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Every conveyance (deed), mortgage (deed of trust), or document transferring, encumbering, or locating a tract of land requires a precise and locatable description of the land to identify it and make the document recordable. A correct, definite, and precise legal description is the only possible basis upon which a title insurance company can insure titles to land.
Any description of land, in order to be locatable on the ground, must have a base of location, either by reference to geographical coordinates, ranch boundaries or corners, recorded subdivision, adjoining lands of record, or to any point or line which can be identified as to its relation with other lands of record. A description of land is void for want of certainty, or may be considered valid only as between the parties to the instrument on assumption that the language of the description discloses to the parties the actual intent thereof
Monuments are of various kinds, some natural and some artificial. Natural monuments, as the term signifies, are those created by nature: trees, rivers and lakes. Texas law prefers natural monuments over artificial monuments. Artificial monuments are those created by persons; for example, highways, boundaries, or a stone or other permanent marker, properly located and witnessed.
Rules of the Texas Boundary of Professional Surveyors require a Texas surveyor to identify monuments by type and whether found or set. A surveyor is to place a cap on iron rods bearing his registration number.
Physical monuments may become legal monuments when recited in conveyances, shown on instruments of record, or so declared by a court of competent jurisdiction.
After an adequate legal description has been drawn (generally as the product of a survey), the most utilized methods in curing boundary problems are the following:
Boundary line agreements
The following is a checklist of items and possibilities that require consideration when insuring a legal description. Their existence may necessitate additional requirements or raise special exceptions.
Have the abutters' rights of direct access been conveyed or condemned?
Is there legal access to and from the property?
Is the access through an easement, and if so, is the easement valid?
Is the access limited?
Is the access pedestrian only and not vehicular?
Is the access through a body of water?
Is the access predicated upon the common ownership of two or more parcels?
Is there any accreted land comprising a portion of the property?
If there is any, is it being excepted or is it being insured?
Is acreage content shown?
Does the survey show by reference to recorded lot and block or by reference to specific recording information for property adjoining the property to be insured? If it does not, it should not be accepted for insuring purposes as it does not comply with the regulations of the Texas Board of Professional Land Surveyors (Rule 663.16(b)).
Boundary Line Agreement
Have any of the boundary lines of the property been established by a boundary line agreement?
Is it necessary to execute a boundary line agreement in order to establish one of the boundary lines of the property?
Is there a cemetery or are there bodies buried within the property?
Is the boundary line of a cemetery one of the boundary lines of the property?
Has any area within the perimeter of the property been formally or informally dedicated or marked for the purposes of street, road, park, public area, public use, beach, resort area, school, church, public square, drill sites, etc.?
Is the legal description defective, erroneous, or insufficient? Does it form a closed figure?
Is there any easement or mention thereof contained in the descriptions?
Does the description contain any exception?
Is there any gap affecting the perimeter of the property?
Is there any gap between the property and any adjoining land, including preventing access to a public road?
Are there any vacancies or excess lands shown?
Does the property border on a navigable or non-navigable body of water?
Is there any mineral or mineral interest being excepted or reserved?
Is any monument being used to describe one of the boundaries of the property?
Vacated portion of highway, road, avenue, street
More Or Less
Is the phrase “more or less” contained in the description?
Does the property overlap on adjoining property?
Does the adjoining property overlap on the property?
Do improvements overlap on adjoining property or onto the subject property?
Are any of the boundaries of the property affected by a party wall agreement?
Is the property within the recorded plat of a subdivision?
Public or Private Roads
Is any part of the property within a public or private road? Is a right-of-way line of any public or private road one of the boundaries of the property?
Is there a railroad right-of-way across the property?
Is a railroad right-of-way line one of the boundaries of the property?
Does the description contain any reservation?
Does a navigable or nonnavigable river form one of the boundary lines of the property?
Does a navigable or nonnavigable river bisect the property?
Vacated Streets, Road or Alleys
Is there a portion of a vacated street, road, or alley within the perimeter of the property or adjacent to the property?See also Bulletin TX000061 and T-19 and T-17 endorsement checklists.
See Also: 19.12 Tenancy in Common.
More Or Less
In a legal description of real property, insertion of the phrase “more or less” is an indication that its dimensions are approximate. Generally, “more or less” is used extraneously, and there is no need to use it when a course ties to a matter on record or ties to a monument.
Computation of Area
In the event the legal description furnished to you contains computation of the acreage or square footage of the land to be insured, you should either delete the statement of acreage or square footage or you should add the phrase “more or less” after the computation of acreage or square footage in the policy description. InTexas, you are not allowed to insure amount of acreage or square footage and if amending the area and boundary exception must leave the language “shortages in area” in Schedule B – item 2.
Changes or modifications in descriptions contained in instruments that have been on record for long periods of time is hazardous and not recommended. Ideally, there should be no attempt to change, amend, or modify an old description; however, insurability often makes it necessary. Remember that any change to be made must be based on the information shown on a recent survey, and that careful consideration must be given to the possibilities of boundary line dispute, gaps, or overlaps.
One acre in the XYZ Survey, Abstract 000, in ________________ County, State of Texas. Because this one acre is unlocatable, Schedule B of the commitment or policy must show the following exceptions: Except one acre of land in the ______________________, as (conveyed) (reserved) to ______________________ by the instrument recorded in Book _________, Page ______. Liability arising from any dispute in connection with the location of the above excepted one acre.
One practical and expedient method to eliminate the possible existence of boundary line problems is achieved by ascertaining the precise locations and dimensions of the boundaries of the adjoining property, and then, using those as the boundaries of the property to be insured. In this regard, obtain copies of the last deeds of record of those properties with common boundaries. These instruments are known as reference deeds. Utilization of reference deeds in the establishment of the boundary lines of a property minimizes the possibility of any boundary line problem.
Rules Of Construction
The application of the rules of construction in the interpretation of a legal description is not a function of title insurance. When the meaning and extent of a legal description is unclear, ambiguous, or uncertain, no attempt should be made to apply or utilize any rule of construction for the purposes of insuring. With very few exceptions, application of the rules of construction of documents must be judicially determined.
Survey Is Necessary For The Purpose Of Redrafting A Legal Description
If a survey is necessary for the purposes of redrafting a legal description of the property to be insured, the title commitment must contain the following requirement: The Company must be furnished with a plat of survey done by a Registered Professional Land Surveyor in accordance with the Minimum Standards of (i) the Texas Board of Professional Land Surveyors, (ii) the Texas Society of Professional Surveyors, or (iii) the ALTA-ACSM Standards, establishing the boundaries of the premises in question. In this connection, the Company reserves the right to redraft, if necessary, the legal description of the property to be insured or to raise any exception it may deem necessary.
Undivided or Fractional Interest In The Property
When insuring an undivided or fractional interest, the legal description must be preceded by the undivided or fractional interest (one-third, one-fourth, one-half, one-twentieth) being held by the owner.
An undivided one-fiftieth interest in and to the following described property:
"_____________________" (legal description).
NOTE: It is necessary to ascertain that the sum of the several fractional interests adds up to one hundred percent.