Thirty Acres, A Fence, and a Survey Exception
The contract describes the parcel as: 'The Southwest 1/4 of the Northeast 1/4 of Section 12, Township 43 South, Range 42 East, LESS the North 330 feet thereof; TOGETHER WITH a 30-foot easement for ingress and egress along the East 30 feet of said lands.' The listing says 'approximately 30 acres.' The county property appraiser's record shows 32 acres. The seller's 1998 owner's title policy contains a standard survey exception. The buyer's new survey shows a neighbor's chain-link fence running 8 feet inside the eastern boundary line for about 300 feet, plus a drainage ditch crossing the southeast corner. The buyer plans to split the parcel into two 15-acre lots and build.
1. Compute the acreage from the legal description. Which figure controls: the legal description, the listing, or the appraiser's record?
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Work the government survey down:
- A section is nominally 640 acres; the NE 1/4 is 160 acres.
- The SW 1/4 of that quarter is 160 ÷ 4 = 40 acres.
- A quarter-quarter is nominally 1,320 ft square (1,320 × 1,320 = 1,743,200 sq ft ÷ 43,560 = 40 acres).
- The North 330 ft = 330 ÷ 1,320 = 1/4 of the tract = 10 acres.
- 40 − 10 = 30 acres.
The legal description in the deed controls what is conveyed. The listing's 'approximately 30 acres' and the appraiser's 32-acre record are marketing and assessment data, not conveyance. However, government-survey sections are rarely exactly 640 acres, so an accurate survey may show a variance of a few percent; the lender and appraiser should use the surveyed area.
The 30-foot easement along the East 30 feet is an easement over land already owned; it adds no acreage and removes none from the fee. The owner holds title subject to the easement rights.
2. What does the standard survey exception mean, and what should the buyer do about the fence and the ditch?
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A standard survey exception says the policy does not insure against encroachments, overlaps, boundary-line disputes, adverse possession, or shortages in area that an accurate survey would reveal. In plain terms: the insurer has not seen a survey and will not cover what one might show. With a new survey showing an 8-foot intrusion, that exception is now live.
Steps before closing:
- Deliver the survey to the title agent and lender and request the survey/encroachment endorsement to delete or narrow the exception.
- If the insurer will not insure over the fence, require the seller to obtain a quitclaim deed or boundary-line agreement from the neighbor, or relocate the fence; otherwise the strip may support an adverse possession or prescriptive easement claim.
- Identify the ditch: a recorded drainage easement should appear in the title search; an unrecorded ditch may be a prescriptive easement or a maintenance obligation the buyer would inherit.
- Consider an escrow holdback or price adjustment if neither can be resolved.
The buyer should not close believing the policy covers a problem the exception expressly excludes.
3. The buyer wants two 15-acre lots. What must be verified before closing, and how does the 30-foot easement affect the plan?
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A split is a land-use question, not just a deed question:
- Zoning: confirm minimum lot size and setbacks. If the district requires 20 acres, the split is impossible; at 10 acres it may work.
- Subdivision/plat: the county may require plat approval, a lot-split (minor subdivision) process, new legal descriptions, and access/concurrency review.
- Access: the eastern lot may have access via the 30-foot easement, but the western lot needs its own deeded access to a public road. Confirm who holds the easement rights, whether it is exclusive, and who maintains it; the fee in the easement strip stays with the owner.
- Restrictions: check deed restrictions, HOA covenants, and any prohibition on further subdivision.
The agent should direct the buyer to the county planning department and a real estate attorney and should not promise a split that the code or covenants may prohibit.