Janzen Ag Law Blog
Janzen Ag Law is a blog written by Todd Janzen, former Kansas farmer now practicing attorney in Indiana. Topics include all types of legal questions facing modern farmers and agribusinesses, including contracts, environmental regulations, nuisance, big data and privacy concerns, as well as other issues. His email is email@example.com. He tweets from @JanzenLaw. His regular blog columns can also be found at JanzenAgLaw.com.
It's Time for Real Property Law to Join the 21st Century
Jul 31, 2014
I handle a number real estate transactions each year. It is not uncommon to find an error in the property description located in a deed. Often somewhere in the chain of title, someone made a typo which was then passed on from deed to deed to deed. Attorneys call such mistakes "scrivener's errors." These errors still occur today because the way property is described in deeds and other real estate documents has not changed much in past two centuries. Witnessing how much technology has improved farming in the past decade has made me wonder--why isn't the same technology being used to improve how we describe property boundaries?
Real estate is described in most deeds using "metes and bounds," an old English system inherited by the thirteen colonies and later by other states joining the union. This method for describing property boundaries uses directions, bearings, and monuments. Here is a basic example: Begin at the center of Highway 50 in the southwest corner of Washington Township, Section 17, then face due east, then move a distance of 100 feet, then face due north and move a distance of 50 feet, etc. Eventually, you end up back where you started and have traced a boundary line around a property. Surveyors do the same but plot these descriptions on paper surveys.
Almost no property is a perfect rectangle with 90 degree corners or perfectly straight borders, meaning it is almost impossible for any untrained person to trace the boundaries of property without hiring an expert surveyor. As a result, surveying is an entire industry developed to interpret the legal descriptions in deeds. Likewise, property purchasers buy "title insurance" to protect themselves in case their property contains a scrivener's error or other defect. The title and survey industries exist to address the shortcomings of property law.
This 200+ year old system for describing property also creates a fair amount of litigation. Since property owners can't always determine for themselves exactly where their property boundaries are, they often (inadvertently) construct fences, buildings, and other improvements that encroach onto neighboring property. Encroachments are not uncommon to find when reviewing surveys for commercial, residential, or industrial property.
Technology now provides a better, more accurate way of surveying and describing property. Global Positioning Systems (GPS) can revolutionize the way we describe property boundaries in the United States. Farmers plant half-mile long rows of corn using GPS technology that are perfectly straight, down to the inch. There is no reason similar technology is not used to define property boundaries, rather than the common law feudal method used today. GPS coordinates would be a very simple way of describing property boundaries. And anyone with a smart phone could easily survey their own property, plot out the correct place for a fence, etc.
Property law has always been slow to change. (We still refer to people who lease their property as "landlords" even though most landlords are not English "lords.") But there comes a time when "that's the way we've always done it" is no longer a good reason. It's time to hit reboot on how we describe real property in this country. It's time for lawyers and surveyors to embrace GPS technology just like farmers already have.