Encroachments/ Gaps?

I have dropped the term encroachment from my plats. I'll obviously note that a fence, or any other improvement, crosses a lot line, and I show apparent record gaps or lappages and note them as such...apparent.
I am speaking primarily of physical improvements along property lines. I don't think it's up to the surveyor to determine that a 50 year old fence across a lot line is an encroachment. It may have been placed by oral agreement, an oral agreement being perfectly valid and yet unenforceable, between previous owners in order to accommodate terrain or trees, or to share the cost of the fence. To term a fence over a lot line as an encroachment would seem to imply that you have researched the offending improvement back to it's genesis and made a determination that it was placed as a hostile act. It's just over the line.
This seems to be fairly common practice here in Charlotte.

Features and situations are always shown, just never called "encroachments".

May it be a fence, structure, overlapping property descriptions, easement or other factor, I use the terms "intrusion" and "protrusion" to state a known fact of what I find at the time of my survey.

I notify the client and let them decide what action to take next:
1 Show what is there today
2 Allow time for the find to be corrected by the owner or claimant of the occurring factor
3 Come to an agreement of fix, sale or other solution to continue and finalize my survey to meet client's needs
4 Lawyer up

Biggie is that I don't use that term during discussion of a disputed area and/or what is show on my paperwork.

I feel that the determination that a find is an actual defined encroachment is something beyond my normal fee because the result of using that term usually adds more time to address and examine the issue to be able to give a full and complete report as to how it happened and the relative fact or fiction of what it implies and how it affects the property.

My fee quotes include a phrase that represents "and probably more should there are any disputes to solve to finish the survey and satisfy your needs".

😉

My time driving pins is longer than my time driving pens and I appreciate the finer points y'all are sharing.

On fences/ planters or other lot-line fodder, I approach the same way.

However, I've got a boundary coming up that has a two-car garage about 10-ft over the line. I had intended to show it as an encroachment. However, I might chew on that a little more. May be evidence of an earlier oral agreement.

Double check research> Note it on the preliminary map> Bring it to both parties attention> triple check research> await further input of involved parties.

... and draft similar 'satisfaction' clause for future proposals. 😀

Good luck finding evidence of that oral agreement. If you do happen to find such evidence, this would be a good time to have your notary stamp and take a statement right there in your field book. Just a thought.

If it were me...
1)I'd note the garage over the line.
2) Dimension the garage over the the line.
3) Indicate apparent usage by the adjacent owner.
4) If I can, date the construction by parol evidence or building permit.
Done.
We are merely presenters of evidence in these cases.

Only on ALTA's. Standard survey shows only the boundary lines unless specifically requested by the client. That is very rare. For one thing, when we are surveying hundreds of acres we rarely have a reason to actually follow the boundary lines. We expect barbed wire fences to wander off course over hill and dale, if they had a clue as to where the boundary was when they built the fence. Shooting existing fences every 50 feet around a couple miles of perimeter would not serve any useful purpose.

I agree with JB. If you call it an encroachment, and later find or are shown original monuments
including the building, you may have to get into the no-paid construction business if the building
is torn down.

QLD, Australia:
Encroachment Notices;
If during the performance of a survey the surveyor identifies an encroachment the surveyor is required by legislation (Survey and Mapping
Infrastructure Regulation 2004) to notify all associated parties of the existence of the encroachment.

It is also required to show said encroachments on the plan, and their greatest distance from the boundary line.

The key phrase there is "identifies an encroachment".
With actions of parties and law, what starts out as an encroachment can become quite another animal. Prescriptive easement, acquiescence, and various forms of estopple, are just a few of the ways an "encroachment" back in the day may not be one at the time of a new survey.

Hmmm.
I don't think we can do that here in NC. You have to investigate the each line. What if the fence you decided not to locate became the cause for an adverse possession action against your clients property? Are you really going to look him in the eye and state that the fence doesn't matter? Should he not expect that you would have at least shown him the fence over the line?

Reminds me of a guy who used GPS on a boundary along a State Forest. Went to one corner, got it nailed down with coordinates. Drove by roads for a few miles to where the other end of the line came out of the woods and nailed down the other end of the line. Never walked the actual line until the lawsuit over the structures "encroaching" onto the State Forest land got geared up. Wonder how that felt.

Dear Back

I believe an "encroachment" has to be determined by legal means. I am not an attorney, so I will not describe that circumstance or that set of facts as an encroachment until a court says so. I have seen them called "areas of concern" or "possible encroachment" by other surveyors in this area. I lean towards the former.

Just my $0.04 (inflation).

Sounds great. Not going to happen in the normal case here. Very few clients are willing to see the cost of their survey quintuple.

I've got a couple of issues with the above-quoted state code and come comments regarding the typical practice we've been taught to entertain. I've found a very simple solution to the entire problem which I employ on a regular basis.

The state code requires us to "determine if there are any encroachments, gaps, lappages, or other irregularities along each line surveyed." First of all: "gaps" and "lappages" (overlaps) are a legal impossibility under land boundary and land title law. How is it that we should think it is our job to determine or document legal impossibilities? What we are really confronted with is conflicting dimensions contained in adjoining title documents. We are given all the necessary rules of law specifically designed to resolve the conflicting evidence, are taught how to apply those laws and we are expected by the courts to properly apply those laws when we determine the location of the boundary between adjoining properties.

Which brings me to the second point: I am a land surveyor. I survey "boundaries" between properties. I don't survey "lines." We have been misled to think that it is our duty to discover and document conflicting evidence which somehow creates "lines." We document on our surveys the client's "deed" lines, the neighbors "deed" lines, "occupation" lines, "survey" lines, "tax" lines, etc., etc. These lines aren't "boundaries" until the surveyor gathers enough evidence to determine the surrounding factual circumstances and applies the appropriate legal principles designed to resolve the conflicting evidence and derives the location of the "boundary." At that point, the surveyor can be confident in expressing their professional opinion as to the location of the "boundary."

Which brings me to the third point: The definition of an encroachment is simple. An encroachment results from the erection of a real property improvement by one party upon the real property of another without permission. You can't determine any "encroachment" until you first determine the location of the boundary and second determine the facts and circumstances surrounding the supposed "encroachment." The investigation must include determining "who" erected the improvement, "why" they erected it where they did, and "what" representation and reliance was made "when" the improvement was erected. Once the surveyor has completed the investigation, the evidence will show whether the improvement "encroaches" or not.

Which brings us to the point where surveyors begin to raise all sorts of excuses why we "can't, shouldn't, aught not to, or won't" make such determinations because "it's not our job, it's the attorney's job, or only courts can," because "it's a legal determination." Well, guess what ... the courts expect us to, and as the statute above points out, we are required to make the determination. Yes, it requires a lot more work and a lot more skills, knowledge and expertise, and a lot more time to gather the evidence necessary to prove or disprove the existence of an encroachment. Who else is in a position to make the determination? What other profession can determine the location of the boundary? What other profession is expected to gather the evidence necessary to make the determination? What other profession is expected to have a working understanding of the application of law governing the determination of boundaries? What is that professional opinion worth? Shouldn't it have a greater value than the typical in-and-out boundary survey? I have a license to determine boundaries. That's how I make my living and that's the professional service I provide.

Which brings me to the simple answer: Learn to recognize conflicting evidence for what it is. When conflicts are discovered, learn to recognize the warning signs and stop work until the evidence is properly gathered and examined. Communicate with the client, the neighbor and any other interested party to discover and disclose the nature of the conflict and allow them the opportunity to resolve it. Stay in the game by providing the necessary expertise required to document the solution to the issue raised. Once the issue is resolved, then and only then should you proceed to complete the survey and document the solution. The question of the "encroachment" will resolve itself. Either permission will be granted, the boundary will be adjusted, or the "encroachment" will be removed.

The surveyor simply needs to "stay in the game."

JBS

:good: Always a pleasure to have you stop by JB.

With contract language to this effect:
"If any complications arise, we will notify you with a revised estimate before continuing. Should boundary issues arise, the job will be suspended until the owners have settled the location. We will be available for consultation at the scheduled rate."