More on property size, surveys and home sales

A few weeks ago, a reader asked if he was entitled to extra compensation from a seller because the reader found out that the seller had sold a piece of the property to the city without telling the buyer. The seller sold a lot that was actually half an acre instead of 0.6 of an acre. The city used the slice of property to lay water mains, and then replaced the dirt and sod. In effect, the property looked whole, but in fact was not.

In our answer, we wondered what the buyer had actually bought. Was the property advertised as 0.6 of an acre or a half acre, or was the size of the land never discussed? Had there been a survey? (We guessed not.)

We received a number of responses. The first is from a retired patent attorney researching land records back to the 1850s for a case he is fighting.

“This is in regard to your recent article titled ‘Does seller owe buyer for part of land sold to city?’ I think he does, although it may be possible to escape responsibility if the sale of the land was properly recorded in the County Recorder of Deeds (also called the County Recorder’s Office).

“It is well-established that ownership of real estate is to be established by documents recorded in the Recorder’s Office. This often must include the recording of a survey tract, which shows the land involved and even who owns it . ... I have found that individuals can make those searches themselves if they go to the Recorder’s Office with a clear description of the land they are interested in. This may provide enough information for the customer to decide if he should buy or not.”

The whole point of recording a sale — even for a tiny strip of land — is to put the world on notice that ownership has changed. Buyers typically go through that process during the purchase of the property if they are buying title insurance for themselves (an owner’s policy) or the lender (a lender’s policy). It was unclear from the letter we received whether either type of title policy was purchased or if the sale to the city had come up.

We also received another question from a reader.

A: In the letter, it was not clear whether the buyer had obtained title insurance or a survey for his purchase. In some states, buyers routinely don’t get surveys. In these situations, buyers may not see what they are getting when closing on the purchase. The only effective way for this buyer to have known what was included was to look at a survey before closing to see the outline of the property.

From a title insurance point of view, the title company will only insure the legal description given to it. So, if the owner gives the title insurance company the legal description of the parcel without the land given to the city, the new owner only has a right to make a claim against the title company on the land shown on the policy.

As we stated in our previous answer, if you are buying a property and the dimensions of the land are important to you, you better make sure you make that facet part of the purchase and sale agreement. Ilyce Glink is the CEO of Best Money Moves and Samuel J. Tamkin is a real estate attorney. Contact them through the website ThinkGlink.com.