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The surveyor's guide
An effective guide for boundary surveyors already exists. It is called; “A Practical Guide to Disputes Between Adjoining Landowners – Easements”, a compilation by Backman & Thomas, published by Matthew Bender Div. of LexisNexis. It is updated annualy and contains extensive case law references including a chapter on alternate dispute resolution procedures.
Once you understand how to determine the location of the legal boundary, you realize that surveyor have no obligation to preserve record descriptions and, we have no obligation to follow in the footsteps of the original surveyor unless the owners have preserved the original property line.
With the knowledge of the rights of the land owner here in the US, surveyors will understand that our legal system is not the place to deal with errors in land records.
Remember, our legal system is designed to resolve disputes; that is, we have an adverserial system. Any anomoly in the records must be treated by a lawyer as a dispute that must be resolved.
The problem with that is that the established legal physical boundary is proof that a ‘dispute’ has been resolved by the owners who have the right to establish their own boundaries.
Once boundaries are in place, no dispute exists and a simple correction to the record is all that is necessary to prevent litigation.
Surveyors can provide the record correction process in an agency relationship with the land owner and any necessary correction must be in place at the time of a land sale to prevent the seller from perpetrating a constructive fraud by selling something he does not own.
Surveyors who are retained by the title insurer/lender/buyer cannot correct the record but, when we do not inform the client(s) that the record is inaccurate, we facilitate a fraudulent land transfer and then we bear the brunt of the liability for any damages that may result. Remember, the only thing necessary to comply with the statute of frauds is that the record description does comply with the accuracy requirements at the time of the sale.
The solution is for the surveyor and seller provide a survey confirming the accuracy of the description as one of the documents in the acceptance of an offer to purchase. This would happen well before loan application and closing dates, which gives the surveyor/seller team ample time to detect and correct errors in the land records. This also eliminates interference from lawyers because there is no dispute to be resolved, only inaccuracies in the record to be corrected.
Deed staking is not the land surveyors professional work product.
Richard Schaut
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