Paul Walhus & Dorothy Epp

Dear Austin Title Claims Department,

We are writing to file a formal claim under our owner's title insurance policy issued by Austin Title in connection with the closing of the sale of approximately 12.155 acres of land at TBD Shiloh Road, Cedar Creek, Bastrop County, Texas, which closed on or about April 1, 2018.

Summary of the Defect:

At closing, the deed conveying the property to the buyers (Cindy Nan Donley and Thomas David Pope) was recorded with an incorrect survey and legal description attached. Specifically, the 2011 Olson survey was attached to the deed instead of the correct 2018 Garon survey commissioned specifically for this transaction. This error caused a 70-by-70-foot parcel of land that the sellers (Paul Walhus and Dorothy Epp) expressly reserved and retained to be inadvertently included in the conveyance to the buyers.

Background:

1. In preparation for this sale, we hired surveyor James Garon to survey the property in March 2018. We specifically instructed Mr. Garon to carve out a 70x70-foot parcel that we intended to retain. The Garon survey and its field notes accurately reflected this reservation.
2. We negotiated a $2,000 credit to the buyers at closing specifically to account for the 70x70-foot reservation we withheld. This credit is reflected in the Master Settlement Statement, which both buyers signed.
3. Our attorney at the time, Andrea Bleau, was aware of the 70x70-foot reservation and our intention to retain it. However, the deed filed and recorded with Bastrop County was attached to the outdated 2011 Olson survey rather than the 2018 Garon survey. The Olson survey did not reflect the 70x70-foot reservation.
4. The same Garon survey WAS correctly used for the Access Easement Agreement and the Water Well Agreement, both of which were signed by all parties at closing and correctly exclude the 70x70-foot parcel. This confirms that all parties understood the reservation.
5. When we contacted Austin Title to inquire about this error, we were told: "At the time of our closing in 2018, we used the documents provided to us by the seller's attorney, along with any field notes or legal descriptions that were attached."
6. In August 2022, we visited surveyor James Garon, who confirmed that the Garon survey and field notes clearly establish our ownership of the 70x70-foot parcel. He provided us with additional documentation, signed by the buyers, substantiating our ownership.
7. Both Austin Title and the Bastrop County Mapping Division have confirmed that the Garon Survey needs to be filed and recorded in place of the Olson survey attached to the deed.

Damages Resulting from the Defect:

As a direct result of this title defect, we have suffered the following documented damages:

Request:

We respectfully request that Austin Title:

1. Open a formal claim under our title insurance policy and assign a claims adjuster to this matter;
2. Investigate the circumstances under which the incorrect 2011 Olson survey was attached to the deed instead of the correct 2018 Garon survey;
3. Facilitate the correction of the deed by preparing and recording a Correction Affidavit or Material Correction Instrument under Texas Property Code §5.029, using the correct Garon survey and field notes;
4. Compensate the policyholders for the documented damages resulting from the title defect, including the infrastructure relocation costs, increased fees, attorney fees, and the value of the lost use of the 70x70-foot parcel during the period it was fenced off by the buyer; and
5. Advise on any additional remedies available under the policy or Texas law to restore clear title to the 70x70-foot parcel to Paul Walhus and Dorothy Epp.

We have retained copies of the following documents and can provide them upon request: the original purchase contract (TREC Form 25-11), the Master Settlement Statement reflecting the $2,000 reservation credit, the 2018 Garon survey and field notes, the 2011 Olson survey and field notes, the Access Easement Agreement (which correctly uses the Garon survey), the Water Well Agreement (which correctly uses the Garon survey), photographs documenting the fence erected by the buyer, correspondence with the buyer regarding the dispute, and the title insurance policy.

We understand that Austin Title may need time to investigate this claim. We request acknowledgment of receipt of this claim within 15 business days and a preliminary determination within 60 days.

Please direct all communications regarding this claim to:

Paul Walhus & Dorothy Epp
180 Ladybug Lane
Cedar Creek, TX 78612
Phone: (501) 365-1001
Email: walhus@gmail.com

Thank you for your prompt attention to this matter.