Filling the Holes in a “Swiss Cheese Parcel” Correcting Flawed Metes & Bounds Descriptions
[Originally published in the March, 2018 issue of California Land Title Association's Claims Awareness Committee.]
Most real estate parcels in California’s urban areas were carved out of large tracts of what was once agricultural and ranch land in the nineteenth and early twentieth centuries. Today, many urban infill development projects are melding back together some of the contiguous parcels that were carved out decades ago to create new high-density housing, retail, mixed-use and other contemporary projects. The developers of some of these projects are commissioning what may be the first land surveys and title reports that the subject parcels have undergone since they were first created, if not the first time ever. Sometimes, these surveys and title reports reveal that the metes and bounds description that define a parcel’s boundary lines contains ambiguities or indecipherable language.1 Other times, the description will make reference to physical monuments or markers that no longer exist (e.g., trees, fences, posts, etc.), or will contain measurement errors or other irregularities that call into question the true location of the parcel’s boundaries.
When these types of description flaws come to light, they generally cannot be swept under the rug. Unless corrected, these types of flawed metes and bounds descriptions can mean that the corners don’t all connect with one another. Other times, a flawed metes and bounds description may leave out portions of a parcel so that it is beset with missing pieces or “holes;” or it may inadvertently leave spaces in between a parcel and an adjacent parcel to create tiny isolated and unusable residual (“orphaned”) parcels that are called gores or gaps.2 Other times still, a metes and bounds description may neglect to provide the parcel with legal ingress or egress to and from a public right-of-way, meaning that the parcel is landlocked.
These types of flawed legal descriptions are most commonly found with parcels that were created before California’s adoption of the Subdivision Map Act in 1893. Once discovered, they will usually place an indefinite hold on pending purchase and sale transactions or development projects because the subject parcel(s) cannot be title insured, and because the local jurisdiction will not grant approval to the proposed project until these discrepancies are reconciled and corrected. It can be time consuming and costly to cure legal description flaws of this nature, but fortunately property owners are usually not “stuck” with the problem: there are legal and equitable grounds on which to cure flawed legal descriptions that cannot otherwise be voluntarily resolved with cooperative parties through the use of corrective deeds, easements or lot line adjustments.
How Metes & Bounds Description Errors Tend to Come About
Before 1893, the recording of subdivision maps in California was a voluntary act that was only used on occasion for easier identification of lots in deeds of sale. Unlike today, landowners could generally subdivide their properties as they saw fit. (See Witt Home Ranch, Inc. v. County of Sonoma (2008) 165 Cal.App.4th 543, 553; citing Gardner v. County of Sonoma (2003) 29 Cal.4th 990, 1000.) The grantor would simply describe in metes and bounds terms the portion of the larger parcel that he or she was “slicing off” and conveying to the grantee in the deed.
In describing the corners and boundaries of a new parcel that the seller was splitting off from a larger one, a nineteenth or early twentieth century metes and bounds description may be written in an amateurish fashion by today’s standards. It might make reference to tree stumps, fences, rocks, and other ephemeral physical features of the property that were visible at the time but have since moved or vanished. In other instances, a parcel's legal description might state angles, directional cues or measurements inaccurately so that a surveyor today cannot locate or connect all of the parcel’s boundary lines with one another. Finally, the grantor sometimes would neglect to ensure that a newly subdivided parcel touched on a public right-of-way or was granted an easement to a public rightof-way across the grantor’s remainder parcel from which the new parcel was being split.
In 1893 legislation was enacted that required the recording of a subdivision map before subdivided lots could be sold, legislation that was gradually expanded until 1929, when the first modern land use regulation was enacted. However, the law that was in effect at that time contained a “grandfather” clause that legalized lots that had already been subdivided and created under earlier laws.
Today, California Government Code Section 66499.30(d) still provides that subdivided parcels created in accordance with any laws regulating the design and improvement of subdivisions in effect at the time the subdivision was established remain valid. Accordingly, many flawed legal descriptions that date from earlier times still exist in the public records and usually don’t come to light until a seller or prospective new buyer examines the parcel(s) with an eye toward development.
What Can be Done to Correct Flawed Legal Descriptions?
A parcel that is landlocked or is saddled with missing gaps or holes violates public policy in California, which favors the productive use and development of real estate. An owner of a parcel that is burdened with these types of irregularities that cannot be corrected through corrective deeds or negotiations with adjacent property owners can bring a civil action in court to reform one or more instruments in the property’s chain of title in order to correct them. The affected parcel owner(s) may also be able to reclaim title to and append onto their property an adjacent orphaned sliver that the original record title holder neglected to convey away under the Doctrine of Adverse Possession. For parcels that have non-existent or impaired access, the owner(s) may have to sue the owner(s) of one or more neighboring parcels to establish an easement under the alternative doctrines of easements by necessity, easements by implication and/or easements in equity.
In one case a few years ago, our client entered into an agreement to sell a parcel on a commercial block in a city in Alameda County that her family had owned for more than forty-five years, on which sat an automobile service and repair shop. While the sale was pending in escrow, a survey was conducted that revealed the parcel’s metes and bounds description used in the deeds in the parcel’s chain of title since 1907 was ten feet short of the parcel’s true southern boundary line. Separating the parcel from the remainder of its boundary was a concrete wall placed between the repair shop and a neighboring restaurant building. Though the auto repair shop had been there for decades, the metes and bounds description left a 1,000 square foot gap (measuring 10 feet wide by 100 feet long) because it referenced a fence that was on the property at one time when it was a pasture. The discovery of this discrepancy made it so that prevented the buyer from obtaining title insurance on the property, which unsurprisingly delayed completion of the sale until it could be corrected.
To solve the problem, we filed an action in the Alameda County Superior Court asking the court to issue a judgment to reform – or correct – the 1968 Grant Deed through which our client’s family had acquired title, as well as the earlier deeds in the chain of title dating back to 1907. In order to do this, we retained a title search and examination professional to work with our surveyor in order to pinpoint the original reason for the metes and bounds error in the public records and explain it to the court.
Through his examination of the instruments in the chain of title, the examination expert found that a county surveyor prepared a record of survey in June 1896, which included some field notes that described the property as an open pasture that measured 66 feet wide by 100 feet long, bordered by a fence that separated it from the adjoining parcel that is today the site of the aforementioned restaurant. The owner of the property at that time then sold the parcel in 1907, but the property was inaccurately described in the 1907 deed as measuring only 56 feet wide rather than 66 feet wide.
The measurement error that left out the 10 foot wide by 100 foot long portion of the parcel came about because the scrivener who prepared the metes and bounds description in the 1907 deed wrote that the parcel measured 100 feet by 56 feet “..more or less, to a fence on the southerly line of this lot.” Evidently, the fence had been moved back from the boundary line between 1897 and 1907, which gave the impression to the scrivener of the 1907 metes and bounds description that the fence in existence as of that date marked the southerly boundary line of the parcel. Despite this ten foot discrepancy between 1896 survey and 1907 legal description, when the automobile repair shop was constructed decades later, the southern wall was constructed along the original 1896 surveyed boundary line.
We presented our findings to the judge during an afternoon court trial, after which he agreed to enter a judgment to reform (correct) the property’s legal description in all of the instruments in the chain of title dating back to 1907, making it consistent with the 1896 survey and field notes. If the court had not done so, the building that has been on the property for decades would have a 10-foot by 100-foot-sliver section that would technically be unowned or “orphaned,” too small and awkwardly configured to have any independent use or value on its own. The court was satisfied that the evidence made it clear that the grantor who signed the 1907 Grant Deed intended to convey title to the entire 66-foot by 100-foot parcel to the Grantee, and not to retain title to the missing sliver for himself.
In another case that we handled last year, an investor had purchased eleven separate contiguous parcels near a city’s town center that had been carved out from what was once a large ranch, through several piecemeal sales by the original owner in 1859 and 1860. The subdivided parcels were subsequently used for industrial and commercial purposes during the 20th century until the 1980’s, when they were mostly abandoned. Our client, who owned several car dealerships, purchased the eleven parcels in 2007 and used them to store his inventory for a number of years until he entered into an agreement to sell the property to a developer in 2015. The developer had plans to build a new mixed-use, high density housing and retail project on the site.
While the sale was pending, the title search identified a 6,000-square-foot sliver of land (12 feet wide by 500 feet long) in the midst of the eleven parcels that the original owner from 1859 never conveyed. That sliver created a gap in the middle of the property that left two of the eleven parcels technically landlocked, as they needed the sliver to have access to the nearest public road. The missing sliver also gave rise to size and space irregularities that had negative ramifications for the development and use of some of the other parcels.
Though our client had exclusive use and control of the orphaned 6,000-square-foot strip of property for the ten years that he owned the surrounding eleven parcels, he didn’t actually own that strip and therefore had no legal right to sell it. No title insurer would insure that the buyer would hold title to that strip of property unless and until title was quieted in favor of our client before the property was sold. The potential sale ground to a halt. Given that this title problem dated back more than 150 years, we had no choice but to turn to the court for help.
California’s public policy favors the productive use of land and discourages the waste of assets merely because of lack of access. This public policy gives rise to the presumption that “whenever a party conveys property, he conveys whatever is necessary for the beneficial use of that property and retains whatever is necessary for the beneficial use of the land he still possesses.” Daywalt v. Walker (1963) 217 Cal.App.2d 669, 672-673. “The rationale driving this presumption is that ‘the demands of our society prevent any man-made efforts to hold land in perpetual idleness as would result if it were cut off from all access by being completely surrounded by lands privately owned.’” Murphy v. Burch (2009) 46 Cal.4th 157, 163; Roemer v. Pappas (1988) 203 Cal. App.3d 201, 293 (“easements by necessity are grounded in the public policy that property should not be rendered unfit for occupancy or successful cultivation because access to the property is lacking”).
As in the prior case discussed above, we hired a title search and examination expert and a surveyor to testify before the court about what the evidence in the chain of title suggested was the reason for the 12-foot by 500-foot gap in the property. Though his reasons for doing so could never be 100 percent certain, our title examiner and surveyor explained to the court that the records suggested that the 1869 owner retained title to the orphaned strip to ensure that the rear two parcels would have ingress and egress to the nearest public street. Without the strip, those two parcels would be landlocked after the owner sold off the parcel in front of them.
The fact that the 1869 owner had never conveyed away title to the strip, and there were no records to show that his estate had ever been administered or his heirs identified, the strip remained an orphaned parcel with no true owner(s), or any independent use or value. The strip had never been identified in the county records as a separate parcel and, thus, it had never been assessed or taxed. Since our client had exclusively occupied and used the strip as his own land in an open and notorious manner for more than ten years, while the county had never assessed or levied property taxes against the strip, the court quieted title to the strip in favor of our client based on the Doctrine of Adverse Possession. In addition, the court granted our request that our surveyor’s metes and bounds description of the strip be added to and merged with the metes and bounds description of a larger adjacent parcel, in order to create a single enlarged parcel. The court also agreed that a judgment quieting title to the strip in favor of our client was supported by California’s public policy against strips and gores, which “…abhors the proliferation of gores and strips under separate ownership and strongly favors a policy which passes the title of adjoining strips to the purchaser of abutting property at the time of his acquisition.” Murray v. Title Ins. & Trst Co. (1967) 250 Cal.App.2d 248, 254; Safwenberg v. Marquez (1975) 50 Cal.App.3d 301, 306.
Ridding a property of “Swiss Cheese holes” can add to a project timetable, but sometimes it is the only way to create insurable (and thus marketable) title to move a project forward.