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Who's right?
Some of you all may have heard the old adage about “When you’re up to ass in alligators, it can be difficult to remember your primary task was to drain the swamp.”….Well, a recent project has thrust me up to my neck in the proverbial swamp full of alligators. And my initial task of draining the swamp wound up being the furthest thing from my mind.
I was contracted to provide a survey for a piece of property and from a glance it looked pretty cut-and-dried. If anybody read my previous post about retracing boundaries after a tornado, this is that particular project. And as all surprise jobs seem to be, this one too is an ever expanding “can of worms”.
Hastily executed and prepared surveys of the adjoining properties created a “shift” in what I believe is the actual original positions of all the properties, to the tune of about 5.89′. And I really wouldn’t have a problem with representing a boundary determination that is more along the lines of the newer locations; the previous “new” resurveys are that consistent with each other. Lots of construction dollars have been spent and the neighborhood is resting peacefully in its bona fide bliss. But as ointment goes, it’s merely a medium for the landing spot for a fly.
I have prepared a working drawing (exhibit) that is pretty explicit to indicate what is going on out there. This drawing is merely for information purposed to bring my client (the seller) up to speed. As far as value goes, this stuff is going for 30k to 50K per acre, and my client should have 5.01 acres, according to conveyance records. This is an important number because of zoning. Construction in this particular zoning with parcels “5 acres or less” can be difficult, if approved at all. The almost 6 foot shift places my client’s property a little closer to a quarter line, which doesn’t bear the “shift” and could ultimately reduce his net area by almost a tenth of an acre. The location of the boundary just got a little more important to the health of the transaction..
Now I’m not relating all these problems and details to ask anyone’s opinion about a course of action, which is yet to be determined. Friday I went over my exhibit with the client. Not unintelligent at all, he seemed to grasp what has transpired with all the properties surrounding his property. After I pointed out all the merits and evidence that give weight to both boundary solutions as shown on my drawing, my client asked me a question I was not prepared to answer. His question, “So who’s right?”
I initially prepared this drawing to explain the complexity of what is actually going on out there. I purposely did not indicate any preference to which boundary I felt would be appropriate to establish. He is represented by counsel, but not necessarily in preparation for a boundary dispute. I have indicated two almost equally merited boundaries to him and explained one is probably where it WAS, and one is probably where it IS. One would provide the necessary area to satisfy a sale, but might be difficult to prove. One seems to fit everything on the ground, but cannot provide an area large enough to develop without a variance granted by the City Council.
To answer his question, I tried to tell him “it depends”. It depends on how hard he is willing to push the issue legally to ‘regain’ some ground that I feel got lost in the ‘shuffle’ of hastily resurveying an area devastated by a natural disaster. I have located all of the evidence necessary to place the boundary where I feel it has always been. But that is contrary to the apparent recently placed boundaries of the other 75 acres surrounding his subject parcel.
I’d have never thought I would imply such an answer to the question “So who’s right?”…but as it stands my reply was essentially, “How much time and money do you have?”
We have a meeting with his attorney scheduled for next week…
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16 Replies
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paden cash, post: 348942, member: 20 wrote: “So who’s right?”
The guy with the most money and best lawyer…..
I hope everyone has a great day; I know I will! -
Nowhere near the amount of dollars would be involved, but I’ve had two opportunities lately to get into the middle of ‘fuzzy’ areas. Both times I have made it quite clear that the survey invoice will probably be minor and only the first step in trying to get done what they want to get done. The survey is not a cure-all by itself. Also, it is very possible that the survey will not agree with the client’s preferred result.
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If neither boundary is monumented along your client’s boundary and your client’s description is objectively certain then you can probably safely set monuments on the original boundary. If the neighbor has monuments on the new boundary and is relying on them then you should determine whether the boundary is established.
No one is right or wrong in a civil matter, it’s not a moral issue.
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Attached? Is a similar situation. No Naders; but surveyor B used the wrong meander corner and surveyed a bunch of lots in the wrong spot. Dave Berg comes along and finds his client is being shorted because of it. His clients fights it and wins.
not sure if it would be relive to Okie’s; but it might be worth a look….The one that finds for the client=8610100203
I hope everyone has a great day; I know I will! -
How long ago were the bad surveys done?
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Maybe a rounding up of 4.9 to 5?
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aliquot, post: 348970, member: 2486 wrote: How long ago were the bad surveys done?
Over the last three years. Not really anytime at all in the life of a boundary. And just FYI, both sets of corners are existing at a number of locations.
Multiple surveyors that all kinda “tagged” along after the first guy “got it wrong”.
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In the 1986 case I cited, the judge told the surveyor that “got it wrong”; that he had to provide boundary line agreements for all those affected. I don’t think he ever did….
Lots of high dollar, water front property on Horsehead Bay.
I hope everyone has a great day; I know I will! -
paden cash, post: 348978, member: 20 wrote: Over the last three years. Not really anytime at all in the life of a boundary. And just FYI, both sets of corners are existing at a number of locations.
Multiple surveyors that all kinda “tagged” along after the first guy “got it wrong”.
Only three years?
Unless your client expressly agreed to the erroneous monuments or estoppel is at play somehow then the original boundary is the right answer. Granted he should be fully apprised of the risks associated by you and the Attorney, litigation is expensive even if you win.
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paden cash, post: 348942, member: 20 wrote: ……. and my client should have 5.01 acres, according to conveyance records. This is an important number because of zoning. Construction in this particular zoning with parcels “5 acres or less” can be difficult, if approved at all. The almost 6 foot shift places my client’s property a little closer to a quarter line, which doesn’t bear the “shift” and could ultimately reduce his net area by almost a tenth of an acre. The location of the boundary just got a little more important to the health of the transaction….
I’ve thought about this before. I am for accepting existing monuments when they are the only evidence you can find, but, to me, the original corners are the original lines and/or the deeded corners. I know you’re not asking for any help as much as sharing your can of worms you’re currently going through, but I would think that
your opinion(sorry, my opinion) would be that the original property lines are @ the deeded property lines, but that other rights may have developed and you might have a fight on your hands if you stake your actual property corners. But the answer to “who’s right” would be the original surveyor I am thinkingThe part of your post I quoted was because it reminded me of John Stahl’s statement that the area on the original conveying document (or listed on the subdivision plat) is the legal area. That makes sense to me, but I can’t cite cases or per se prove it. However you end up going, you might annotate both the legal area (or record area) and the “as measured” area. It might be good to get more clarity as to what the “legal” area is. And even if you do, it might be hard to convince the county planning and zoning people that you are correct.
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This is tuff situation. It is usually in everyone’s best interest to not upset the apple cart and to keep out of the legal system, but I think your client has a legitimate claim to that 0.01 acre. You have found the original monumentation and not enough time has elapsed for adverse possession. Did your client agree to the new boundary in any way? Is there a case for a boundary line agreement? I don’t know your state laws, but I don’t think that would work here.
If you do show the lot as being 5.00 acres will your local zoning authority except it as legal lot based on the record area? Here the area given in the plat that created the lot would be the area for zoning purposes, unless it was replated.
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I have seen several deeds that called for one acreage, but then computed another, some very different. 🙂
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Not really relevant to your initial comments. However – one thing your client should look into is special emergency/disaster related zoning variances.
We had a large portion on a local town burn down recently. Naturally as government tightens the noose, existing homes would not meet current zoning standards. In a normal situation, if a single home were to burn down, the zoning agency may tell the owner they cannot re-build on their lot. Either that or they would be forced to build a substantially smaller home.
However, when many homes are destroyed and entire neighborhoods are petitioning for variances, things can turn out quite different. Politics come into play because it doesn’t look good when elected officials have a hand in contributing to homelessness during a disaster.
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The Moore tornado occurred in May 2013.
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paden cash, post: 348942, member: 20 wrote: ….Hastily executed and prepared surveys of the adjoining properties created a “shift” in what I believe is the actual original positions of all the properties, to the tune of about 5.89’…. Lots of construction dollars have been spent …..
It’s just a survey F-up, nothing more, and several somebody’s heads should roll. You hook up onto somebodies slipshod work and you are just as culpable as they are. I’m sure this crap wasn’t done pro-bono. Somebody pocketed mucho bucks to do these surveys and it should be the last they ever do. Every time the wind blows in OK these fly by night contractors swoop in from all directions to drink deeply at the insurance trough. Yes, I’m outraged.
I think you should cc all your correspondence to Bruce Pitts (State Board Administrator) and see if he doesn’t want to pursue this.
As far as the ownership lines go, you have a bunch of unwritten agreement lines and everybody is going to have to get busy and exchange deeds to document what they have. It will probably take years to unravel.
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My recommended solution to the problem, if your client wants to avoid the expense of court, is for your client to give a 5.98′ easement to the adjoinor in exchange for the adjoinor agreeing that the original line that you relocated is the boundary line. Your client meets the 5 acre zoning requirement and retains a legal building lot, the adjoinor gets to keep his improvements in place.
Hopefully your client hasn’t done anything that would be viewed as his agreeing to the new line as the boundary line.
I agree with Norman. The surveyors who incorrectly located the lines should be on the hook for this. If this goes to court and their clients loose, they are liable for the damages of the incorrectly constructed improvements. If their client wins they may be liable for damages to your client for for incorrectly relocating the line and reducing the area of his lot and potentially making it unbuildable.
They were retracing surveyors, their job was to find the original line not create a new line.
PLS NJ & NY, PP NJ
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