I had performed an ALTA survey on a commercial property in the area. The entire parcel was enclosed with a fence. The fence line for the northern part of the property is about 15 feet south of the north line. The adjoiner the the north tied their front and rear fence to the fence 15 feet on our property and is using that area apprx 15'x200' for material laydown area.
My party chief discussed this with the occupant of our parcel. They indicated that they gave the adjoiner permission to tie into their fence and were aware of the neighbors use of the area.
On the plat i noted that the neighbors fence encroached on the property and noted the area as currently being used by the adjoiner for material storage. And submitted my plat.
Now the attorney for my client "the purchaser" wants me to revise the survey and delete the notes about the neighbors use of the property. His explanation is that he is recording the survey and doesn't want to have the use put into record to prevent any future claim of prescriptive rights. He further suggested that he didn't know if surveyors were qualified to make a judgement on the ownership of the fence and that I, by stating the neighbors use of the property have over stepped the requirements of an ALTA survey. And that in his review of hundreds of ALTA's he has never seen a surveyor denote anything like that before.....Any thoughts by my fellow surveyors would be appreciated.
Your ALTA survey reflects the condition of the parcel on the date of the survey.
Tell the attorney to do his attorney stuff and have the neighbor remove the fence and material, notify you when that has occurred and you will resurvey and note the existing conditions, by removing the note. Because he needs your existing ALTA to justify his actions, you are due an additional fee to then revise the ALTA. That revised ALTA is what he wants to record.
Alternatively he could write a lease for that area.
TINSTAAFL
Paul in PA
You are in the right here. Do not change the map. You reported the current conditions and took notes of the permission given to the neighbor.
On a side note, you might even suggest a certified letter be sent to the neighbor indicating the permissive use.
Ron Lang, post: 359651, member: 6445 wrote: I had performed an ALTA survey on a commercial property in the area. The entire parcel was enclosed with a fence. The fence line for the northern part of the property is about 15 feet south of the north line. The adjoiner the the north tied their front and rear fence to the fence 15 feet on our property and is using that area apprx 15'x200' for material laydown area.
My party chief discussed this with the occupant of our parcel. They indicated that they gave the adjoiner permission to tie into their fence and were aware of the neighbors use of the area.
On the plat i noted that the neighbors fence encroached on the property and noted the area as currently being used by the adjoiner for material storage. And submitted my plat.
Now the attorney for my client "the purchaser" wants me to revise the survey and delete the notes about the neighbors use of the property. His explanation is that he is recording the survey and doesn't want to have the use put into record to prevent any future claim of prescriptive rights. He further suggested that he didn't know if surveyors were qualified to make a judgement on the ownership of the fence and that I, by stating the neighbors use of the property have over stepped the requirements of an ALTA survey. And that in his review of hundreds of ALTA's he has never seen a surveyor denote anything like that before.....Any thoughts by my fellow surveyors would be appreciated.
Ask him to highlight in the ALTA standards where it states that you can do what he is asking you to do.
Be wary of stating anything you find as an "encroachment". Some of what the attorney is saying has merit; I would mark the fence as a "potential encroachment" and let attorneys and owners sort that mess out.
His request to remove the encroachment is suspect.
Show the fence, label it differently.
"My party chief discussed this with the occupant of our parcel. They indicated that they gave the adjoiner permission to tie into their fence and were aware of the neighbors use of the area."
I suppose that your party chief put that in his field notes. If he did Not, then have him do it now (with the actual date that he makes the note, places, names, date of the discussion, etc.).
Rephrase your map note to include all the details.
(Don't use "encroach", "crosses property line" or some such is better.)
Ask you client to discuss the new note with his atty. and ask for their preferred way of phrasing it. AND provide them a copy of the ALTA specs. for their review of what you are required to do and what you are requited to disclose. (permissive use eliminates adverse claims)
If that atty. has never seen a note like that it is due to either him never being involved with a situation like this, or the other surveyors failing to do their proper job. (Don't tell him that, he would get his dander up)
The Fence is an encroachment. I would show it and label it as such. The adjoiner's use of the property isn't an encroachment (base on the party chief's discussion with the neighbor).
I think you did the right thing with your 1st ALTA. I'm sure you will eventually have to make some sort of compromise, though. We live in a Lawyer's World when it comes to ALTA's and Tittle Insurance.
Peter Ehlert, post: 359671, member: 60 wrote: "My party chief discussed this with the occupant of our parcel. They indicated that they gave the adjoiner permission to tie into their fence and were aware of the neighbors use of the area."
I suppose that your party chief put that in his field notes. If he did Not, then have him do it now (with the actual date that he makes the note, places, names, date of the discussion, etc.).
Rephrase your map note to include all the details.
(Don't use "encroach", "crosses property line" or some such is better.)
Ask you client to discuss the new note with his atty. and ask for their preferred way of phrasing it. AND provide them a copy of the ALTA specs. for their review of what you are required to do and what you are requited to disclose. (permissive use eliminates adverse claims)
If that atty. has never seen a note like that it is due to either him never being involved with a situation like this, or the other surveyors failing to do their proper job. (Don't tell him that, he would get his dander up)
I didn't specifically call it out as an encroachment on the plat, i merely annotated the area with a note stating that the adjacent owner is using this area of the parcel as material storage. I think i will take that note off and replace it with a note stating the same in the Notes portion of the plat. Not to mention the title company has updated the title and taken exception to that portion of property.
KevinFoshee, post: 359674, member: 8314 wrote: The Fence is an encroachment. I would show it and label it as such. The adjoiner's use of the property isn't an encroachment (base on the party chief's discussion with the neighbor).
I have performed hundreds of ALTA'S, and am use to getting the odd ball requests from some attorneys, but i have never had one tell me I wasn't qualified to make a determination on the ownership of a fence or think I have over stepped the purpose of the ALTA....
I think you did the right thing with your 1st ALTA. I'm sure you will eventually have to make some sort of compromise, though. We live in a Lawyer's World when it comes to ALTA's and Tittle Insurance.
KevinFoshee, post: 359674, member: 8314 wrote: The Fence is an encroachment. I would show it and label it as such. The adjoiner's use of the property isn't an encroachment (base on the party chief's discussion with the neighbor).
I think you did the right thing with your 1st ALTA. I'm sure you will eventually have to make some sort of compromise, though. We live in a Lawyer's World when it comes to ALTA's and Tittle Insurance.
Your job is to depict and note the facts as you've discovered them. What the attorney is asking you to do actually violates the standards and is contrary to one of the primary purposes of an ALTA survey.
In addition to showing the present use of the property, you can also note what you were told by the current owner/occupant of the parcel as to the permissive nature of the fence placement and use.
It's not your place to opine on the present disposition of title regarding that 15' strip, but that's not what you are doing. It absolutely is your duty to present all of the facts as you know them to be. It's then the responsibility of others to sort out the title ramifications of those facts.
I suspect that this attorney is thinking more about the amount of work he will need to do to earn his fee in this transaction, or the risk of his fee being cut short if the buyer backs out of the deal than he is about whether the interests of the buyer are being protected.
encroachment is a legal term. look it up.
To encroach implies illegal use or access. With evidence of permission by someone, simply note it "In use by others." That much you know, whether or not the use is illegal, you do not know.
Assume that permission by the occupant was given as first stated.
1/ The occupant may not have had legal authority to give permission since the term occupant implies, not the owner.
2/ The permission may well have been legal but the use is illegal per zoning.
Paul in PA
I would quote the ALTA standards Fieldwork section:
5 .C. Lines of Possession and Improvements along the Boundaries
i. The character and location of evidence of possession or occupation along the perimeter of the surveyed property, both by the occupants of the surveyed property and by adjoiners, observed in the process of conducting the fieldwork.
If you do not show this then you do not meet the requirements of an ALTA
Ron Lang, post: 359651, member: 6445 wrote: .... And that in his review of hundreds of ALTA's he has never seen a surveyor denote anything like that before.....
How come attorneys always like to say that.....They really think that will sway a professional surveyor on doing something they want? And face it, they only say it because they don't like something you did, not because they have reviewed this issue hundreds of times.
You kind of feel like asking them if they wouldn't mind sharing with you some of the plats and/or information that has been done wrong hundreds of times, so you can offer it up to your board of review.
On the flip side, I recently submitted a monstrous ALTA of a series of condominiums and didn't hear a peep from the attorney. At first I was patting myself on the back but eventually the lack of belittling requests made me worry that I missed something. I ended up spending extra time going back over it even though they had already closed.
KevinFoshee, post: 359674, member: 8314 wrote: The Fence is an encroachment. I would show it and label it as such. The adjoiner's use of the property isn't an encroachment (base on the party chief's discussion with the neighbor).
I think you did the right thing with your 1st ALTA. I'm sure you will eventually have to make some sort of compromise, though. We live in a Lawyer's World when it comes to ALTA's and Tittle Insurance.
Per more than one title lawyer, an encroachment is not an encroachment until it is adjudicated so in a court of competent jurisdiction. I quit using that word on plats well over 20 years ago. I was advised to use the words protrusion or intrusion.
Tom Adams, post: 359728, member: 7285 wrote: How come attorneys always like to say that.....They really think that will sway a professional surveyor on doing something they want? And face it, they only say it because they don't like something you did, not because they have reviewed this issue hundreds of times.
You kind of feel like asking them if they wouldn't mind sharing with you some of the plats and/or information that has been done wrong hundreds of times, so you can offer it up to your board of review.
Yep, you got it right here. When an attorney (or anyone, really) says something along the lines of "I've done this a lot and never seen anything like this before" usually they are saying that solely to sway you to conform to what they want. It's just like back in high school when others would say, "Oh come on, everyone else is doing it."
Murphy, post: 359738, member: 9787 wrote: On the flip side, I recently submitted a monstrous ALTA of a series of condominiums and didn't hear a peep from the attorney. At first I was patting myself on the back but eventually the lack of belittling requests made me worry that I missed something. I ended up spending extra time going back over it even though they had already closed.
You probably got a hold of one that had been educated by another surveyor and finally read the dang standards. I have gone back and forth with them a bunch the past few years. I cant believe the times I have been told that no other surveyor has refused their requests. So I think they just dont know until someone tells them. Then there cool, almost. But in Ron's case, this attorney is sneaky.
I do not ever make a statement that any part of my survey is an encroachment.
My ALTA or Title Survey is to show what and where anything is on the property and not make any statement about my opinion of ownership.
The client's and neighbor's deeds declare what they have title to until one of them makes claim beyond those borders.
When a neighbor builds a fence into my client's property it is a fence intrusion.
When my client has built a fence into the neighbor's property it is a fence protrusion.
When my client builds a fence across his own property it is a cross fence to divide the use of his property.
Knowing that the neighbor has the client's permission to use the land, I would make a statement about land being used by neighbor with your clients permission.
Then the attorney or Title Company can recommend the proper legal papers for the usage agreement to block any ownership claim in the future.
My drawing is my statement of what is there, it is never the attorney or title or anyone else's position to tell me what to put on or take from my drawing.
I've had to return to properties and show that the problem had been moved or removed and update my drawing for a proper fee. It basically took a visit to the property and put in the notes that whatever was no longer there and it was taken from the drawing and a revise statement, ie: "Revision 2/25/2016, Fence Intrusion Removed"
Steven Roessner, post: 359724, member: 9988 wrote: I would quote the ALTA standards Fieldwork section:
5 .C. Lines of Possession and Improvements along the Boundaries
i. The character and location of evidence of possession or occupation along the perimeter of the surveyed property, both by the occupants of the surveyed property and by adjoiners, observed in the process of conducting the fieldwork.If you do not show this then you do not meet the requirements of an ALTA
My first reaction is to quote this to the attorney and tell him he can go f$&@%ing pound sand. Especially reading his attitude between the lines in his communication with our hero in this tale, the humble surveyor.
My second reaction is to look up "possession" and "occupation" in Blacks and see that there is a lot there, from the general to the nuanced.
My third reaction is that, whilst many attorneys are asswads with no personality or tact; they generally are more likely to be so when they feel they have cause. Something about the way the situation was depicted or noted on the survey made his spider senses start tingling. Or he's just an asswad, that option's very much still in play at this point.
My fourth reaction is to call our co-professional over at the firm of Asswad and Tactless and make my case. I'm showing the fence regardless, it's a substantial improvement on the property. Period. As to the use of the area as storage of personal property rather than fixtures; given the fact that I have reason to believe that this use is permissive and may not fall under a strict interpretation of possession or occupation as used in real property law, I'm open to working with Mr. Asswad, Esq. to come up with language to use on the survey that I can live with and that he doesn't feel might impinge on any of his client's rights down the road.
If that doesn't work, I submit the survey and invoice as is and make sure they know I have no qualms about placing a lien on the property if I don't get paid. And I make sure that as I'm hanging up the phone, our attorney friend hears me call him asswad under my breath.
