A confusing Situation
Hello, I am in NJ and have a situation I was wondering I could get some advice on. It's somewhat a long story.
In 2015, my husband and I purchased an older home in NJ. This home is a duplex and was built in 1860. We closed on the home and had asked for a survey to be done before closing, around January. We closed on February 15th. Through my own insistence on getting a copy of the survey with my attorney at the time, I came to find out that the survey had been delayed, until March 12th because of weather (snow). This property does not have parking and parking is not allowed in the district because the roads do not allow for it. For the longest time, we parked on the side of the house which is technically on the property and also on a neighbors property that was a large parcel that had an abandoned building on it.
This building and lot (the abandoned one) was up for sale in 2017 and I asked to purchase some of the land so that we could park solely on our property. Because of the subdivision restrictions of the town and, I believe, the lack of buyers, that opportunity did not come to pass.
Fast forward to today. A person purchased the property in 2018 and alerted me to the fact that we were parking on his property etc. He was nice enough to let us continue parking there. I asked him for purchasing the required land, but he said it wouldn't be possible because he would like to improve the lot, put in townhouses, single family homes, and restore an old historic building for commercial use. He instead told me he would be willing to deed to me spots for parking in perpetuity.
His proposal, which came in about a year later in August of 2019, amounted to 32,000 for four parking spots, and half of my backyard, which he claims, is actually his from an old survey done years ago. I flat out refused the proposal because I thought it was ridiculous. Instead, I decided to build a somewhat narrow driveway leading to the back, and take half the backyard as a parking lot for vehicles; not ideal but the best that could be done given the situation.
The town asked for a final survey to be done on the property because of the nature of the property and the narrowness of the proposed driveway. I obliged and contacted a company. They asked for a copy of the original survey done when I bought the property and I sent it to them. This survey company came to tell me that the dimensions stated on the deed, and the survey done when I bought the property do not match, and the discrepancy is to the tune of 2,000 square feet in my favor, 30 feet more in the back yard, and I believe 8 more feet on one side. This 8 feet would now be full on where this new neighbor wished to build his parking spots.
I have attached the survey done in 2015 and the deed dimensions.
My question is this:
What is my recourse here? I just want to have parking for my tenants. I don't want to cause an issue with the neighbor who is improving the abandoned lot, but I also want to know if I'm entitled to compensation if I bought a property that was 2000 square feet larger than I thought. I am in contact with the title agency as well to try and get the chain of title to see where a discrepancy could lie. As far back as 1996, the deed has the same dimensions. However, the deed for the adjacent lot owned by the neighbor has a deed in 1980 that has dimensions in line to what my property was surveyed as. Which is correct? Do I have to go back further in time to see?
I'm sorry this was such a long post, I want some semblance of an idea of what is possible as I look for an attorney.
The deed distances and courses includes land on the front of the property the survey doesn't. Other than that there's not a lot different between them.It could be the deed once included or still includes half the roadway.
Also odd that the description would not be Lot 2 of Block 302 unless the original parcel was not the same shape and size as Lot 2. May need a record search starting in 1860 forward.
I think the suggestion to go back to original parcel subdivision in title and then work your way forward through the chain of title is going to be the best way to figure this out correctly. If there is a complete subdivision plat of the whole area this Lot 302 and the surrounding lots came from, that might be a reference point you could start from a little closer to modern times. The way to think of it is, at one time it was a single picture, and someone came along and cut it up, like a jigsaw puzzle. The pieces all still fit together, but figuring out how, that's what surveyors are supposed to know how to do.
If it ain't a mess, it'll do till the mess gets here...
I suspect you need a new survey. What you have did not address latent title issues, and all, adjoining deeds.
Either ask the same company, or get a survey company that "works with the title chain".
I've got a feeling there is more that is not yet known.
Surveying is more than a Job----it is a passion to provide a foundation for future generation, that is beyond reproach.
This new survey company only said the dimensions don't match? What else did they say? Did you retain them to re-survey? Ask for a report to go along with new map? Definitely something wrong but only performing the project could tell what. The 2015 "survey" you posted isn't much of a survey. Doesn't show any evidence really. I've seen similar things and predict the 2015 "survey" will turn out to be incorrect for one or more reasons. You need a thorough, professional job done before an attorney will be able to do anything with it. Try calling the New Jersey association of surveyors and getting a reference to a retracement specialist. A number I found on a website: 800-853-5263
Kudos to you for asking for a survey before closing. Real bummer that you closed before it was done.
I think that what you need to do is sit down with the surveyors involved and have them explain their findings. I would not expect such a consultation to have cost to you unless it gets to be over 30 minutes or so. Then, maybe, you need to go to a third.
You have graciously posted the information you have, but it is a fraction of all that is relevant. The map you posted shows one property but it says nothing about the adjoining properties. There may - in fact it sounds likely - be conflicts which are not accounted for. That's not unusual.
"Convention is like the shell to the chick, a protection till he is strong enough to break it through." Learned Hand
If you are satisfied with this survey, take it to the title company that issued you your title policy and have the to declare their policy to cover what is shown on that survey.
You can probably look thru the coverage and there will be a clause that the policy will only be enforced in accordance with a new boundary survey.
RPLS NE Texas
You only live once, but if you do it right, once is enough - Mae West
Thank you for all of your responses. I have retained a new survey company that brought the discrepancies to my attention. I have also contacted the title company and have them digging up the chain of title for me. I have owner's title insurance beyond the standard lender insurance. I am going to peruse it and see what my rights are in terms of the title company failing to do their due diligence. I believe the survey company may be out next week to investigate.
I understand that the adjacent properties most likely can illuminate some of the problems, here's an interesting fact. The next door neighbor, on the other side, was also cut from the same plot, and his property goes back another 30 feet or so. It's a curious piece of evidence that perhaps my property does as well. I believe both of our homes were built around the same time, and we are the only homes on this side of the street with the larger lot surrounding us. Time will tell. If anyone is interested, I will post back when I learn more.
Thank you again.
Deed dimensions, particularly when based on very old records are often at variance from modern measurements once all the pieces of a boundary puzzle are put together to find the original boundary locations.
What may don't understand (and to the professions' great embarrassment, that includes many surveyors) is that it is not the surveyor's job to place deed dimensions on the ground as if following an engineering plan, but to locate where the original surveyor established the lot lines on the ground and then to report and explain any discrepancies found between record dimensions and the present surveyor's recent measurements.
There are a few reasons for that:
1) There are unavoidably some error in all measurements. Even surveyors taking great care in their measuring are likely to find small differences between any two given points measured by another surveyor with equal care, or even with their own measurement between those points taken at a different time. Without boring you with 20 long posts of error theory and how it applies to survey measurements, just accept that it's true. The differences due to random errors (those which cannot be attributed to a systematic cause in the equipment or procedures, or by isolating a mistake) between 2 measurements of the same line using similar equipment (in good adjustment) and methods by surveyors of comparable skill should be quite small. With modern equipment along lines as those around your lot, differences should not be more than +/-0.02'.
2) Survey measuring equipment and methods have changed significantly since 1860. When the lots of the 1860 map your lot is a part of were established, the surveyors were most likely using a compass to determine directions and a Gunter's chain to measure distances. The typical compass used was mounted on a staff and had a least reading of 1/4 degree. In contrast, the transits typically used 40 to 50 years later measured directions with 30 to 45 times that precision and modern equipment typically measures angles with 300 to 1000 times the precision.
Similarly, a Gunter's chain is somewhat like it sounds. It was a chain made of thick wire links. 100 links comprised a full chain, which was 66 feet long. That's why many road rights of way, particularly in the East and Midwest are 66' wide. The least reading on a chain was the link (about 8"). If you had a copy of the 1866 map, you might find that the outer subdivision boundary is expressed in chains & links, or that a conversion of the dimensions expressed in feet would calculate to an precise chain & link dimension.
Interior block and lot dimensions however, when provided - very old maps quite often lack complete interior dimensions - were calculated divisions of the measured exterior figure of the subdivision boundary. Depending upon the lot layout, and particularly if the interior streets, blocks & lots were not designed such that as many corners as possible were at right angles, such calculations were done longhand and were quite tedious. What we can do today, or even 30 years ago in just a few minutes would have taken them all day, and their calculations would have been far more prone to rounding errors and outright mistakes.
3) The inevitable, and by our modern standards significant errors in measurements and calculations were typically spread out among measurements to the extent practical as the surveyor laid out the interior streets, lots & blocks. But sometimes not. Some surveyors, upon finding a discrepancy when measuring a line and setting lot corners along it, might have simply left the full discrepancy in the last segment of the line.
While we have software utilizing fairly advanced mathematical techniques to help us isolate and correct such errors so that they are eliminated of have very minimal effect to our final field work, the calculations by hand would have been so tedious and time consuming as to not be practical in the 1800s and much of the 1900s.
4) So where there may be errors within a large mapping project of a few hundredths of a foot here and there, and rarely more than a couple inches in a modern project, there may be several inches, or sometimes even a few feet of such error within even a single block of a subdivision from the mid 1800s.
So if so much error, shouldn't it have been corrected along the way as equipment and methods got better?
Reasonable question, but no.
5) All the previous points speak to why differences are to be expected, but there is one major reason why surveyors are never to correct old property lines.
Once those lines have been established, people start buying those lots. They rely on the surveyor's stakes to see what ground they have title to (what they own). They build fences, houses, garages, sidewalks, patios, etc. all in reliance of the lot lines as the original subdivision surveyor laid them out. And why shouldn't they, he was a professional and knew what he was doing.
Aside - In spite of the errors described above, the presence of those errors don't necessarily indicate a level of incompetence or negligence as the magnitude of differences in old work found by use of modern equipment were due in mostly to the limitations of the equipment. Where relatively minimal differences are found in old work by modern equipment, it was due partly to the luck of compensating random error in the old work, and partly do to skill of a well-experienced surveyor who had developed a good feel for how to spread remaining errors in the field so as to minimize placing large amounts of error in a few locations in favor of having a little error spread out over a greater area. - End Aside
The point being, landowners should have, and did have a reasonable right to rely on the results of the surveyor's work.
Deeds then get written based upon the record dimensions of the old map which is a representation of an imperfect survey. Back in those days, most landowners didn't really understand, nor did attorneys and others writing deeds, but the surveyors mostly understood the quality of the deed dimensions and expected discrepancies given the standard equipment and methods of the day.
Sorely lacking in the education of surveyors over the past 80 years, or at least as long as I've been involved in it (40 years), is the need to consider the equipment & methods used by surveyors at the time a parcel was created, and the need to consider the circumstances of the original grantor (seller), grantee (buyer), and ground of the parcel when it was first created. Way too many will not take any of that into consideration, accept and use the dimensions recited in a deed as if they are based on impossibly perfect measurements and being absolute quantities to be reproduced on the ground to represent boundaries. This very often leads to houses, garages, fences, etc. being shown to encroach over property lines. That's because the lines as placed by the new surveyor holding imperfect deed dimensions as if they were perfect & exact values has just re-established existing boundaries in a place where they had never previously existed. But, they match the deed dimensions perfectly, or as close as mathemagically possible.
If it was the surveyor's job to reproduce deed dimensions on the ground regardless of any other facts which indicate original boundaries established in other locations, then property lines would necessarily move every time another surveyor shows up with better equipment with better precisional capability, or (and this happens fairly often, also to the great embarrassment of the profession), when a surveyor shows up with similar equipment as was used by the last surveyor on scene, but arrogantly assumes to be the more skilled and careful measurer.
If our job were, as some seem to think, and a landowner might wonder about until provided an explanation, to correct old surveys, then landowners would never have marked property lines that they could relay on for risk of them being moved again by the next surveyor to enter the neighborhood.
So, bringing this back to your situation:
Your surveyor may have or may not have identified your boundaries correctly. As other have said, there just isn't enough info on the portion of the map you provided. Being that what you provided is only the portion showing the main body of the map and it lacking more than minimal info, I need to ask...
Is the full map titled something like "Boundary Survey" or is it titled something like "Mortgage Report" , "Mortgage Survey" , or something that strongly suggests it was performed & prepared as a real estate transaction document? Except in one state that I know of that has codified standards which bring it up to the quality of a what a boundary survey is supposed to be, a "Mortgage [Anything]" prepared by a surveyor is a junk product which, IMO should have been abolished from practice as soon as it was proposed. If it is a "Mortgage Survey", there will almost certainly be an official note or certification which loosely translates to "This survey is not really a survey."
If it's a "Mortgage Survey/Report/Inspection/etc." Find a surveyor who knows what the duty of a boundary surveyor is and hire him or her to perform a real property Boundary Survey for you.
If your map is a boundary survey, then given the lack of info sufficient for competent surveyors (of which many have already replied to your question) to determine how and why the boundaries were located as shown, there should be a narrative or detailed notes providing those explanations somewhere else on the face of the map, or a report of some kind which accompanied the map.
One thing that gives me some concern when looking at the portion of the map you provided is that the surveyor indicates "Cap to be Set" at the corners. What the heck! By the time the map is produced and provided, they should have already been set. That minor fact alone raises doubt for me that there was any additional useful info provided either on the map or in a report.
I did a few minutes of CAD work to reproduce the boundary on the map and another per the deed dimensions. There are more discrepancies between the deed dimensions and map dimensions than can be explained by the half-width of the street alone. The boundary your surveyor shows and his dimensions may be valid, but the differences require explanation.
The fact that the deed recites the 56.47' as being along the edge of the road, and that the 156.42' & 158.64' would go from and to the edge of the road respectively causes a significant discrepancy which requires explanation and possibly deed reformation if those dimensions are really at, to & from the road centerline. It may be a reasonable explanation that this particular discrepancy is due to the lot previously being described at centerline and a deed scrivener (description writer) at some point in the past either mistakenly calling along the edge of the road, or mistakenly using the dimensions pertaining to the centerline. These things occasionally happen. Once the cause of such discrepancies are positively identified, the deed should be corrected to ensure that the proper line is called and that the proper dimensions (whether based on record dimensions or replaced with modern dimensions with the source survey properly referenced) are used corresponding to the correct controlling line.
I hope this has been helpful.
Evan A. Page, PLS