Expert: liznarr - 7/10/2004

Question
Dear Liz,

I recently sold a house and property in WV, and the new owners have contacted me with concerns over the wording of the deed.  

The problem is that when I had a survey done prior to selling the property, it showed that I had a total of 3.736 acres.  But on the deed it only states that there is "3 acres, more or less ".  The new owners are threatening to sue me for misrepresentation.  And there is a neighbor who somehow found out that the deed stated "3 acres" and now he is trying to say they are infringing on their property.  And they are threatening to sue the new owners.  So they want me to take care of it.    

This is a very old property which had been in my family for about 70 yrs and the deed has only changed hands once, and that was when I inherited it from my grandparents about 10 years ago.  And then they only changed the name, and left the descriptions alone.  

So my question is, who should I see about getting the wording changed on the deed?  The lawyer who took care of the closing papers?  Or the title company who actually handled the transaction at closing?  It needs to be changed to reflect the exact acreage to match the survey document.  That is really all that needs to be changed.

So what do you think ?   

Please let me know ASAP as I don't want to end up in court.  

Thanks !
Gary in WV  

Answer
Hi Gary,

Wow!  What a predicament.

You cannot simply “change” wording on a deed.  There is a process to make corrections on deeds, and you need a good real estate attorney to handle this for you.

I would first contact the surveyor who came up with the 3.736 acres and ask how he how he arrived at the total acreage.  Be specific and explain the problem you have.  Surveyors will usually use the derivation clause in your deed to trace previous owners and any previously recorded plats.  If there are discrepancies, they will go to neighboring properties' deeds and/or plats.  As information, your surveyor will have his field notes and can recheck his notes for accuracy of the acreage he computed.

I would then also contact both the lawyer who took care of the closing papers and also the title company who actually handled the transaction at closing.  Since there was over 7/10 of an acre difference in the survey and your deed, I would consider this significant; and I would think either the closing attorney and/or the title company would have questioned this prior to closing.  The words “more or less” are not intended to include major differences in acreage or amounts.

I have always been taught that the legal description in the deed ALWAYS prevails over a survey showing different acreage or measurements … unless, of course, there was a typo in bringing the legal description forward when there was a sale or transfer of ownership.  In the case of a typo, a Quitclaim Deed would need to be executed to correct the typo.  

The legal description in a deed simply does not change.  It is carried forward from owner to owner to owner.  In situations where acreage was added to (or reduced) by a sale or gift from an original tract of land, supporting documentation is required for any additions or deletions to the language in the legal description (which either the closing attorney or title company would handle, depending on the practice in WV).

The fact that your deed says three acres, more or less, is somewhat ambiguous given the dilemma that you are now facing.  As far back as 70 years ago when your family first acquired the property, a landmark or monument could have been, say, an oak tree at the NW corner of a 2-rut road.  Over a period of years, the oak tree could have been cut down and the 2-rut road grown over or washed out … thereby destroying any evidence of a corner or boundary.  

Many times in days of old, owners would make “chop” marks with an axe or hatchet on trees along or near the boundaries of the property to identify ownership lines.  These “chop” marks are easily identifiable (assuming, of course, the trees have not been cut down over the years) and could be a big help to you now.  If the land is wooded, I would strongly recommend that you immediately walk what you believe to be the boundaries of this property with someone who can help you identify any chop marks still intact.  Take pictures and/or videos of ANY and ALL chop marks you find and further identify them with distances and measurements.  This could be invaluable information for you in the event you end up in a court action.

The neighbor who is threatening to sue may or may not have a correct survey of his own property and could have encountered a problem similar to yours and not even be aware of it.  Diplomacy should rule here.  Just be patient and follow the “process” for determining the actual boundaries and acreage.

In instances such as yours, deeds, plats and legal descriptions could have to be traced back many, many years for a resolution and then pieced together like parts of a puzzle for the correct answer.

Some questions that come to my mind for your situation are:

1.   What was your Contract of Sale language regarding the acreage?  In other words, did the Contract specify “Three acres, more or less?”  And was the Contract contingent on a survey?
2.   Who hired the Surveyor, you or the Purchaser?
3.   Did your Purchaser pay “X” amount of Dollars TOTAL for your land?  Or did your Purchaser pay “X” amount of Dollars PER ACRE?  If the Purchaser paid a specific amount of money PER acre, and the acreage ends up being less than the 3.736 surveyed out; you will need to make a monetary adjustment with the Purchaser.
4.   Did you question the difference in acreage previously, and before closing?  If so, was this brought to the attorney/title company/appraiser's attention?
5.   Did the Purchaser of your land obtain title insurance at closing?  (If so, and if the title company insured OVER the discrepancy in the acreage, this could possibly solve the monetary issue of your problem.)
6.   Did the closing attorney reconcile the survey with your Deed?  And whom did he represent?
7.   Was there a Realtor involved in this transaction?  If so, whom did he/she/they represent?

I'm sure that you did not have any idea what the ACTUAL acreage was and that you relied on the surveyor … and also the title company and closing attorney to properly handle the situation.  Get all these people involved.  They should all carry errors and omissions insurance to protect them in the event of mistakes, including any Realtor who might have been involved; and everyone has a vested interest to get this problem corrected.

Good luck to you.  Write again if you have additional questions, and don't forget to rate my answer.

Regards,

Elizabeth Narr