If someone asked you where you live, I bet your typical response would be the name of the city or state where your home is located. If you had to be more specific, you might even give them your street address. But what if you had to be even more specific than that? What if there was a dispute as to where your property ends and your neighbors begins? A street address, while perfectly acceptable for day to day life, doesn’t actually define the borders of your property. That’s what a legal description is for. The actual directions a surveyor used to define the perimeter of your property, in relationship to adjoining properties. There are different ways of describing the portion of land that you own, but today, I want to talk about one of the more popular methods and what happens if the legal description is incorrect.
A metes and bounds survey system dates back to the original Thirteen Colonies and English common law. The basic idea is that by giving very specific instructions, down to the 1/60th of a degree (a full circle being 360 degrees), a surveyor can record the perimeter of your property with great precision. The downside is using this style of defining your property is tedious and can result in mistakes because of how complicated it can be. For example, in the legal description of your property, you might see language such as “Commence at the Northwest Corner of tract A-6, Thence on a plat bearing of North 00 degrees, 00 minutes, 37 seconds West a distance of 32.00 feet…”. As you can see, it’s a little complicated to try and make sense of what these directions are telling you about your property.
Now, imagine your job is to create this longwinded legal description every day for hundreds of different properties. Mistakes are bound to happen, but when it does, it could impact your property rights. For instance, in one of our cases, a portion of the client’s legal description in both her mortgage and her deed are incorrect. See if you can spot the mistake: “Thence south 89 degrees 59 minutes 32 minutes east a distance of 72.00 feet to the point of the beginning…” The correct description should state “Thence south 89 degrees 59 minutes 32 seconds east a distance of 72.00 feet to the point of the beginning…” The difference between 32 minutes and 32 seconds might not make much sense, but it does mean that there is a flaw in how this client’s property is defined. This type of error could mean that the client may have difficulty in selling the home because the “title is not clear” – which really means a title insurance company has discovered the error and can’t knowingly ensure the title to the property without the mistake being correct. In this specific example, the mistake in the legal description goes back at least 3 prior homeowners!
All of that being said, it’s important to review the legal description in your mortgage and any deeds associated with your property. Not only may you experience issues when trying to buy or sell a home with an incorrect legal description, but it could also impact a bank who is trying to foreclose on your home. We often see these types of errors in the context of a foreclosure action and it is something the bank may try to fix. Their complaint may include language such as “Reformation of Mortgage” or “Reformation of Deed”. While it’s possible for the bank to correct these errors, the bank’s failure to fix the legal description of your home may actually help you defend the overall foreclosure action.
If you believe there is an error with the legal description in your home, contact us to set up and appointment to go over your options. Click here for more information about foreclosure defense.
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