The Basics of Legal Descriptions
A legal description is used in a legal document to describe the subject matter of the document, such as an interest in land (a deed), or a right in an estate document (such as a will). The scope of the land area is normally defined by metes and bounds in a deed, or a specific parcel number which is usually defined in a tax assessor’s plat map.
Examples include the following:
- "The property described in deed dated xx/xx/2007 and recorded in County Recorder’s Office Grantor Grantor County, Kansas, Instrument No. XXXXXX, more particularly described as: LOTS 1, 2, 3, and 4 IN BLOCK 1 OF THOMPSON ADDITION TO THE VILLAGE OF BUXTER IN COUNTY, KANSAS." It is obvious that reference is made to the property included in the legal description included in the document.
- "The 30 acres more or less located in the north-west quarter of the south-west quarter of Section 24, in Township 2 South, Range 1 East, in the County of Brown, and State of Kansas, more particularly described as: BEGINNING at the northwest corner of said tract; thence running east 887 feet; thence south 142 feet; thence west 887 feet; thence north 142 feet to the point of beginning."
- "That parcel of land in the City of Wichita, Kansas, described as follows: Beginning at the Northwest corner of Lot 5 in Block 35, in the City of Wichita, County of Sedgwick, Kansas , and running thence South 121 feet, thirty-seven and one half (37.5) inches; thence West 10 feet; thence North 121 feet, thirty-seven and one half (37.5) inches; thence East 10 feet to the point of beginning."
- "That certain lot or parcel of land in the County of Wyandotte, State of Kansas, more particularly described as follows, to-wit: That portion of Lot 55 in Block 1, in Summerside Subdivision, in the City of Kansas City, County of Wyandotte, State of Kansas, bounded and described as follows: Beginning at the Northwest corner of said Lot 55; thence South 2 degrees 57 minutes 10 seconds East along the West line of said Lot 55, a distance of 8.85 feet to the north line of an existing sidewalk; thence South 82 degrees 09 minutes 35 seconds East along said sidewalk line, a distance of 1.80 feet; thence leaving said sidewalk line South 80 degrees 31 minutes 00 seconds East, a distance of 5.00 feet; thence North 2 degrees 57 minutes 10 seconds West, a distance of 6.34 feet to the NW corner of said Lot 55; thence South 89 degrees 27 minutes 54 seconds East a distance of 0.18 feet to the true point of beginning. The above description is based primarily on a correctness of survey and a field re-location of monuments made on the ground and is approximate and subject to commissioning and certification by a licensed land surveyor in the State of Kansas.
Components of a Legal Description
Legal descriptions must include key elements such as boundaries, measurements, and reference points. The nature of each element is dictated by the type of document, but some are fundamental regardless. Boundaries typically include specific delineations of the property, such as neighboring properties or landmarks on the landscape, to provide clear, unambiguous starting and ending points. Measurements, including dimensions, square footage and elevation, may either be based on surveys or rely on government benchmarks and leveling data. The units referenced may also vary depending on the era in which the legal description was created (e.g., acres, rods, chains). Reference points can range from one or more corners of the property, if land surveys were not used, to lines of latitude and longitude, to geographic landmarks. Having all the key elements of a legal description present and appropriately expressed is the cornerstone for legal validity on the basis of accuracy and thoroughness, as well as consistency with other calculations.
Different Styles of Legal Descriptions
While the metes and bounds system is prevalent in the United States, some areas of the country use the Public Land Survey System (PLSS) which divides land into six square mile townships and further subdivides those into sections. Sections are generally one mile square and further subdivided into quarters. For example, a legal description of a section without regard to the parcel type or boundary might look like this: The SW ¼ of the SE ¼ of Section 15, Township 1 North, Range 1 East, Pearl River County, Mississippi A property description of a quarter section or less may be as follows: "Commencing at the SW Corner of Section 15, Township 1 North, Range 1 East, and running North 320 feet to a point set in concrete, the Point of Beginning of the parcel and parcel ending at the East property line of Lee Jones." A third type that courts are encountering more often than you might expect is the government patent description. The United States Government typically issued patents for public land. Similar to the sections just mentioned, a government patent description would refer to the subdivision at the time of the patenting as well as the modern subdivision. Where metes and bounds, PLSS and government patents have problems with the four corners problem, the lot and block system does not seem to suffer from that issue. For example, a description of a residential lot might look like this: Lot 10, Block 5, T. Brown subdivision of Pearl River County, Mississippi Of course, the most common use of a lot and block description will be to apply an easement across multiple properties. More than likely, the lot and block description will be from a plat that has never encountered a four corners issue since a map clarifying the four corners issue is likely to have been created whenever grantors, grantees, and neighbors were trying to figure out their relative positions to each other and resolve the boundaries.
Common Pitfalls When Drafting Legal Descriptions
Even the best of us have sometimes run afoul of a picky title examiner, so it is worth our time to consider examples of the pitfalls that often come with issues in legal descriptions:
The area is incorrectly labeled. This happens when "Parcel A" is not found on the deed’s sketch or Plat map. One meets a natural obstacle or other condition not shown in the deed. A monument is missing, incomplete or inconsequential. The best method here is to describe the missing monument by its directions, distance and relationships to recognized features. The "traveling the calls" differs from the positions shown on the provided Plat map or sketch. A promised easement is not found on the ground. The names of owners and their successors are wrong. No statement of the intended use appears. One or more of the specific provisions of the civil code on "description of real property" do not appear. No indication of the local zoning is found. The description does not contain metes and bounds, but simply uses terms like "on the left," "in the Northwest corner of" or "not to extend an area already reserved by" or similar terms.
All strategies to avoid these pitfalls come down to careful reading of: The prayer for relief and a map of the area involved. The deeds and documents of prior owners. The current zoning, the plans for the subdivision and the plat.
The Dos and Don’ts of Legal Descriptions
To ensure accuracy in legal descriptions, it is essential to always double and triple check your measurements. A good tip is to use a laser measurer with a display that can be held close to other reference points in the area so that no one is standing in the measurement path and preventing another reference point from being seen.
Additionally, always compare your measurements against the plotted map of the property, and then plot the measurements back in so that you know absolutely that the description makes sense. If there is any way that the shape does not make sense, or does not match up , there is an issue with the measurements or the description. Correct it before you send your proposed description to anyone to ensure that you have accurately captured the area and shape that you believe you have captured.
Finally, always use clear, exact, precise language, avoiding "non-legalese" words to ensure that the description, if challenged, can be reviewed and relied upon to accurately reflect what everyone knows the description to be. Too many times practitioners and engineers often insert more colloquial terms into descriptions thinking that it will be more understandable, but in many cases this is not true.
The Influence of Technology on Legal Descriptions
Technology plays a pivotal role in the creation of legal descriptions. Geographic Information System (GIS) and Computer-Aided Drafting (CAD) have become the primary resources for surveying, drafting, and filing land surveys and legal descriptions. While the majority of legal descriptions are still created by licensed land surveyors, they are increasingly relying on GIS and CAD to establish the boundaries for subdivisions, condominiums, planned unit developments and other common interest communities.
Any time there is a question about what is on the ground, the best and often only way to resolve that question is to engage a surveyor. The licensed surveyor uses their training, experience, tools and technology to create a precise survey that obtains the rights that you need to satisfy your agreement with the seller for the land that you are looking to buy.
Technology can also be used to draft a legal description for other real estate and commercial transactions. For most lawyers and clients, the level of accuracy typically required for legal descriptions can be achieved. However, technology does not replace a knowledgeable lawyer or surveyor, they simply make the process more efficient, which ideally results in cost savings to the client.
Legal Issues Surrounding Descriptions
When it comes to legal descriptions, legal standards are established in multiple ways. Legal standards are established by law (statute or case law) and, when case law is involved, can change based on the precedent set by a court. Ideally, the legislature has provided the guidance necessary to protect the public and promote the sound development of the law, but that may not happen or may take decades.
Unfortunately, cases that are similar in nature but are located in different parts of the state may not be covered by the same statute or a case setting precedent for that case might not exist in the particular area.
Professional liability that arises when something goes wrong despite one’s best intentions , comes into play in these situations. Professional errors can be identified as either an omission or a commission. An omission means something that wasn’t done; a commission means something that was done either by mistake or negligence as opposed to intentional. Legal descriptions that are poorly phrased and tough to interpret are an error that comes from omission. An incorrect description or explanation that misleads a seller into believing something that isn’t true is an error that may fall under a commission. Because courts tend to hold attorneys responsible for the highest professional standards, legal descriptions dealing with real property are designed according to generally accepted surveying practices and standards of care. That said, it doesn’t mean that attorneys are peer reviewers of surveys or land descriptions. However, they have a responsibility to provide competent legal advice to include effective legal descriptions of real property.
Don’t be surprised if the court finds someone liable for a mistake that is beyond their control. The law is still evolving but it doesn’t change the fact that it is up to the legislative branch of government to pass the laws that govern the standards of care required when completing a legal description.