Professional Surveyors and Real Property Descriptions

Composition, Construction, and Comprehension

Stephen V. Estopinal, Wendy Lathrop

• Publisher: Wiley
• Year: 2011
• ISBN:
  9781118084687
• Edition: 1
• Topic: Technologie et ingénierie
• Subtopic: Ingénierie civile

The only modern guide to interpreting and writing real property descriptions for surveyors

Technical land information is no longer the exclusive domain of professional surveyors. The Internet now houses a multitude of resources that nontechnical professionals—such as attorneys and realtors—access and implement on a daily basis. However, these professionals are trained in aspects of law and commerce that do not provide the proper education and experience to interpret and evaluate their land boundary information discoveries correctly. As a result, their analysis is often erroneous and the data misapplied—ultimately leading to confusion and costly litigation.

Professional Surveyors and Real Property Descriptions attempts to bridge the ever-widening gap between the users of land boundary information and the land surveyors who produce it. An expert team of authors integrates the historic and legal background of real property interests with fundamental concepts of the surveying profession in a manner accessible for average readers. These provide the basics for both properly comprehending older descriptions and competently constructing complete and modern real property descriptions that foster better communication. Highlights in this book include:

• An in-depth exploration of historic descriptions and how to read them
  
  

• Coverage of the widely accepted ALTA/ACSM Land Boundary Survey standards and associated property descriptions
  
  

• A diverse collection of examples and practice scenarios
  
  

• An overview of the latest issues related to the use of GPS and GIS
  
  

Written in easy-to-understand language, this practical resource assists nontechnical professionals in understanding exactly what a surveyor does and does not do, and serves as a valuable tool for obtaining the most satisfactory, accurate, and complete real property descriptions.

CHAPTER 1

INTRODUCTION

1.1 PROPERTY

In general, “property” is something that belongs exclusively to someone, whether that “someone” is an individual, a family, a corporation, or other entity, either private or public. As territorial creatures, humans on this continent tend to protect what we consider to be our own property, to keep others from taking it away from us, and to assure ourselves of the entirety of what our property is. Writing descriptions of what we believe we own and the means by which we acquired it is one means of establishing our claims to that property, and this theme will reappear throughout this text.

There two distinct classifications of property, personal, and real, each treated separately and quite differently by our laws.

1.1.1 Personal Property

Generally, if it is movable, property is personal. If property is not land or interests in land, it is personal.

In terms of the law, there are both tangible and intangible forms of personal property. Movable, tangible items such as furniture, merchandise, and livestock fall into the category of “corporeal” personal property, meaning that it has a corpus, a body. However, we can also have intangible personal property. This includes intellectual property: the thoughts in our heads that result in great inventions and the results of our research in the form of reports or other documents. Intangible personal property also encompasses representations of money, such as stocks and bonds.

1.1.2 Real Property

While there are various distinctions within each of the broad realms of personal and real property, we'll be addressing one very narrow category within the latter, focusing on land. This text is about real property and various ways that we describe it.

Real property, in contrast to personal property, is immovable either in fact or by law. It consists of land, buildings and other physical fixtures to the land, along with whatever rights can be exercised in relation to that land either inside or outside of the boundaries of the tract in the form of interests, which we will define in more detail in the following sections.

1.1.3 Ownership

Black's Law Dictionary defines ownership as:

Collection of rights to use and enjoy property, including right to transmit it to others. … The entirety of the powers of use and disposal allowed by law … The right of one or more persons to possess and use a thing to the exclusion of others.

This description tells us that “ownership” is not synonymous with “possession.” Instead, it includes not only “possession” but also the rights to prevent others from having possession and to exclude them from the property. “Ownership” also includes the right to sell or give away the property in a variety of ways, to divide the land, to put it in a will to future heirs, to allow some to enter the land and to prevent others from using or accessing it. Ownership even includes the right to “waste” land by physically destroying it.

This last right is, of course, limited to some extent by the various laws and regulations preventing us from doing harm to others. So while we may not be able to dump toxic materials onto our land because they will leach into the water table and affect others in our community, we can perhaps excavate a deep cavern or remove broad swaths of forest, actions that would prevent others from using the land for construction or other possible future uses.

In general, ownership provides us various powers of free action that are protected by the legal system. The exercise of this “sovereign right” over our property is somewhat limited by local land use, zoning, and subdivision ordinances, but we have the right to appeal for waivers from such regulation. We are also required to act within a period of time defined by state law in order to protect our ownership from claims of ownership or use by others, a period of time known as a statute of limitation, which varies among the states.

1.1.4 Possession

Now to see the other side of the issue, we'll look at Black's Law Dictionary to see what it has to say about possession:

… The law, in general recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it. … [Emphasis added]

We have two basic flavors of possession: physical and legal. These may be the same, or they may differ considerably—and that has been the cause of many a battle between neighbors or long-lost claimants to real property.

Actual possession means that I am actually, physically on the land. Maybe I don't live on it, but I might be farming it, or cutting trees on it, or fencing it in for my cattle to roam. Or maybe I lease it to someone under the claim that I have a right to offer actual possession to someone else. The area that I occupy or use, or give someone else the right to occupy or use, is the area in my actual possession. This says nothing about my right to possession, merely that I do have it.

In contrast, constructive possession gives me the legal right to be on property even though I might not physically occupy the land. A deed gives me constructive possession; it transferred someone else's rights to possess the land to me, even if I never step foot on it. Perhaps I live in the Caribbean full time and never visit the land for which I have a deed in West Virginia. I still have constructive possession of that land through the deed that announces to the world (or to the world that cares to research it) that I have the right to be on that land when I wish without asking permission from anyone except perhaps those to whom I've given the right of actual possession through a lease or other agreement.

The term possession comes from the old English seisin, sometimes spelled seizin. The root of the ancient verbiage makes it clear that it is distinct from ownership, although one with seisin may also actually own the land.

1.2 TITLE AND INTERESTS IN REAL PROPERTY

If ownership is a collection of rights in land, title is the union of all the elements that make up ownership, a merger of all the rights in and to property. Black's Law Dictionary tells us that “Title is the means whereby the owner of lands has the most possession of his property,” thereby uniting the concepts of both ownership and possession.

Much of the legal framework by which we use, own, and convey real property comes from European roots, some of it French (as Napoleonic law in Louisiana), some of it Spanish (as in California, Texas, and other areas formerly under Spanish rule), and much of it English. The most common is the English system, and that will be the primary focus of this text. Due to the various historical bases in different parts of the country, surveyors should always research and be familiar with laws in the areas where they practice.

Much of our legal system relating to real property and the language we use when discussing real property arises from English feudal roots. For this reason, that historic background provides useful context for understanding modern treatment of land and land rights.

1.2.1 The Concept of Title

Private ownership of land is a relatively recent concept in the history of humankind. The rise of royalty in Europe brought with it “ownership” of all the conquered land, meaning that the people actually residing on and working the land were merely there at the pleasure of the monarch.

The concept of a monarch or sovereign owning everything crossed the oceans to the New World, and all the explored and settled lands on this continent were claimed in the name of a monarch who never set eyes nor foot on it. This did not prevent kings and queens from granting lands to settle debts—as the king of England so famously did in granting Pennsylvania (literally, “Penn's Woods”) to William Penn—or as favors to those who had provided special services or had particularly pleased the monarch. Of course, such grants ignored the fact that there were already people on the land, Native Americans who had no concept of private land ownership and instead treated it as communal property to be kept in stewardship.

American property law and our language related to land are primarily based on the old English feudal system of ownership, which originated during Europe's Middle Ages. This was a method by which the monarch (who claimed ownership of all the land as holder of the crown) controlled all lands throughout the kingdom. Recognizing that it was impossible to control all the land alone, the monarch granted a feud—also called a fiefdom, a fief, a feoff, or a fee—to those who swore loyalty to the crown, or to the lords who in turn had sworn their loyalty to the monarch. This feud or fee was the right to possess the land, but not necessarily ownership of it.

The holders or possessors of the land thus granted were called tenants, and tenure described the terms of their right to hold the land (their tenement). Tenure might consist of a number of bushels of corn to be paid annually, or military service, or any other service or payment demanded by the distant owner. The tenant's rights to the land were also called his estate, forming the basis for the modern phrase real estate.

The modern term estate refers to the degree, extent, and nature of interest that an individual has in real property, with interests in land being that person's right, claim, legal share, or title in it. It may be that an estate contains less than full title or interest in land, a matter that will be discussed shortly.

Tenancy, or occupation and possession of land, could be of two sorts, free and unfree, with different rights or interests associated with each. Free tenure is the modern freehold estate, to which some of the centuries-old elements still apply. Unfree tenure is an estate of less than full ownership, having fewer terms of freedom in holding the title than are available to holders of free tenure. Current equivalents are leases and other limited interests in land. With an unfree tenure, the tenant, or possessor of the land, does not have the same rights of selling, dividing, or willing away the land as does a holder of free tenure.

In the feudal system, the tenant of the land was required to swear loyalty (fealty) to the grantor, the lord of the land (landlord). The ceremony of swearing fealty was called homage, an acknowledgment of the limited right to be on the land but not necessarily to own the land; more precisely, tenants had possession rather than ownership, and could not sell it without the lord's consent or pass it on to their heirs after the tenants’ death. If a tenant wished to dispose of land to which he had been granted seisin (possession), the lord who had granted that possession (the landlord) retained the right of first refusal, called primer seisin (first claim of possession), as well as inheritance tax (relief) in the form of a year's worth of yield from the land upon the transfer of real property interests to heirs of a deceased tenant.

A lord's dominion over the property (although technically held in trust for the monarch) was at the expense of his responsibility to protect the tenant's rights and to pay ransom (called aid) to restore those rights or retrieve land that was unjustly occupied. At the same time, the lord (or the crown) received a “fine for alienation,” or a fee for the free and voluntary transfer of land (the current real estate tax), as well as reversionary rights to the land when the freehold tenant had no heir, a situation still called escheat from those early days of private land stewardship. In modern times, the state government in which a property lies gains ownership of it by escheat when a deceased landowner has no heirs and no will.

Terms of “unfree” tenancy included wardship and marriage, meaning guardianship of a deceased tenant's children until age 21 for boys and until 14 or marriage (whichever happened first) for girls. Under freehold estates, guardianship ended upon the heir turning 15, with the guardian making annual reports to the lord about the profits from the land. Wardship created a situation in which minors below the stipulated ages could not control inherited rights to land; the lord had an obligation to pay for the living expenses of his wards but kept all excess revenue. This system also required the lord's permission to marry, otherwise risking loss of any interests in land that would otherwise have been inherited by the tenant's heirs.

While the most common means of acquiring land rights was tenure by chivalry or knight service (requiring provision of fully equipped knights to serve 40 days of military service annually—an unpredictable any 40 days, and without the possibility of returning home if the 40 days were completed in the midst of battle), other services to the lord or monarch could also qualify. Serjeanty (service) tenure required personal service (perhaps arrows or horses for the militia, or meat for the king's palace), while spiritual tenure required provision of regular religious services. Frankalmoign (free alms) entailed a general duty to pray for the soul of the land donor without having to ...

Table of contents

• Cover
• Title Page
• Copyright
• Foreword
• Chapter 1: Introduction
• Chapter 2: Land Record Systems
• Chapter 3: Directions
• Chapter 4: Map Projections
• Chapter 5: Platting to Describe
• Chapter 6: Composing, Comprehending Descriptions
• Chapter 7: ALTA/ACSM Surveys
• Chapter 8: Situational Awareness
• Afterword
• Table of cases
• Index