LEGAL VIEW: It's dirt, not a home

By Paul Tharp

The Daily Record Newswire

My colleague asked me to read a passage for accuracy. The passage mentioned homeowners. When I reviewed the passage, I changed "homeowners" to "property owners" and highlighted "property owners."

When my colleague sent me a revised paragraph to check for accuracy, she'd changed "property owners" back to "homeowners."

Later I was sitting doing nothing and I thought about it. Perhaps, I thought, I should explain myself.

I understand the general public thinks of property ownership as homeownership. The most valuable component of property ownership is, more often than not, the house, the home, the dwelling, the improvement, the fixture.

Trees are fixtures too, and certain other immovable objects. But that too is a legal term: fixtures. Most people just call them trees, houses, homes. Homeownership.

I understand the inclination, and I myself thought of property ownership that way until after I had become a lawyer and after I was a homeowner. I'd wanted a big yard and bought a house that had one. So I'd thought about dirt, but I considered myself a homeowner.

But after I was practicing for a time and began receiving updates and alerts about real property law and continuing legal education advertisements featuring courses with names like Dirt Law Updates, Dirt Law 101, Advanced Dirt Lawyering, etc., I wondered why the hell they called it dirt law.

Clerking over the summers during law school, I learned to title search and draft deeds and all manner of legal documents to effectuate the purchase and sale of properties, under the supervision of a paralegal, but it was not until I was referred my very first closing that the meaning of dirt law came to me.

The banker who helped me set up my business account referred a client to me who was under contract with a firm to purchase a house, the client said, in Forest City. I thought I'd drive out to Shelby and do a quick title search. I still thought of title searching as something one did in person, in the county seat of the county where the property was situated. One searched out the physical deeds from paper indexes, visited the tax office personally, laid out the maps in the mapping department, etc.

Except Forest City was in Rutherford County, not Cleveland, so the county seat was Rutherfordton, not Shelby, which was about twice the distance from Charlotte.

I went anyway. The title search took entirely too long. It was confusing, with twists and turns in title I had never encountered as a clerk. Had I lost my touch? I'd done hundreds of title searches, but now, in a distant western county, when it was time for my name to be the one certifying title, I foundered, unsure of myself.

I decided to copy everything I thought could possibly affect the property my client was under contract to buy and brought it back to Charlotte and laid it all out, in chronological order, on the floor. I downloaded and learned to use a program that enabled me to map out the dimensions of the property by plugging in its metes and bounds description.

When I mapped the deeds, it appeared to me that the property my client proposed to buy was about one-eighth of the land she thought she was buying, and another tract lay completely within the property lines of her parcel with no easements for ingress or egress. The dimensions of the property were not consistent with neighboring properties and the property lines crossed her neighbors' lines on every side. About seven different heirs had some interest or another in the property. I couldn't tell whether any, or how many, were dead or alive.

Luckily, I knew an experienced property attorney who was kind enough to allow me to fax him all the deeds and maps and make my argument to him. I convinced him. The title insurance company I planned to use to insure the property concurred. It would not issue a commitment, not even one riddled with exceptions. The seller didn't own the property.

My next task was to call my client and give her the bad news. I was wrong, she said. The seller's attorney had told her it was the brick house on the right.

"The house is brick?" I said.

"You don't even know what the house looks like," she sneered.

What a fool I was. I didn't know. I felt like I ought to have known.

"I'm sorry," was all I could say. "I'll call the lawyer and tell him. You call him in fifteen minutes and see what he says."

I hung up and called the seller's lawyer. I told him the seller didn't own the property. It had gotten messed up in foreclosure ... well long before that. It should have been caught somewhere along the line, but well, that didn't matter now. Was there anything else I could do? No, he said.

Next day my client called me back and said she was sorry. She said she'd still pay me for doing the title search.

I still felt like I'd done something wrong because I didn't know what "her" house looked like. I was sorry too.

But I didn't know about the house because, with respect to title, it was irrelevant. All that mattered was the dirt. Sure, houses or the fixtures and so-called improvements to property add value, but at the very bottom, at the root, real property law is about dirt. Dirt law.

Metes and bounds descriptions trace lines in dirt. In the past those lines were traced to corners, often marked by wooden stakes, later iron stakes. In some older properties they are still there. A wooden stake marks the outer corner of my backyard.

Those lines in the dirt, conceptually, drawn on deeds by metes and bounds or, more often in modern developments, on maps or plats, are all that matter when it comes to legal title, when it comes to a bank having a valid lien, when it comes to anything affecting real property. It's all about dirt.

It's not about the house. It's not about being a homeowner.

It's about the dirt the home sits on.

It's property owner.

Published: Wed, Feb 23, 2011