[WSBARP] Deed/Survey Legal Description Issue - Title

[Mark Anderson]

My answer to your Question #1: I would consider proceeding as follows:

Have the Seller make a claim against the title insurer and let the title company fix things.

If the Purchaser will accept it, instead of a Bargain and Sale Deed, use a Quitclaim Deed with the correct description.

My answer to your Question #2:  If the deed vesting ownership in the Seller is corrected prior to the current contemplated sale, I don’t see any liability exposure for the Seller.

My answer to your Question #3:  Your Seller would face some exposure if you use a bargain and sale deed.  This could be avoided, perhaps, by including in the deed some language that describes the infirmity (in the same way as might appear as an exception on a title report), and the Purchaser accepts the deed with that “caveat.”

Mark B. Anderson
ANDERSON LAW FIRM PLLC
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Tacoma, Washington 98402
+1 253-327-1750
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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Nicole Potebnya
Sent: Monday, August 16, 2021 8:04 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] Deed/Survey Legal Description Issue - Title

Dear Real Property Title Gurus:

I am working on the last round of a Purchase and Sale Agreement for commercial real estate due tomorrow.  I represent the Seller.

Deed to be Bargain & Sale.

GENERAL PROBLEM:  Last Vesting Deed legal description (from early 2000's) and current Survey (from August 2021) legal description do not match.  Purchaser insists that legal description in Survey be used in the Bargain & Sale Deed, and Purchaser has elected to get a "Survey Endorsement" to Purchaser's title policy.

DETAILS:  The difference between the Last Vesting Deed and the current Survey legal descriptions appears to be a typo ("seconds" errantly shows 3 digits in vesting deed and correctly shows 2 digits in survey).  This typo also appears in the vesting deed just prior to the current vesting deed.  After reviewing chain of title, for decades past, there also looks to be other typos throughout earlier vesting deeds (different than here).

OPTIONS: The options I have collected (thank you, John!) to present to Seller for Seller to decide upon for next steps include:

(1) go back through the entire chain of title and cause correction deeds to be issued (not realistic, here), or

(2) cause correction deed to be issued for last vesting deed, only, and proceed with using the survey legal description in the deed for the current transaction, or

(3) do nothing in terms of correction deeds and simply proceed with using the survey legal description in the deed for the current transaction.

Title Company that prepared last 2 vesting deeds (with same typo) says that they always go with Option 3 when these kinds of things happen, but then stated that standard title policies expressly terminate upon transfer of title (so if there is no longer title insurance for those former property owners/sellers who signed those prior "typo" deeds that title company prepared, I am not sure where that leaves those former property owners/sellers if a legal description issue arises somewhere down the road?).

MY QUESTIONS:

(A) Any other options?

(B) What real exposure does Seller have if it chooses Option (2) above?

(C) What real exposure does Seller have if it chooses Option (3) above?

I want to make sure options/risks are clear to Seller, so Seller makes an informed decision on this issue.  Any thoughts you have on the above would be most appreciated, please.

All My Best,
Nicole

Nicole M. Potebnya
Attorney at Law
direct: 360-507-8924

[cid:image001.png at 01D79290.3E857AC0]
P.O. BOX 6550
OLYMPIA, WA 98507
(360) 507-8920

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