I agreed, for a lump sum fee, to perform a retracement survey of a small lot in town, including research, field surveying, plan preparation, setting pins, and providing my client with the mylar plan upon completion. I have a written, signed contract from my client.
The subject lot dates back to 1897, when it and many adjacent lots were created according to a subdivision plan which I have not been able to find at the Registry of Deeds, but which is referenced by the subject and abutter deeds. (I'm not sure having the plan would show me much more than that which is called for in the deed, so it is likely immaterial). The deed description cites bearings to the nearest 10 minutes and distances to the nearest 3 inches, typical precision for work of that time. However, the deed does not reference physical monuments at the corners. Nearby deeds are more or less the same.
The lot has roughly 50 feet of frontage along a street which runs north-south along its westerly side. The lot is about 100 feet deep.
After locating physical evidence in the field, both monuments (most of which were not called for in the original instrument), and existing fences, I analyzed my findings, and prepared an opinion of the boundaries of the parcel.
The bottom line is that my client doesn't like my opinion. Near the southerly side of the subject parcel, there is a fence which was built by the neighbor about 15 years ago, according to my client, "without a survey", and subsequently, my client erected a shed on her property, supposing that her southerly boundary was that same fence. I precisely measured the location of that fence, and came to the conclusion that I would be doing wrong by holding that fence as built as the property line (the southerly abutter has a deed which calls for a 50 foot wide lot, but built her fences at about 48 feet wide). So, the plan which shows my opinion of the boundaries shows that my client's shed encroaches upon the land of her southerly abutter.
I met with my client, showed her my conclusions on the plan, intending to set rebar markers at the corners thus calculated, pursuant to our written agreement. She objects.
Following that meeting, I wrote a letter to my client giving her 45 days to consider which of two options she would prefer to follow 1) Allow me to complete the work agreed to, including setting pins, or 2) Modify the agreement - take a discount on the total cost of the survey reflecting the cost not incurred to set pins, and pay the balance on the contract.
She has responded by calling to inform me that she is hiring another surveyor for a second opinion, and asks for my further patience until the results of that survey have been made clear.
I don't want to wait any more. This has been a particularly difficult retracement, and as a lump sum project, a "learning experience" which I would care not to repeat in the future.
She's elderly, and I have some empathy with her situation, but I'm having a hard time accepting the idea that I have to wait for her to pay me the balance on my contract.
I'm sure this is an old story amongst surveyors, and I would be interested to hear your thoughts on how to respond to a client like this.
At least in N.C. the other surveyor must make sure she has paid you prior to beginning work if not he would be in violation.
I had an old guy call me last week talking smack about another surveyor down the road and wanted me to come out and see how bad the guy was wrong etc etc. He was this and he was that . I proceeded to tell him the guy has an excellent reputation and to let him finish the survey . He just kept smack talking also how he was a christian and all . I told him I could not help him and then proceeded to call the other surveyor to let him know the guy is calling around bad mouthing him . What I am trying to say is some people just cant be helped .
She may keep hiring surveyors until she gets what she wants . Seen it before and a big mess . Some people have no manners . I would find out who is doing the survey and tell them she has not paid you and warn them of the outcome she wants . This would give you some leverage . Also other guy may think twice doing it.
Since you only have the authority to provide an opinion of where you think the lines are and only the effected owners have the right to make adjustments or agreements under existing law or the courts can rule what have you done to facilitate those options? How much effort have you made to guide all the effected owners into making an informed decision amenable to all. Finding a problem and not going through that effort means you have not completed your obligation to your client or the adjoiners. You may have never considered the problem in your bid, but it is there, finish the job and take your loss like a man, your mistake in estimating the cost should never be the clients problem, they didn't make the mistake unless it was in the choice of surveyor to employ, only your future actions will confirm or discredit that possibility. Don't have to agree, just how I see it.
jud
djames,
Just curious, but this is the 1st time I have heard that in, N.C., it is against Board Rules for another surveyor to perform a survey for a second opinion.
I don't think the second surveyor has any right to know whether the first surveyor was paid or not. If she told me about the first surveyor and him not being paid, I would definitely refuse to do the survey, but not because he was not paid, but in fear I would not be paid.
To accept the work I would require the contractual base pay (estimate) up front.
If you have a signed contract, finish your survey, set the monuments and bill her. If she won't let you finish, then write a letter explaining the state of work completed and bill for that portion. If she refuses to pay, contact your lawyer and have him send a letter. Or send her a letter and take her to small claims court. The client refusing to honor your agreement is WRONG.
I totally disagree with the "take your loss like a man" idea from Jud. That is a terrible business attitude.
Andy
Big Al,
A lady fired me in the middle of my survey when I disagreed with her concerning a location of one of her property corners. She claimed that an axle, which was 10 feet from the described corner, was her corner. I removed a pile of wood and debris from the described corner's location and 'wallah' an iron pipe with old flagging. That really pissed her off and she fired me on the spot. I had to take her to court to collect.
Andy, well said. Honor your end of the contract and then expect her too as well.
Actually, if you were to do exactly that, then she could take the work product to another surveyor for a nominal fee, to find out whether they agree or disagree. By waiting, you're actually making her spend more money, long term, than if you just did the job.
> The bottom line is that my client doesn't like my opinion. Near the southerly side of the subject parcel, there is a fence which was built by the neighbor about 15 years ago, according to my client, "without a survey", and subsequently, my client erected a shed on her property, supposing that her southerly boundary was that same fence.
>
What did the neighbor say about the fence he built, and why it was built where it is?
"Near the southerly side of the subject parcel, there is a fence which was built by the neighbor about 15 years ago, according to my client, "without a survey", and subsequently, my client erected a shed on her property, supposing that her southerly boundary was that same fence. I precisely measured the location of that fence, and came to the conclusion that I would be doing wrong by holding that fence as built as the property line (the southerly abutter has a deed which calls for a 50 foot wide lot, but built her fences at about 48 feet wide)."
How is the 15 year-old fence not the property line? Doesn't adverse possession occur in your state?
If she "supposed" that the fence was the line was on the line when she built the shed how can she now say it isn't?
BTW - you should collect your fee immediately.
> How is the 15 year-old fence not the property line? Doesn't adverse possession occur in your state?
If not adverse possession, then acquiescence, or estoppel.
Nothing wrong with her wanting a second opinion. Your contract should contain a suspension of work clause that allows you to suspend the contract, bill to date, and wait for a proper conclusion that satisfies your client and you. You can negotiate the extra work necessary to coordinate with the other surveyor. When he's done with his work, you can terminate your contract if she wants the other surveyor to complete the work and set the pins or fulfill your contract if she wants you to finish what you started.
JBS
20 years in MA for adverse possession....
This sort of issue is becoming more common, especially when a home owner checks with the building department and they "recommend" placing the fence a foot or two inside the property lines.
We need to a grip on the very simple fact that homeowners don't have to place a fence on the property line and they don't have to intend that the fence is the property line.
The act of building a fence NOT on the property line should not be considered acquiescence, and should not be considered estoppel if a neighbor ASSUMES that it's the property line!!
I agree. Those sort of questions have to be considered and answered every time though.
Jud,
That's a good point. I want to facilitate bringing about a solution regarding the lines, and have proposed discussing the matter with the adjoiner on the south. My client wants no part of that. None.
Al
She's refusing to let me set the pins at the corners as I have determined them. I think I'll send her a bill for the work I have completed, less the discount that I offered, if paid within 30 days. Otherwise, I think I'll take her to small claims court.
In Massachusetts, 20 years is required, unlike many states which have a lesser requirement.
Donald,
Thank you.
This is in an old part of town, and I believe there lies considerable uncertainty about the location of the property lines, which in many respects has been settled by fences long standing. In this case, it is less than 20 years that the fence has been standing, and it appears that my client may have constructed a building based upon a unilateral assumption that the fence is the property line, and that her assumption may be in error.
I think the situation is that she wants me to support her assumption, and I can not, based upon what I have seen, read, and heard.
Al
Jud,
I agree on the point that if I estimate inaccurately, I should take the loss, and do better on the next one. In this case, my costs in performing the survey are more than twice what I had anticipated, and I have not asked for a dollar more than what I and my client had agreed to. However, I do think I should get paid in accordance with our agreement.
There's a problem here, and my client is unwilling to deal with it. The solution to the problem has to include the abutter, and she is unwilling to engage in a discussion with the abutter.
Al
I am sorry but that is simply not true. NC law does not require you to make sure others get paid. I keep hearing this but it is simply an old wives tale. You as a third party have no standing in a contract dispute between others. If I was in NC, I would file a lien against the property to enforce the contract.
Not sure if its a State Law or not , I think its more in line with business ethics , But I am pretty sure the board has A strong opinion about it from what I rember in discussions at our local chapter .