Survey with error: Property Line State specific problem
Have you had your fun yet Todd? Goodwin beat me to it.
On the off-chance that this inquiry is legitimate, I offer the following humble opinions:
> I hired a survey company to do a survey to determine my property lines during escrow. The Title inspection report showed a possible encroachment of a backyard wall onto neighbor's property.
A "Title Inspection Report", which I suspect is what is more commonly known as a "Mortgage Survey", is not a boundary survey.
>We hired a survey company that reported no more than 3 feet encroachment.
Is this the same surveyor who did the "Title Inspection Report"? Or is this a third surveyor? But the important point is that you were made aware of a encroachment of indeterminate magnitude and went ahead with your purchase without contacting the encroachee. That may be fatal to any claim for damages you may have against the surveyor.
If I am wrong and you did contact the encroachee (your neighbor), who denied knowledge of a contradictory survey until after you had made your purchase, you may have claims against that neighbor on the basis of estoppel.
>The neighbor's survey shows a 10 feet encroachment.
A boundary survey typically costs at least 10 times what a "Mortgage Survey" costs. For that the surveyor does 10 times more research, 10 times more field work, 10 times more analysis. This is akin to having a digital exam at the doctor vs. a colonoscopy. Whole different level of effort, whole different cost, whole different level of certainty in the results.
>Note that house is on a curved (cul de sac) street,
No real significance in and of itself.
>and the wall has been there 50 years.
May or may not mean something. If it was not intended to be on the property line in the first place, and hasn't been treated as if it where, it doesn't really mean that much. It is apparent that your neighbor has been aware of the difference. Probably the former owner was, too. If the former owner failed to inform you of encroachments he was aware of you may have claims against him.
>How do i determine, prior to the quiet title hearing, which survey is more accurate?
First off, I'd be meeting in person with each surveyor to discuss their results if I where you. You may want to get the two of them together to compare notes. That is, if your goal is to resolve the issue of where the property line is. If your goal is to sue a surveyor then disregard this advise.
>Are there potential valid reasons why my survey is correct and the neighbor's survey is wrong?
Yes, and vice versa. One glance at the maps would tell me a lot more about the relative level of effort on each surveyors part. But a "Title Inspection Report", which I suspect is what is more commonly known as a "Mortgage Survey", is not a boundary survey. A boundary survey, which may be what your neighbor has, is far more thorough.
>What do i do if i lose in court because the survey i paid for was inaccurate and/or used incorrect methods?
You sue the surveyor. Maybe you get relief. Maybe you don't. That first surveyor reported an encroachment. You knew there was an encroachment when you purchased and you chose go ahead anyway. Does it really make a difference if that encroachment is 3 feet or 10 feet? You will have to prove that a 3 foot encroachment didn't damage you but a 10 footer did.
Survey with error: Property Line State specific problem
> ...... But approximately 10 years ago the legislature (attorneys) changed the definition to "must pay property taxes on the disputed land to claim the land". Given it is impossible to pay proprty taxes on land you do not own, they basically gutted "adverse possession" protection.
> So it is all about surveys. I will post the survey methods used when i get them. Note there are over 40 markers around my house.
Hmmm.....
That does bring up a philosophical (boundary) question to me.......
If you met all of the (earlier) elements of adverse possession before the law was enacted, you probably already own that land. So, if in this case, if possession had ripened ten years ago, and the "possessor" could prove that it had ripened before the law took effect, couldn't you still own that land?
I think you could. Of course court costs may make it not worth it to fight out in court.
Regardless, I advocate getting along with neighbors, and trying to come to some resolution in a matter like this. But I know that sometimes that might be impossible. If you can't make it work, would it be worth fighting in court, vs. tearing down the wall or whatever improvements, and letting the proper boundary line rule.
Survey with error: Property Line State specific problem
> "must pay property taxes on the disputed land to claim the land". Given it is impossible to pay proprty taxes on land you do not own, they basically gutted "adverse possession" protection.
Lots of jurisdictions include the tax paying requirement for AP. These tax paying requirements generally don't effect claims on narrow strips of land adjacent to deed lines.
Survey with error: Property Line State specific problem
> hi. California used to protect landowners with "adverse possession" law which gave u the land after long time period. But approximately 10 years ago the legislature (attorneys) changed the definition to "must pay property taxes on the disputed land to claim the land". Given it is impossible to pay proprty taxes on land you do not own, they basically gutted "adverse possession" protection.
> So it is all about surveys. I will post the survey methods used when i get them. Note there are over 40 markers around my house.
"Given it is impossible to pay proprty taxes on land you do not own" ... that statement may be partial true if you are speaking about an entire parcel of land.
The tax man could care less about exactly where the lines are, he is just making sure that someone pays a tax for everything. A taxing authority simply indexes the title documents and sends a bill... there is no actual ownership determined, hence your theory is hollow.
Survey with error: Property Line State specific problem
I suggest that you spend some time studying ss 321-325 of CA state statutes.
As others here have posted, tax payments are not conclusive and a sorry excuse for deed staking.
If I had occupied and controled a full parcel of land, checking with the tax assessor each year and paying the delinquint tax, the adverse possession claim would be valid.
Recognizing when an occupatio line has become the legal boundary IS A SURVEY MATTER.
Remember, neither judges nor lawyers are qualified to enter onto the land, recover and analyze physical evidence, that is the surveyor's responsibility.
Richard Schaut
It may be more basic
I haven't read all replies, so someone may have brought up these points already.
You stated the wall is 50 years old. In many locations, that may mean that it is better evidence of the location of the original property line than anything either surveyor may be considering, meaning both surveys could be wrong.
You mentioned a Title Inspection Report. That sounds very much like a Mortgage Inspection Report, discussed among surveyors from time to time. what you need to kow about them is that the survey product/service provided in connection with those reports is most often NOT a boundary survey, and is therefore more often than not, worse than useless.
It is a common and understandable error that a homeowner would mistake one of these things as a real survey since it is performed by a licensed surveyor, is in the form of a map which resembles a property survey, and shows information one would commonly expect on a real boundary survey. I've been a surveyor for over 30 years and my own father didn't know the difference until I explained to him that the survey he thought he got such a great deal on wasn't a survey at all. Maybe I needed to get some grey in my beard before he realized that I'm no longer a teenager and might have enough experience to know a thing or two.
Look at the various notations (all the fine print) on your survey drawing. if it says somewhere that it is not a boundary survey, then it's junk, a waste of good paper, something to be used to light up your next barbeque.
If the drawing is titled "Boundary Survey", "Record of Survey", or "Certificate of Survey", without the word "inspection" or "mortgage" appearing anywhere in or near the title, your in better shape.
I only read the first few responses, noting the tallasomebody who suggested that a survey done with GPS is way better than one done without it. That is typically trus where the lines of the survey are several thousand feet, or several miles long, but the opposite is often true on surveys of the scale of a typical lot survey.
The way GPS technology works is that the amount of error in a point measurement might be a few hundredths of a foot (a few 1/8s of an inch), which is great over a distance of several thousand feet, but not so good over a lot line 150' long. Standard ground equipment (measuring angles and distances with the total station - you may think of it as a transit - and measuring distances from that instrument or taping them) will normally produce as good or better results on this smaller scale survey.
But several knowledgeable surveyors jumped on that one right away.
Survey with error: Property Line State specific problem
They didn't gut the law. the tax provision was put in because some were abusing the law to essentailly steal land from the rightful owners.
If your wall has been in place 50+ years, especially in CA, there is a good chance that it is better evidence of the original lot line that the dimensions from the recorded plat. it all depends upon what other field evidence exists.
Also, this will depend upon how your property is assessed. witht he wall there for so long, prescriptive rights most likely have attached. Whether they completely fulfill AP depends upon the full set of circumstances. It is inconceivable to me that a court would not arrive at an equitable ruling of either AP or prescriptive easement which would allow such a permanent and longstanding structure to remain.
When you say 40 markers around your house, I gotta believe that you mean 40 markers in the vicinity of your lot within the neighborhood that a surveyor could utilize to help determine your boundary location, and not 40 markers on your lot lines. Am I correct in that understanding?
Survey with error: Property Line State specific problem
Yes you are correct. I will have more information tomorrow regarding repeat survey comparing the methdologies/markers/etc. Stay tuned. And huge thanks and applause to the Surveyor Community for the academic feedback and collegial exchange. As a physician, and as a consumer, I appreciate and need these "grand rounds".
It may be more basic
The original survey was done to determine property lines given there was a potential encroachment per the title report/inspection we got during escrow. We assumed that we were getting a real survey in terms of getting accurate report of property lines even though not certified. The bottom of diagragm says, "THIS IS A FENCE EXHIBIT ONLY AND IS NOT FOR USE IN LAND TRANSFER." What does this mean?
It may be more basic
Oh, this should be interesting. I'll let others have at it.
It may be more basic
Raises the question, what are the Fences exhibiting?
It may be more basic
Yeah, I'm with Dave on this one. Would love to actually see the "FENCE EXHIBIT".
Survey with error: Property Line State specific problem
The tax requirement dates to the 19th century. It was put in by the railroad barons to protect their vast holdings.
Apparently the change was you used to be able to occupy (presumably meeting all of the requirements of AP) an abandoned property for five years and at the end of the you could make a lump sum payment of the taxes thus perfecting your claim.
The change was now the occupier has to pay the taxes as they come due, not wait five years. This supposedly would give a remote record owner notice that something is happening on his property.
http://interomojo.com/2011/01/10/consigliere-files-adverse-possession-in-2011/
It may be more basic
Mr. Feinmann,
Send that fence exhibit to Ric. It sounds like it's probably something which is skirting the law in CA.
It may be more basic
It means you don't have a surveyor disagreement in opinion. So, disregard all of the above. You still need a Professional opinion of the location of the boundary.
What you have is an actuarial driven, title company insurance inspection. This has been explained to you (I garauntee you that it's well documented even though you didn't fully understand). Essentially their actuarial studies predict that it's cheaper not to get the survey opinion because they will rarely be forced to pay out on a claim of this nature. This allows them to keep closing costs under the federal mandated amounts without lowering their own cut of the closing. If a real survey is performed then they must lower their take at closing in order to still be in compliance. Actual surveys have not been regularly ordered as part of a closing since the 1980's. This is part of the make homes affordable regulations that have worked so well.
Unfortunately, your course of action is still to hire a reputable surveyor to perform a full and complete survey and give you a professional opinion of the boundary. You will never get a settlement out of the insurance company so don't waste your money trying. However, you can potentially solve any problems with the neighbor through mediation efforts guided by the surveyor. It will cost a good chunk of money to get a surveyor of this nature, but it will be your least costly path both economically and emotionally.
Good luck.
It may be more basic
Here is the latest update and question. We got served with quite title. We then repeated survey. Turns out that the original survey was erroneous. The original survey company owner admits that his surveyor used wrong markers/calculations. The error has resulted in a 350 sq foot error (original survey showed only 50 foot encroachment). We bought the house based on original erroneous survey. And now we are being sued in quiet title. Because of wrong survey there are legal fees and loss of valuable land (i could have negotiated this disputed land during escrow if survey was done right).
Unfortunately surveyor did not have insurance at time of incident (got insurance couple months after incident and insurance is denying coverage).
thoughts?
It may be more basic
> Here is the latest update and question. We got served with quite title. We then repeated survey. Turns out that the original survey was erroneous. The original survey company owner admits that his surveyor used wrong markers/calculations. The error has resulted in a 350 sq foot error (original survey showed only 50 foot encroachment). We bought the house based on original erroneous survey. And now we are being sued in quiet title. Because of wrong survey there are legal fees and loss of valuable land (i could have negotiated this disputed land during escrow if survey was done right).
> Unfortunately surveyor did not have insurance at time of incident (got insurance couple months after incident and insurance is denying coverage).
> thoughts?
Mr. Feinman,
I don't know what you mean by "served" with quiet title. If someone is taking it to court now, you can have your say in court against the action. If they have already had their quiet title case heard, it may have already have been decided in court who owns the property in question. By using the term that you got served, implies to me that the "lawsuit" is just beginning.
Also, note that through the process the title company insured title to the property you bought. They may have enough disclaimers that they aren't actually insuring this particular circumstance. But is still another avenue to look into. Title Insurance should mean something.
Hopefully some others who are more expert at this will reply.
Tom
property line disputes
I am currently undergoing problems with property lines. I live in Washington state. Here "adverse possession" is automatic after 10 years if unchallenged. We bought our house and 8.5 acres 7 years ago. We had someone buy the land next to us and build a home. They had a survey done and told us our pump house, a corner of our garage and house are on their property. Our house etc were built 15 years ago so I have been told by 3 attorneys that adverse posession has already happened and we have to do nothing. In order to keep the calm we are goingf to try and trade land for land. Property line adjustment. Good luck.
property line disputes
You should start a new topic, and repost this. You are posting on a topic that is 1140 days old, so it won't get much attention.
