I recently surveyed the remainder of a tract that was originally surveyed in 1996. On that plat, there is a pond shown near a property line. In 2001 that same surveyor cut off 5 acres on the rear of the tract. He created a 40' ingress-egress easement to access the 5 acres. The property was mortgaged based on the 5 acre survey. What we discovered was that the pond was not shown on the 5 acre plat. At first I thought maybe it had been drained and filled in because the 40' easement went right through the middle of the pond. When we arrived on site, the pond is still there. To me, this seems unethical if not fraudulent. If the bank had to foreclose on the 5 acres, they would have quite a bit of expense getting the access where the easement is.
Does this seem unethical or fraudulent or am I just imagining things?
Me. "What's the difference?"
T.C. Carroll "It's the difference between right and wrong!"
are you sure the pond was there when the easement was created and not built later? if so, then yeah that is very bad. violation of the min tech standards at least, and maybe fraud.
Went round and around with an Attorney a few years ago over an ingress and egress easement. There was a very old road, crossing the neighbors and the tract I was working on and was using to access the work, I tied it down and went to the neighbors to ask if they would be willing to dedicate it on the Partition Plat. No problem with me using it or anyone else, except his neighbor and he would not dedicate or sign any agreement for the road. Was told to show an easement that would run along an almost vertical wall and only with great expense could have been used. I was worried about my liability and ethics. The Attorney told me that I was not liable, the easement was required by law but it did not have to follow a practical route, still don't like it but all involve know the conditions as it exists.
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> Does this seem unethical or fraudulent or am I just imagining things?
None of the above. Someone goofed and forgot to locate or take the pond into the equation. Since it's an easement that was created, unless terrain or other obstacles dictate otherwise, creating an easement that skirts the pond probably could have been done.
Contact the other guy and told him you found the pond he lost and would he like to come on over and pick it up.
Snoop, the pond was there in '96 when the parent tract was surveyed. It was still there in '01 when the 5 acres was cut off, but the same surveyor "forgot" to show it. It just leaves a bad taste in my mouth. The bank loaned money on that tract based on the fact that it had access. Technically, it does but practically it would take a lot of money to build it. Knowing the other surveyor and his client, I would say they left it off on purpose to keep the bank from kicking it back. That's speculation only though. Kinda like the cemetery in the middle of a tract that wasn't there when the tract was subdivided. Cost the surveyor BIG bucks because the woman that bought that lot was "haunted". She won in court and the surveyor had to buy her house and lot...
Me. "What's the difference?"
T.C. Carroll "It's the difference between right and wrong!"
I was asked to put a bid on a property that was eerily similar to that in Alpharetta. The bank had foreclosed on the vacant parcel and found they had no way to access it.
It seems both unethical and fraudulent.
Putting an ingress and egress easement through an obstacle that would make it extremely difficult to utilize the easement is just not right if you don't include showing that obstacle.
It's not the surveyor that creates the easement, its the landowner. I don't like this and would have a hard time doing something like this but it's not the surveyor who signs the rights away. The fraud would be the landowner who conveys the easement knowing it was all but useless. The surveyor would be abetting only. I'd probably tell them to get someone else to write the description and most likely they could.
perhaps they were relying on global cooling creating some nice winters so access would be over ice...
i would like to assume that the courts would relocate the easement over dry land, but you still have technical access. get a canoe and leave it on the shore by a parking spot (does the easement only allow for passage? ie does it completely negate the right to park?) paddle across the pond and walk your 5 acres.
how about a barge?
how about building a bridge?
ethical, maybe / maybe not (probably not?)
incompetent may be the root...
> It's not the surveyor that creates the easement, its the landowner.
Well, the landowner does, but if he hires a land surveyor to 'create' the easement description, then I think you're being picky on terms.
> I don't like this and would have a hard time doing something like this but it's not the surveyor who signs the rights away.
True, but the surveyor knows what he's doing, and possibly understands it better than the landowner. The surveyor isn't a landowner's advocate and shouldn't be a part of perpetuating a fraud. He is an expert and should give expert advice. The surveyor should definitely show an encumbrance on the plat or exhibit. And a pond is an encumbrance on an ingress-egress easement I would think.
> The fraud would be the landowner who conveys the easement knowing it was all but useless. The surveyor would be abetting only. I'd probably tell them to get someone else to write the description and most likely they could.
Is the surveyor being ethical if he doesn't note the water? If you "abet" a fraud, are you also committing fraud? I don't know, but I don't think it's right.
I think you are playing word games if you are exonerrating the surveyor from any responsibility. (lol...come to think of it, playing word games is close to practicing law without a license) 😉