Not about agreements
I did paraphrase, I will scan the pages and post them tomorrow. I skipped the fact that the house was built over the line, but that's minimal in the theory.
> 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.
You do a Boundary Line Agreement when the location of the line is unknown. You do a Boundary Line Adjustment when the line is known buy you and the neighbor want to change it.
Not about agreements>Jeez Thadd
Come on Now, we want FULL DISCLOSURE!!
Not about agreements
Well-put Mr. Frymire. And good point about the possibility that their could be another deed or other information floating around. If you stake the last-recorded deed description without further inquiry when ground occupation-evidence shows a different location, I would question your due-diligence. There is definitely more to discover especially why improvements are where they are.
Not about agreements
> I did paraphrase, I will scan the pages and post them tomorrow. I skipped the fact that the house was built over the line, but that's minimal in the theory.
I don't think the house over the line is minimal to the theory. I imagine they added that fact for a reason. They might have a different answer if they changed up the circumstances slightly, and they might even change up some of the questions slightly from test to test; or from practice-exam to test. You need to understand what answer they are driving for based on the details of the question. From my memory, you can usually narrow it down to two answers that seem good, but one detais is the factor that sways you to their "correct" answer.
Cheese and Rice
Ok, so I took some liberties with my rendition of the example, but the basis is still the same. Does this mean that before we perform a survey, we need to 'survey' the neighborhood to ascertain their opinions as to the locations of the boundaries relative to occupation?
Cheese and Rice
What needs to be done is to determine if the boundary has been established and if it has been established where that location is. That may involve a lot of research including talking to adjacent landowners as well as prior landowners. This is far removed from a mathematical stakeout of the numbers from a deed.
Once the location of the established boundary is determined then there may be a need for agreements to be entered into the record to stop the next mathemagician from trying to upset the peace. Mathemagicians come in all sorts from the title industry, government officials and private surveyors and also landowners themselves.
In Utah the mathemagicians (title industry with the urging of county recorders and surveyors) passed a statute (2011) that a boundary line agreement can only be recorded if it is in the form of a quit claim deed. This takes away the constitutional rights of landowners to establish their boundaries under common law principles. These guys are smarter than 200 years of high court thinking. This hasn't been tested by the courts yet. So in Utah you can't record a boundary line agreement in the form posted in the post above (no quit claim clause). Boundary line agreements of that sort can only exist off the record. We have to shotgun quit-claim deed to solve any boundary problem. This takes away almost any prospect of a title insurance company from having to pay a claim over a boundary issue (all problems have been quit-claimed away).
So if surveyors can figure out how to collect fees for surveying without having to accept any liability so be it. Just show up with quit-claim deed forms in hand, find out what the landowners will accept as the boundary and have them convey it away into the record according to the statute. You won't need to know much boundary law to do that and the title folks will love you, maybe even give you a kick back from the title insurance premium for playing ball. We could probably even do away with the need to license surveyors, let the owners do their own surveying to fill in the quit-claim forms with their phones. Before long you will be able to do it online, on the spot in the field.
The Utah Statute made my license worthless.
Cheese and Rice
Ouch, too bad for Utah. I'm still not sure if the BLA is the right mechanism for this problem. This whole theory just seems to direct me to send the client to BLA for every 'inexpensive' survey asked for. When does the client ask for an expensive survey? Usually it's the inexpensive survey that gets expensive because the previous surveyor called all the monuments at the corners when they were in fact feet out of position.
Not about agreements
The house over the line just adds some more confusion: estoppel on the neighbors' part? A greater AP claim? That the guy really thought the fence was the boundary?
Would this mean that the realtor would become a better source for boundaries than the surveyors? How often does the client say, the realtor told me the utility poles was the boundary?
I find it offensive that autocorrect wants Realtor to be capitalized.
Cheese and Rice
Actually if the boundary via the common law has been established along the fence there isn't a problem. The problem gets jimmied up by those that don't know the law or refuse to follow the law.
To enter into the record the essence of the common law requires some sort of document to memorialize the in place, existing agreement. So for those that won't accept the status qua and the imperfection of the deed math, public documentation is necessary. If everyone understood and went by the law the boundary as established could just be surveyed and the results filed (record vs measured). But in fact that won't work because someone at a title company, or recorders office or viewing a GIS map of the record just won't have it. Permits will be denied, recording not allowed, financing refused and etc. So you are faced with making the math and the established boundary come into harmony. So that's where agreements come into play. The alternative is to go to court. Most anyone that has been to court will tell you it is the worst way to settle a disagreement possible. It's the choice of last resort, like going to war and there will be casualties.
Don't know about you, but I'd walk away from that survey and any due fees before I'd file a survey showing the line going through that house that has been in place for many years. They can find someone else to do that! Depending on all the facts I might refuse to show the fence as the boundary also. Sometimes you just can't finish a survey if the boundary hasn't been established. The problem isn't for the surveyor to establish the line, it is to assist the landowners in establishing the line.
Who Wrote This Tripe?
Questions from the book excerpt above, based on the example included therein:
Q1: What was the original desire of the client as expressed to the surveyor?
To convey his property to his son so that the client can enjoy retirement in warmer climes. He thought he needed a mortgage survey (so a lender is involved) and wanted it done cheap.
Not really knowing what he needed, that leaves the identification of the appropriate services to the surveyor. The client is placing trust in the professional to provide services as economically as possible, and also to provide the appropriate services.
Q2: Were the best interests of the client served by not making him aware of the possibility of a Property Line Agreement before he was sold on the establishment of deed lines?
Yes. By the terms of the deed, the boundaries were locatable. Therefore, without yet having any extrinsic evidence clouding that intent, the basic requirement of an ambiguous line location is not met. Advising a Boundary Line Agreement at the onset of this survey would be malpractice, exposing the surveyor to liability once a competent and diligent surveyor is hired by the neighbor and finds that not only is the line locatable, but that the BLA he was talked into resulted in his parcel being significantly smaller than described, and therefore the BLA was presented to him on a fraudulent basis.
Not only does the adjoining landowner sue the surveyor for fraudulent misrepresentation and malpractice, he also sues the client and his son for negligent misrepresentation, slander of title, and fraud. For good measure, he presses charges against all 3 for conspiracy to commit fraud.
Since he is suing for title, the son’s lender and title insurance company are brought in, who in turn file cross complaints against the surveyor, his client and the son, alleging negligence and misrepresentation.
The client takes a 2nd mortgage on his retirement home, loses it and his entire IRA to cover legal expenses, leaving only his meager social security to live on.
The title company, alleging fraud, refuses to pay to defend the title, and the lender makes a demand from the son for the balance of the mortgage based on the alleged fraud. The son, faced with staggering legal fees and the demand on the note, loses the homestead and is forced into bankruptcy.
The lender, based upon their attorney’s advice that the BLA is invalid due to the lack of ambiguity in the boundary, decides that it’s cheaper to settle than to fight the claim in a case they will eventually lose. They settle with the neighbor in a deal that covers his legal expenses and provides some compensation for the land area lost, and execute a Boundary Line Agreement with the neighbor to settle the title issues. They then sell the old family homestead to a strip mall developer to recoup some of their losses.
So, back to Question 2: Were the client’s best interests served by not advising him of the possibility of using a BLA to shortcut a proper survey?
Absolutely they were!
Q3: Have the rights of the client and/or the adjoining owners been violated providing an opportunity for a law suit against the surveyor?
Violated how? By advising the client to have a boundary survey performed; a survey that would inform him of the overlapping fence and house that he was unaware of previously, and could then be the basis for advising him of applicable remedies that would clear the title issues?
You can’t violate rights by not advising them to do something that is not legally available to them. Sometimes what a person wants or needs is something that legitimately costs more than they can afford at the time.
The old guy and his son had at least 3 options:
1) put off the conveyance a few months and save enough to pay for the survey;
2) find a lender willing to roll the cost of the survey into the son’s mortgage; or
3) shop around for a cheaper surveyor.
The surveyor had at least 3 options:
1) advise his client of the proper type and level of service and charge a fee that reflects the value of the service;
2) decide that the old guy and his son are an appropriate charity case, advise and provide the proper type and level of service at a price the client says he can afford; or
3) decide he neither wants to lose $ on the job nor risk losing the job because of price, negligently (or fraudulently) advise the client to avoid the cost of a survey by getting his neighbor to agree that the fences will from now on be the true boundaries regardless of where the true boundaries might be and regardless of whether they can be located.
Q4: Would the rights of the property owners in the neighborhood be violated by the surveyor executing a Property Line Agreement between the parties prior to a deed line survey?
Yes. Had the surveyor prematurely led his client and his client’s neighbor into a BLA, in the case presented, the surveyor would have potentially deprived the neighbor of his right to claim property he had title to. He would have potentially deprived all of their right to settle the issue in a manner that would not leave the potential of future title and legal problems. He would have potentially deprived each of their peaceful enjoyment of their property, time and finances for having to enter into avoidable litigation.
The level of potential harm that could result from such malpractice puts the surveyor’s career and financial future at considerable risk.
The author of this example is has a weak understanding of what a Boundary Line Agreement is and what it does. His explanation is one dimensional & myopic, not considering other applicable remedies. He does not discuss the possibility of Practical Location or Agreed Boundaries (not to be confused with a Boundary Line Agreement – one is an operation of law recognizing a boundary location as a result of past actions, the other is a legal agreement formally entered into by the parties to recognize a particular location and may be regardless of past actions).
How is it that the neighbor is so agreeable to sign the agreement without first being informed of where the title lines are? It is far more likely that the neighbor will want to know that answer before any agreement is given full consideration. Someone will eventually pay for a survey. If it’s the neighbor who does it as a result being presented with the agreement, he will think the client was trying to hide that fact from him. It is far better that the surveyor help his client present a full and honest picture of the circumstances behind the proposed boundary agreement or adjustment.
In this example, all the elements of AP may have been fulfilled. With the evidence carefully and neatly compiled, it puts the client in a good position to recommend an amicable Boundary Line Adjustment as opposed to an expensive lawsuit to Quiet Title by AP in favor of the client. The prevailing party is usually awarded reasonable legal fees from the losing party.
The author’s questions are loaded, so that the only seeming reasonable answers are that the surveyor should just skip the idea of performing a survey and skip to facilitating the BLA to save time and money.
If that were a valid course of action, every lowballer would offer it and every cheapskate would take them up on it? Almost every landowner I’ve come across who needs a survey for whatever purpose wants to pay the absolute minimum possible. Some will be happy to shortcut what is really needed if they think that any potential consequences will never befall them. But most depend upon the professional surveyor to honestly advise them as to what service will legitimately fill their needs. Although few will be pleasantly surprised or happy about paying what it costs, most would rather pay for what is legitimately required than pay less for something that does not legitimately accomplish what needs to be done.
The author presumes that the surveyor can somehow discern that the encroachments without his having performed the expensive survey. How is that? His story states that the client and his neighbors always thought the fence was on the line (possible Practical Location? certainly Acquiescence). So where does this information come from that now informs everyone that the fence and house cross the line thus requiring a BLA?
But hey, don’t let silly things like missing facts, reason and more applicable legal doctrines get in the way of an otherwise good example!
I don’t know who wrote this Rhode Island Red Book, but it is an example of a little knowledge being a very dangerous thing, mostly for those who might follow its advice.
Not about agreements
> The house over the line just adds some more confusion: estoppel on the neighbors' part? A greater AP claim? That the guy really thought the fence was the boundary?
>
> Would this mean that the realtor would become a better source for boundaries than the surveyors? How often does the client say, the realtor told me the utility poles was the boundary?
>
> I find it offensive that autocorrect wants Realtor to be capitalized.
No Estoppel, which only applies if the neighbor knew of the true location of the boundary and allowed the client to build the house and fence across that line without informing him of the line's location.
A valid AP claim? Probably given the limited facts of the example. But by those facts, the claim is so airtight that they would provide a great place from which the client could negotiate. "Look, we can either do this Boundary Line Adjustment, or we can go to court and each spend a lot of money. Your attorney will tell you that I will almost certainly win and that the court will order you to pay my legal expenses. So let's avoid that hassle and just do the adjustment so that our title lines agree with where we always thought the line was."
If Boundary Line Agreements were a valid way of avoiding the cost of a survey, then it would almost be standard practice as part of real estate transactions to have an attorney provide a boilerplate BLA in which everyone always agrees to the fences in place at the time of sale. You know that if it were even on the edge of legally viable, that there would be some local TV attorneys already doing it and a whole bunch of RE agents eagerly embracing it as a way to cut costs of the sale.
Not about agreements
>I find it offensive that autocorrect wants Realtor to be capitalized.
You shouldn't. It is a trademarked term for members of the National Association of REALTORS®, with rigid rules on its use, and is not synonymous with "real estate agent".
http://www.realtor.org/letterlw.nsf/pages/TrademarkLogoFAQs
Who Wrote This Tripe?
T s madson 2, gainesville, fl
Assisted by
Douglas Bailey, pembroke, ma
Jason benoit, westerly, RI
Richard t bzdyra, cranston, RI
Wesley William miley, shelton, ct
Robert s. Murray, Jr. Wickford, ri
Michael g. Thompson, Marion, ma
Donald o. Viele, liberty, ny
Marie digiambatista, wickford, ri
Alfred w. Diorio, ashaway, ri
Doris a. Madson, gainesville, fl
The intro ends with the following:
Thank you all for your support in creating the impossible!
Ted Madson, August 11,1989
He has authored many books.
Sorry for the caps, sent from smartphone.
Who Wrote This Tripe?
:good: At least one other person finds issues with Madson's "answers"....
The right answer was "BLA or we go to court and I win the land after we each spend a lot of money on lawyers."
Doesn't a BLA require quit claim deeds from each participant before the plan becomes the effective defining instrument of the property line? At least the agreement must state that the parties quit claim to the line, right?
So at what point does ambiguity play? Why is that a requirement in some states?
Sometimes I think that ambiguity is just another way of shirking responsibility! Come on, form an opinion based on your knowledge and experience, that's why you're the PLS!!!!
Who Wrote This Tripe?
Awesome answer by the way.
Every time this BLA discsussion comes up it seems to evolve into two camps at the extreme ends of the issue. There is a happy medium based in law. The best resource I have seen is Mr. Stahls material on what to do after finding a conflict.
To me a BLA is a document of notice of an agreement of establishment between two owners where there is no evidence of the original boundary on the ground.
If the the original boundary can be identified on the ground by original monuments or the perpetuation of the same it takes a conveyance to move it to an alternate location. (Adjustment) If there is no evidence of the original boundary an agreeement can be a good solution.
In this particular example if the fence has been accepted by the two owners as the line as long as anyone can remember it is the best evidence of the original line. There is nothing to agree on or adjust. The numbers don't control, the evidence does.
Cheese and Rice
>> . . . recording not allowed . . .
?? If in statutory form, *any* document can be recorded, including your Mom's grocery list. It's not the Recorder's job to determine the validity or effect of a document, and he/she can be compelled to record, under penalty of law.
Cheese and Rice
They might record, but likely wouldn't index it or recognize it had any effect on the boundary.
If the physically occupied boundary (possibly original) is different from the exact math in the Deed, isn't that ambiguous?
Seems like common sense to me.
