One method sometimes used when describing property includes adding to the legal description an exception, which describes land that is not included. Here is an example legal description taken from a client’s deed (the names/identifying descriptors have been changed):
“That certain tract or parcel of land identified as Record Lot 12 on the Phillips Plat”
Record Lot 12 on the Phillips Plat is 65 feet wide by 100 feet deep. My client believed that his parcel of land was 65 feet wide, designed a house to build on the lot, and applied to the Zoning Board for side setback variances. The Municipality accepted his zoning variance application based on the Record Plat from 1929, without requiring a new Class I Survey.
Unfortunately for my client, further down in his deed’s legal description (which he didn’t read) was this Exception Clause:
“Excepting that parcel of land conveyed to John Doe as recorded in deed book 125 at page 3”
After several months, my client hired me to survey his property to set the proposed house location on the lot and design a septic system. After examining the deeds, including the deed to John Doe excepting a portion of Record Lot 12, it was clear that my clients property is really only 60 feet wide. How is this possible?
The answer is found in the deed to John Doe, which describes a 5 feet wide strip of land from Record Lot 12. John Doe already owned the adjoining Record Lot 11, also being 65 feet wide by 100 feet deep. By my client’s predecessor in title selling this 5-foot strip of land to John Doe, my client’s property ends up being reduced to 60 feet wide while Mr. Doe’s property increased to 70 feet wide.
Because my client’s property is really only 60 feet wide, and not the 65 feet width shown on the Record Plat, none of his proposed building plans fit the lot’s actual dimensions considering the zoning variances. He had to then reapply to the Municipality’s Zoning Board for the actual side setback variances he really needed. This cost him several more months to obtain the necessary zoning approvals.
The two takeaways in this situation are to recognize when your property deed includes Exception Clauses that describe removed land and to get your property surveyed. Had my client hired us to survey this property sooner, his building decisions and zoning application would’ve been based on the real facts, saving him money and many months of wasted time.
