Larry Best, post: 431700, member: 763 wrote: A month ago I completed a title survey that showed encroachments.
I just got a email from a lawyer asking that I reference an easement that was created to eliminate the encroachments. It said "all as shown more particularly on the circled areas on the As-Built Title Survey of Best Winters Land Surveyors." I didn't put those circles there.
How common is it for lawyers to add to signed and stamped survey drawings and record them. It can't be legal. What are my options?
I don't care what state you are from, for that to happen is totally unethical and immoral! Altering a signed and sealed document is completely illegal anywhere. If it were a PDF copy that he altered and sent back to you requesting revisions, that's one thing that you can debate based on the title info you were given, if he filed it that way without your authorization, whole different story. If there were a title company involved I would immediately contact them via certified return receipt mail that your certification is no longer valid as your plan has been altered after being issued. If the plan was filed, I would go to the court house and obtain a certified copy of the altered plan and present your email and the altered plan to the State Bar Association so that he/she is sanctioned for not only forgery, but, practicing Land Surveying without a license. That would be like you showing up in court to defend his client representing yourself as an Attorney!
Tom Adams, post: 431890, member: 7285 wrote: Would it be okay to, for instance, take a copy of a survey plat you had done for your own property and sketch where you would want to build a garage or some improvement to take to a planning office for approval? (Just curious, it's not something I am dealing with)
If you were not licensed to survey, at least here in NJ, it would largely not be accepted, but, there are exceptions depending where you live in the state. Most towns will require a recent survey (less than a year old) with proposed improvements shown by a PE or Planner referencing our Plan of Survey as the basis of the outbounds.
Chris Bouffard, post: 431911, member: 12313 wrote: If you were not licensed to survey, at least here in NJ, it would largely not be accepted, but, there are exceptions depending where you live in the state. Most towns will require a recent survey (less than a year old) with proposed improvements shown by a PE or Planner referencing our Plan of Survey as the basis of the outbounds.
Chris, I said "a survey plat you had done". That was confusing. I meant if you paid a land surveyor for a survey plat, could you, the client, take a copy of that plat and sketch on it, for instance, to show a planning department where you plan on adding an improvement.
Unfortunately, these types of "markups" are frequently accepted by the ZBA's around here. More worryingly, they also accept sketches drawn by homeowners or architects for variances to setbacks. How can you grant a variance to allow for a 3.2' side yard when 10' is required when you don't really know where the line is?!
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Paul D, post: 432058, member: 323 wrote: Unfortunately, these types of "markups" are frequently accepted by the ZBA's around here. More worryingly, they also accept sketches drawn by homeowners or architects for variances to setbacks. How can you grant a variance to allow for a 3.2' side yard when 10' is required when you don't really know where the line is?!
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On the other hand, if surveys are always required, the cost of a 30 foot high amateur radio antenna located 200 feet from any boundary or structure could be doubled by requiring a survey.
Tom Adams, post: 432057, member: 7285 wrote: Chris, I said "a survey plat you had done". That was confusing. I meant if you paid a land surveyor for a survey plat, could you, the client, take a copy of that plat and sketch on it, for instance, to show a planning department where you plan on adding an improvement.
I practice in NJ, and the legal answer on a technical end is absolutely not, only a licensed Planner or Engineer are legally allowed to show proposed improvements based on my plan of survey, however, some towns are very lax in enforcing that and some are extremely rigid on enforcing it.
I live in a small rural town and if you want to build something they will allow you to take a copy of a 20 year old survey and pencil in the location of whatever you want to build. I was on the local combined Planning and Zoning board for 3 years and had constant arguments with both the Board Attorney and Engineer when these types of applications have been heard but you can't beat long time local customs.
If you go to the next town over and use a survey with proposed improvements penciled in, your application will be rejected until you reapply with a plan signed by the appropriate professional to include building plans and elevations, grading and in some cases, even lighting details.
Nice job, JP
An acquaintance of mine shot his age about a month ago - 79! He also has a handicap of 21 (which means he averages about a hundred shots per round and NO mullies. He took everyone's money, their cars, their homes - everything (about $70). I know how you feel. He told me he could die happy that day! LOL.
That's the attorney's way of expressing his (or her) desire for a solution to the encroachment issue.
JB, post: 431795, member: 346 wrote: Did I mention my 78?
WOOT!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Did I mention I average 300 yards off the tee? 200 out and 100 to the right 😉
The attorney has provided a means to end the need to say "encroachment". Your professional reply should be that you are prepared to revise your survey acknowledging new filed documents (pending he sends copy of the filed easements) and provide it to him for refiling.
You should be charging a revision fee and a fee to review and possibly rewrite the revised descriptions and new easements.
The attorney has provided you with an opportunity to make additional money and possibly reducing your liability. He has done his job and should understand they you need to complete your job.
Paul in PA
Tom Adams, post: 432057, member: 7285 wrote: Chris, I said "a survey plat you had done". That was confusing. I meant if you paid a land surveyor for a survey plat, could you, the client, take a copy of that plat and sketch on it, for instance, to show a planning department where you plan on adding an improvement.
The simple and legal answer to that is no. Once my survey plat is altered it is no longer valid. My general notes indicate that my survey can only be relied upon for it's intended purpose (I. e. real estate transfer or whatever the intended purpose is) and may only be relied upon by those individuals or entities specifically named in the certification.
Chris Bouffard, post: 435198, member: 12313 wrote: The simple and legal answer to that is no. Once my survey plat is altered it is no longer valid. My general notes indicate that my survey can only be relied upon for it's intended purpose (I. e. real estate transfer or whatever the intended purpose is) and may only be relied upon by those individuals or entities specifically named in the certification.
I think that you may be putting too much confidence in the protections of your notes and certification statement.
The idea that your liability is limited to whoever is named in your certification statement is based in privity of contract. At one time, probably before most of us were first licensed, privity of contract was a pretty solid defense in the courts. If one was not a party to the contract with the surveyor, they had no standing by which to sue, regardless of any errors or omissions by the surveyor as reflected in the maps, reports, or points on the ground.
That defense has been significantly weakened for several decades. The standard since at least the early 80s has been that anyone who is in a position to have reasonably relied on the results has standing. Privity is still an obstacle, but a minor one as someone who is not a party to the contract or named in the certification only needs to show that they reasonably should have been able to rely on the results. An example might be that you had a contract with the seller to perform an ALTA, and your certification included the purchaser, his title company, and his lender. The purchaser, although neither a party to your contract nor named as a party certified to, would be a party who should reasonably be able to rely on the results of your survey as accurately depicting conditions at the time of the transaction (or specifically, on the date of the drawing). If you set monuments or other markers at corners or on boundaries or if your drawing was filed in the public records, adjoining landowners might be able to show that they reasonably should have been able to rely on your monuments and/or filed map.
A landowner several years down the road after many changes in the physical or title condition of the property probably would not be able to show reasonable reliance for some new purpose. Nor would a party who is not an owner of the subject or adjoining property, such as a title company, RE agent, or attorney involved in some subsequent transaction.
A note as to intended use provides protections as long as that limitation is commensurate with the information shown on the map. Limiting the use to a specific transaction may give you a good shield if the drawing was used as if it were a current survey in a subsequent transaction, but how much protection will depend on whether conditions had changed, and by how much. However, it may also work to your advantage in a contractual sense in that rather than a liability concern for you, it is a breach of contract concern for them which may allow you to sue for what your fees would have been to update the survey for the new transaction.
But as to liability, again it goes back to reasonable reliance. Is the information relied upon used in a way that comports with the info shown. For example, you show perpendicular ties from the front and back corners of the buildings on the subject property and on the adjoining property. Later on, the owners decide to build a fence but can't find the corner monuments, but pull the tie distances and set stakes, find that they line up very well and build their fence. Some time later, another surveyor is hired to survey one of the properties and it turns out that you had a 2' bust somewhere that shows up between your locations of the buildings and the property line between them.
If nothing had occurred that would have caused either of the buildings or the property line to have been moved, then nothing would have occurred that should have altered the relationship when you surveyed. Your map gave ties that should have been precise enough to relocate the boundary from the building corners which were essentially made into reference monuments by the ties. Those owners would most likely be able to show standing based on reasonable reliance regardless of the "intended use" not limiting it to a specific transaction. You mapped the property condition. You didn't map the transaction.
However, you also mapped the condition of title as it was reported to you at the time of your survey. If a lot line adjustment. or some other administrative action or operation of law had occurred which caused the boundary to have been moved, then they would have been attempting to rely on the map for something it was not intended for - to show the relationship of the buildings to a boundary location created after your map was issued.
Your limitation notes are effective if they refer to current conditions and the effects of subsequent changes to those conditions, quality or adequacy of the data for specific uses. For example, you locate features within 5' of boundaries quite accurately, but features farther from the lines only adequately enough to graphically depict relative positions, so include the limitation that the mapped data is not intended for site design. When an engineer, or more likely, an architect creates a design from your map then finds it doesn't quite fit, the error is on him for not recognizing the standards of the data shown. You claimed data accuracies to meet certain published standards, met those standards, and further included a cautionary note that specifically stated that you did not exceed those standards to make the data adequate for a more demanding use. That kind of limitation note offers protection.
Many planning and building departments will accept a landowner's or contractor's sketch on a survey drawing for many types of minor projects. Unfortunately, it happens way too often for way too complex projects, and probably occurs in most planning and building departments. However, there are some projects where to require the landowner to have the surveyor update the drawing, or provide an update to give to an engineer as a base in order to draw the proposed improvement would seem like an unreasonable amount of governmental red tape and self serving to the design professions.
As example, you performed a boundary and topo of a rural parcel. The house is 100' +/- from the nearest boundary line. The homeowner wants to add a 20' x 30' deck to the back of the house. Zoning building setbacks are 25', so the deck won't come anywhere near by any reasonable estimation. The landowner uses a ballpoint pen to sketch in the approximate location and size of the deck. No one is going to mistake that rough sketched deck by the homeowner for data placed on the map by the surveyor. Personally, I wouldn't get worked up about it if it were my drawing. It's bad enough that the landowner will have to pay a permit fee to the local government for something that will have no public effect and for which he will get no useful service from the government in return, but if he also has to get the services of a surveyor to tell him what he already knows (nothing has changed on the property) and add to the drawing what he, and probably his kid in the 3rd grade were capable of doing (drawing the approx. loc & size of the proposed deck), albeit a bit more neatly, and determine what any reasonable person could (that the deck is a long way from S/B line), and if he is also required to engage the services of a structural engineer to determine if the deck supports are adequate, the deck will cost 4 times as much as it should to begin with.
I don't see that as the same as some of the examples given here or in similar threads where an unlicensed person marketing drafting services, or even a licensed design professional of some type uses my map, makes changes, additions, alterations to the data and leaves my signature, stamp, and or title block on it. If a change is made in such a way that it could reasonably be mistaken for data that I had included on my map, then I definitely would get worked up about it.
eapls2708, post: 435308, member: 589 wrote: As example, you performed a boundary and topo of a rural parcel. The house is 100' +/- from the nearest boundary line. The homeowner wants to add a 20' x 30' deck to the back of the house. Zoning building setbacks are 25', so the deck won't come anywhere near by any reasonable estimation. The landowner uses a ballpoint pen to sketch in the approximate location and size of the deck. No one is going to mistake that rough sketched deck by the homeowner for data placed on the map by the surveyor.
That's the sort of scenario I was suggesting. Also, I said a copy of the original. I've often seen plats that say something like "The information contained on the attached drawing is not valid unless it contains the original signature of the Land Surveyor". If I paid for that original survey, and I made a copy to sketch on my additional deck I am proposing, I don't think it should be a problem. As a homeowner, I don't want to necessarily sketch the boundary and "certify" as to the actual location of the boundary, so much as wanting to show where I want to build a deck in relation to the surveyed property. What better way to do that than to take a copy of an actual boundary plat and show my proposed improvements. (Not necessarily directed at you, Evan, but using a quote from your post for my reply.)
Larry Best, post: 431700, member: 763 wrote: A month ago I completed a title survey that showed encroachments.
I just got a email from a lawyer asking that I reference an easement that was created to eliminate the encroachments. It said "all as shown more particularly on the circled areas on the As-Built Title Survey of Best Winters Land Surveyors." I didn't put those circles there.
How common is it for lawyers to add to signed and stamped survey drawings and record them. It can't be legal. What are my options?
While I agree with your frustration, allow me to add this. Typically, the client is the final holder of the plat and for whom it was prepared, thereby giving them the rights (or at least an implied license) to the product. If they then retained an attorney who is working on their behalf, it is wholly plausible that the attorney, working for your client, could have received authorization to add/redact certain things from a drawing.
That being said, had they made a copy, marked on it and emailed you that portion and requested it, the whole mess would be a lot cleaner.
It's not a major problem, as long as the building departments understand what it is, that it's not a revision by a surveyor, just the builder or homeowner sketching. The day that we become liable for notes, lines, scribbles, etc, that occur after delivery is the day we all know that we've become the liability fall-guy for everything, and it's time to get out.