your ability to conduct thorough research for this - sounds like one where parts could easily get overlooked). Let them know that if it's a matter of them simply wanting to shift the effort to you, fine, you can do an addendum to your contract for that. But they get to keep the liability by underwriting your research efforts that you will be doing on their behalf.

Your client and their attorney should be able to comprehend the easy concept of the division of responsibilities. The title company tells the client what their basis of written title is, and you tell them where the parcels described in the title documents are on the ground. Simple concept.

[Lee Hixson]

"The identification of what is owned by your client according to record is a matter of title."

Even though my reply to the title company preceded the above comment by Evan, that's basically what I said to them. This may lead to using a new title company.

Thanks for the comments and support.