Activity Feed › Discussion Forums › Strictly Surveying › Deed stakers dilemma
Bow Tie Surveyor, post: 413700, member: 6939 wrote: Here in Florida, a boundary survey has to be in “complete accord with the real property description shown on or attached to the survey map or report”. The rules are currently changing to use the term “record title” that our surveys are to conform. The ALTA/NSPS standards also indicate that the survey is to be based on record information. An acquiescence that has not been adjudicated is not part of the record. So if you are surveying per record title, the potential acquiescence would not control.
Yeah, that’s what most had assumed int Utah, it ain’t so until the judge says so, issue run all the way to the Utah Supreme Court. Title insurance companies hate this, attorneys all stirred up. Here is the court says:
Conclusion
å¦ 24 Today, we reaffirm and make express our prior holdings on the timing of title transfer under the doctrine of boundary by acquiescence. Our prior cases necessarily held that the doctrine confers and settles title by operation of law, not by judicial decree. Transfer by operation of law correlates with and is confirmed by the related doctrine of adverse possession. The policy considerations put forth by Q-2 and the amici do not justify a departure from this result. We therefore hold that the boundary by acquiescence doctrine confers title by operation of law at the time the elements of the doctrine are satisfied and that a judicial adjudication of a boundary dispute does not grant title, but merely recognizes the title that has already vested. The decision of the court of appeals is affirmed.Q-2 LLC v. Hughes, 368 P. 3d 86 – Utah: Supreme Court 2016
amici where the states title insurance companies
You may be right for Florida.
aliquot, post: 413717, member: 2486 wrote: Yes, I think the efforts to seperatly title and location are ill concieved. They can be inextricably intwined. A surveyor who refuses to wade even ankle deep into questions of title will often find the question of correct location unaswerable.
If they are entwined (and I believe they are) then they are, by definition separate. Where I see problems arise is when they are considered synonymous and interchangeable by someone who, knowingly or unknowingly, wants to elevate one by devaluing the other.
Bow Tie Surveyor, post: 413715, member: 6939 wrote: Yes, but isn’t it the expectation of the law that the opinion of “where” be based on the “what”?
I don’t know if I’d put it as the law having “expectation”. Statutory law sure, the expectation is I will complete 24 hours of CEU’s every two years if I want to continue to practice. But I don’t view boundary law, that is case or common law, that way. The common law hints, points, intimates, all the time whispering “intent” in the surveyors ear. To wax biblically on a Sunday afternoon, it’s less the Decalogue and more the Psalter.
The longer I do this, the more distrust the search for rules, for universalities, for “big answers”; each survey has its own small answer…I’m content if I can find that.
LRDay, post: 413721, member: 571 wrote: Yeah, that’s what most had assumed int Utah, it ain’t so until the judge says so, issue run all the way to the Utah Supreme Court. Title insurance companies hate this, attorneys all stirred up. Here is the court says:
Conclusion
å¦ 24 Today, we reaffirm and make express our prior holdings on the timing of title transfer under the doctrine of boundary by acquiescence. Our prior cases necessarily held that the doctrine confers and settles title by operation of law, not by judicial decree. Transfer by operation of law correlates with and is confirmed by the related doctrine of adverse possession. The policy considerations put forth by Q-2 and the amici do not justify a departure from this result. We therefore hold that the boundary by acquiescence doctrine confers title by operation of law at the time the elements of the doctrine are satisfied and that a judicial adjudication of a boundary dispute does not grant title, but merely recognizes the title that has already vested. The decision of the court of appeals is affirmed.Q-2 LLC v. Hughes, 368 P. 3d 86 – Utah: Supreme Court 2016
amici where the states title insurance companies
Interesting case! Although it really only seems to speak to the timing of when title transfers by acquiescence.
What I found interesting was that both parties agreed on the acquiesced boundary. However, the plaintiffs wanted an earlier date on the acquiescence, so the respondents subsequent adverse possession claim would be defeated. As a result of this case, that boundary by acquiescence may end up being superseded by a boundary by adverse possession which is on the line of record title.
This is a perfect case of why a surveyor should not address anything but the record title when there is a dispute between parties. However, if the two parties are willing to agree to a boundary by acquiescence regardless of their record title, I think a professional surveyor can be of great service in helping the two parties get this particular boundary recognized in the public records and avoiding future litigation. That would be a great service to the public.
LRDay, post: 413721, member: 571 wrote:
amici where the states title insurance companiesOh yeah, and the Title Insurers bemoaning the fact that there may be countless “off-record” title transfers floating around out there driving up their exposure is rich. Isn’t that the reason why they are in business in the first place? Hey, if we had a nice neat managed title system (like the Torrens system), we wouldn’t need title insurance.
My point is that you can’t make a legal determination of acquiescence. A court might rule differently than you. The title would be essentially “clouded” in my opinion because the property is either where the deed puts it, or it is where the acquiesced-to-line puts it depending on whether it meets all the proper elements for acquiescence — including time. In fact, if there is evidence of both, the line is uncertain (in my opinion). That might be a good argument for creating a “boundary line agreement” that is signed and recorded that absolutely solidifies the agreed-to line.
In Colorado, (if my memory serves me), it takes 18 years for adverse possession, and 20 years for “acquiescence”. So acquiescing must meet a pretty steep time element.
Tom Adams, post: 413713, member: 7285 wrote: If the surveyor sees evidence of an acquiesced-to boundary, is it up to him to make the legal determination as to whether all of the elements of acquiescence has ripened, or is it only after a court has ruled to the case that he is now to use the new dimensions/accepted line? I’m not sure if the ruling is addressing that.
Before a ruling it is ambiguous as to where the property line is. One possibility is the evidence and deed as to where it was established originally, and the other is as to whether acquiescence has taken place to a different line location.
I’d rephrase and say it is up to the surveyor to express his professional opinion on the location of the boundary depending on whether or not the elements of acquiescence/agreement have been met.
This is why it is so important for the surveyor to be an expert in boundary law (yes, each state is different, this is why that before one is allowed to acquire a license they should need to demonstrate an intimate knowledge of boundary law for that particular state) so they can recognize when any of the location doctrines are perfected. Without knowledge of such we tend to create more problems between neighbors than we solve.
How can we stake the description if we don’t know if the description has “changed” by the actions and intentions of the landowners if we are not experts in boundary law?Once the elements of acquiescence/agreement have been met, any previous location is completely and legally irrelevant, so why do we keep trying to bring that dead dog back to life?
Tom Adams, post: 413740, member: 7285 wrote: My point is that you can’t make a legal determination of acquiescence. A court might rule differently than you. The title would be essentially “clouded” in my opinion because the property is either where the deed puts it, or it is where the acquiesced-to-line puts it depending on whether it meets all the proper elements for acquiescence — including time. In fact, if there is evidence of both, the line is uncertain (in my opinion). That might be a good argument for creating a “boundary line agreement” that is signed and recorded that absolutely solidifies the agreed-to line.
In Colorado, (if my memory serves me), it takes 18 years for adverse possession, and 20 years for “acquiescence”. So acquiescing must meet a pretty steep time element.
Tom, you posted while I was typing – yes, I’m slow 🙂
As surveyors we cannot make a binding legal determination of anything. We simply do not have that power. We do have the power to gather all relevant evidence and form a professional opinion on the location of the boundary, applying any of the applicable location doctrines. What we have has been described as a quasi-judicial authority. We can’t force a solution, but once we have the facts and apply the law, we can certainly guide the landowners in the right directions, and if we are skilled enough, many times, we can negotiate settlements thereby providing the professional service that may keep them out of court.
There is merit in recognizing the difference between location and title. Separation h them on a map (especially in a recording state) seems to be a real bad idea.
When fact patterns of AP or similar doctrines arise, the nature of my services changes. In nearly every case I leave with two owners knowing where the line is AND the record being clear for those who follow. I consider anything less a failure. You can’t get this done by imposing your solution and you can’t slap the math on the ground in the face of the law.
Knowing the law, recognizing and evaluating evidence and properly executing supportable solutions are all part of being a Professional. Lucky for me I Surveyed 22 plus years before getting my first license, because it took me that long to begin thinking that way…Tom Adams, post: 413740, member: 7285 wrote: My point is that you can’t make a legal determination of acquiescence. A court might rule differently than you. The title would be essentially “clouded” in my opinion because the property is either where the deed puts it, or it is where the acquiesced-to-line puts it depending on whether it meets all the proper elements for acquiescence — including time. In fact, if there is evidence of both, the line is uncertain (in my opinion). That might be a good argument for creating a “boundary line agreement” that is signed and recorded that absolutely solidifies the agreed-to line.
In Colorado, (if my memory serves me), it takes 18 years for adverse possession, and 20 years for “acquiescence”. So acquiescing must meet a pretty steep time element.
Isn’t this part of the dilemma? You’re hired to provide an opinion of the boundary location. Landowners can go to court either way. The surveyor can’t adjudicate it either way. Why should it be OK to always opine that the record boundary is the line and the established boundary can be ignored? I’d want to align myself with what I truly come to believe is the proper place under my states law as the boundary, express my opinion as such. I’ve never heard of a court criticizing a surveyor that got it right.
Some cases are going to be tough for sure, firmly in the center of the gray area. As suggested it might be best to offer some alternative to the landowners there, avoid the liability of fling an ill formed opinion.
I just don’t think it’s proper to show a visible line (like fence) as a topo feature on a record of survey plat without giving the information that excepts its possibility of being a boundary or further investigates whether it is an acquiesced (or other agreement) boundary. The fact that the record line doesn’t go to the fence is not enough to just ignore it, at least in Utah (don’t get the wrong idea, Utah has plenty of fences shown on survey plats as topo features). I don’t think there is safety in the record line only, one may not really be able to rely on it, attorneys and especially title insurance companies are concerned for sure after the Q-2 ruling. Sort of surprises me, the court didn’t make new precedent, they just firmly said that’s how its always been.
What profession is going to sort these things out? Shouldn’t this be something that surveyors do, work out boundary issues? We need to get it right, otherwise they will look somewhere else to solve their problems.
Bow Tie Surveyor, post: 413728, member: 6939 wrote: Oh yeah, and the Title Insurers bemoaning the fact that there may be countless “off-record” title transfers floating around out there driving up their exposure is rich. Isn’t that the reason why they are in business in the first place? Hey, if we had a nice neat managed title system (like the Torrens system), we wouldn’t need title insurance.
Yeah, I’m amused also by a title insurance company complaining that their is risk in taking money to cover risk. Of coarse, what could be better than collecting insurance premiums and rarely ever needing to pay any claims? Also, nobody seems to give a crap about landowners and their peaceful enjoyment of their property and boundaries. Poor title company might need to pay a claim, geeze just can’t feel for them! Nowhere in all the buzz over this is it suggested that a surveyor may be of help either. Of coarse if the surveyor is in line with the record title line position of the title companies how much help might they be, about none, right?
I don’t view boundary law as being separate boxes, the record title box, the original boundary box, the acquiescence box, and the agreed boundaries box from which we can pick and choose what we will do like off a menu.
I view it as a continuous flow of law from boundary creation by deed to establishment of boundaries on the ground. The various rules of construction and establishment doctrines are tools the courts use to first interpret what a Deed conveys in terms of subject matter (the property) and whether the boundary is established or not.
The Courts here seem to be less concerned with precise rules and doctrines and more concerned with determining exactly where the boundary is established. They are very pragmatic at times.
In the case of purely subjective acquiescence (the established boundary is not reasonably tied to anything controlling in the Deed) I think it best to reserve opinion without a settlement agreement, decree, or boundary agreement. But most cases are at least somewhat objective particularly in cases where the boundary is based in an survey, although imperfect.
It is customary to think of title and location as being separate as a device to promote understanding and it fits neatly into the categories of law (what the Deed says) and fact (where the subject matter is located). They are linked, sometimes precisely (like the steering of a Ferrari) and sometimes loosely (like the steering of an old Ford pickup).
LRDay, post: 413752, member: 571 wrote: Nowhere in all the buzz over this is it suggested that a surveyor may be of help either. Of coarse if the surveyor is in line with the record title line position of the title companies how much help might they be, about none, right?
The surveyor can certainly be of help if the landowners are willing to be agreeable and trust that the surveyor will carry out a fiduciary duty to help them get their agreed boundary to be of record again. However, when the two parties are standing firm on their claims, the best a surveyor can do is to not take sides and survey per the record title and disclose whatever evidence he may have that may relate to a “non-record” location of the boundary.
Actually acquiescence is probably just a small part of the boundaries a surveyor will encounter. I think maybe in my small part of the world I’d encounter more than most. Actually the boundaries I’m most concerned about are probably more of the ÛÏoriginalÛ variety than anything else but there is no records or evidence to point that out other than they been in place 50-100 years. The early settlers didn’t pay all that much attention to being exact or proper, they just marked off the land and went to work trying to make a go of it.
I can show acquiescence though which in Utah at this time is:
å¦ 31 Therefore, to ensure clarity in future cases, our boundary by acquiescence doctrine requires a claimant to show: (1) a visible line marked by monuments, fences, buildings, or natural features treated as a boundary; (2) the claimant’s occupation of his or her property up to the visible line such that it would give a reasonable landowner notice that the claimant is using the line as a boundary; (3) mutual acquiescence in the line as a boundary by adjoining landowners; (4) for a period of at least 20 years.
Its not an agreement or even an implied agreement doctrine, the court has said its liken to long term adverse possession. As a backup to protect what I consider the ÛÏoriginalÛ boundaries I’m OK with issuing an opinion that the boundary has been fixed in place by acquiescence and relate evidence to support the 4 elements in our law. I don’t think its that hard in many of the situations I encounter. When I am not really that clear I suggest other solutions to the landowners. What really disturbs me is the vast amount of surveys I see that don’t even address it other than showing that there are fences in the survey area, only explanation is a fence line item in the legend.
If there is long term acquiescence and repose to boundary before the surveyor arrived and it isn’t disturbed things will just go on as always. Showing a record line though the house 30 feet from the 50 year old fence will heat things up immediately. Surveyors shouldn’t be putting landowners into these situations unless the law really points that way. You won’t need to deal with a dispute if there is no dispute.
One of my problems has not been landowners but others in the game like title companies and government, those that must approve land use applications, transfers of title, and lenders. Record title is their only world, already loaded in the title plant and the recorders records, not to be messed with. The last three cases from the Supreme Court of Utah are like manna from heaven as far as I’m concerned. I been slapped around for years over this stuff, turns out maybe I’m not as crazy as they all think, just maybe! I don’t believe this is over yet, wouldn’t be surprised to see legislation come forth, I mean who has all the money and influence? As much money as is sloshing around who cares about landowners rights?
I’m trying to convince other Utah land surveyors, make us relevant and provide some useful good for the public. We’ve about been pushed into and then out of the corner. Surveyors haven’t always helped themselves here. If you let yourself go obsolete, you will!
Bow Tie Surveyor, post: 413758, member: 6939 wrote: The surveyor can certainly be of help if the landowners are willing to be agreeable and trust that the surveyor will carry out a fiduciary duty to help them get their agreed boundary to be of record again. However, when the two parties are standing firm on their claims, the best a surveyor can do is to not take sides and survey per the record title and disclose whatever evidence he may have that may relate to a “non-record” location of the boundary.
I believe it is our duty to go further. At the very least show the owners the best and worst possible outcomes and give then an idea what the potential costs are. Sometimes you can convince them that a 3 inch strip without commercial value isn’t worth 15k or more…
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