From Real Estate Closing Deskbook, third edition, Chapter One
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Real Estate Legal Descriptions
The term “legal description” refers to the written description of property and certain other data that identifies the subject piece of property. A closing lawyer must know how to read and understand surveys and how to draft proper legal descriptions. The intent of the parties to the transaction cannot be honored with certainty unless the legal description precisely locates the land that is the subject of the agreement. Every legal description should provide the name of the county or parish in which the property is located and, if so divided, the judicial district within that county or parish. The most common methods of describing land follow:
- Fractional designation
- Metes and bounds
- Courses and distances
- Name designation
- Part of a tract
- Subdivision lot
The nature of this book precludes anything more than a brief look at each of these methods.
Fractional designation is the most common form of legal description used in the United States. The rectangular system of surveying adopted by the United States in 1785 established a system of baselines and meridians to have permanent reference points (monuments) across the country. The surveyors actually placed monuments at all section corners as the work progressed. Thirty states, including Alaska, use the rectangular survey system. The baseline is a line running east and west from a given point on the principal meridian, approximately at right angles, and from which a survey of considerable area is made, and from which the townships either north or south are numbered.
The principal meridian is a true north-and-south line running from a given point on the baseline through a certain tract of country to be surveyed. The entire survey of such a tract is made with reference to the baseline and the principal meridian. The ranges are numbered either east or west of the principal meridian, and the townships are numbered either north or south of the designated baseline. Thus, by the establishment of township corners along the principal meridian and baseline, the lands are divided by lines intersecting true north and south at right angles to form townships, which are six miles square. The townships are marked with progressive numbers north and south from the baseline and east and west from the principal meridian. The townships are divided into 36 sections, each one mile square and containing 640 acres, as nearly as possible. Such sections are numbered, respectively, beginning with number one in the northeasterly corner and proceeding west and east alternately through the township with progressive numbers to, and including, number 36.
A section within the township is further subdivided by running a north-south line and an east-west line through the center of the section or by connecting the quarter-corner points, resulting in four quarter-sections containing approximately 160 acres each. The quarter-sections are described as the NE 1/4, NW 1/4, SW 1/4, and SE 1/4. The quarter-sections can likewise be subdivided into 40-acre tracts and are described as the NE 1/4 of SE 1/4, SE 1/4 of SE 1/4, SW 1/4 of SE 1/4, NW 1/4 of SE 1/4, and so on.
Due to the curvature of the earth, all townships are not exactly six miles square, and consequently all sections are not exactly 640 acres. In most states, the county is the basic unit of orientation and therefore reference to a certain baseline or principal meridian is not essential for a complete description.
Metes and Bounds
Metes-and-bounds descriptions identify land by reference to (1) natural or artificial boundaries such as streets, roads, or creeks, or (2) the land of adjoining owners, such as Smith on the south, Williams on the west. The description must establish all sides of the property by either specifically identifying what constitutes the respective boundary or providing enough information to calculate the size and shape of the land from the boundaries given. Therefore, a description that includes the size of the tract and three of the four sides will suffice.1
Many lawyers and surveyors refer to a courses-and-distances description as a metes-and-bounds description.
Courses and Distances
Courses and distances is one of the oldest methods of describing land. A definite point of beginning is of utmost importance in this type of description. From that point of beginning, a line running a certain distance is drawn to another point, and then from that point, the line is drawn a certain distance to another point, and so on until the line returns to the point of beginning.
Points of Beginning
Every legal description (often referred to as a “legal”) must begin somewhere, and that “somewhere” is called the point of beginning. No guesswork is allowed for the point of beginning. If it cannot be ascertained, then it is impossible to definitely ascertain the rest of the legal correctly. Thus, a point of beginning must be either (1) at a known point (such as a monument) or (2) at a certain course and distance from such a known point. The reason for such exactness is simply that there is no other way for the true boundary lines to be described in writing. Of course, in a short legal, the point of beginning is not described in the instrument using the short legal; but if the point of beginning is not described in the referenced instrument, then the short legal is defective. All beginning points are true points of beginning, but when the phrase is used in an instrument, it distinguishes the actual point of beginning from a known point used to ascertain that point of beginning.
A plat or survey is, of course, a drawing of the boundary lines of a tract of real estate. If the survey does not indicate a point of beginning, then the exact locations of the boundary lines are not ascertainable, just as with a written legal description that does not have a point of beginning.
Deeds Using Different Points of Beginning
Sometimes two different deeds will use two different points of beginning in describing the same tract of land. For example, one deed will show so many feet from a street corner, and another deed will show so many feet from a different street corner. As long as both points of beginning are correct, there is nothing wrong with this; however, sometimes an examiner cannot verify both points of beginning from the record. Thus, it might be necessary to call for a survey showing both points of beginning.
Calls in a legal description are by course, meaning direction, and distance, meaning length. Each call describes the course (direction) and distance (length) of a property line. There are several methods of describing a course on paper.
Calls of “north,” “south,” “east,” and “west” are generally treated as true and exact directions. A call of “running thence north 100 feet to a point . . .” is a valid call. Such courses really should be used only when there is a true north (or other) direction, and only for property lines that are straight lines.
A call of “running thence northerly 100 feet to a point . . .” without additional data is not a valid call. “Northerly,” “southerly,” “easterly,” and “westerly” are inexact courses, and additional information is needed for the call to ascertain the true direction of the course. This can be accomplished by several methods:
- By running the line to a known point: “running thence northerly 100 feet to [the point of beginning].”
- By running the line along another line that has a known or definitely ascertainable direction: “running thence southwesterly along the west line of section 3 a distance of 100 feet to a point . . .”
- By reference in the deed or instrument to a plat or survey by which the exact direction of the line can be ascertained. (For instance, if a deed refers to a subdivision plat, the recorded plat will show the exact direction of the line or it will be ascertainable and a course such as “northeasterly” is therefore made sufficient. This is merely an application of the “referenced instrument” principle.)
- By the use of angles: “running thence southerly at an interior angle of 60 degrees from the last described course 100 feet to a point . . .” (The use of the angle makes the call valid because it gives exactness to the direction.)
Bearings (compass points based on true north and south) and angles (which are based on degrees, minutes, and seconds constituting a circle) are also often used by surveyors to show direction.
Bearings indicate course or direction. For the purposes of legal descriptions, consider bearings as compass points based on true north or true south; think of four quadrants: northwest, northeast, southeast, and southwest.
Each quadrant is divided into degrees, minutes (60 minutes to 1 degree), and seconds (60 seconds to 1 minute); each quadrant has 90 degrees. For illustration purposes, consider that the northeast quadrant runs from north 0 degrees east to north 90 degrees east, the northwest quadrant runs from north 0 degrees west to north 90 degrees west, the southeast quadrant runs from south 0 degrees east to south 90 degrees east, and the southwest quadrant runs from south 0 degrees west to south 90 degrees west. These designations (such as north 0 degrees east, south 90 degrees west) are rarely, if ever, used by surveyors or in deeds, and the designations “north,” “east,” “south,” and “west” should be used. They are noted only to illustrate the concept of the quadrants and bearings.
In between 0 degrees and 90 degrees is another matter. In this area you depart from true north (or other direction), and the appropriate degrees (and minutes and seconds, if known) are indicated to give the exact direction of the line. Note that bearings run from true north or true south. The east or west designations indicate how far east or west of true north or true south the line runs. “South 1 degree west” indicates a line running 1 degree west of true south. “North 89 degrees east” indicates a line running 89 degrees east of true north. Bearings are always shown as northeast, northwest, southeast, or southwest. “North 36 degrees east” will never be shown as “east 54 degrees north.”
However, a northeast call is the exact opposite direction as a southwest call, and a northwest call is the exact opposite direction as a southeast call. For example, the exact opposite direction of “north 36 degrees 40 minutes 10 seconds east” is “south 36 degrees 40 minutes 10 seconds west.” This is important because drafters sometimes reverse directions when drafting documents. Also, surveyors do not always survey a tract from the point of beginning, then continuously around the tract; sometimes they will survey the front, then the rear line, then another line, and so on, and not always from the same direction; and sometimes they do not transpose bearings on the survey.
This does not make the survey improper, but a legal description drawn from the survey would be improper if the drafter is not careful.
Surveyors often use angles to show the direction of a property line instead of—or sometimes in addition to—bearings.
A circle has 360 degrees, with each degree having 60 minutes and each minute having 60 seconds, and this is the basis for angles used in legal descriptions. The only thing an angle has in common with a bearing is the use of the terms “degrees,” “minutes,” and “seconds.” A line running “northeasterly at an interior angle of 60 degrees 14 minutes 30 seconds” is not the same thing as a line running “north 60 degrees 14 minutes 30 seconds east,” and the two methods should not be confused; nor should a lawyer attempt to convert bearings into angles—if this can be done, leave it to a surveyor to do.
An angle runs from the last described course and is either interior (inside the property boundaries) or exterior (outside the property boundaries). Think of a property corner as the intersection of two straight lines. At the point of intersection draw a circle, using that point as the center of the circle. The arc of the circle within the property boundaries is the interior angle, and the arc of the circle outside the property boundaries is the exterior angle.
When angles are used, the interior or exterior angles are always the same, even when describing the property lines from different directions. Also, a circle always has 360 degrees. A surveyor will often indicate only one angle at a corner, either interior or exterior, and the other can be computed merely by subtracting the indicated angle from 360 degrees. An “interior angle of 85 degrees” is the same as an “exterior angle of 275 degrees.” However, in drafting a legal description, it is rare that the drafter needs to know both the interior and exterior angles for a certain corner, and the drafter should just use interior or exterior as indicated by the surveyor.
An angle of 180 degrees is sometimes shown on a survey, but this is not really an angle; it is a straight line. However, an angle of 179 degrees 59 minutes 59 seconds is an angle, and there is a property corner there. For legal-description purposes, there is no such thing as an angle of 360 degrees; it would create a line running back upon the last described course.
In addition to course, the description of a property line must show distance (length of line). Most instruments show distance as measured in feet. Older instruments may show rods (16.5 feet), links (.66 feet), or chains (100 links, or 66 feet). Yards are rarely used. When preparing a new instrument, a lawyer should always use feet. If a lawyer drafts a new instrument using an older instrument as a guide, and the older instrument shows something other than feet, the lawyer should not attempt to convert measurements into feet, but should instead recommend a survey.
As a general rule, the legal description must show the distance of each line or otherwise provide a key for determining the distance. If it does not do so, the description is ambiguous. However, distance is really not that important to the validity of a written legal description if the description provides keys whereby the lines and corners can be ascertained. The sole purpose of distance in connection with the validity of a legal description is as a means of locating the corners. A deed can be perfectly valid without even mentioning distance if the legal description provides keys for otherwise definitely ascertaining the location of the lines and corners. By properly describing the corners, the legal description provides a key for determining distance. It is not, however, good practice to draft legal descriptions in such a manner. If a survey (or other source of the description) shows distances, those distances should be used.
It must be remembered that when a corner is not otherwise ascertainable, then distance is critical to the validity of the legal description. For example, “Running thence north 30 degrees east to a point . . .” is not a valid call; it is vague and could invalidate an entire legal description. “Running thence north 30 degrees east 100 feet to a point . . .” is a valid call because of the addition of the distance.
“More or Less” Calls
A distance of “100 feet, more or less,” without more, is inherently vague. Is it more than 100 feet or less than 100 feet? Because a legal description must be definite and certain, the indiscriminate use of “more or less” can invalidate, even if used in only one call, the entire legal. Monuments or other known points prevail over distances. Thus, the use of “more or less” when running the line to a monument or known point is acceptable.
When used with points of beginning, “more or less” totally invalidates the entire legal unless the point of beginning can otherwise be established.
Omitted Courses and Distances
If a call omits a course, the legal is generally defective. However, if the line runs to a monument or known point, the error is cured if the remainder of the legal description is correct. Likewise, if a call omits a distance, the legal description is generally defective unless the error is cured in the same manner, by the line running to a monument or known point.
Another requirement of a legal description is closure. You must be able to begin at the point of beginning, follow each successive course and distance, and end at the point of beginning. Technically, you should be able to trace the boundaries without lifting your pen from the paper from the point of beginning and back; otherwise, the legal description does not close.
Closure problems can be created by erroneous points of beginning, erroneous courses, and erroneous distances. A lawyer must be careful if he or she cannot draw to scale or draw exact bearings, angles, and distances. Normally, erroneous beginning points and courses make closure problems obvious, but erroneous distances (if not known to be erroneous) are not so easy. When three sides of a square tract are 100 feet each and a fourth side is 200 feet, the problem is evident; but if the tract is of an irregular shape, or if the distances do not vary so greatly, it may be impossible to detect a closure problem. A lawyer must also be careful if a deed is drawn exactly like a survey; as discussed in the earlier section titled “Bearings,” the legal may not close, and the deed will be incorrect, even though the survey is correct.
Monuments are permanent landmarks that indicate boundaries. They may be natural (trees, streams, and lakes) or artificial (fences, walls, stakes, posts, pins, roads, streets, and railroads). As is evident, the “permanency” of some of these landmarks is subject to question, with the courses of streams being subject to change, and trees and all artificial landmarks being subject to relocation or removal. Section corners are marked with concrete monuments. It is beyond the scope of this book to discuss in any detail the ramifications and effects of monuments on legal descriptions. Suffice it to say that all monuments, when referred to in a legal description, are deemed superior to courses and distances. This means that errors in the course or distance of a call are subject to waiver if the call runs to a monument.
For example, consider a call that states, “running thence north 30 degrees east, 100 feet to the northeast corner of section 3.” Assuming the remainder of the legal description is correct, if the actual course is “north 25 degrees east” and if the actual distance is “95 feet,” then a lawyer could ignore the incorrect course and distance, relying on the superiority of the monument. The location of the monument is fixed and permanent. This establishes the certainty of the course and distance, thus establishing the certainty of the location of the property line, even though the course and distance are incorrectly described in the instrument.
It should be noted that the superiority of monuments over courses and distances is limited to monuments that are mentioned in the deed. Regardless of how many monuments are actually on the ground, if they are not mentioned in the deed, the lawyer cannot use the rule of superiority. In drafting legal descriptions, a lawyer should refer to all monuments shown in a survey.
Calls in legal descriptions often run along the side of a street, the side of a section line, the side of adjoining property, and so on. It is important that the intended side is accurately described. “Running thence along the side of Jones Road” is improper. “Running thence along the north side of Jones Road” is correct. When describing a “side,” the terms “north,” “northern,” “northerly,” and so on mean basically the same thing, as do the terms “southeast,” “southeastern,” “southeasterly,” and so on.
Roads have four basic configurations: north side or south side on a road running east and west; west side or east side on a road running north and south; northwest side or southeast side on a road running southwest to northeast; and northeast side or southwest side on a road running northwest to southeast. Lots have two basic configurations: one where the lot faces north, south, east, or west; and the other where the lot faces northeast, southeast, southwest, or northwest.
As for adjoining property owners, there are any number of configurations, depending upon the shape of the properties involved.
County, Judicial District, Section, Township, and Range
A legal description should show the state, county or parish, judicial district if the county or parish is so divided, and the section, township, and range. Technically, the failure to show any of these items is a defect, but if the legal description is otherwise proper and the record shows that the property is definitely in a certain state, county or parish, judicial district, and section, township, and range, an examiner may waive the error. A lawyer should always include these items when drafting a legal description.
Arcs and Chords, Traverse Lines, and Curves
Arcs and chords are used most often along roads. The arc distance would be in the curve. The chord distance would be a straight line.
A traverse line is often used along creek beds. A traverse line is not a property boundary line. It is an aid to the establishment of the boundary line.
The phrases “following the curvature thereof” and “following the meanderings thereof” are used to help describe irregular property lines, most often along roads (curvature) and creeks (meanderings). The phrases are not often shown on surveys but are used in legal descriptions when a survey indicates that a property line is not a straight line.
Sometimes a survey will show a street corner as being curved. If the street corner is a reference point used to determine the point of beginning of the property, the legal begins something like this:
Beginning at a point on the south side of Jones Street 100 feet east, as measured along the south side of Jones Street and extension thereof, from the corner formed by the intersection of the south side of Jones Street with the east side of Smith Street, if said street sides were extended to form an angle instead of a curve. . . .
If the property begins at the corner itself, the following language can be used:
Beginning at the corner formed by the intersection of the south side of Jones Street with the east side of Smith Street, if said street sides were extended to form an angle instead of a curve; running thence . . . to the point of beginning. LESS AND EXCEPT that portion of the above-described property lying within the rights-of-way of Jones Street and Smith Street.
Quantity of Land
If a legal description shows a quantity of land, it shows it in acres. Legal descriptions rarely use square footage, even though a survey or subdivision plat might show square footage, which can be important for building and development purposes because of zoning and other governmental regulations.
In drafting a legal description (in the usual situation), showing acreage is merely additional identification, usually adding nothing to the validity or adequacy of the legal description. When acreage has not been confirmed by survey, acreage should not be used; when it has been so confirmed, acreage should be used exactly as shown on the survey.
It is common practice for title insurance companies to refuse to insure the amount of acreage in a tract of land, even though the policy will ensure questions of survey and the amount of acreage were determined by a current survey. Lawyers should also make exceptions of the amount of acreage in their title certificates.
A description by reference is one that refers to some other instrument or document that contains a definite and complete description of the property. An example would be “a tract of land containing 20 acres, more or less, and being fully described in that certain deed from John Jones, in favor of David Smith, dated February 16, 1971, and recorded in Deed Book 16 at page 20 of the Deed Records in the office of the Chancery Clerk of Madison County, at Canton, Mississippi.”
A blanket description is one calling for all the lands owned by the grantor in a certain subdivision, county, or state. An example would be “all my property in section 12, township 2 north, range 1 east.” This type of description is often used in conjunction with specific descriptions to account for any deficiencies in the specific description.2
When a certain piece of property has acquired a name by which it is generally known or by which it may be identified with certainty, it is sufficient to describe the land by such name. An example would be “a certain tract or parcel located on U.S. Highway 90 known as the Jefferson Davis Place containing 11 acres, more or less.” This type of description is usually combined with a metes-and-bounds description.
Part of a Tract
When only a part of a tract is conveyed, the description often undertakes to describe that particular portion to be conveyed. An example of this would be “the northernmost 10 acres of the east half of the northeast quarter of section 5.” Often the intent is to convey the 10 acres north of a certain road, so care must be used in drafting the description to define and locate the tract properly, exactly as the parties intend.
A subdivision-lot description (lot and block) is a legal description that does not describe each boundary line, but that refers to a plat, survey, deed, or other instrument that does show the full, particular legal description. When a large tract of land is being developed (that is, with the installation of utilities, curbs, gutters, and streets, and the subdivision of the property into lots), a plat is recorded from which, after that time, the conveyance of any lot within that subdivision can be made by a description as follows:
Lot 13, Block A, Sunnydale Subdivision, part III, a subdivision according to a map or plat thereof, which is on file and of record in the office of the Chancery Clerk of Rankin County at Brandon, Mississippi, in Plat Cabinet 9, slot 42, reference to which is hereby made in aid of, and as a part of, this description.
The most important thing is that the referenced instrument be one from which a full courses-and-distances legal description can be obtained. The referenced instrument should be recorded. Any defects in the referenced instrument will make the lot-and-block description defective also. The lot-and-block description is no better than the legal description in the referenced instrument.
Other Descriptive Components
“Less and Except” Clauses
A legal description followed by a “less and except” clause means that a certain portion of the property described is not actually being affected by the instrument containing the legal description. For example, a description might show a property line as being the centerline of a public road, but there is no intention to convey the road or any part thereof: “less and except all of that portion of the above-described property lying and being within the right-of-way of Jones Road.”
Another reason for such a clause would be when a portion of a tract has already been conveyed: “less and except that portion of the above-described property that was previously conveyed to Paul Doe by James Smith by warranty deed dated December 16, 1974, recorded in Deed Book 34, page 696, Madison County Records.”
Whatever the reason, such clauses are often used to describe property that is not being conveyed or otherwise affected by the instrument containing the clause. The clause does not necessarily have to use a referenced instrument such as a prior deed; it could just set forth a full legal description of the excepted property.
A lawyer drafting a “less and except” clause must remember that the legal description containing the clause is subject to the same requirements for validity as any other legal description. Also, the lawyer must remember the purpose of such clauses—to except property from the force and effect of the instrument being drafted.
A street address is not required for a valid legal description. An incorrect address may be waived by an examiner if the remainder of the legal description is otherwise proper.
Fences and Walls
Occasionally, a deed will show a property line running “along a fence” or some such language indicating that the line is evidenced by a fence or even a wall. It must be noted that fences and walls have purposes other than evidencing a boundary line, and more often than not, a fence or wall is not located exactly on the line; but without a survey, it is impossible to tell. Generally, as long as the record does not indicate anything to the contrary, the “fence” or “wall” line as shown in the deed is accepted as the line without problem.
If a survey shows a fence or wall that does run true along the boundary line without encroachment on one side or the other, the lawyer can draft a legal description using such language as “along a fence.” Otherwise, such language should not be used in drafting a legal description. Also, before such language is used, the drafter must know whether the fence or wall is owned by the owner of the subject property or the adjoining property. If the fence or wall is owned by the adjoining property owner, even if no encroachment is shown, the surveyor or lawyer should not refer to the fence or wall in the legal description.
Encroachments (whether onto adjoining property or onto the subject property) are another matter. All parties should be made aware of any encroachments. Unless an encroachment is removed, any title certificate or title insurance binder and policy should make appropriate exception to the encroachment. In fact, many such encroachments (at least those encroaching onto the subject property) are so insignificant that the parties choose to disregard them.
As a practical matter, these small encroachments would at worst create insignificant legal consequences.
1. Herod v. Robinson, 115 So. 40 (Miss. 1927).
2. Moffett v. International Paper Co., 139 So. 2d 655 (Miss. 1962).