The Importance of Property Descriptions
Part 2
In
my last issue, I told a horror story. Poor property descriptions
in two contracts led to neighboring owners both having deeds to a three
foot strip of land on their common boundary. The matter is likely
headed for litigation. I promised to provide information in this
issue on using solid legal descriptions in your contracts.
The general rule for property descriptions in
contracts is that they must allow the land to be located with certainty
on the ground. Descriptions can be certain in and of themselves,
or they can refer to other documents or information that provides the
required certainty. In practice, valid descriptions are plat
references, metes and bounds descriptions, references to prior deeds, or
addresses.
The best description you can use is a plat reference because courts
consider plat references superior to any other description. If a
plat reference is available, you should use it, after verifying the plat
is still the most recent one recorded for the property. People,
especially developers during the subdivision process, often file amended
or updated plats. You should use the most recent plat that
represents the property being sold.
Metes and bounds descriptions, meaning compass headings and directions,
are the most certain descriptions after plat references. It is
generally impractical and not common local practice to include such
descriptions in contracts. However, do not rule out the
possibility of attaching a metes and bounds description when
circumstances make it the best available description.
Reference to a prior deed is a quick and secure
way to describe property with the required legal certainty. I have
two cautions about this approach. The first is to make sure that
the seller has not sold any portion of the property. If a sale has
occurred, the prior deed reference will not work. Second, if you
are using a prior deed reference, do not rely solely on the blanks
provided on the current form contract to make that reference. The
current form contract now states, "Some or all of the property may be
described in Deed Book ____ at Page ____." That is too vague to
make a solid reference to a prior conveyance. If you want to use a
prior deed reference standing on its own, insert it in the blank for
"Other description."
A street address can also be a valid legal
description; however, it is extremely risky. I do not recommend
using only a street address, but you should provide it for informational
purposes.
As a cautionary note, you should also not rely on
Parcel Identification Numbers (PINS) as a legal description. The
PIN tax maps occasionally have mistakes, and PINs are subject to
frequent change. The riskiest practice I see is brokers completing
contracts using only an address and a PIN. It requires little
more effort to include a valid legal description, and I suggest you do
so in all your contracts.
Finally, there is also humor even in property
descriptions. I have heard that a deed exists with a description
that starts out, "BEGINNING where grandpa shot the bear . . . ."
If anyone finds that deed, please send me a copy.
Do
not hesitate to contact me to receive more information on this topic or
to suggest topics for future editions of 'A Legal Moment'. You may not
rely on this content as legal advice for any specific situation, but
should instead contact an attorney for specific advice. | 
