A woman called wanting a survey of her deceased parents?? property, (that she's planning on selling).?ÿ The abutter recently had a survey done, and they received a letter from a lawyer who says that their driveway and fence are encroaching onto the abutter??s land.
In the letter, the lawyer proposes an adjustment to the line so that the fence and driveway will be on their land.?ÿ
This woman isn??t happy with that.?ÿ She believes that the survey is wrong, and if not, then at least her parents owned the land by adverse possession.
My first thoughts are that the boundary line adjustment seems like a reasonable approach, and why is this woman so upset and want to make a fuss about this since she??s selling the property?
I feel like doing anything but giving her a price, along with the warning that I may agree with the other surveyor would be construed as giving her legal advice.?ÿ But she could be just beginning a long and expensive process for not much reason.
I'm also thinking that no matter the how this survey shakes out, I don't think she's going to be happy with the result.
Around here 99 times out of a hundred the "other" survey is usually reliable and reasonable.?ÿ But her need for a survey is legit.?ÿ Especially since she's probably going to sell.?ÿ This is the perfect time to verify that everything out there is where it's supposed to be.?ÿ Would you sign a boundary line adjustment based on your own neighbor's survey??ÿ ?ÿ
If possible I might be prone to give her a price just to "look into" the adjoiner's recent survey.?ÿ Call the surveyor since he probably already has all the info.?ÿ?ÿIf the contrary could be shown you would have a really good idea as to the scope.
I always inform prospective clients they may have to pay me to tell them something they don't want to hear.?ÿ That's part of our job.
I always inform prospective clients they may have to pay me to tell them something they don't want to hear.?ÿ That's part of our job.
'struth. Get paid up front.
Would you sign a boundary line adjustment based on your own neighbor's survey??ÿ ?ÿ
I might, if I'm planning on selling, and the alternative is $20-30k and a year in court, over a small strip of land that really doesn't matter much, and still accommodates the driveway and fence.
The woman needs to know the truth, or at least the best we can tell it.?ÿ Get some money up front, review the records, and if necessary, conduct some field work.?ÿ Either her parents encroached on the neighbor and the agreement will fix it, or the other surveyor is wrong.?ÿ A second opinion is certainly warranted here.
I've already emailed her with a price, which I think will make her decision anyway.?ÿ
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You cannot advise her with any certainty until you do the work. It may be an encroachment, prescrptive use or asverse possession. Gather the evidence, analyze it and see what gives. If the solution is within your knowledge base help them clean it up. Do not fall in the trap of using an adjustment process where an agreement is the right tool.
This type of situation is where our profession tends to stumble. We either point them to the attorney listings or go full on Lucas on them. Learn the law in your jurisdiction and do the work you are qualified to do. Don't forget to get paid and STOP apologizing for making money.?ÿ
or go full on Lucas on them
Loving that
In the letter, the lawyer proposes an adjustment to the line so that the fence and driveway will be on their land.
So, they're offering to sell the strip??ÿ If so, did the lawyer give a price?
The letter just said splitting the survey cost to create the plan for adjustment
So, they're offering to sell the strip??ÿ If so, did the lawyer give a price?
Probably a Boundary Line Adjustment/Agreement rather than a fee sale by deed. Depending on what state we're discussing, BLAs are far and away the best resolution for something like this, if the aim is to avoid litigation, maintain marketable title and minimize financial pain. (Not to mention maintain good relations with the people you might have to live next to for a few decades.)
Probably a Boundary Line Adjustment/Agreement rather than a fee sale by deed.
Right, but I figured most property owners would want a little cash even for a BLA.?ÿ No?
You cannot advise her with any certainty until you do the work.
True, but my overall thinking is why bother really, since she's selling??ÿ Is it really worth the time, cost and aggravation to prove she's right??ÿ And even if she's right, so what??ÿ
I think that agreeing on a line for a small cost, selling and moving on would be the best thing.?ÿ But I can't give her that advice.
Around here, quite often, a BLA is done to document and formalize an apparent unwritten agreement. ie/ to move the deed lines to agree with the existing fences in a manner that satisfies the county assessor, permit reviewer, and cartographer.?ÿ Under those circumstances I can't see a reason for any money to change hands. Not for real estate, anyway.
Leaving that cloud puts the owner in a precarious position, especially if she fails to disclose it and things blow up. Kicking the can down the road helps nobody.
I'm not sure what jurisdiction doesn't allow you to advise your client within your expertise. I can tell you I'll never work there. Helping the client solve problems is what we do. Anything less makes us deed staking mathemagicians.
See, this is an item that has had a little bit of fuzz for me.?ÿ My understanding is that property owners can only come to an agreement if the line genuinely cannot be located based on the available evidence.?ÿ And just because the owners are squabbling over the location of the line doesn't mean the evidence (deed or plat, for example) isn't clear.
In the case above it appears the other surveyor did not have a problem locating the line.?ÿ Can the property owners truly ignore the professional's opinion, as well as the evidence, and simply slide the line around without doing a proper conveyance??ÿ I see how this process could help keep courts from being clogged with random fence disputes but at the same time it seems to undermine the work that surveyors do.
Maybe I am misinterpreting some aspects of this as well though.?ÿ I'd be curious to hear what others think.
Who said anything about leaving a cloud??ÿ I'm saying that she should do the adjustment with the neighbor rather than trying to prove the other surveyor wrong.
I'm ok telling a friend or relative that, but not a potential client or former potential client.?ÿ I think that crosses the line into giving legal advice.
I didn't.?ÿ I just gave her the cost to survey it and prepare a boundary line adjustment plan.
BLA to me is Boundary Line Adjustment.?ÿ Goes to the Planning Board to endorse, so each side can quit-claim to each other.?ÿ So it doesn't matter whether the true original line can be completely ascertained.
The rule about whether the line must be undeterminable or not varies from state to state, I think. In Oregon it is not necessary that the line be undeterminable, only that the parties be unaware of its location at the time of the agreement. And it must not be too easy to determine, as in if the line is well monumented at both ends and one only needed to spend a few minutes scratching around .... that mostly goes to the credibility of whether the line was actually unknown or not.
Owners can make an agreement as to where a line is, but they can't move a line that way.?ÿ That would imply that they knew were the line was and are agreeing to it being in another place. Moving a line must be done in writing.
Once they have agreed to a location, that is enforceable between the 2 owners. But if one or the other or both wants to apply for a building permit, or have the tax assessor recognize the arrangement, or mortgage their property .... they are going to need to prove to those powers that be that such an agreement is in place. And the only way they are going to get that done is by recording documents.?ÿ Around here that means either going through the BLA process or getting a judgement.?ÿ
Remember that, in court, in any claim of an unwritten agreement, the burden of proof is on the claimant. A simple denial by the the opposing party is a valid defense - tough to overcome. So basing a surveyed property line on occupation lines and testimony of an agreement is always going to be shaky. Get it documented and sleep well.?ÿ?ÿ
Careful
If you invoke his name 3 times he might file a lawsuit to recover license fees for use of his name......
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