my response would be an immediate invoice due upon receipt. I would not discuss the project or share any information until paid and I would let this other fellow finish the job...
Old Code of Ethics
> 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.
The old Code of Ethics promulgated the ethical standard of not interfering with a contract between a surveyor and their client.
As an example, here's a quote from the Rhode Island Code of Ethics.
>8. To review or continue the work of another surveyor for the same client or subsequent client, when any outstanding fees are owed that surveyor unless you have notified, in writing, the surveyor and client.
Many states still follow the old code.
JBS
Old Code of Ethics
I'm unaware of any requirement in NC that a previous surveyor must be paid before a subsequent survey can be performed.
In this situation your client is in breach of contract and you are at least due payment for amount of work completed. In essence she has "fired" you and violated the terms of the agreement for asking that you not set corners that you believe you are going to properly place.
I would go ahead and bill the client for monies owed and let her make the next move as it's certainly hers to make.
Finish the job, send a bill, if she doesn't pay, put a lein on the property. It sounds harsh, but if you don't she will screw around and not pay for a long period of time, if ever.
Given the sutuation you described, I would talk to the adjoining owner to verify when the fence was built and whether the neighbor built the fence based on a survey or not and whether the adjoiner is recognizing the fence as the line. The neighbors' response could help confirm your conclusion or open the door for an agreement to establish the fence as the line. You should not let your client dictate what methods you use to determine the location of the boundary line (ie. doesn't want you to talk to adjoining owner). She made an assumption when she built her shed (without a survey).
PM
Think I would send a letter of resignation and put it behind me.
jud
The Fence
> What did the neighbor say about the fence he built, and why it was built where it is?
That seems like a gaping hole in the body of "all available evidence". Could be the neighbor didn't have a solid basis for placement, but it could be that he did and that such basis might lead to evidence of the location of the line as originally established.
I would lien her property, tomorrow. Fight for every dollar, like a man. She signed a valid contract, you fulfilled your portion of the agreement. It's time she honored hers.
Rick
If the boundary is uncertain then the old lady has a point.
Although the fence doesn't meet our obsession for measuring things it is a physical object that may be the boundary.
I had a similar situation several years ago. My client wanted me to accept an old fenceline as one of her lines. I had almost, but not quite enough evidence to do so. The piece of evidence that would have sealed the deal would have been a statement from the common grantor of my client's and the adjoiner's parcels thatt he old fence was placed as the original establishment of the intended dividing line and/or that it was represented to my client as such at the time of sale.
I tried to contact the grantor and got no response. My client either wouldn't or couldn't get the statement, so I told her that without it, I had to go with a line that substantially agreed with where the adjoiner was now building a fence according to his surveyor's results.
My contract allowed for either party to terminate the contract, and also allowed for me to charge for unforeseen effort. Although the work I had done relative to the old fence would have come under that "unforeseen effort" clause, I did not charge extra for it, but I did halt work and present an addendum to the contract to pursue other avenues of investigation which might lead to evidence that may justify accepting the fence. She declined my proposal, not directly but by her non-response (similar to my request for her to contact the grantor to get in writing what she claimed she was told when she bought the property).
I could have completed the services under the original contract and sued for the balance of my fee, but I had collected a 50% deposit and figured that the rest was not worth the trouble. I assessed my obligations under the recording act and reasoned that by the other surveyor filing his map, and me finding no evidence solid enough to contradict his results, I had no legal obligation to file a map. I still have the location info and photos of evidence of the location of the old fence should she ever get serious about getting the evidence she needs to justify the old fence.
Last I heard, she had been shopping for a surveyor who would do her bidding at a bargain rate, and shopping for a lawyer to champion her cause. Hearing it from a couple of the surveyors who had refused the work and from the County Surveyor, her 1st surveyor "had been bought off" by the adjoiner. Those guys all know me and we had a good chuckle over it. I winder what the going rate for being "bought off" by a wealthy adjoiner is, I wonder what sort of fee I missed out on.
Her lot is 50 feet wide by deed. North and south boundaries are parallel. If I hold the fence in question, and run the north line 50 feet away, it runs through her house.
Old Code of Ethics
It may not be a law, but if a potential client tells me they fired so and so surveyor and they want me to finish. My first statement to them is that I need to contact the other surveyor to ensure there are no outstanding issues. I then call the surveyor an explain the situation. I usually get a good background on what to watch out for as well. I consider it a professional courtesy as I have had these same surveyor's call me and ask the same questions. I don't need the work that bad that I am going to step on some feet just to make a few bucks.
The Fence
don (foggyidea) mentioned in another topic that the municipalities often recommend setting the fence in a foot or two to 'be neighborly'. perhaps the neighbor was being kind by not placing the fence right on the line.
complete your services and send the invoice - or send the discounted invoice with an explanation of the difference.
> > 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.
I dont think Big Al is a judge. Dont know how things work there, but here, a judge is needed for there to be a legal transfer of title due to the things that you name. She may be legally entitled to occupation of that portion, but it will cost her more than her shed to get it in writing, at least in this state. :-O
Thank you, John! You beat me to it.
Old Code of Ethics
Exactly!
Professional curtesy, yes.
Law? Not so much.
That is a common misconception among surveyors concerning acquiescence and estoppel; there is no transfer of title. Those doctrines establish a certain boundary line where it was once uncertain.
That misconception/misunderstanding by surveyors is the main reason most are afraid to use them.
Old Code of Ethics
> I'm unaware of any requirement in NC that a previous surveyor must be paid before a subsequent survey can be performed.
>
I believe the section referenced is 21-56.0701(e)7
Shall not attempt to supplant another engineer or land surveyor in a particular employment after becoming aware that the other has been selected for the employment.
The widely held interpretation of this section is that once you have taken a job working for a client I can not step in and work on that project unless and until your rights and obligations have been fully discharged. Unless and until the previous surveyor has been paid in full I do not agree to have any participation.
That is my view. Others may see things differently.
Larry P
Old Code of Ethics
> Exactly!
>
> Professional curtesy, yes.
>
> Law? Not so much.
That is a lesson taught me by my father at a young age. Well over 40 years ago.
Old Code of Ethics
That IS one interpretation, Larry.
A broader interpretation is that I will not replace you by treachery once I know that the client has selected you for the work instead of me.
Supplant copes from a phrase that means "to cause to stumble". It is not merely used to mean "trade places with". If the legislators and meant that it is not lawful for you to take over a project initiated by another surveyor until you have determined that the other surveyor has been paid in full and that his contractual obligations and duties were discharged in full, the legislators probably could have done that quite easily. The boys and girls in the State House didn't say that, though. They kept it short and simple.
Surveyors are so wonderfully quick to add words or take away words from written instruments to make them sound so much more like what we would like to think we would have written if it was us doing the original writing. "The owner intended the deed to mean..." and so on.
Now, having said that, it IS professional courtesy to find it what the problem is from BOTH sides before taking over. And that's something that I have always practiced. Not only is it the right thing to do, the other surveyor has great insight as to where some of the cow patties are!