Ok, I want to hear it about Boundary Line Agreements. I know some surveyors that use it as one of their surveying tools and others that don't like to use them at all. Just curious on my part to form a good judgement.
Boundary line agreements are for those who can successfully sit down and work out their issues without lawyers and judge involved. Boundary line disputes are the ones that get nasty. If two owners (or more) can sit down with the guidance of a Professional Land Surveyor to help with questions that arise, generally a BL agreement can be the best way to avoid future probs. So it's not really whether a surveyor likes the agreement, it's whether the solution is the best possible fix.
> Ok, I want to hear it about Boundary Line Agreements. I know some surveyors that use it as one of their surveying tools and others that don't like to use them at all. Just curious on my part to form a good judgement.
Well, as always, it depends.
I recently came upon a definition of these things that I like a lot. It actually categorizes them into 2 types:
1. Boundary Line Agreement. A true BL Agreement begins when the surveyor cannot find enough evidence of the true line, whether it be on the ground, in the record or from the mouths of witnesses, etc. to put the line on the ground.
The surveyor then sits down with the adjoiners, and together they agree on a location for the line. While a change in title is not technically occuring, here in Maine the attorney's typically have the adjoiners trade QC deeds to define the agreed upon line.
2. Boundary Line Adjustment. To use an example, a surveyor is able to put the line on the ground. But by doing so a conflict arises for whatever reason. (A fence is in the wrong place; you get the idea.) If the adjoiners are on speaking terms, an adjustment of the true line could be made between the parties in order to settle the conflict.
A BL Adjustment is definitely a change in title, and deeds will need to be exchanged. In my opinion recommending an adjustment can be a way to help avoid years of litigation. But one should read the situation and decide if that is a wise recommendation to make before opening one's mouth...
The few boundary line agreements I have seen which involved a surveyor as a negotiator have all centered on the surveyor having done a thorough and proper job in forming an opinion about the location of the line, which was previously unknown to the two clueless adjoiners. The logic of the surveyor's opinion is relied upon, and an agreement is reached, without the necessity of an exchange of deeds.
I can't imagine two adjoiners who basically know and agree on their common line relying on a clueless surveyor who doesn't seem to have any idea where the line is.
I don't know why a surveyor would not want to use them. I don't know what the downside would be.
Newton: I agree with most of what you said, but there is no need for a surveyor to be involved with a BLA. It's fine when they are, but it's not necessary. All that is necessary is that the owners are unsure of the line and decide it's in one place and memorialize said decision with a BLA.
Stephen
BLA's are an excellent tool that can save rational people serious money. I have one reservation: I have seen cases of surveyors recommending them simply because they couldn't or wouldn't do the research and/or couldn't or wouldn't form a professional opinion. In many cases they've buried this recommendation in a long series of notes in a small font. The line could have been located with reasonable certainty but it wasn't, and that seems unprofessional to me if not downright unethical.
> I don't know why a surveyor would not want to use them. I don't know what the downside would be.
>
> Newton: I agree with most of what you said, but there is no need for a surveyor to be involved with a BLA. It's fine when they are, but it's not necessary. All that is necessary is that the owners are unsure of the line and decide it's in one place and memorialize said decision with a BLA.
>
> Stephen
That's a good point. I'm sure I'm guilty of having "surveyor myopia." The last thing I want to do is stick my nose where it doesn't belong.
My example involved the (rare) situation where a surveyor had already been contracted to survey the property, and discovered (after thorough research) that he/she was unable to place the line on the ground. At that point, if it were me, I'd recommend a Boundary Line Agreement to the adjoiners.
I went to a seminar once . The surveyor instructed us on the correct procedure for preparing a boundary agreement . I have only used it once in 20 years . I can see it being a great tool. The problem though is it can be an easy out for some. The fellow that taught the seminar, surveyed in the mountains and every barbed fence he came to needed a boundary line agreement . The board did not think the same and he is not in practice anymore.
In over 30 years of surveying, I've never seen one.
Or even heard of one being used. (in my state)
You guys have all the fun!
> Ok, I want to hear it about Boundary Line Agreements. I know some surveyors that use it as one of their surveying tools and others that don't like to use them at all. Just curious on my part to form a good judgement.
Boundary Line Agreements are tools designed for landowners, not for the benefit of surveyors. As a surveyor, however, every one should have them in their tool box and be prepared to provide a professional service to the landowners when the need arises.
Too often, BLA's are used by surveyors as an excuse to not do the necessary research and retracement of the boundaries. They should never be used as a panacea for sloppy surveying. There are times when conflicting evidence simply cannot be resolved by a survey, but that's a pretty rare instance.
Two things are required before a BLA can be used: there must be uncertainty or dispute. The measure of uncertainty has nothing to do with the surveyor's ability but, instead, speaks of the landowner's lack of certainty of their boundary location. The BLA is used to remove the uncertainty or to settle a dispute regarding the boundary location. Surveyors can provide more certainty in the BLA by providing a description for the agreed boundary which removes ambiguity and doubt by clearly describing the physical properties as well as the location. Surveyors are not a required part of the BLA, however.
JBS
First, you have to know the rights of land owners and your state's laws protecting those rights as well as your state's alternate dispute resolution laws.
Then you must be able to detect the existence and boundaries of: "...Every mode of passing realty by the act of the party, as distinguished from passing it by the operation of law." as defined by Black's Dictionary:
Alienation
In real property law, the transfer of the property and possession of lands, tenaments, or other things, from one person to another. The term is particularly applied to absolute conveyances of real property. The voluntary and complete transfer from one person to another. Disposition by will. Every mode of passing realty by the act of the party, as distinguished from passing it by the operation of law. See also Restraint on alienation.
Restraint on Alienation
A provision in an instrument of conveyance which prohibits the grantee from selling or transfering the property which is the subject of the conveyance. Most such restraints are unenforceable as against public policy and the law's policy of free alienability of land. See restrictive covenant. (Note that the surveyor's failure to recognize the legality of occupation and control functions as a 'restraint on alienation', making the surveyor liable for any damages that result.)
Realize that, if physical evidence exists that marks the limits of occupation and control between adjoiners which is not where a record description says it should be, you have detected a situation where the owners have exercised their right of boundary determination. It is then necessary for you to determine if they have had that evidence in place long enough such that the law says that physical boundary cannot be challenged. If so, you have part performance of an unwritten contract and the only thing needed to complete the contract is entering the correct description of that legal boundary into the public records. Where else would the owners get the ability to determine what the accurate description should be if not from a surveyor?
There are many reasons why a record description may be in error, it is the surveyor's primary duty to recognize the existence of these errors and provide a mens to correct the record so that the rights of the land owner are preserved and we have reliable land records.
Richard Schaut
In cases where a BLA seems appropriate, the surveyor should help the parties consider the actual value of the land involved versus the costs of litigation. The worst fights are sometimes over so little land.
> In cases where a BLA seems appropriate, the surveyor should help the parties consider the actual value of the land involved versus the costs of litigation. The worst fights are sometimes over so little land.
When there is true uncertainty, there's likely no way to determine the amount of land or value. BLA's don't create a new boundary, they only determine the location of the existing boundary. There is no conveyance of title, therefore, the parcels don't change size or value.
JBS
Don't forget the lien holders.
How many time have you heard someone say "I want to buy a strip of land from my neighbor..."? The first thing I ask them is if the properties have mortgages or other liens on them. If so, I advise them to contact those lien holders before we move forward.
In the spring of 2010 I got a call from a client who was going to add a garage/office on his lot. I had surveyed the lot for his closing so I was ready to go. He had a beautiful set of plans drawn up by a locally renowned Architect. All he had to do was buy a 12' wedge from his left adjoiner. I ask my standard question and he says "no liens on her property, she's 85 years old and has owned that house free and clear for 40 years". I ask him to have an attorney look at it before we do a record plat. Attorney finds 7 liens tied to the property. I haven't heard back from him. I hate to think what he's out for those plans.
The lien holder has a say in what people do with property they have an interest in.
Be careful you don't assist in causing a note to be called.
But if the uncertainty is a few feet you can calculate an approximate area to compare to the whole parcel, to let them see that they would be fighting over very little.
I wouldn't classify buying a strip of land from the neighbor a boundary line agreement. That is not settling some uncertainty or dispute but moving of a boundary that requires a conveyance (boundary line adjustment). Two completely different animals that unfortunately the Utah Legislature, title industry and county recorders can't comprehend, so I'm not surprised there is confusion about it in the land surveying industry.
As far as lien holders go, if the boundary is uncertain or in dispute, establishing the location of the boundary should be desired and in their benefit. But yeah if it is considered a conveyance of land (which it is not is the law is understood) then a boundary line agreement becomes a complicated mess. If everyone understood that only the uncertainty of location was being settled and there is no conveyance of land or property rights then when needed and the proper conditions prevailed a boundary line agreement is a very effective and beautiful way to simply solve a problem. But we can't have that, it's just to pure and simple, what we need to do is pass around quit claim deeds to every one in sight every time the boundary is surveyed (blast the problem with a shotgun, your bound to hit the problem even if you don't kill it).
The problem with them would be a lack of a paper trail in the deed records. Here, an approved Boundary line Adjustment will not be recognized by the Assessor until new deed descriptions are recorded in the deed records. There is good reason for that and I agree. If a surveyor is involved in an agreement there should be a new, traceable description prepared and correction deeds recorded for both parties, anything less would be a disservice to the clients and public. Until there was an agreement to re-record, the surveyor should not provide any description or place monuments. Although the surveyor can't force recording, he can refuse to be a party to the agreement. As said above, often the intended lines can be determined, if they are located in the future, the agreement without correction deeds could be null and void because of the definition of those agreements causing legal problems that good sense could have avoided.
jud
> But if the uncertainty is a few feet you can calculate an approximate area to compare to the whole parcel, to let them see that they would be fighting over very little.
You'd have to know where the true boundary is in order to do the calculations. BLA's by definition repair uncertainties (which often result in disputes).
JBS
> Don't forget the lien holders.
Lien holders are unaffected by a BLA. If there is any effect, their position is made stronger by the BLA.
> How many time have you heard someone say "I want to buy a strip of land from my neighbor..."? The first thing I ask them is if the properties have mortgages or other liens on them. If so, I advise them to contact those lien holders before we move forward.
>
If their intent is to "buy a strip of land," then they're not eligible for a BLA. They must convey the "strip" by a conveyance document. BLA's are not conveyance documents.
> In the spring of 2010 I got a call from a client who was going to add a garage/office on his lot. I had surveyed the lot for his closing so I was ready to go. He had a beautiful set of plans drawn up by a locally renowned Architect. All he had to do was buy a 12' wedge from his left adjoiner. I ask my standard question and he says "no liens on her property, she's 85 years old and has owned that house free and clear for 40 years". I ask him to have an attorney look at it before we do a record plat. Attorney finds 7 liens tied to the property. I haven't heard back from him. I hate to think what he's out for those plans.
>
Yep, your example is for a Boundary Adjustment, not a Boundary Agreement. The parties are attempting to convey a part of their land which is subject to a lien holder's interest. That is an issue that must be cleared up before the sale (unless they are ok with buying a strip that is subject to a lien).
> The lien holder has a say in what people do with property they have an interest in.
> Be careful you don't assist in causing a note to be called.
Thanks for pointing out the differences, JB. The surveyor certainly needs to be careful to use the appropriate remedy for each problem.
JBS
Yes a boundary line agreement needs to be recorded in the title records but if it settles an uncertainty it does not need to be a deed of conveyance.
When courts settle uncertainty of boundaries they don't require correction deeds or quit claim deeds to be signed and recorded by the parties. The court is simply settling the location of the boundary and not forcing one party to convey property to the other.
This is just the nerds gone wild, making a simple problem into a huge mess.
