What is a Legal Description of Property?
A legal property description is a precise statement that identifies a specific location of a property, whether it be a portion of land or a whole lot. The description is typically recorded by a licensed surveyor in a legal survey completed before the closing. In most cases, it is a complex mathematical statement that doesn’t make any sense to the average person. When a new survey is complete, a new legal description is recorded. The new survey doesn’t have to be filed with the county.
In Georgia, a legal description must be used any time there is a deed or documents reflecting the sale, transfer or encumbrance of real estate. This is very important. A deed without a correct legal description is deemed by the law to be a nullity, meaning that it does not convey or adversely affect any property interest at all. If your property is mortgage secured, the lenders typically will not lend money unless a valid survey is recorded that has a valid legal description on it .
When an attorney is asked to interpret the boundaries of a property, he or she generally must rely upon an old survey which may or may not be applicable due to new development and buildings. The attorney will otherwise find the description referenced in a deed and beginning usually with "from the point," etc. It would normally lead to the street. Once identified, the property is meted out from there in a zigzag manner. Likewise, the distance could be given from street lamp to street lamp. The point is to make sure there is a way to measure the distance in order to recreate the lines of the property.
You cannot just put the word "approximately" in the legal description. It is critical that you use the term "more or less" if you are not certain to give yourself leeway. If you say ‘approximately 5 acres’ without that term, you will be bound to 5 acres.
In a dispute over a property boundary, the law in Georgia requires a surveyor to be called in to measure the property and determine where the lines are. The boundary line established by the surveyor is final and must be followed.
Parts of a Georgia Legal Description
Georgia has three of the most commonly used methods for describing property: metes and bounds; lot and block (of subdivided land); and government survey. Metes and bounds is a description of the boundaries of a parcel of land by reference to monuments or other physical boundaries and includes the measurement of distances, (or ‘metes’), and the directions of the boundary lines (or ‘bounds’). Lot and block refers to a specific description of property contained in a reference book, normally the subdivision plat book, along with other information such as the Size of the lot, a reference to the subdivision plat book and page, and the identifier by which the lot is referenced. Government survey refers to the rectangular survey method that defines land by dividing it into townships under a grid system.
Where to Locate a Legal Description of Your Property
Most frequently, the legal description of a property is found on the deed when it is purchased or sold, but you can’t always find that. In Georgia, each county in Georgia has an online system for looking up deeds, tax assessments, building permits and other information about real estate located in Georgia. This can be done by going to the county’s tax assessor site or the clerk of court’s site. You will need to know the county where the property is located and some of the facts about the property (owner’s names, subdivision name and/or lot number, address, etc). If you know the parcel number for the property, you can look up the property by that. A street address will typically give you the answer too. If you can’t find the legal description of your property, ask your closing attorney.
If you are buying the property you will have access to this at the closing and you can ask your attorney about the best way to find this information in your county of Georgia too.
The Importance of Legal Descriptions
Inaccuracies in the legal description of a property can lead to a host of legal problems. From jurisdictional issues to boundary disputes with your neighbors, inaccurate legal descriptions can be problematic throughout the life of the property.
Jurisdictional Issues
If you are not certain that a properly executed deed was prepared and properly filed, you may face jurisdictional issues even if you have possessed the property by adverse possession for a period of time. Thought you owned all the property next to your house because you and your quiet old neighbor did a deed with informal legal assistance to settle an age-old dispute? It is possible that the new owners of your neighbor’s property could seek a judgment to force you to return the portion of the property you believed you owned. You may feel aggrieved by this outcome, but without the proper legal description on a well-drafted deed, you may be forced to comply with the court’s order. On the other hand, if your neighbor can’t find the deed they thought they had, you may rest easy knowing that you will not be held to a court’s ruling.
Boundary Disputes
Inaccurate legal descriptions of your neighboring properties can lead to boundary disputes that may result in losing that portion of land you believed to be yours. You may believe that a boundary survey conducted at the time you and your neighbor purchased your properties fifteen years ago accurately reflects the boundary. Your neighbor may disagree and decide to build an addition ten feet over his existing structure ten feet onto "your property." If this were to happen, you could be forced to notify your neighbor that the structures being erected are trespassing on your property. You may end up having to pay for a survey to determine the proper boundary lines, or your neighbor may ask you for permission to erect the structures anyway and pay you ground rent.
In court, it will be difficult for you to convince a judge that your neighbor is encroaching on your property if the recorded deed describes the neighbor’s property in such a way that your clear and convincing evidence fails to evidence a dispute in that area. Properly prepared legal descriptions protect both the buyer and the seller of immobile property.
Correcting an Inaccurate Legal Description
The remedy to cure a defective legal description will usually not be based on common law. The two most common methods are a reformation under O.C.G.A. § 44-2-86 or reformation of a deed to correct a scrivener’s error under O.C.G.A. § 44-6-32. Reformation under O.C.G.A. § 44-2-86 requires clear and convincing evidence to establish the intent of the grantor, the common mistake, and proof of continuing and remediable conditions of a land transaction. The definition of a mistake in the context of real estate is not well defined and will vary from state to state. The grantor error must also be proven by clear and convincing evidence. Once the error by a party is established, Georgia courts require reformation to be sought within a reasonable time, which is within four years of the date of the erroneous document. A Dublin court held that reformation was the exclusive remedy for a defective deed concerning a grantor error that did not impact the legal description. In the Williams case, the grantor mistakenly referred to Peterson Road instead of Lewis Franklin Lane as a given point of reference in the legal description. However , the court observed that the metes and bounds called for a specific distance to a specific point. The court reasoned that these points were the most important reference points because they were specific. Since there was no mistake concerning the survey of the property, the court ruled that reformation was the exclusive remedy. See Williams v. Willard, S.C. of Georgia, 331 Ga.App. 350 (2015). The accompanying Restatement (Third) of Property: Servitudes § 2.3 recommends a different standard. "A grantee’s duty to search the record title is satisfied when a reasonably diligent title search discloses the existence of the defect of record." If the defect is discovered within ten years of its date, the adverse possessor may seek a judicial order declaring that the claimant holds fee simple title, free of any claim under the deed. The grantee’s search provided him with constructive notice of the defect justifying the application of the doctrine of constructive notice to the grantee. If the grantee’s search is untimely, he must take it upon himself to cure the legal description while he still has possession. Although less likely, a protected occupant grantee could correct a defective legal description and transfer good title if they can show an intention to transfer the property.
The Surveyor’s Role in a Legal Description
When a buyer closes on a tract of land, one of the conditions that the buyer may request is for the seller to provide the buyer with a survey of the property within some time frame after closing. The survey will typically show the boundaries of the property in some type of drawing. Also, a written description of the property will include a metes and bounds description of the property. The term metes and bounds comes from centuries gone by and is the way that land was described many years ago.
Essentially metes are the boundary corner markers themselves which basically define the property. The bounds are the courses and the distance between the corner markers. A surveyor who prepares a metes and bounds description will prepare a drawing of the property showing the property’s boundaries and will prepare a metes and bounds description for the owner after doing a survey of the property.
This metes and bounds description will actually become part of the legal description of the property and will be recorded in the public records. The purpose of the metes and bounds description is to describe the boundaries of the property being purchased by the buyer. A good metes and bounds description will allow you to locate your boundary corners. If someone were to ask where the property boundaries are located you could point out the corners and say that the property lines run respectively between those four corners. The surveyor will do that by doing an actual survey of the property itself.
A metes and bounds description is very helpful so that you can actually go out and locate the corners that the property is supposed to fall between as well as locate the property lines. A plat of the property is also helpful in locating the corners. The surveyor will also use existing plats that are recorded in the public records or other surveys that are recorded in the public records. If a metes and bounds survey is very old, then it may be difficult to figure out the boundary corners or the property lines because the original features in the area might not exist today. Some surveys describe which way to go at a corner or side of the property and may say turn east or west depending on the direction that you are going.
In Georgia, whenever a buyer goes to close on property, sometimes a lender is going to require a survey of the property or at least require an affidavit from the seller that there has been no change in the size or shape of the property since the time of closing.
Common Questions Regarding Legal Descriptions
As with any type of language that is legal in nature, the terms used in a legal description of property can be confusing or have a number of different interpretations. Below are some of the most common questions we had when dealing with property descriptions.
What is metes and bounds?
Essentially, "metes and bounds" is a system of defining a parcel of land by describing its linear features, such as the length of a parcel’s sides, and then describing either "bounds" or landmarks positioned along the way. If you are drawing a map, you would be walking the land with an instrument that measures your travel, like a wheel. The distance you traveled in each direction would be noted and, if there are any landmarks in the area to note, you would make those notes as well .
An example:
"Commencing at a stake on a road; running northwest 18 chains and 10 links to a stake; thence south 88 degrees west, 10 chains to a stake; thence south 18 chains and 5 links to a stake; thence east 10 chains to the commencing stake."
What is a plat?
A plat is a map of a survey by an engineer or surveyor, in which the dimensions of all of the property lines and the lot lines are recorded. It is basically a sophisticated map of a property that is much easier to read than a metes and bounds description.
We can help with your legal description of property needs, whether it’s a metes and bounds or a more modern subdivision map. We can also help with other aspects of a lot, such as permits for grading and paving, or water and sewer permits. For more information or to get started on your lot, contact us today.