Spot on David.:good: That's certainly the way it is here in Washington state.
Make that three. All the BLA does is cite a common intent of everybody concerned. The deeds still need to be conveyed between parties to transfer ownership.
I did one once with 4 parties all in agreement, I recorded the BLA with my survey that included all the new descriptions. Everybody quit claimed whatever was on their existing deed to the title company, then the title company deeded back all the parcels with the new descriptions. That was the title companies idea and it cleared title for everybody in one clean swoop. Luckily there were no banks involved.
From Clark:
"It is not the surveyor's responsibility to set up new lines except when he is surveying heretofore unplatted land or subdividing a new tract. Where title to land has been established under a previous survey, the surveyor's sole duty is to locate the lines of the previous survey."
Coming upon a fence for the first time, no surveyor can personally regard it as anything but a fence initially. A surveyor, unless living in the area and personally observing the fence in place for the statutory time period, has no opinion as to it's contribution to a claim of adverse possession and therefore has no idea if is a cloud on the title. And that is just one of the several rigorous requirements in an AP case.
As a surveyor, you have no power to depose witnesses, require sworn testimony, or do any of the other legal tasks required to gather evidence to support or oppose an AP case. Once you decide to go beyond your "sole duty" described in Clark, you might find yourself on very thin ice.
> In most cases, isn't a prerequisite to using a BLA an ambiguous boundary line? Wouldn't knowing where the boundary line is disqualify the use of a BLA and require a transfer of title?
Yes, In NH, BL Agreements are only allowable when the boundary is ambiguous.
In Mass a boundary line agreement is only used when the property lines can not be retraced. Once it's determined that a boundary line agreement is necessary, the surveyor has to generate a plan (not an 81x boundary plan) but a plan to be presented to the local planning board (ANR-Approval Not Required). Then the cross-conveyance deed descriptions can be written.
I would assume in R.I. BLA is only used when the record lines can not be retraced; but hey, there I go assuming again. Nice post.
As others have pointed out, if the true boundary can be located by a competent surveyor, the required condition of an ambiguous boundary does not exist and a Boundary Line Agreement is not appropriate.
Many jurisdictions have a statutory process for a Boundary Line Adjustment for when the parties want to move the boundary from its discernible record position to one which better suits the adjoining landowners.
Shortcutting the work necessary to locate a locatable boundary, whether using a legitimate doctrine or procedure in an inappropriate way, or by any other means, will expose you to charges of negligence should any interested party file a complaint.
How can two neighbors be prevented from establishing a new property line between their properties?
Some of comments make it sound like you can only do that when the location is ambiguous but I'm going to say that neighbors can place the common line anywhere they want subject to applicable zoning regulations. What right does anyone have to deny them?
I've never much agreed with Madsons writings. There is something a little to simplistic in his solutions and a tendancy to avoid making surveying decisions. I have attended seninars and own one of his boooks.
> How can two neighbors be prevented from establishing a new property line between their properties?
>
> Some of comments make it sound like you can only do that when the location is ambiguous but I'm going to say that neighbors can place the common line anywhere they want subject to applicable zoning regulations. What right does anyone have to deny them?
I agree with you that they have a right to place the boundary where they desire. The question here is the correct process to do so. If the neighbors know where the line is but wish to move it, they can't just sign a boundary line agreement, they have to transfer title. If they don't know where the line is, then the BLA is appropriate.
Some of comments make it sound like you can only do that when the location is ambiguous but I'm going to say that neighbors can place the common line anywhere they want subject to applicable zoning regulations. What right does anyone have to deny them?
Yes, the action to relocate a line through the legal and open means would be a full survey and the approval of a plan before the applicable regulatory authorities. But the question was over a boundary agreement, I don't see zoning compliance being required.
Take an adverse possession example where someone places a fence 5' into their lot to be nice, but never grants permission to the neighbor to use the strip. In 20 years or so and if the other criteria are met, the neighbor owns the 5' strip. If the original lot was 100x100 and conformed, after the AP, the lot would be non-conforming.
Back to the BLA. If you are Mr. A from Madson's example and you had a conforming lot before the BLA and a non-conforming lot after, would it still be legal?
Here's an awful question: if you don't need ambiguity to have a BLA, then why don't the lawyers exploit this? Make a BLA to increase your areas to build a larger, compliant home, then reverse the BLA to do the same for the neighbor.
Oh well, I will be sure to spend an afternoon with a PLS or two from RI to get to the bottom of these funny twists of the surveying methods I know.
> > How can two neighbors be prevented from establishing a new property line between their properties?
> >
> > Some of comments make it sound like you can only do that when the location is ambiguous but I'm going to say that neighbors can place the common line anywhere they want subject to applicable zoning regulations. What right does anyone have to deny them?
>
Nobody said anything to the effect that the landowners could not establish the line where they want to. I like what David Lee said [with a clarification];
> I agree with you that they have a right to place the boundary where they desire. The question here is the correct process to do so. If the neighbors know where the line is [or can find out by having a survey done] but wish to move it, they can't just sign a boundary line agreement, they have to transfer title [which is the Boundary Line Adjustment process]. If they don't know where the line is [and a surveyor can't definitively locate it for them], then the BLA is appropriate.
A Boundary Line Agreement does not transfer title and does not create a new line. It merely gives a definite location to a line that previously had an ambiguous location which could not be further discerned by extrinsic evidence.
If the line can be located with certainty by a reasonably competent surveyor, then the landowners cannot deny its existence by simply agreeing that it is elsewhere. They must acknowledge its existence and agree that it is not where they would like it to be. Then they must redefine the line, transferring title of the lands currently belonging to each that are on the other side of the line they wish to define.
That moves the line to where they want it and clears up the title.
If they enter into a Boundary Line Agreement to a line of their choosing when the record line between them is locatable, they have not transferred title and create a cloud on each of their titles, because instead of erasing the previous line, they have simply created a new one, leaving two locatable lines in the vicinity; one they have title to, and one they occupy to.
The only ways then to clear up the title would be to either proceed with a Boundary line Adjustment and transfer those portions of their record title that is across from the line they previously agreed to, or to let the occupation ripen into valid unwritten rights to be eventually perfected by suing for QT under the doctrine of AP.
When you have Boundary Line Adjustment available to you to accomplish what the landowners wish to do, why would the surveyor recommend and facilitate shortcutting the process through the inappropriate use of a different doctrine and risk creating a title mess for the landowners?
That's kind of like if you took your car into the shop because it's leaking oil. Your mechanic finds that the heads need to be machined and the piston rings replaced, but knows that you are concerned about how much it might cost to fix the problem. So rather than being honest and giving you the bad news, he just replaces the head gaskets, putting some extra gasket sealer around them, and dumps a pint of Motor Honey into the oil. In the short term, you're relieved that it cost less than $200 to "fix" the problem - you have no more oil drips when you first take it home.
But in time, the gasket sealer blows out and the Motor Honey breaks down, your motor leaks out or burns up most of its oil and then blows up. Had your mechanic been up front with you, milled the heads and replaced the rings, you would have been less pleased about paying $1000 to fix the car at that time, but since he didn't do that, your engine blew on the way to work, meaning you missed work and paid for a tow. And then you find it's going to be $6000 to replace the motor. Now your pissed because you could have saved $5000 by just having it fixed right to begin with.
So rather than trying to mollify your clients by justifying an inappropriate shortcut that seems to fix the problem but really just hides it for a while, understand the nature of the processes, what they actually accomplish, consider the potential consequences of using the wrong remedy, and give them the advice that best serves their long term interest. Don't give them a service that leaves their situation in a state that is likely to blow up at some point down the road.
Sounds like one of Ted's power grabs.
"I have often advised clients to seek a boundary line agreements when the boundary in question is confusing and difficult to retrace."
Not much info here but my question is - what are you going to retrace across that lot at 150 feet? Are there markers at each end? Anything visible?
I'm not saying either way but I don't see how you can retrace by laying down a new line with no evidence to retrace.
It begs the definition of retrace. Can the words on paper be retraced with no evidence on the ground?
Seems more like you would be doing a resurvey with no authority. So a boundary line agreement might be appropriate at either the 150 foot or 200 foot line but the 150 foot line would be more of a boundary line adjustment (moving the existing visible line of long standing).
I don't know, the example just made me assume the boundaries were fairly easy to establish.
The question to ponder is who has the right to establish the boundary, the owners or the surveyor? Another question is has the boundary been established or is it yet to be established? Also, can a boundary be retraced that hasn't been established? It sort of calls into question just what the surveyor has authority to do and where does the authority come from?
Questions, questions, Questions. At least you are looking for answers. Sorting it all out for me took years, hope you can do it in a shorter period.
> I don't know, the example just made me assume the boundaries were fairly easy to establish.
After sorting through a lot of the comments here, it reminds me of a post a week or so ago regarding a message board for garage sales or something. The guy in San Diego got a really high quote, and the posts that followed were baffling to say the least.
Now here we're confusing not only ourselves, but any John Q who may happen to try and sort this issue out and understand things.
In short, as stated by many, a BLA is an "agreement" of a location. It does not convey title. An "adjustment" of the line(s) as per the agreement, will only take place when incorporated into the proper conveyances and will in essence move the line to the agreed upon location.
But first, somebody needs to survey it. I think the so called agreement should be a last resort, once everybody knows all the facts. And then us surveyors provide the descriptions and maps to fix things.
Also, I wonder if John Stahl is on vacation or something. Or just lurking. This thread is right up his alley.
> From Clark:
>
> "It is not the surveyor's responsibility to set up new lines except when he is surveying heretofore unplatted land or subdividing a new tract. Where title to land has been established under a previous survey, the surveyor's sole duty is to locate the lines of the previous survey."
>
> Coming upon a fence for the first time, no surveyor can personally regard it as anything but a fence initially. A surveyor, unless living in the area and personally observing the fence in place for the statutory time period, has no opinion as to it's contribution to a claim of adverse possession and therefore has no idea if is a cloud on the title. And that is just one of the several rigorous requirements in an AP case.
>
> As a surveyor, you have no power to depose witnesses, require sworn testimony, or do any of the other legal tasks required to gather evidence to support or oppose an AP case. Once you decide to go beyond your "sole duty" described in Clark, you might find yourself on very thin ice.
Of course you gather evidence. You gather all evidence that may concern the property rights of the owner. The legal property rights. I think you are on very thin ice if you ignore evidence. I am not saying you act as a judge or an attorney, but I am saying that you act in the best interest of the land owners. An agreement would be between the two owenrs. They can make that decision, and you can tell them your findings and all of the possible concerns that you know of. You're an expert, not a lawyer, not a judge, but an expert on boundaries. If there is strong evidence of adverse possession, you should absolutely tell them.
If somne has evidence of possession for over 10 or 20 years, you should never ignore it. It may be evidence of a previous agreement, of acquiescence, or of adverse possession. You should try to find that out: exercise due diligence to discover all the boundary evidence you can. Those are things that can affect the property line.
Read Cooley's doctrine on "The Judicial Function of Surveyors".
An excerpt from "The Duty of the Surveyor", (From "The Judicial Function of Surveyors")
"The surveyor, on the other hand, must inquire into all the facts, giving due prominence to the acts of parties concerned, and always keeping in mind, first, that neither his opinion nor his survey can be conclusive upon parties concerned, and , second, that courts and juries may be required to follow after the surveyor over the same ground, and that it is exceedingly desirable that he govern his action by the same lights and the same rules that will govern theirs.
It is always possible, when corners are extinct, that the surveyor may usefully act as a mediator between parties and assist in preventing legal controversies by settling doubtful lines. Unless he is made for this purpose an arbitrator by legal submission, the parties, of course, even if they consent to follow his judgment, cannot, on the basis of mere consent, be compelled to do so; but if he brings about an agreement, and they carry it into effect by actually conforming their occupation to his lines, the action will conclude them. Of course, it is desirable that all such agreements be reduced to writing, but this is not absolutely indispensable if they are carried into effect without."
A power grab? But this sounds to reduce the power of the surveyor. I could only imagine a lawyer telling his clients they no longer need an expensive survey, books of research or any other normal task we perform. All you need is a BLA prepared by an attorney for 10x to 100x what it would cost if you paid by the hour.
EA, I love your analogy
IMHO, yours is a great answer.
Not about agreements
This question is not about boundary line agreements. The question relates to whether or not one understands the relationship between licensed professional and the client.
Here, your initial visit to the site (presumably you have already been retained, have contract, and retainer paid) indicates that your survey will reflect that your client is using property not incuded in their deed and that there will be no "inexpensive" boundary line delineation available. So, do you make them aware of the problem and possible solutions up front, or merely go ahead with the job and stake it and leave them in limbo, or leave discussion of the problem until you are done.
I agree the question is poorly worded (but did you paraphrase the actual?), but do see what the author is trying to get at. You do have an obligation to help the client understand and protect their rights. Your quasi-judicial decisions about boundary location must remain impartial, but you do have a special relationship with the paying client as well. Although it is too early to make absolute recommendations of agreement, court, etc., you do need to communicate the probable problem and possible solutions depending on outcome of the survey. The client might decide not to go ahead with the project, or they might hand you another deed for 50 feet that has not yet been filed. But the wrong answer is to just move on with the project without communicating with the client.
When testing, get rid of the wrong answers.
Oh, I agree and thanks for the post.
courts and juries may be required to follow after the surveyor over the same ground, and that it is exceedingly desirable that he govern his action by the same lights and the same rules that will govern theirs.
This is the crucial phase to remember and it's imperative to understand that a surveyor does not have the power of a court, as Cooley points out.
Imagine that you as a surveyor take parol "evidence" from someone, alter the reasonably re-surveyed boundary you have completed and change it to reflect such "evidence". Then someone takes exception to your result and the boundary heads to court. Under oath in court, your witness may have memory problems or give very different testimony. As a surveyor, where is your survey at that point? Maybe a slander of title lawsuit? Maybe not; just a blow to your credibility.
The best expert on how you should proceed with evidence would be a local attorney. An hour or two would give you a better take on civil procedure in your state. No better way to be able to follow Cooley's admonition.
