Lawsuit: Surveyor vs. Title Company

Jeff Lucas talked about that case at a seminar in March.

If I remember the details, the surveyor certified that there were no encroachments, when in fact, there was an encroachment.

Interesting case to read. I learned a new word, new to me. "gravamen" which Black's ninth edition says is "The substantial point or essence of a claim, grievance, or complaint."

I've read a lot of case law, but do not remember reading that word before. Most likely I just don't remember.

Thanks for the post.

Jerry

Points out what an ALTA certification IS. You sign, you're wrong, you pay. Exactly what the contract is.

There is no discussion of the 'encroachment'.

If the foundation/slab of the building had been in place longer than the required time limit, the slab edge would have been the property line and the problem would have been resolved by correcting the inaccurate description, not 'claiming' a nonexistant 'encroachment'.

This is the type of problem that will continue to crop up until we realize that a record description cannot be allowed to control property lines when there is conclusive physical evidence that a boundary has been established and that legal boundary needs to be accurately described.

Deed staking is not professional land surveying.

As claimed in Close's arguement, there was no actual 'damages' suffered.

Richard Schaut

That is an interesting argument but I don't think it would work it Texas, you can't claim adverse possession against public right of ways.

It is my understanding that this was a common line between two parcels of land, not a road between two parcels of land.

Richard Schaut

I talked to...

the surveyor in this case.

There is sooooo much more to it (as usual).

bottom line is...is you can't see the boundary line NO NOT SAY THERE ARE NO ENCROACHMENTS!!!!

We can only certify to what we have knowledge of.

You maybe right, I misread Temple Street as a row. Reads like a lot of bad lawyering.

Lawsuit: The Facts of the Case

> If the foundation/slab of the building had been in place longer than the required time limit, the slab edge would have been the property line and the problem would have been resolved by correcting the inaccurate description, not 'claiming' a nonexistant 'encroachment'.

This is the wrong place for the "deed staker" soapbox. This entire episode took place over less than two years, not nearly enough time for any kind of AP to ripen. The State Street Tower was built, and then a short time later (maybe a year), the 18 Temple Street owners tore down a building that was offset from the property line and decided to utilize their entire lot, right up to the common property line.

> This is the type of problem that will continue to crop up until we realize that a record description cannot be allowed to control property lines when there is conclusive physical evidence that a boundary has been established and that legal boundary needs to be accurately described.

This is not a case of a boundary being established. A new building was erected on the State Street Tower site, and the plans showed it was supposed to be built at zero offset to the property line between State St Tower and Number 18 Temple Street. Changes in the building design led to an error where the building was erected over that line by up to nine inches. When a final survey was "performed", instead of running out that line between the two properties, the surveyor apparently accepted data from the contractor that showed a false location of the building edge and floor slabs. In other words, he didn't actually survey the line.

> As claimed in Close's arguement, there was no actual 'damages' suffered.

Real estate, especially in cities, is sold based upon square footage. When the owners of 18 Temple tore down their building and attempted to rebuild to the property line, they discovered the position of the State Street Tower. By losing at least nine inches throughout the length of their building, the owners were unable to offer the amount of space they should have been. The value of their building and property were lessened by the surveyor's actions. Nine inches times the length of the lot times the number of floors in their building added up to a lot of square fooage, and Hartford commercial office space probably rents around $25 - $30 per square foot.

THAT IS DAMAGE, and basically, it's damage due to tresspass.

I talked to...

> the surveyor in this case.
>
> There is sooooo much more to it (as usual).
>
> bottom line is...is you can't see the boundary line NO NOT SAY THERE ARE NO ENCROACHMENTS!!!!
>
>
> We can only certify to what we have knowledge of.

So, if I understand correctly, there was an obstruction along this line that prevented the surveyor from locating improvements along this line (like two zero lot-line buildings touching?) If it were me, and I were basing the building location on as-builts, I’d dash the lines, or do something to draw attention to them on the drawing, use a detail if needed, then put a big note in that area that says something like "This area is inaccessible for surveying. Improvements were not located by the surveyor in this area. Drawing is based on as-built data provided by ... . The improvements and data shown in this area are subject to change if better data becomes available.", or some such note. It’s important to put that last sentence in, just stating the problem isn’t enough, you have state the effect if something adverse is later found.

In a previous job, I compiled hundreds of as-built drawings of bored and direct buried conduit for a telephone company. The as-builts were based on some combination of me probing, me using a metrotech/m-scope, and contractor provided data (usually for bores). I put out many drawings with something like the above note on it, and no one ever complained. In fact, I think I used to put “contractor as-built data is shown as provided, should be regarded as approximate, and its accuracy and correctness is not certified as part of this drawing.”

It's also important to change the certification to put words like "above ground, visible" in front of words like "encroachment".