REAL ESTATE TIP – Confusing Precision with Accuracy

In a recent EPA case, Natural Resources Defense Council, v. United States Environmental Protection Agency, a federal circuit court found against the agency’s decision to allow a product’s registration because of a rounding error in numbers with five decimal place precision. Though the agency’s rounding method was precise, it was inaccurate. Similarly, in a recent Oregon land case, Kraft v. Estate of Cooper 263 Or. 420 (2014), a state appeals court held in favor of a seller whose deed to the buyer conveyed only 140 feet of street frontage despite reciting 151.88 feet. The buyer of the shorter frontage then lost the ability to divide the property into as many lots as anticipated and sued the seller. The seller’s deed stated 151.88 feet “more or less”, but the buyer argued that the seller could not use numbers so precise as to be expressed in hundredths of a foot and expect the phrase “more or less” to allow a 10-foot discrepancy.

The seller won, but not because the deed  said “more or less.” Rather, they won because the deed said 151.88 feet, and more specifically ”to the north line of an abutting property.”

In ME, as in Oregon, the legal rule regarding descriptions is that monuments prevail over distances and an abutting property line is a “monument”. While 151.88 feet was precise, it was not accurate because the abutting property line was no longer 151.88 feet away as it had been prior to 1924. In that year, a deed between the two then-neighboring lot owners made the seller’s lot ten feet narrower. Neither the seller, nor buyer’s title insurance company was responsible for changing the recitation of the number of feet of frontage because the description was still accurate under the monuments over distances rule.

ME’s rule that monuments prevail over courses, that prevail over distances, that prevail over acreage is well known. However, as the Kraft case shows, application of the rule can be unexpectedly strict. If the length of a particular boundary or the exact area of a parcel is important to your real estate transaction, be certain to consult with experienced land counsel and land surveyors before choosing to believe the recitation of a distance or area that appears in a deed, lease or purchase agreement.

Today’s real estate tip is brought to you by Rick Smith, a LEED Accredited Professional and member of Bernstein Shur’s Real Estate Practice Group and Green Building Team. Stay tuned for more useful tips for real estate professionals.

For more information, contact Rick at rsmith@bernsteinshur.com or 603 623-8700 ext. 8829 or 207 774-1200.