land surveys | Title Nerds

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Forensic title expert Joe Grabas was our special guest for Episode 5 of our second season of Title Nerds, joining co-hosts Mike O’Donnell and Bethany Abele. Joe is a certified title professional, and the Director and Chief Instructor of the Grabas Institute for Continuing Education. He is also the author of “Owning New Jersey: Historic Tales of War, Property Disputes & the Pursuit of Happiness.”

Mike asked Joe to talk about tidelands issues, a particular concern in New Jersey since the State of New Jersey has rights to the land not only currently flowed by the tide, but formerly flowed by the tide, creating unique challenges for homeowners who may not see any apparent water anywhere near the site; the State of New Jersey may still claim ownership of a large share of that property. Joe emphasized the importance of always ordering a wetlands survey and a land survey upfront when contemplating the purchase of any property, as both a title issue and a regulatory issue. Joe also discussed how the NJDEP handles bulkhead bumpouts for waterfront development, another thorny issue, as well as how hearings before the Tidelands Bureau, which considers applications for tidelands grants, are conducted.

Bethany then interviewed Jim Mazewski, an associate in our Title Insurance practice, about Hillary Developer, LLC v Security Title Guarantee Corporation of Baltimore in the New York Appellate Division, 2^nd Department, a published decision at 219 A.D. 3d 815 (2023). Jim explains the complicated details of the case, wherein a Defendant sold property to Hillary Developer under an alternate name, which property had already been sold to a different buyer at a sheriff’s sale to satisfy a judgment. Hillary Developer later filed suit against three parties including Security Title, which had issued Hillary a title insurance policy, alleging that it had not been informed of the judgment’s existence. Security Title then brought claims against its issuing agent, SSS Settlement, for fraudulent concealment and prima facie tort, alleging intentional harm and malice. SSS Settlement moved for dismissal of the claims, which was denied by the trial court but reversed and dismissed on appeal.

Jim said the important takeaway from this case is that, when pleading a fraudulent concealment claim based on a failure to disclose information, it is necessary to identify the specific duty imposing the obligation to make that disclosure.

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Surveyor Keith Ludwig, PLS was the special guest for this episode of Title Nerds, in which he discussed with co-hosts Mike O’Donnell and Bethany Abele his experience of over 42 years in the industry. With a specialty in researching ancient deeds and surveys, Keith shared some of the more fascinating matters he has encountered while conducting land surveys, including serving as a surveyor for a defendant in Atlantic County where title had gone back and forth between the same two families numerous times over 200 years. He noted that a major misconception about surveyors is that it is their responsibility to determine if a particular easement or covenant affects the property in question. That is not true. The surveyor can only state where the easement/covenant lies physically, but cannot advise whether it affects the property; that is the responsibility of the attorney to determine.

Keith noted the importance of looking back at mother deeds when preparing boundary surveys, no matter how much time had gone by, and also discussed the interesting issue of streams and tidelands as boundary lines, when the water flow may have shifted.

Mike and Bethany were interested to hear how surveying has changed during the course of Keith’s career, with GPS revolutionizing modern surveying procedures.

Mike then interviewed Riker Danzig’s newest associate on our Title Insurance team, Kori Pruett, who provided an overview of a New York case involving AirBNBs. In West Mountain Assets LLC v. Dobkowski, the New York Supreme Court held that the plaintiffs, who were using their home as an AirBNB, were violating a deed restriction limiting use to “single family residential purposes” only. The plaintiff had brought a suit for alleged interference with its tenants’ (various AirBNB clients) free use of the property, claiming that the defendant neighbors were interfering with use of the road servicing both properties.

Defendants counterclaimed for a declaration that the plaintiff’s use of the property for short-term rentals violated the deed restrictions, which stipulated the property could only be used for single family residential purposes, could not be used for commercial activity, and could not be used for “noxious, dangerous, offensive or unduly noisy activity of any nature.” Defendants also counterclaimed for adverse possession of a portion of the road parcel.

Kori explained that the defendants were granted summary judgment on the first counterclaim, with the Court holding that the “transient living” nature of AirBNB tenants fell outside the scope of a single-family residential use. The adverse possession claim was dismissed.

Kori cautioned that this case demonstrates that property owners need to pay attention to any deed restrictions before renting out their home as an AirBNB or VRBO type of rental.

Title Nerds

A Title Insurance Podcast by Riker Danzig

Tag Archives: land surveys

Season 2, Episode 5

Season 2, Episode 3