I recently did a retracement survey several lots in an older residential area. The 1946 subdivision plat created 10 or 12 lots. One of which did not have road frontage. The fairly crude, hand drawn plat (not even to scale) graphically depicts a drive or access road going to the "landlocked" lot from two directions. It isn't labeled or dimensioned at all, just dashed/dotted lines. Subsequent deeds call for an easement. The description of the easement is extremely vague. A plat of an individual lot next to one of ours shows an easement in the same location as the s/d map with no reference as to its source. On the ground the easement is not open and there is no physical evidence that it ever was used. On my plat, as always, I show the easement and state the sources along with the fact that it doesn't appear to be used. The attorney for the client is demanding that I remove all reference to the easement. He says it does not show up on his title search/report and has no legal standing and in reality, "does not exist". So if I understand this correctly, the TI company insures title based on attorney's title commitment that is based on my survey. AND the attorney gets to pick and choose what goes on the plat. I don't think so!!! I will not remove the easement or references to it. He will not acknowledge my inquiries about prescriptive easements/rights, implied easements or color of title. He goes off on a tangent about the dashed/dotted lines stopping short of this or that and just keeps demanding its removal based on his title report. My explanation: I identified a potential encumbrance, which is my duty. I can not determine its validity since that is a matter of law. The attorney's job is to legally resolve any issues that adversely affect title. This whole thing is so bizarre that I wonder if I've entered the twilight zone. Is my explanation correct?
Me. "What's the difference?"
T.C. Carroll "It's the difference between right and wrong!"
Well, you say it's a matter of law and the attorney says remove it, but you don't want to. I wouldn't either.
However, try putting a note on the plat to the effect that the r/w shown at such and such location has been determined not to matter according to so-and-so attorney. See what he has to say about that.
But I sure wouldn't totally ignore it. Also, maybe a letter to your client explaining what is going on.
A court needs to determine its validity. The lawyer has his opinion just like one representing the other side will.
Me. "What's the difference?"
T.C. Carroll "It's the difference between right and wrong!"
You are not guided in your survey by the attorney, you are guided by your instructions from your BOR as to what is the responsibility of a license surveyor.
The title company can decide what they will accept and disclaim any part they do not want to cover of your survey in their policy. If they have missed something, so be it, that is their problem to solve.
When you have a valid source of intent, you show it. We bring what we find during our survey to paper and show everything, the good, the bad and mostly the intent.
Be sure to charge for the time the attorney insists you take for communication. It is billable hours for him.
Title companies and attorneys attempt to change fact all the time for their own gain.
Record your plat.
I reviewed his email and very carefully reviewed my plat. My opinion didn't change. I wrote a fairly long, detailed reply but deleted it and replied as I said in the original post. Short and to the point. I won't engage in any more debate. I have very little billable time wasted up until now. I'm not wasting any more time with him. No return calls or emails. I find it irritating to debate someone so ignorant.
Me. "What's the difference?"
T.C. Carroll "It's the difference between right and wrong!"
Some days you find yourself at a conclusion, job finished.
Next folder please...
> On my plat, as always, I show the easement and state the sources along with the fact that it doesn't appear to be used. The attorney for the client is demanding that I remove all reference to the easement. He says it does not show up on his title search/report and has no legal standing and in reality, "does not exist".
I definitely like the option of requesting the attorney to provide a letter bearing his signature certifying that the easement in question does not exist. That should be fun.
Had a similar situation, except in our case there was no subdivision map per se. An old resort where they sold off the cabins by deed with vague wording of access. The paper placemat things they put on the diner table showed the roads leading to the cabins so guests could find them. I showed on the map. Opposing attorneys objected to entering the "napkin" map as they called it, but court allowed and easement was found valid. Attorney still grumbles about it when I see him:)
You did your job.
Just because an easement isn't open or recorded does not mean it doesn't exist.
Your supporting evidence suggests it exists. I would also show it on my map.
I Believe Argument Is Required
Ignorant attorney or not, you are required to defend what you do.
You want to be on record that you at least attempted a defense, not that you ignored defending your work.
Paul in PA
"dashed lines represent approximate location of access as per plat recorded in book ____ at page ___. Legal rights of said access unknown."
I Believe Argument Is Required
Paul, my plat stands on its own. The defense is in the notes and graphic depictions. As I see it, after I'm dead and gone, my work is still going to defend itself. It won't be necessary for me to explain anything. After the first email from the "attorney" it was clear that there was nothing I could say that would change his mind.
Me. "What's the difference?"
T.C. Carroll "It's the difference between right and wrong!"
Duane, I absolutely LOVE that the napkin map was accepted and helped prove access rights! I wish there was a way for me to use that as an example...
Me. "What's the difference?"
T.C. Carroll "It's the difference between right and wrong!"
Exactly my point to the attorney. If the possibility exists, I need to show it. The courts can decide validity. He wouldn't even acknowledge my mention of "unwritten" rights.
Me. "What's the difference?"
T.C. Carroll "It's the difference between right and wrong!"
Done. Simple as that.
Me. "What's the difference?"
T.C. Carroll "It's the difference between right and wrong!"