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Real Estate Legal Description

An attorney who prepares a real estate contract should use as specific and definite a legal description of the land as possible. Ideally, a metes and bounds description or a lot and block description referring to a recorded map should be used. In some cases, this type of description may be unavailable. A street address probably suffices as a legal description in a contract, but could create an ambiguity in the description, particularly in the case of a large amount of undeveloped acreage. Attachments such as surveys or tax maps (surveys being better) are very helpful in providing a definite legal description of the subject land. Such attachments should be incorporated by reference into the contract and labeled as an exhibit to the contract. The subject property should be highlighted on the attachment, particularly if other parcels are also shown. North Carolina courts have upheld somewhat vague descriptions of land in contracts to purchase land, but such descriptions place the client at risk that the contract may be unenforceable and void for vagueness, as in the case of Brooks v. Hackney.  The legal description in Brooks provided, “Thence with the Whitehead line. Thence straight to road that goes by Plainfield Church and with the road to the church to include 25 acres in all.  The 25 acres came out of a larger parcel owned by the defendants. In Brooks, the court stated:

If the description set forth in the writing is uncertain in itself to locate the property, and refers to nothing extrinsic by which such uncertainty may be resolved, such ambiguity is said to be “patently” ambiguous… Parol evidence is not admitted to explain the patently ambiguous description.

The protracted litigation in Brooks could have been avoided if a survey of the 25 acres had been obtained prior to the execution of the agreement and incorporated in the agreement.

Erik Lincoln is a founding member of Lincoln. In addition to being an attorney he is also a CPA. Erik has consistently been recognized as one of the top attorneys in North Carolina, by Business North Carolina.