A deed or other instrument affecting an interest in real property must contain, directly or by reference, a description of the property that is not so vague and uncertain as to render it impossible to identify the property.
Errors, irregularities and deficiencies in property descriptions in the chain of title do not impair marketability of title unless, after all circumstances of record are taken into account, the description does not identify a distinct property.
Land surveys, related conveyances, accepted rules of construction, and other considerations including the passage of time without objection, should be relied upon to resolve ambiguous descriptions.
Comment 1. Ambiguities and problems may be resolved by recognized rules of construction. In addition, all matters of record, such as descriptions of adjoining properties, maps and surveys, are useful in resolving an ambiguous description. Unrecorded maps and surveys may also be of value in interpreting an ambiguous description.
Comment 2. One may reasonably rely upon corrections or improved descriptions appearing in later conveyances in interpreting an ambiguous description. One may recreate the correct property description by correcting what appear to be obvious typographical mistakes or scrivener’s errors.
Comment 3. Extrinsic evidence is generally acceptable to explain an uncertainty or ambiguity existing in a description in order to make the description apply to the parcel intended to be conveyed, and give effect to the instrument.
For example, a deed description such as “my residence” or “my property on Elm Street” may be clarified by extrinsic evidence to establish the fact that the grantor owned at the time only one parcel of land on the designated street, thereby saving the description from being declared void for uncertainty. However, extrinsic evidence cannot be considered if there is no ambiguity in the instrument. Main St. Landing, LLC v. Lake St. Ass’n, 179 Vt. 583, 892 A.2d 931 (2006, mem.).
Comment 4. The use of a street address, E-911 address or designation, tax parcel identification number or a SPAN number alone is not recommended as the sole means of describing a parcel of land. The identification of property that relies upon such forms of data depends on information that is not reliably kept for long periods of time and is subject to alteration by the custodian from time to time. A reference to a revised street address created by an official change in the address does not create an ambiguity in the description. An incorrect street address, E-911 address or designation, tax parcel identification number or a SPAN number will not render title unmarketable if the remainder of the description is sufficient to identify the property.
Comment 5. A description may take the form of a reference to prior recorded instruments.
A description by reference is interpreted as though the document being referenced is incorporated into the document being reviewed. Lamoge v. People’s Trust Co., 168 VT 265 (1998). However, the absence of a reference to a prior deed does not invalidate an otherwise valid description.
Comment 6. By Reference to a Lot Number and Map. A description may take the form of a reference to a recorded map and identifying information on the map that indicates which parcel of land is being described. For example:
Example: Being Lot No. 4 on a Plan of lands identified as Happy Acres, Phase III, prepared by XYZ Land Surveys, dated 10/8/1948 and recorded in Plan Book 3 at Page 67 of the Town of Washington Land Records.
Being Lot 5 in the Third division of Lots in the Town of Washington, drawn to the right of George Washington.
A deed or other conveyance of land which includes a reference to a survey prepared or revised after July 1, 1988 may be recorded only if it is accompanied by the survey to which it refers, or cites the volume and page in the land records showing where the survey has previously been recorded. 27 V.S.A. 341(b).
A description of a parcel of land by a lot number, referring either to a lot depicted on a plan referred to in the deed or one of the original division lots of the town, will control when the description also has general language seeking to enlarge or diminish the scope of the grant. Spiller v. Scribner, 36 Vt. 245, 246 (1863). The rule was extended to provide that a map referred to in a description of property is incorporated in the description and where there is an ambiguity in the description, the map will control. Withington v. Derrick, 153 Vt. 598, 604 (1990).
Comment 7. Description by Reference to Monuments. A description may use monuments or physical items such as trees, streams, bridges, iron pins, the boundaries of adjacent parcels, and the distances between them to describe property. For example, a parcel of land may be described as:
Example: A parcel of land bounded on the north by Old County Road; on the East by the lands now or formerly of A. Hamilton; on the south by the stone wall between the within described parcel and the lands now or formerly of T. Jefferson, and on the west by the water’s edge of Lake Champlain.
Monuments which are natural things are designated natural monuments. Monuments made by a person are referred to as artificial monuments. Boundaries of adjacent land owners, sometimes called “abutters” are also artificial monuments. In interpreting an ambiguous description, a call to a natural monument prevails over an artificial monument, a call to a monument prevails over a call for a specific distance; and a call to acreage is deemed the least reliable of the elements of a description. A monument used in a description must exist at the time the description is incorporated in an instrument and the monument must be sufficiently identified in the document. If the monument does not exist (such as a reference to an “iron pin to be set”) or if the monument is not sufficiently described to be identifiable, then the monument cannot be used in court to prove the location of the boundaries in a later case.
Various types of descriptions have been found to better indicate the intent of the parties. A reference to a monument in a description is given controlling weight over distance descriptions and acreage descriptions. Phillips v. Savage, 151 Vt. 118, 119 (1989).
There are two general classifications of monuments, a natural monument such as a river, tree or similar thing and an artificial monument such as an iron pin, a concrete post or a blazed line. Natural monuments prevail over artificial monuments and artificial monuments over courses and distances in deeds. Marshall v. Bruce, 149 Vt. 351, 353 (1988). A reference to a neighboring property’s boundary is a reference to a monument. Phillips v. Savage, 151 Vt. 118, 119 (1989); Monet v. Merritt, 136 Vt. 261, 264 (1978).
After a description by monuments, the next most reliable description is a description by courses and distances. Haddock v. Poutre, 139 Vt. 124, 127 (1980). The least reliable form of description is the statement of quantity of acreage. State Highway Board v. Jamac Corp., 131 Vt. 510, 514 (1973).
Comment 8. With respect to bodies of water forming boundaries of property, one should consider whether the body of water is navigable or non-navigable by definition, whether the public trust doctrine is applicable, and the effect of the common law principles of riparian rights, erosion, accretion (gradual and imperceptible accumulation of land by natural causes along the banks of a body of water), avulsion (sudden removal of soil from the land of one owner and its deposit on the land of another owner), inundation and reliction (increase in the land area due to the gradual shifting of the river course causing it to withdraw from its banks). (Public Trust Doctrine – State of Vermont and City of Burlington v. Central Vermont Railway, Inc., 153 Vt. 337 (1989). For a definition of navigable waters, see 10 V.S.A. §1422 (4) and 33 CFR Part 329.
Comment 9. The intention of the parties set out in the words of the instrument must be given effect. Withington v. Derrick, 153 Vt. 598, 603 (1990); Spooner v. Menard, 124 Vt. 61, 62 (1963). If the deeds or other instruments under consideration are clear then the precise language of the instruments will be enforced.
Comment 10. Where an ambiguity arises because a single instrument contains inconsistencies, the generally recognized rule is that a specific description will always control a general description. A reference to a prior deed is considered a general description. Pine Haven North Shore Association v. Nesti, 138 Vt. 381, 387 (1980).
Comment 11. Certain cases can be useful in reconciling ambiguous or indefinite descriptions. See the following cases: Withington v. Derrick, 153 Vt. 598, 603 (1990); Spooner v. Menard, 124 Vt. 61, 62 (1963); deNeergaard, et al v. Dillingham, 123 Vt. 327, 332 (1963); Sheldon Slate Products Company, Inc. v. Kurjiaka, 124 Vt. 261, 267 (1964); Kennedy v. Rutter, 110 Vt. 332 (1939).
September 18, 2014:
- This standard was added.