Vantage Point: Read the Deed!

When my husband and I sat down to sign closing papers to buy our current house, I asked to see the deed before we started. Within minutes, I stopped the closing. Only the description of one of the two tracts that made up the lot was included. Ooops, said the closing attorney. My husband was clueless until I explained it to him. An hour later, I read through the deed again and nodded that we could move forward.

Because I’m a surveyor (and semi-OCD), such a check before that major purchase was second nature for me. But I’m working through someone else’s 42-year-old carelessness for which resolution presents difficult choices.

In 1981 a fishing and hunting club (“the Club”) thought it bought two lots. The caption of the deed (the part with the general description of the transaction, listing the parties, the date, the amount being paid, the state, county, and municipality of the land being conveyed, and often tax parcel identification) listed two tax map parcels. However, the body of the deed (the part with the more specific description and terms of the conveyance) only described one of those parcels, being a single lot on a recorded 1949 subdivision map.

To add confusion, tax lot numbers and subdivision lot numbers differ by one because original platted lot 1 was later divided into tax lots 1 and 2. The deed’s caption says it conveys current tax lots 20 and 21. The body of the deed describes platted lot 20 – which is tax lot 21.

The Club later sold platted lot 20 (tax lot 21). Now it wants to sell platted lot 19 (tax lot 20). Serious questions about ownership of that lot mean no title company is willing to insure it. The Club never built anything on the lot but has paid taxes on it since 1981. That proves nothing: tax assessors don’t care who pays taxes on a property so long as taxes are paid. As further “proof” of its ownership, the Club has offered copies of meeting minutes from 1990 when it approved a potential sale of this lot. While the sale never went through, the Club’s vote to approve it doesn’t prove its ownership of the lot in question. I can agree to sell you the Brooklyn Bridge, but it doesn’t mean I own it.

Somebody from or representing the Club clearly did not read the paperwork carefully before finalizing the 1981 purchase. How can this messy situation be resolved? We can start by asking if the grantors to the Club even owned both lots listed in the caption of the 1981 deed, or if that was a typographical error. If they did own both, one solution could be for the Club to get a corrective deed for the questionable lot from them or their heirs. That’s unlikely after all this time.

What about a quiet title action, based on peaceable possession for more than the statutorily required time? Peaceable possession can be proved, since no one else has disturbed the Club’s possession (mowing and keeping trash cleared) beyond the time required by state laws. But this vacant lot, formerly 40’ by approximately 125’ but now partially eroded, is only worth $2,500. Legal notices and expenses would exceed that amount before the action was complete.

Are there any other options? There is one that is unacceptable to the Club: it could stop paying taxes on the lot and let it go into foreclosure. The Club would save the money it had been paying in taxes, avoid the time and expense of tracking down its 1981 grantors or their heirs, and sidestep the complications of a quiet title action. Perhaps it is pride that prevents such a choice at the present time, so the situation is in limbo.

Such self-inflicted problems from inattentiveness to details are rampant. An organization sold what both parties thought was a conservation easement to a state agency. However, the deed language clearly indicated a full fee title transfer. The state agency, trying (sloppily) to correct its inadvertent acquisition, recorded a corrective deed stating that it meant only to acquire an easement and not fee. But the deed was from itself to itself, instead of from the organization to the agency. Since it already had full title (for the negotiated price of an easement), the agency didn’t “correct” anything.

The muddled situation only became evident years later when the state agency agreed to purchase the property from the organization—which had been maintaining and paying tax on it, believing itself the owner. Legally the state agency wouldn’t need to buy the lot again, but ethics demand otherwise. Another corrective deed (fee title from the state agency to the organization) filed before the new transaction is the right thing to do. And hopefully both sides will read the deeds this time before finalizing them.

About the Author

Wendy Lathrop, PS, CFM, CFS

Wendy Lathrop is licensed as a Professional Land Surveyor in NJ, PA, DE, and MD, and has been involved since 1974 in surveying projects ranging from construction to boundary to environmental land use disputes. She is a Professional Planner in NJ, and a Certified Floodplain Manager through ASFPM.