My client owns a large parcel with several other people in Florida. They bought it originally as a tax shelter but two of the partners now want to sell, so we need to determine to splits. This lot is about 100 acres and in order to sell and determine their portions, they want me to survey and place markers. The other three owners say that their lawyer will just rewrite the legal descriptions from the old survey. The original survey is 40-50 years old. Now how is this guy going to do that without a new survey to mark the corners of each 20 acre lot? This is a good job for me and I need to justify them hiring me. I think this guy is just a family practitioner. Any advice would be great on how to handle this. Thank you.
I would call that surveying, and if they aren't licensed as a surveyor I don't think it will fly around here now, almost any division is regulated by somebody that has to review it. It has happened in the past. Almost the same thing happened to me a month ago I was contacted to divide a boundary that I had surveyed several years ago. I spoke with the client and gave a proposal. They took it with them and then called me a few days later and said they were going to use the old surveys (the acreage was in several different parcels on the tax map but the current deed described the entire property and that had been surveyed around the 80's). I get a call back 2 weeks later sayin, how fast can you get it done. I figure there was someone trying to pinch a dime in the background somewhere.
Once again, it depends on the State involved. First, recognize that a disproportionate share of State legislators happen to be lawyers. They are very talented at approving things that give lawyers great power.
It's a dollar chasin a dime
- Anyone can write a legal description in any of the states I'm licensed in. In some states it is defined as practicing of surveying. Check your state's statutes.
- It would be quite possible to write a surveyable description without surveying. Just not a M&B description. One lot would be the N 1/3 of Book xx Page xxx. A second would be the S 1/3. The third would be Book xx Page xxx EXCEPTING THEREFROM the North 1/3 ALSO EXCEPTING THEREFROM the South 1/3.
- If they want it marked on the ground they will need a survey, of course.
- Here in Oregon these owners would not have marketable title by simply recording deeds. They need to go through an approval process with the county.
Oregon really doesn't like people much. Too much authority has been taken from the individual. I suppose it would be a nice place to visit but the policies discourage anyone from really wanting to stay.....except for those who are already there and write the policies.
Yes Attorneys can write legal descriptions in Florida. (unfortunately)
You should explain to your client you can perform the requested tasks for the two who want out, however, if a non-surveyor prepares legal descriptions for the remainder portion there is the likelihood they wonÛªt all fit correctly thus possibly causing legal problems in the future.
You might suggest the owners plat the whole parcel, it would make future ÛÏlotÛ disposal much simpler. Initial platting cost may well offset future unnecessary survey and legal fees.
Wish you success!
Mark Mayer, post: 357595, member: 424 wrote:
- Anyone can write a legal description in any of the states I'm licensed in. In some states it is defined as practicing of surveying. Check your state's statutes.
Also...just because something is defined statutorily as falling with the practice of surveying, that does not make it the sole purview of surveyors; it could fall within the statutory definition of the practice of another profession.
Just because statutory definition of the practice of professional land surveying in Maryland contains:
the preparation and design of plans for the following projects, provided that such preparation and design are in accordance with design manuals, details, and standards accepted by the State or local authority:
1. road and street grades;
2. sediment and erosion control measures;
3. nonpressurized closed storm drainage and stormwater management systems; and
4. open conduit storm drainage and stormwater management systems.
Doesn't mean that these activities are reserved solely to the surveyor.
Many of the standard definitions of the practice of law include language like this: "the preparation of legal instruments, including contracts, by which legal rights are either obtained, secured or given away" (State ex rel. The Florida Bar v. Sperry, 140 So.2d 587, 591 (1962)). I think you'd have a hard time making the argument that attorneys can't write descriptive elements of land contracts (deeds). Whether the should is another matter.
Suggest that they attorney writes the deed language, but that they allow you to write the description (I know, that won't get too far).
There is a concept, also, that "to be adequate a legal description must be identifiable on the ground". If the lawyer writes a group of legal descriptions review the descriptions prior to staking them and red-line them. Point out if the description is inadequate (from a land surveyor's perspective - they can't take that away from you), and point out if there is some discrepancy in the descriptions that could be construed as an overlap or gap. As a general rule, the average lawyer does not have the skills to write a properly-written description (some do, but most are not trained or knowledgeable in that area).
Many times, after a poor description is already of record, we must figure out the most likely original intent of the deed, but if you have a chance to help correct the inadequate description before it becomes a part of a deed, use that opportunity, if possible, to keep that butchered description from the public record. Presumably you are expert in this area, and you can point out exactly what is wrong with the description, and why.
I don't know if any of the above is practical, but keep in mind that if you wrote anything that did not past muster from a legal standpoint, the attorney would be all up and down your butt. Why can't you point out inadequacies in a lawyer-written description?
Sad, but true.
Not all of the surveys that surveyors provide make their way to being what is represented in deeds.
Clients and attorneys decide what their intent is and that may or may not be what our survey shows.
When they do describe something other than what our survey shows, they have relieved us from any liability and probably created a mess.
I like how my buddy sells his surveying sevices as "an insurance policy". The intent of licensing us as professional surveyors is to protect the public, right? We should be hired to help folks determine where their property begins and ends, but....
You know, clients will be happy and excited to pay a lawyer just a few to several hundred bucks compared to our uber-expensive surveys of several thousand until.... they want to build a structure or a fence! Where the hell do they put it? I mean, they have a legal description written by a legal professional (lawyer) but all that nonsense doesn't relate it to the real world, the earth beneath them. Then they need us on-site YESTERDAY and we are soooooooo important!
I don't understand how we've sold ourselves as being expensive and dispensable or unnecessary, but it's frustrating and ridiculous. We need to keep informing the public of why we do what we do and what our value to this society is. Our high priced services are valid and necessary to keep property rights in the hands of the person who actually purchased it. Oh, and don't even get me started on real estate agents selling property and spouting off about where the property lines are, without knowledge of a survey....
Welcome to the fun Steven Carper. Enjoy the ride.
I have read a lot of boundary dispute case law and the problems are usually caused by poorly written descriptions, monuments placed inaccurately, fences built without regard to the descriptions, missing monuments, multiple monuments for the same corner, or surveyors ignoring history.
Describing the new lots accurately, precisely, and monumenting them obviously, accurately and precisely will avoid expensive future problems. The costs of litigation will far outstrip the cost of an accurate survey now.
kevin8688, post: 357589, member: 11245 wrote: My client owns a large parcel with several other people in Florida. They bought it originally as a tax shelter but two of the partners now want to sell, so we need to determine to splits. This lot is about 100 acres and in order to sell and determine their portions, they want me to survey and place markers. The other three owners say that their lawyer will just rewrite the legal descriptions from the old survey. The original survey is 40-50 years old. Now how is this guy going to do that without a new survey to mark the corners of each 20 acre lot? This is a good job for me and I need to justify them hiring me. I think this guy is just a family practitioner. Any advice would be great on how to handle this. Thank you.
As has been noted above in most states anyone may write a description. Ohio has requirements in law that and Board of Registration has clearly stated (Board Opinion | 2009-05-27) that most descriptions, there are exceptions, require preparation by a licensed professional surveyor. I have posted the above link before and believe the Ohio law and Board of Registration opinion to be a model for other states. Getting to this status was a process begun many years ago.