Activity Feed › Discussion Forums › Strictly Surveying › What do you tell your client?
“Y’all reckon you can love thy neighbor?” has screened out a lot of those ring rings.
@norman-oklahoma the clock does not start until the date of discovery. The possession may be open and notorious but not hostile. Your advice is not good to give to a client as we may know and understand the law, we don’t practice in lawyering.
As the client is paying for your work it is your obligation to advise them of your findings in detail and explain that there may be ramifications if long term occupation continues in the encroachment area. The only advice that you should give is to have the client speak with their neighbor to have the situation amicably addressed and to speak with an Attorney if that does not work.
the clock does not start until the date of discovery. The possession may be open and notorious but not hostile.
The Oregon court has stated (Norgard v. Busher) that occupation by “pure mistake” satisfies the hostility element of AP. The Oklahoma court made favorable reference to Norgard in Threet v. Polk, saying:
” ….The ultimate effect of such thinking is that only the “bad guy” who knowingly decides to appropriate some of his neighbor’s property can benefit from our prescriptive title statute. The “good guy,” who occupies his neighbor’s land under the innocent belief that it is his, receives no statutory benefits …. “
So I think that your statement about the clock not starting until discovery does not hold in these two states.
Generally, for residential encroachments, I will not share anything with any other parties until the survey is sealed or I have my client’s permission. My list of options for my client in this particular case would be:
Provide permissive use of the fence with a condition to rebuild it to the boundary if the neighbor sells, makes major repairs, or needs to replace it.
Equal area exchange with the neighbor paying for a portion of the total survey costs.
Sell the fenced-in land to the neighbor
I don’t even like to bring up AP, but I would explain it to the landowner so that he would know the seriousness of the issue.
The only advice that you should give is to have the client speak with their neighbor to have the situation amicably addressed and to speak with an Attorney if that does not work.
I can understand this approach when dealing with high value properties or sophisticated parties or when the machine just won’t let you spend a ton of time dealing with minor disputes. I do, however, believe there’s room for nuance without adding significantly more liability to the PLS.
I’ve had more success keeping the peace by meeting with landowners separately, discussing the options, and explaining the opposing party’s position to them. Part of being a professional is to understand one’s limitations. We all have varying degrees of empathy and our life experiences are quite different. I grew up in an extremely poor area surrounded by pockets of incredible wealth. I’m not sure that this is a particularly unique experience, but through it I had the opportunity to observe how difficult it can be for people of greatly different means to communicate with one another effectively. I don’t fault PLSs for black and white interpretation of their duties, but I would view it as a personal failure if I showed an encroachment then just told everyone to work it out themselves or get a lawyer.
Before I finalize a survey I say to myself, “Self, have you solved more problems than you’ve made?” If I answer no, I reevaluate my survey and triple check that there aren’t other legal and ethical ways to help the parties involved.
You can not force the neighbor to receive anything. Creating a deed saying you are transferring ownership of a strip of land to Joe Shmoe and recording it does not obligate Joe Shmoe to accept the transfer. Forget municipal limitations that may exist that forbid this practice in the first place. It simply is illegal.
There is a former gas station site in a nearby city that has not had a building on it since about 1980. The company (Kerr-McGee) pays someone to mow the grass area every Summer so as to avoid any mowing fees from the City. They are aware of an identified environmental issue. As long as they do not attempt to use the property, the issue is considered dormant. They cannot simply deed that tract to the City or the County or a neighbor to get rid of it.
Log in to reply.