The Survey That Changed the Deal
Buyers sign a purchase agreement for a wooded Upper Peninsula parcel. The deed describes it as 'the Northwest Quarter of the Northwest Quarter of Section 9, T4N, R12W, except the west 330 feet thereof,' plus a strip conveyed by a 1978 deed reading 'a 33-foot strip lying immediately west of the above-described parcel.' The lender orders a survey. It shows the neighbor's pole barn extending 6 feet across the east line, and a gravel drive from the county road crossing the northwest corner to the neighbor's barn. The neighbor has used the drive continuously since 2001; the land is unfenced, unimproved timberland, and no permission was ever asked for or given. The neighbor now claims a prescriptive easement. The title commitment shows a survey exception and a 1985 utility easement.
1. Reconcile the deed with the survey: how many acres should the buyer receive, and what does 'except the west 330 feet' actually do?
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Start with the aliquot part. A quarter-quarter section measures 1,320 feet by 1,320 feet = 1,740,240 square feet = 40 acres.
Apply the exception. 330 feet by 1,320 feet = 435,600 square feet = 10 acres, subtracted from the west side. The base parcel is 30 acres.
Add the 1978 strip. 33 feet by 1,320 feet = 43,560 square feet = 1 acre. It lies within the excepted western area, so the total conveyed is 31 acres, not 40 and not 33.
Which description controls? Rules of construction: monuments over courses and distances, courses and distances over area. The quantity recited in a deed is 'more or less' and yields to the actual description. So a stated acreage figure in the listing or the tax records does not control.
The latent ambiguity. 'The above-described parcel' in the 1978 deed could mean the full quarter-quarter or the 30-acre remainder after the exception. Either reading locates the strip inside the west 330 feet, so the acreage answer is stable, but the strip's exact location depends on the grantor's intent, established by extrinsic evidence (the surveyor's retracement, the 1978 closing file, possession). A court could reform or quiet title if the parties or the title insurer demand certainty.
Advice to the buyer: do not close on the assumption that the tax roll acreage is correct; require the surveyor's written acreage computation and have the title company insure the legal description actually being conveyed.
2. The pole barn encroaches 6 feet across the east line. What are the options, and what does the lender or title insurer need?
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Why it matters. A permanent structure crossing a boundary is a title and marketability problem: the buyer would be purchasing land it cannot fully use and could face a removal demand, and the neighbor holds an interest in the buyer's parcel whether or not it is recorded.
Options, in order of preference:
- Neighbor conveys a quitclaim of the strip or grants a recorded easement for the existing barn, with a boundary line agreement fixing the line.
- Neighbor removes or relocates the barn before closing.
- Buyer accepts the encroachment with a specific title exception and a price credit, documented so the buyer is on notice.
What the lender and title insurer need. A blanket survey exception in the commitment protects the insurer but tells the buyer nothing; the buyer should require an ALTA-type survey with an endorsement that affirmatively insures over (or identifies) the encroachment and any boundary agreement. Lenders generally will not fund where an improvement securing the loan is not on the insured parcel without an exception or easement in place.
Agent's duty: disclose the encroachment to the buyer in writing. It is a material fact about the property; a licensee may not leave it to the title company to surface at the closing table.
3. Evaluate the neighbor's prescriptive easement claim over the gravel drive.
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Elements. A prescriptive easement in Michigan requires use that is continuous, open and notorious, hostile (under a claim of right), and exclusive for the 15-year period. Duration is easy here: continuous use since 2001 exceeds 15 years.
The problem is hostility. Michigan presumes that use of unenclosed, unimproved, wild or timber land is permissive. That presumption shifts the burden to the neighbor to show the use was adverse - not merely tolerated. Evidence of adversity would include improvements or maintenance of the road by the neighbor, a gate, posted notices, or a written claim of right. A gravel drive across unfenced timberland with no permission asked and none refused, and no acts asserting ownership, generally will not overcome the presumption.
Conclusion and advice. The claim is weak on its facts but not frivolous, and the title insurer will still take an exception. The buyer's realistic choices are: (a) obtain a written acknowledgment or quitclaim from the neighbor, (b) obtain a recordable easement describing a defined driveway, which converts an uninsured risk into an insured one, or (c) accept the exception with a price adjustment. The licensee should present this factually and recommend the buyer's own attorney and surveyor, not render a legal opinion on title.