Affordable Housing Institute : US

How do you misplace two acres of ground?

 

One acre = one football field … so where do you mislay one?

 

From our friends in the Boston Globe’s it-can’t-happen-here department comes a tale that, beyond being entertaining in its own right, also illustrates just how important are reliable title deeds and such mundanity as precise surveys.

 

The deed is vague, but Michael Kosinski wants to know where the two acres his family purchased 49 years ago in Ipswich are located. The town has been collecting taxes on the property but has no records that pinpoint the site. How does land just disappear?

 

Michael Kosinski remembers as a teenager driving with his father to look at two acres of land his family had purchased west of town. His memories of that trip include turning off at the Clam Box restaurant on High Street and a road covered with shells.

 

Today, 35 years later, Kosinski is again looking for that land, but this time no one knows where to find it. His father and mother have both passed away, and the Town of Ipswich, which once owned the land and has been collecting taxes on it for the past 50 years, can’t locate it.

 

”The lot exists,” said Frank Ragonese, the Ipswich tax assessor.

 

Does it? 

 

”It just can’t be pinpointed.”

 

Normally, when I buy an object from you, you physically hand it to me and I take it away.

 

I bought ‘em, I’m taking them home

 

This physical-possession approach to settling a bargain fails with land, which cannot move.  So when we talk of transferring property, we actually exchange universally accepted symbols of ownership, but this symbols are only as good as the respect they garner from observers, and that in turn rests on verifiability.  Developed real estate markets have evolved several species of ecota that efficiently enable real property to change hands:

 

1.       Survey.  Precise and replicable (hence verifiable) point-by-point enumeration of a property’s physical boundary (called its “metes and bounds“), so that anyone can repeat the Musgrave ritual of stepping off precisely where my land begins and yours ends.

 

 

2.       Title deed.  Written instrument that conveys legal ownership of a plot of land.

 

 

3.       Title registration.  Publicly available disinterested and unique record of how land is divided, and who owns each plot.

 

4.       Title insurance.  Financial policy that introduces a financially collectible party (the surety) who will pay a stipulated sum (greater than the land’s value as improved) if the insured’s title to the property is later overturned.

 

 

All this lovely (and efficient!) intellectual infrastructure topples into a swamp of uncertainty if that original survey is flawed … or if the landmarks used to set its metes and bounds no longer exist.  In old New England, that can be a problem:

 

Title researchers say land boundaries in the 1800s used to be identified by stone walls, creeks, or the names of adjacent property owners, but over time these reference points move away or disappear, and property lines become fuzzy or nonexistent.

 

As time passes, ambiguity creeps in:

 

Jon S. Davis, a real estate lawyer with Stanton & Davis in Marshfield, said he is working on a case now in Middleborough where two people have deeds written so vaguely that they appear to give both individuals ownership of the same piece of land.

 

Thus the survey process has broken down.  How about the title deed?  Shouldn’t the Town of Ipswich know what’s up?

 

The town of Ipswich mailed the Kosinskis tax bills that seemed to indicate officials knew where the property was located.  The bills, totaling just $16 a year, identified the property as Lot 38 on Tax Map 13.  But there is no Lot 38 on the map, which inexplicably skips from Lot 37 to Lot 39. Town officials say Lot 38 doesn’t show up on any of the maps they have dating to 1977.

 

The crying of Lot 38 …

 

Older maps apparently were discarded.

 

One might think that continuity of records would be critical for a records office.

 

Mr. Kosinski, who works as a landscaper in St. Petersburg, Fla., believes the town should tell him where his land is or give him 2 acres of town-owned property in the same area. He says the town effectively lost the land.

 

”You would assume the town of Ipswich wouldn’t sell something unless they knew where it was,” he said.

 

But Ragonese, while sympathetic to Kosinski’s position, said it’s not the town’s responsibility. ”As the owner of the property, he should be telling us where it is,” he said.

 

That’s what deed books are for, and the town has thrown its out.

 

The town owned the lost property around 1950.

 

“No, no, it’s not the office that’s lost, it’s the property!”

 

Records show the town seized the land for nonpayment of taxes in 1948 and then sold it at a tax auction to Leonard Coffill of Peabody seven years later. Coffill sold it to Kosinski’s father in 1956.

 

The town’s reclamation of the land interrupts the normal chain of title insurance — and, I would argue if I were representing Mr. Kosinski, means that the town has in effect guaranteed title to a specific piece of property that it is now up to the town to identify and validate, or compensate Mr. Kosinski.

 

Coffill, 79, said he bought the property on a lark, paying less than $50 at the tax auction. He said he went out to look at the land after buying it, but doesn’t remember much. Like Kosinski, he recalls it being near the Clam Box restaurant and he remembers a road covered with shells.

 

He drove back to the area recently and had a hard time getting his bearings. He suspects the two acres have been absorbed into someone else’s property.

 

”It’s just a mystery,” Coffill said. ”If two acres were lost, they were probably lost for a reason.”

 

Ambiguity not only cripples use (and hence impairs value), it imposes costs both procedural and financial to perfect the title:

 

The logical next step in a situation like this would be to hire a title researcher to locate the property, but the deed is so vague that Kosinski could spend $5,000 to $10,000 and still not find out where the land is.

 

”It’s like trying to find a needle in a haystack,” said Kim Arena, assistant registrar at the Essex South Registry of Deeds in Salem, where Ipswich land records are kept.

 

Following the trail leads into a dusty archive of old maps:

 

Maps of the area show a Muddy River, sometimes called the Muddy Run. Today there is little evidence of a river or even a creek. Historically, it was an area that wealthy landowners in town would use to harvest wood for their fires.

 

The Clam Box restaurant, which both Kosinski and Coffill remember from their trips to the property, is on the south side of High Street. On the north side is Paradise Road, which leads up toward the Muddy River area. It meanders past a gravel pit and then dead-ends at an overgrown dirt road covered partly by shells.

 

The dirt road connects with Mitchell Road and has a trail off of it leading through woods to railroad tracks that bisect the area. The land is undeveloped, marshy in places, and very buggy.

Kosinski’s property is difficult to find because the deed provides no reference points, just the names of four adjacent property owners — Aaron Ross, John Wise, Andrew Russell, and a man identified only by his last name, Mitchell.  Registry records indicate the four men were major landowners in the area in the late 1700s and early 1800s.

 

Trying to locate Kosinski’s property by tracking an adjacent property is very difficult. The Globe found several parcels of land owned by Aaron P. Ross in the Muddy River area, but only one parcel had a deed that seemed to link up with Kosinski’s property. It referred to a 2.5-acre woodland lot at Muddy River and listed as one of its abutters Daniel Haskell, who owned the Kosinski property in the early 1800s.

 

The Globe traced the owners of the Ross property through deed transfers from the early 1800s forward, but the trail went cold in 1908 with an owner named Mary F. Ross of Ipswich.

 

At the Globe’s request, Arena, the assistant registrar, scoured Registry deeds and probate records and found evidence the property may have been seized and sold by a sheriff. It’s not clear if it’s the same property because the description differs in significant respects, but Arena is convinced that with enough research the abutters to Kosinski’s property could eventually be tracked down and his land pinpointed.

 

”Properties just don’t disappear,” Arena said.

 

Ownership can if the system breaks down.

 

”If you’re willing to spend enough time [Time is money. -- Ed.] and you have the right skills, you’ll eventually be able to gather enough evidence to find them.”

 

The point of this little comedy is not Mr. Kosinski’s plight, but rather how neatly it illustrates the critical importance of crisp, reliable, standardized execution of property conveyancing and title registration.  Without them, property is virtually valueless, and certainly dead capital.  Nations struggling to establish effective real estate capital markets devote very substantial efforts to establishing the property deed registry that we in developed nations take for granted.

 

Lot 38, where are you?

 

Officers have been dispatched to deal with your problem

Send post as PDF to