The legal description of a title insurance policy must be the same as that contained in the instrument of conveyance. Descriptions in deeds and mortgages that are ambiguous or faulty may prevent the title from being insured. If you have a question regarding the sufficiency of a description in a deed or mortgage, please contact our local office.
Descriptions of the premises in the back chain of title may also present ambiguities or conflicts that can become a serious title defect. There are a number of rules of construction, however, which may save ambiguous or conflicting descriptions.
When a deed contains two inconsistent descriptions of a parcel of land, the more specific will govern. In the absence of evidence in the deed of a different intention, the order of priority is as follows: monuments (including neighboring land of someone other than the grantor) will take precedence over courses and bearings, and courses and bearings in a running description will take precedence over distances and area. Distances and area are last on the list. It is important to note, however, that it is the intent of the parties that controls and rules of construction should not be followed if it would lead to a result that is plainly inconsistent with that intent.
Where there is a reference to a recorded plan in a deed, the courses, distances, and lines as set forth on the plan are regarded as the description. The plan is thus incorporated into the deed. When there is a discrepancy between the description in the deed and the lines as set forth on the plan, generally the plan will control.
A description is considered adequate if it describes the property by reference to some other instrument that contains a sufficient identification. When a particular description in a deed is ambiguous, the description as given in some other instrument referred to in the deed may be considered together with the ambiguous description to determine the property intended to be conveyed. The reference to another instrument should be a title reference such as "being the same premises conveyed to me in a deed recorded at Book ____, Page ____.” This allows an examiner to "jump back" to an instrument with a good description. Do not employ this theory if the reference reads "being a part of the premises conveyed."
In situations where one of these general rules of construction cannot be used to clarify an inadequate or ambiguous description, you should obtain a confirmatory deed. When this is not possible, as when the original parties are no longer available, then an affidavit of scriveners error may, in some cases, be relied upon.
Here in New England, we have the worst descriptions in the country. Painted rocks, oak trees, and cow paths are not unusual monuments in some of the older descriptions. It is also common to have the "called for" abutters to have actually died 200 years ago. Before insuring a parcel, however, you must be certain that the locus is correctly described and can clearly be traced down through the chain of title.
For more information, see Massachusetts Conveyancers Association Title Standard No. 27.