Civil Engineering Reference
In-Depth Information
In most jurisdictions the rule of first in time, first in right” is applicable so if
a mortgage is recorded before the agreement, the agreement will be subject to the
terms of the mortgage. If the mortgage is foreclosed the foreclosure proceedings
may nullify the agreement unless the lending institution has assented to it.
An additional consideration when entering into boundary agreements is the
possibility that an agreement may change the size of the lots which are being
affected by the agreement. A change in a property line could make the lot area or
frontage in violation of a city or town zoning ordinance. Property owners consid-
ering a boundary agreement should consult an attorney prior to entering into any
verbal or written agreement.
14.16 Ownership of Streets and Ways
In some jurisdictions a conveyance of property abutting a street or way conveys a
fee to the center of the way. A description having the language “bounded on the
south by Main Street…” would convey the fee to the center of the way. However,
language in the deed may exclude the fee in the way. If a deed read “thence run-
ning along the northerly line of Main Street…”, the fee in the way would probably
be excluded and no fee in the way will pass to the grantee. If the way is public, the
fee is of little use to the abutting property owner as the public has a right of pas-
sage. If the way is private, the owner may be able to exclude certain people, but
this will depend on the jurisdiction and the rights which others may have in the
way. This rule is sometimes written into the state statutes and referred to as a “der-
elict fee statute”.
