Although a bit time consuming, I try to use copies of our tax assessment/GIS maps in any transaction in which I'm involved.  We almost always attach a copy to our title committments and tell people to review them at or before closing.  I also obtain one at the same time I get a copy of the deed of record for any searches I do.  I also have a copy of the map or a recorded plan if possible when I am handling a conveyance by deed in a non-title insurance situation.  The extra effort has been well worth it for the potential grief averted.  You can also get the parties to initial the map as a CYA if necessary.

The added bonus later is that when reviewing 20-year old back title, you can verify any boundary line changes or parcel number redesignations from the time the old search was done.

Where the buyer of the seller represented by council? Was there a mortgage made to an institutional lender? Was there an appraisel and did it include the extra lotsl? Did the buyer obtain a survey of the premises? The simplest cure would be to rerecord the Deed with the proper description. The lender would have to agree to rerecord the mortgage with the proper description. If the buyer by way of his contract only intended to purchase the lot and building without the 3 additional lots he should not be unjustly enriched by a scriveners error in his Deed. If his contract is ambiguous with respect to the property to be conveyed that is a problem. Was the property listed by a Realtor? Was representations were made in the marketing of this property? Does the Doctrine of Merger apply in your state? It appears to me that if the lots are ised as parking for an adjacent parcel the seller would not ever want to sell them to your insured. Caveat emptor (buyer beware) and of course beware of the buyer!

Haven't you learned that yet, Robert?  It certainly helps that your seller was savvy enough to have combined the parcels (indicating knowledge). It also helps that it was a commercial transaction with (presumably) more experienced parties.  It is really a contract dispute between buyer and seller, but unfortunately you might end up as a mediator if either side threatens litigation with you as a party.  Good luck.

Neither party was represented by counsel.  There was a mortgage to an institutional lender.  There was no location survey, the bank didn't require one and nobody else wanted it.  There was an appraisal, but nobody provided us a copy (we didn't even know there was one at the time of the closing).  I am assuming that since the appraiser is the one who noticed this, these lots were not included in the appraisal. 

Re-recording will not work.  This would be a material alteration and would require the new owner to execute the deed.  And, technically, it was not a scrivener's error - the sales contract included the lots by reference to the parcel number and that is exactly what is on the deed.

There was no Realtor, it was a private sale.  Who knows what representations were made during the course of negotiations?  That would be something that nobody was privy to except the buyer and seller.

Ohio does have a doctrine of merger, but I don't think it means the same thing as you are referring to.  I don't see how that would apply in this case.

The parcels were used as the only parking for the other building, but at the time of the sale, and for many years, both buildings were vacant.  Thus, nobody was actually using them.  Certainly, the seller would never want to sell those lots off separate from the other building, but he did.  I don't think its a case of "buyer beware," it is more a case of "oops, the seller screwed up."

I was actually thinking about contract defenses... perhaps a mutual mistake (if it was mutual).  I do know that the buyer was trying to buy those lots, but I don't know if she thought she was getting them at the time.  I do think they will work something out.  They all seem like reasonable parties that had a business relationship prior to the sale. I'm sure they will resolve this without suing each other (or me).

Who prepared the contracts? Merger happens by operating of law and not by the action of the Tax Collector or Assessor. I would think if the lots are undersized they would have merged with the other lot when they were used as parking. Tax lot descriptions are not insurable as they are specifically for the purpose of taxation and NOT reliable. This is what happens when buyers and sellers think they will save money with no survey, no lawyer, etc. I am surprised they wanted Title Insurance or did they forego that as well and rely on a title search and an escrow company to close? Which brings us back to the lender. If the Appraiser saw a problem with the description how did the matter get cleared to close? Did they require a lender's policy of Title Insurance. Where they willing to accept a Policy with a survey exception? This is not whether the lender requires a survey but if the Title Insuror requires one.

The sales contract was prepared by the seller.  He did not attach a legal description (few ever do), instead he identified the property to be conveyed by parcel number.  The parcel number included all of the lots; in fact, he was the one who requested that they be combined and taxed under the same parcel number.  I don't think I understand "merger" as you are using the term.  There was nothing wrong with size of the lots. 

The tax descriptions were not insured.  The actual legal descriptions were used - they were only identified by the parcel number for convenience, I presume.

The buyer did buy title insurance.  His Owner's Policy covers all of the lots that were transferred. He has good title to them all.  I closed and insured the property. 

The appraiser had no problem with the original appraisal, though as I understand it now, those parcels were not included in her appraisal.  She was specifically told that those lots were not being sold.  However, the seller identified them on the contract as part of the property to be conveyed.  The appriaser only realized the issue this time because she was asked to appraise the other building and she was told that the vacant lots were to be included this time... she noticed that the seller no longer owned them.

The lender did not ask for survey coverage.  In Ohio, if they had, we would have ordered the survey, removed the survey exception, and issued a survey endorsement.  The lender didn't require any of that.  (The buyer didn't want it either). Since they didn't want the survey coverage, and they were fine with the survey excpetion remaining on the policy, I did not order one - nobody would have paid for it.

Hopefully you won't get there, but under Ohio law a meeting of minds as to essential terms of contract is required to enforce a contract. Resource Title Agency, Inc. v. Morreale Real Estate Services, Inc., 314 F. Supp. 2d 763 (N.D. Ohio 2004).  As you stated, mutual mistake might be a valid defense to the contract as I would think that the acreage to be sold in this case (1 tract vs. 3 tracts) would be an "essential term" of the contract.  If  there was never a meeting of the minds regarding the exact parcels, then a court might set aside the whole transaction and make the parties refund monies, pay off the mortgage and transfer the real estate back to the seller. 

Of course the buyer could then make an equitable contract claim for detrimental reliance against the seller for the interest, cost, fees paid for the transfer, since the seller prepared the contract and had knowledge that all three parcels were being taxed under one parcel number.  Probably not a good outcome for either side.

There is also the issue of parol evidence.  If the court finds that the language in the contract is unambiguous (ie) parcel number clearly shows intent to transfer all three parcels, then the seller won't be able to introduce any evidence outside the four corners of the contract to contradict the terms.  The seller might be s-o-l (legal term meaning....well, nevermind.).

  However, since survey exceptions remained on the policy and pursuant to standard exclusion 3(a) on the policy jacket, it shouldn't be a claim against the owner's policy. 

I feel your pain on this.  Something similar happened to us a few years ago.  The seller listed his property with a realtor planning on selling the house and 2.5 acres,  The realtor didn't check out the listing.  The actual parcel contained a house and 10 acres.  Realtor thought it had been split but it hadn't.  Contract was written for the house by address and parcel number but not the amount of acreage to go with it.  Seller and realtor both thought that the title company would order the pin survey for the split.  Needless to say nothing in the contract about a new survey.  The bank didn't require a location survey.  Appraiser appraised the house and the 10 acres.  We closed it. No one at the closing said anything about a survey or the legal description, we pointed out the description, not one word.  About 3 months after the closing the Seller called and said we sold to much land.  It did have a happy ending because the Seller and the buyer both knew they had agree to the house and 2.5 acres.  So Seller order the survey we got the approvals, but it was a lot of work to undo and then redo deeds, mortgage and closing.  Needless to say we go over desciptions at closing a couple of times,  I use tax maps, plat maps and/or  surveys  of record if I can find them and attach them to title commitments.  Pictures are worth a thousand words.

What's is troubling me is the Appraiser claiming to have talked with the seller and being told the lots were not included in the sale. That is contrary to the contract of sale and should have been a red flag for the Appriaser. Why would an appraiser omit a portion of property he was asked to appraise unless instructed by the lender? Merger in New Jersey  is when undersized lots come into common ownership with either another undersized lot or an improved conforming lot. By the way I can't start my day with out checking out Source of Title!

I'm sure someone told the appraiser that those lots were not being sold.  She probably assumed that someone would tell me (the title agent) and they would not be included.  I'm not sure if she ever saw the sales contract, but that is an interesting point.  If she had, I think she would have realized that those lots were included with the parcel number given on the contract.

Unfortunately for the seller, nobody told me anything, so I just went by what was described on the contract.  And... we transferred all of the lots that were a part of that parcel number.

I don't think we have anything like the merger you described.  I was thinking about "merger of title" when the same person holds, for example, a life estate and then later receives the remainder interest.  The interests merge into the fee interest and land contract is terminated.

Thanks for the input... and I'm glad we got ya hooked on Source of Title.

When the seller decided it was a good idea to consolidate tax parcels - combining lots that were not intended to run together - he must have been having an off day.  While I agree that the appraiser probably should have raised the flag, and maybe the lender should have caught the difference between the legal descriptions on the appraisal and the deed, who else saw the appraisal?  Oh yeah.  I suppose everyone saw the appraisal except Robert, the title agent. 

It really amazes me that, in any conveyance of property having any significant value, people on either side of the transaction would forego the services of an attorney and a surveyor.  I see those as integral parts of the transaction.  Title insurance is equally important.  I don't want to put down the real estate agents, as many of them are very good at what they do.  But I would never put my faith in one to get me from contract to closing without all of the specialists also doing their part.

It is very common here in OH for lenders to only loan on the home and up to 5 acres.  Anything over that in "one parcel" doesn't get appraised. 

In this case it appears that the seller "forgot" about combining the lots prior to the sale. 

One question:  Is the lot with the building accessible?  You mentioned the 3 lots were used as parking but what about ingress/egress. 

It would appear the simplest solution would be for the current owner (buyer at the time) to "sell" the lots back or sell to the new buyer (wow - that is confusing).  Or, they could work out some sort of easement or ingress/egress agreement or lease option.

At least you are in the clear Robert.  I can't imagine how this would ever be the title companies fault but we all know that any bump or snag or compete breakdown in communication is our fault. 

A boss once told me when I was training to do commitments and policies that you can look at our business like a totem pole.  The Lender sits at top and then the Realtors, then the seller and on down the line until you get to the very bottom then look down just a bit more and you will find us - title insurance agency, the TOILET of the totem pole.  And....all sh*t rolls down hill.  Where does it land?  In the toilet where we get to break our backs, read minds, be psychic in case your mind reading ability is not working right and have the ability to know what they meant, not what the contract or closing instructions stated and of course have all the answers no matter the question.

I am not sure any Realtors would have made a difference, sometimes they don't have the right information either.  Most rely on Title Insurance Agents to keep them straight - I have had a few times where the contract was incorrect and imagine the problems that arose when we pointed out the problems. 

It is quite ironic (??) - when we find the discrepancy and point it out to fix the situation before closing we are causing trouble.  But, when the problem slips thru due to lack of information or the correct information everyone involved stops and says "call the title company, its their fault, they should have know or found this or that"

A simple survey would have prevented this situation I am sure.  The cost of surveying the area alone would have raised a flag to the buyer I would imagine.  Three lots - not the standard 160 -175 survey charge.

Oddly, I still have not heard from this seller.  However, he has called the buyer and insisted rather strongly that I screwed this transaction up and he "better fix it!"  He is insisting that the buyer convey those parcels back to him.  As proof that "I screwed up," he told the buyer that his attorney agrees that it was all my fault.  Apparently, I just found out that his attorney prepared the sales contract, which inlcluded the parcel number (which includes the lots in question) as the description of the property to be conveyed.  I wasn't aware that he had an attorney - he certainly didn't show up at the closing or review any of the closing documents.  But, of course, the attorney has to blame someone else... and who better than the closing agent?

I suspect that by now the attorney is aware that this wasn't my fault and that is why I haven't heard from them.  The seller keeps pestering the buyer hoping that he will just cave and sign a deed.  However, the buyer said that he was negotiating to purchase those lots and I don't think he is admitting that this was a mutual mistake at all.  It is certainly quite a drama for a simple real estate transaction.  Every time the seller calls the buyer, the buyer calls me.

We will have to see what happens next.

 A few years ago we started to do the same as David, provide copies of all maps and a big "in your face" disclosure to review them prior to closing to make certain we are conveying the correct parcels.  This has eliminated most of the problems but we still have people who are out to lunch.  Best thing to so is have systems in place to confirm you conscientiously followed instructions and gave the parties every opportunity to review whatever.

If we make a mistake, we fix it at our expense.  If the parties made the mistake, sometimes we assist in resolution with the blessing of our underwriter, sometimes not.

To specifically avoid this situation we REQUIRE a survey on all purchase transactions.  anytime we get grief regarding the cost, we ask if the people would like to know what they are buying.  Most do and when they think about it, $150 isn't so bad. 

The buyer's attorney told him that he discussed the situation with the seller's attorney and the seller is unwilling to pay any expenses to transfer these lots back to him. He is also unwilling to pay any part of the taxes that the buyer has paid for the past few years (there was a land contract for the past few years, before the purchase). 

It seems incredibly arrogant for the seller to claim that those lots were never supposed to be sold, and at the same time, refuse to pay the taxes he would have had to pay if he hadn't transferred them.

Meanwhile, I have also discovered that the appraisal DID include those lots as well. The appraiser apparently went off the same contract that we had and she did appraise all of the parcels together.

So, those lots were appraised as part of the sale, and included on the deed at the time of sale. It appears the only person who knew that those lots weren't supposed to be included was the seller and HE (through his attorney) prepared the sales contract!

As it stands, the seller has demanded that the buyer convey those lots back to him as his own expense, or he is planning to sue the buyer and ME for fraud.  I just don't get it - he gave me a contract, I followed it, and somehow he thinks that is fraud. Go figure.