Will attempt to make this general enough that it can't be traced to the actual situation.
Client owns a small metes and bounds tract. Adjoiner on one side owns a larger metes and bounds tract. Both properties were once part of a far larger parent tract owned by the ancestors of the current owner of the tract that somewhat surrounds them. The adjoiner's parcel is the result of about 4 purchases of smaller tracts starting in 1920-something and ending in 1970-something. The client's tract was purchased about 40 years ago. All purchases were from the ancestors mentioned except for the 1920-era purchase which was from an earlier owner of the entire parent tract.
A complete investigation has been made into the step by step creation of each tract out of the parent tract.
There is a problem, of course. Following the deeds precisely, both the client and the adjoiner are occupying a very significant area different from what the deeds indicate. (maybe more, maybe less, not going to say here) It appears that the client's tract was measured off from one side of the adjoiner's tract, but the side was being occupied a substantial distance from where the deed indicated it should be. That probably explains how the later, smaller tract ended up being so far from the location specified on the deed.
Both the client and the adjoiner are not individuals. They are entities controlled by something akin to a board of directors for each with a day to day manager overseeing operations occurring on the tracts. It is very probable that some of those board members may have served on both boards at one time or another. Each entity has an attorney of record to represent them.
I need to communicate what I now know in a manner that will be honest and ethical, yet allow the client to move forward with resolving the concern. In this case, it's my opinion that I should seek permission to meet with the client's attorney of record to discuss, in a somewhat general way initially, what has happened and when it may have happened and then alert him to the importance of the client's options. This might be most emphatically demonstrated by meeting the attorney onsite. I am not a lawyer and I'm not about to pretend to be one. However, the information I need to pass along is very sensitive. The collective "knowledge" of a "board of directors" that changes membership somewhat regularly, especially over a span of 40 years, is a very different animal than the knowledge of the typical long-term landowner who is an individual. This is further complicated in that the actions of one such entity many years ago probably influenced the actions of the second entity. That entity would have the same type of issue of collective "knowledge" of its "board of directors". The day to day manager employed by each entity would have changed many times over the decades as well.
Both the client and the adjoiner need to develop an equitable resolution to the problem with the owner of the parent tract. How each of those parties should proceed to their best advantage may be slightly different than that of the other party. That's for the attorneys to sort through and develop a plan with their clients. A huge potential problem may come when the attorney for each entity meets with their particular client (5 to 10 people present) and opens this can of worms. Those people will want to tell all their friends and neighbors what they have discovered although I'm sure their attorney will advise them to do otherwise. I can foresee a situation where all three parties involved may spend much time and money attempting to find a resolution to a problem that was never intended. Such things become very big things in small town settings where everyone knows everyone else and most of that money being spent is "their" money.
Questions: Should I present what I know only to the client's attorney of record? Should I meet with both the client's attorney and the friendly adjoiner's attorney as their problems are very similar? Should the day to day manager of each entity be present? Should I go out, drive stakes where the deeds indicate they should be, draw up a plat showing potential issues, present an invoice for services rendered, then go to Ecuador for the next six months with no phone and no forwarding address? Should I wander over to the home of the owner of the remainder of the parent tract and tell him what I know?
[sarcasm]You should've titled this "So You Want to be a Surveyor"[/sarcasm]
:snarky:
Backing up to the early part of the story....
It sounds like as least part of the problem has been solved. Put the error where you found it and consider the evidence of where the owners established the boundaries on the ground. If things are uncertain (and they probably will be) it sounds like the order of rights is clear. Now that I've oversimplified that part... If there is true ambiguity remaining it's time to talk.
I would start with the client. Give him the option of involving attorneys. I've done these before and it is surprising how well things can go (and occasionally how poorly). Direct the client to make them want to work it out. Once you have the floor with all parties draw a solution out of them. If you impose or manipulate your own solution it WILL blow up.
You have the skills to get it done. A refresher on mediation will organize and strengthen those skills. Good luck.
Answers
Yes, No, No, Yes& but mostlyNo, No
I wouldn't open the can of worms both fiduciary and the boundary resolution to ALL entities initially unless invited to do so by the entities.
Your obligation is defined by the original scope of services requested. Preparing a preliminary plat with an aerial overlay would be dandy to meet with client's attorney.
It seems like you have a good handle of the situation so a nice graphic plat is worth more than a lot of unnecessary meetings that will may end up in pizzing
Contests between attorneys , managers etc
I agree with bionic. Be the messenger. Too many times we as surveyor try to make sense of the mess and clean it up to where it works. Even thou we come up with equitable solutions, it may not be the wishes of the parties at hand. We have the ability to show the record conveyances, and what is being occupied today. It's up to the parties to decide what's their best interest is. Your interest is to your client. It's hard to survey close to home.
This sounds like an Octo-quadratic equation. There is money to be made, if you figure it all out!
I think you definitely need to keep any discussion on your client's side of the equation until your client authorizes otherwise.
Licensed Land Surveyor
Finger Lakes Region, Upstate New York
Like Dave above said, who hired you?
That person is who you are accountable to, for now. Of course, you, (unlike an atty) are not an "advocate" for your client, or their desires... You do have a choice of who you tell first, yet for the final outcome, you do have some obligations, and goals.
Your obligations are to the "public". And your goals are to help the community, and become a millionaire...... Ha ha ha
I pray about stuff like this. And seek to remain impartial, and honest....
This is why congressmen and surveyors don't often eat at the same table! (little joke).
But, I digress. Have you been paid a retainer yet?
Not the least bit worried about the retainer. There have been numerous projects over the past 20-plus years for this client. There will be more in the future. I have not specifically had projects for the friendly adjoiner but have had several projects over the past 10 years involving their current day to day manager when he was with a different employer. I have also had numerous projects involving the friendly adjoiner's attorney of record and one involving my client's attorney of record. I have previously recovered all relevant PLSS corners key to this project more than once for various projects in that community.
My main concern is how to help the client (through its board of directors and day to day manager) minimize the fallout that will occur if things are mismanaged. It would be twenty times easier if the client was a single individual with long standing knowledge. What I refer to as the "institutional memory" of entities such as the client and the friendly adjoiner can sometimes be incredibly short. As an example of that circumstance I was in attendance at a county commission meeting last week. Present in the room were the three county commissioners, the assistant county clerk serving as their recording secretary, the register of deeds, the appraiser, the county counselor, a local newspaper reporter, the road and bridge director, a road and bridge supervisor and myself. One county commissioner, the register of deeds and I were the only ones present who would have knowledge of any commission business from any time previous to three years ago. Six of those present would have less than one year's experience with the business of the commission.
I'm looking for some paprika advice... oh wait... sorry, I thought this was the cooking forum.
Wendell, post: 354677, member: 1 wrote: I'm looking for some paprika advice... oh wait... sorry, I thought this was the cooking forum.
Don't be a dill, Basil will be along in a mint to sort you out
Huge grins for both Wendell and Jim! You guys are full of wit.
Holy Cow, post: 354674, member: 50 wrote: ...What I refer to as the "institutional memory" of entities such as the client and the friendly adjoiner can sometimes be incredibly short..
So true. Ran into "institutional memory" just a few months ago. Two years ago a small church hired me to pin property and locate fence that adjoiner had just built. They were worried it encroached on church property. No one had any record of deeds or descriptions.
After a little research and field work, the fence was determined to be 1' from the church's property line, on the property of the adjoiner that built it. Set pins, drew up survey, and explained everything to four gents that met me on site. I also provided them with copies of the deeds they should have kept all along and copies of the survey.
A few months ago a whole new set of gents from the church call me up and want copies of survey...that shows the fence is 1' onto their property. They're at it again with the neighbor. I explained the fence is 1' outside their property line...just like the survey showed.
Nobody knew where any of the stuff was that I had given them and a whole new bunch of boneheads were getting ready to argue with the neighbor. The only way they knew the name of the surveyor was out of the church's checkbook where they had paid my invoice....
paden cash, post: 354698, member: 20 wrote: So true. Ran into "institutional memory" just a few months ago. Two years ago a small church hired me to pin property and locate fence that adjoiner had just built. They were worried it encroached on church property. No one had any record of deeds or descriptions.
After a little research and field work, the fence was determined to be 1' from the church's property line, on the property of the adjoiner that built it. Set pins, drew up survey, and explained everything to four gents that met me on site. I also provided them with copies of the deeds they should have kept all along and copies of the survey.
A few months ago a whole new set of gents from the church call me up and want copies of survey...that shows the fence is 1' onto their property. They're at it again with the neighbor. I explained the fence is 1' outside their property line...just like the survey showed.
Nobody knew where any of the stuff was that I had given them and a whole new bunch of boneheads were getting ready to argue with the neighbor. The only way they knew the name of the surveyor was out of the church's checkbook where they had paid my invoice....
My wife does that, reverses whatever she hears, it is aggravating to say the least.
I'd ask my client for permission to contact his attorney: There will be a charge from each end that your client needs to approve. Discuss with said atty the problems you have discovered and possible solutions (and sources of the problem).
The initial disclosure should be through counsel. You've already said you'd rather deal with one person than a council. I think you have done all you can do at this point. You still have the opportunity to provide your professional opinion as to the possible solutions but you have shed the responsibility of disclosure.
Hope that helps.
