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PLSO Issue 5 2015 September October

Oregon, defendantrespondent (see 263 Or App 420 (2014). Summarizing, this case hinges on the sufficiency of a title report, the expectations by the plaintiffs regarding what title insurance provides and the poor counsel plaintiffs received regarding which things should be specified in the purchase and sales agreement that insured the transaction would not go through unless the outcome satisfied the expectations by the plaintiffs for the use of the property. The case hinged on an apparently critical error within the legal description prepared by Chicago Title of a public dedication for an additional 10foot strip of road rightofway along the front of the parcel to the City of Portland in 1924. In a nutshell, the original north/south dimension of the property was 151.88 feet prior to the dedication of the 10foot strip. This dimension should have been amended to read 141.88 feet! Why was this 10foot reduction in width so important? The property was listed as having the potential for the development of 6 lots. Without the 10foot strip, this wasn’t possible. The plaintiffs felt that they were entitled to some recompense for this significant oversight, but the court did not agree. It seems that the legal description prepared by Chicago Title (which in fact was the same description used in the warranty deed), though containing the factual error of the 10foot dimensional excess, did contain additional qualifying language that covered their mistake. In essence, the erroneous dimension in the description was further limited by the additional terms, “151.88 feet, more or less, to the North line of NE U.S. Grant Place, as now laid out and established (emphasis added).” The plaintiffs relied on the erroneous dimension (the court considered this to be ambiguous), though it wasn’t discovered until they had a proper survey performed after (my emphasis) completing the purchase! Yes, I said after! Of course the completion of this survey should have been a condition of the purchase and sales agreement before (my emphasis) completion of the sale, stipulating that should this survey disclose material defects in the property that prevented the plaintiffs from realizing their development objectives, then the sale would not occur. Of course you realize that the standard boiler plate within the Schedule “B” of the title policy expressly excepted from coverage any loss or damage “which arise by reason of discrepancies, conflicts in boundary lines, shortage in area, encroachments or other facts which a correct survey would disclose.” In this particular instance, a citation referencing the dedication of the 10foot strip to the City of Portland was omitted. That doesn’t matter. After all, how many of us ask “what benefit does title insurance provide?” Certainly there appears to be, based upon the issues at trial in this case, a clear misunderstanding of that issue! What is more interesting is, had a “proper” survey The Oregon Surveyor | Vol. 38, No. 5 10 been performed prior to closing, this whole debacle could have been avoided. Obviously, there is some finger pointing that could be done based upon questions I might ask of the interested parties in this case: • Why didn’t the purchaser’s real estate professional alert his/her client to the land mine laying in wait for the unsuspecting plaintiffs prior to the sale? Where was their legal counsel? Certainly the location of this property (if you know anything about real estate values within the City of Portland) should hint at how much this parcel(s) would have been valued. Not to mention the fact that as this case went all the way to the appellate courts then there is some indication of the wherewithal of the purchasers. • Why didn’t the purchasers real estate professional advise the purchasers to obtain a “proper” survey? I’m curious whether they surrendered their commission because of this outcome! • Why didn’t someone review the title insurance policy for factual omissions prior to its acceptance (did I hear you say, where was the surveyor in all of this?”)? I might add here that at least for me, standard practice is to meticulously scrutinize all Schedule “B” exceptions within the title policy to ascertain their applicability, not to mention reviewing other sources of spatial data pertaining to a particular parcel to spot discrepancies (yes, there are times when simply looking at an Assessor’s map may hint at a “hidden” encumbrance). So, back to my original premise. Do surveyors have a relevant role to play in the geospatial community? You bet they do as the foregoing discussion should illustrate, though perhaps only in some small way. I can’t begin to emphasize enough the importance of obtaining subject matter expertise in the conveyancing arena. I consider surveyors to be those individuals who have the most training and expertise, if for no other reason than we’re the ones who are called upon to perform “proper” surveys. I don’t need to tell you what constitutes a “proper” survey, but certainly deed research, the ferreting out and understanding of patent/latent ambiguities, the importance of words in describing the intent of the parties to a transaction (when that isn’t clear on the face of a deed) and a clear understanding of the value of educating the public regarding “the single most important financial transaction most of them will make in their lives,” to name a few. Sitting back and relegating measurements to the nontechnically trained members of the geospatial community is one thing, but when it comes to understanding the nuances of issues like those addressed in Kraft vs. The Estate of John Robt. Cooper Sr.; et. al., “Who ya gonna call?” ◉ » WHERE HAS DEED RESEARCH GONE?, from page 9


PLSO Issue 5 2015 September October
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