Legal Descriptions in the Sales Transaction
The legal descriptions used in Georgia (the metes and bounds, and plat map also known as the lot and block system) appear in Chapter 27.
A legal description enters the real property transaction for the seller at the time he or she signs the listing agreement. It is a legal requirement in the seller’s warranty deed and it also appears in the security deed. The buyer sees the legal description for the first time when he or she signs the offer containing the description. The offer needs to include a legal description.
The licensee must include in the sales contract a legal description of the property that is good enough to identify the property from any other or clear enough that anyone could go on the land and point out the boundary lines. If the legal description (also called “land description” or “legal”) is too vague, it may void the contract. This chapter deals with the basic information a licensee needs to know about legal descriptions to write sales contracts well enough to close them and to avoid legal problems.
SOURCES OF LEGAL DESCRIPTIONS
The principal source of legal descriptions is the seller’s Warranty Deed. If the seller cannot provide a warranty deed, the licensee can get the legal description from the security deed. Occasionally the description in the warranty deed and the description in the security deed may differ. This discrepancy is a sign of a possible problem and of the necessity to consult the broker before using either legal description. If the seller is unable to produce a warranty deed or a security deed, the licensee may be able to obtain the legal description from the records of the seller’s lender or from the public records.
(a) OBTAINING THE LEGAL DESCRIPTION FROM PUBLIC RECORDS
Looking up deed records in the county courthouse is a process involving the following several steps
Step 1 – Identify the county in which the property exists and go to the county courthouse. If the property is in more than one county, each county will have ownership records.
Step 2 – Find the real estate records of the Superior Court. These records are in the office of the clerk, often in a separate room.
Step 3 – Locate index books entitled GRANTEES. Since these books are bound by years, it will be helpful to know what year the seller bought the property. The seller’s name should appear in this book if the seller recorded the warranty deed at the time he or she bought the property.
Step 4 – Look for the seller’s name listed in alphabetical order. A DEED BOOK NUMBER and PAGE NUMBER will appear at the end of the line after the seller’s name.
Step 5 – Locate the DEED BOOK and turn to the PAGE NUMBER. The seller’s warranty deed will appear on that page. If the seller purchased the property with a loan, the security deed will probably appear on pages immediately following the property deed.
Step 6 – Make a copy of the deed or deeds. If any inconsistencies appear in the legal description or in other parts of the deed they indicate possible problems that might be either minor or major. The inconsistencies in the legal description could be any missing information or misspellings in either the plat map or the metes and bounds descriptions. In the plat map a distance measurement of frontage or a side line could be missing or numbers could be inverted. In the metes and bounds description a distance measure could be missing, an angle could be missing, the property description is incomplete because the description does not return to the point of beginning (POB). The inconsistencies in the other part of the Warranty Deed could be misspellings of names, streets, counties, or landmarks; incorrect or missing information about names and dates; or problems with the transfer tax information or the clarity of a restrictive covenant. The seller may want to seek the advice of an attorney. At the very least, the licensee should inform the closing attorney so that the closing documents will reflect any necessary corrections.
(b) OBTAINING A LEGAL DESCRIPTION WHEN WORKING ANOTHER COMPANY’S LISTING
When a licensee calls another company to show a property that it has listed, then is the time to arrange to obtain the legal description. Therefore, if the prospective buyer makes an offer, the legal description is on hand or at least on its way. It is good business practice for the listing broker always to obtain a copy of the legal description and place it on file immediately. If the listing company does not have the legal description on file, the selling agent or the buyer’s agent should request that they obtain it immediately since a legally sufficient description is a required element in the offer. If the listing broker or the sales associate does not respond immediately, the selling agent will have to take the initiative to obtain the legal description, possibly by visiting the courthouse, even though it may not be his or her responsibility.
MISTAKES AND PROBLEMS IN THE LEGAL DESCRIPTION THAT MAY VOID THE CONTRACT
The identification of the real property involved in the negotiation process must be clear and correct. Discrepancies in one or more ways might make the description too vague, unclear, or incomplete.
(a) LACKING THE NECESSARY COMPONENTS IN THE LEGAL DESCRIPTION – Every land description must include the name of the county and state and, depending on the location of the property in the state, the district and land lot; the section, district and land lot; the headright area; or the Georgia Military District. The omission of any of these components raises the possibility of an inadequate legal description. Georgia courts have held, however, that where the county was omitted from the legal description but the contract was headed with the name of the county, there was a presumption that the land was located in that county. Another ruling stated that the merely stating the county and state of residence of the parties in the contract was not sufficient to imply that the property was located there.
(b) VAGUE REFERENCES IN THE METES AND BOUNDS DESCRIPTION – Identification of the point of beginning in a metes and bounds legal description must not use vague terms and phrases such as “More or Less,” “About,” or “Approximately.” These words in a legal description will void the contract. In a metes and bounds description the point of beginning is a point on the property boundary line that is a certain and exact distance from a fixed land mark, such as the intersection of two streets. Likewise describing the dimensions as more or less or approximate will render the legal description void unless the boundaries begin and end at fixed points or monuments.
(c) VAGUE REFERENCES IN LAND BEING SOLD BY FRONTAGE OR ACREAGE – When vague terms describe land being sold by the acre or front foot, the description is insufficient and the contract may be void. The identification of the corners of the property preferably by reference to monuments or landmarks, must be clear and unquestionable. The phrase “more or less” in the legal description is vague and should immediately alert the licensee that there may be problems with the description. If the phrase “more or less” appears in the legal description for acreage or front footage, and if the number of acres or front feet will determine the sales price, a provision in the contract that a survey will be made to render the description more precise will not adversely affect the validity of the contract. The survey will set the acreage or front footage clearly and exactly.
(d) INSUFFICIENT INFORMATION IN A METES AND BOUNDS DESCRIPTION TO ENCLOSE THE PROPERTY – A metes and bounds legal description that fully and completely describes each boundary line and each directional turn, must generate a shape that encloses the property. By starting with the point of beginning and following the compass directions and the distances around the boundaries of the property, the legal description must enclose the parcel as it returns to the point of beginning.
(e) IF THE NAME OF THE SELLER APPEARS IN THE DESCRIPTION AS THE OWNER OF AN ADJOINING LAND PARCEL – If the seller’s name appears in the description as the owner of adjoining land and the description makes reference to that land to establish one of the boundaries, this fact is an indication that the description may not be sufficient; and a void contract may be the result. This type of “legal” description appears in many old deeds or in deeds where the description is not based upon a survey.
(f) USE OF STREET ADDRESS ONLY – A street address is usually too vague as a legal description to locate the property and will void the contract. Some legal descriptions using street address, city, and state have been upheld as sufficient when supported by other evidence such as the name of the property owner or the lot number, but any use of a street address as a substitute for a legal description is an invitation to problems. The Commission does not consider a street address a sufficient legal description.
WHEN NOT TO USE THE LEGAL DESCRIPTION IN THE SELLER’S WARRANTY DEED
The following list points out several situations that make the legal description in the seller’s warranty deed unusable.
(a) WHEN THE SELLER IS SELLING ONLY PART OF THE PROPERTY – In a partial sale of property the legal description in the existing deed describes the entire property not the portion being sold. Since the contract must identify the parcel being sold, a survey of the portion being sold must be done to establish the proper legal description for that portion of the entire property. A phrase added to an existing valid legal description such as “with 100 acres of land of the property to be designated by a survey to be made later . . . ” will not produce a valid legal description of the property that the seller intends to sell. Only an accurate survey can establish where the boundary lines of the 100 acres will be and provide a clear description of the property being sold from the larger tract.
(b) WHEN THE SELLER RESERVES AN EASEMENT – When the seller intends to sell the entire tract of land but to reserve the use of a portion of it, a survey must exactly describe the land involved in the reservation. The survey will enable all parties to understand exactly what portion of property the easement will affect.
(c) WHEN THE SELLER HAS PREVIOUSLY SOLD PART OF THE LAND – If the seller sold part of a tract in an earlier transaction, the legal description in the seller’s original deed for the entire property will not describe the property that the seller currently owns. If the seller does not have a deed with a legal description of the portion he or she is now selling, a survey of that property can provide the basis for a new legal description.
(d) WHEN A RECENT SURVEY DOES NOT CONFORM TO THE DESCRIPTION IN THE DEED – A recent survey that is not consistent with the legal description in the deed is an indication of possible legal problems. The seller may need to consult an attorney for help in resolving the discrepancies.
DRAFTING A LEGAL DESCRIPTION FROM A PLAT MAP
In a new subdivision in which the building lots do not have recorded warranty deeds but there is a recorded plat map for the subdivision, the licensee can draft a legal description for the contract from the recorded plat map. The following example illustrates form language that is often used in such a description:
All that tract or parcel of land lying and being in Land Lot ______ of the ______ District of _____________ County, Georgia, being known as Lot _____, Block _____, Unit _____, of the _________________ Subdivision according to a plat of survey by _______________________________, dated _________________, and recorded in PLAT Book _____, page _____, ________________ County records. Said property known as No.__________(street number and name) in and around the city of __________________, Georgia.
|The wording of this and any other contract provision included in this manual is a suggestion only. Different transactions demand different language. Sales associates must seek the approval of their broker before using a stipulation from this manual in an actual contract.|
If the plat map for the subdivision exists but is not recorded, the licensee must attach a copy of the plat map to the contract and make it a part of the agreement by reference. The parties to the contract must initial the clause making the plat map part of the agreement. The time and date of the initialing must also appear on the plat.
Whether the plat map is recorded or not, the parties to the contract should examine the plat map in detail before signing the contract because an improperly drawn plat may void the contract. The plat map must contain the following information in order to use it as the basis for drafting a legal description in a contract:
(a) surveyor’s information, the certificate, seal, and state registration number of the surveyor and
(b) plat information,
(1) the date of the survey and the date of its recording,
(2) the plat map scale,
(3) original land lot lines, if any, and
(4) land divisions: Lot Number, Block, Unit (section if given), Subdivision name, Book and Page number where recorded.
The broker will provide advice and review the text of the description written by the sales associate, or the broker may draft the legal description.
Note: The abbreviations used by surveyors in a plat map include I.P.F., Iron pin found by surveyor; I.P.P., Iron pin placed by surveyor; L.L.L., Land Lot Line; B.L., Building Line; D.E., Drainage easement; M.H., Manhole; R/W, Right of Way; and C.L., Center Line.
DRAFTING A METES AND BOUNDS LEGAL DESCRIPTION FROM A PLAT
A knowledgeable and experienced licensee might draft a metes and bounds legal description from a plat map or survey, but the licensee must do so with caution and with good advice. A sales associate must consult the broker before drafting legal descriptions. The broker will provide advice and review the text of the description written by the sales associate, or the broker may draft the legal description.