A few weeks ago a gentleman retained us to provide a survey for some of his family land, owned since 2003. I believe the family is wishing to sell a portion of the property. Just yesterday we were on site, found some pins and a fence that was 6 or 7 feet over onto the property at one end. Nothing really remarkable...until we found the north line.
We found both pins, but you can't see one from the other; there is a large metal building blocking the view. The property to the north has a structure that infringes on my client's property by about 5 feet. I instructed the crew to shoot it all and we'd hash it out here in the office.
This morning, just as I was writing an email to the client explaining what we had found, I got a phone call. The gentleman told me his name (it sounded vaguely familiar) and was asking if it was me that was surveying this property I'm talking about. Then I recognized his name...he was the grantor of my client's property back in 2003.
He still owns the property to the north, and the building that has wandered onto my client's property. Apparently he saw the pins we had flagged and realized his 5 year old building was hanging over the line. He was a little nervous and asked if it would be possible to "rewrite" the description of the property I was surveying, since he had been the seller back in 2003. I guess he felt as though he had some sort of seller's immunity or something...:-S
I explained there were several ways something like this could be handled, but ultimately it would be up to my client. He then wanted copies of my survey (hell, I haven't even finished it yet). Once again, I explained my work is for my client and everything would have to be at his discretion. I told him to contact my client and if I were to acknowledge him at all, it would be up to my client. He didn't seem interested in talking to my client. I finally decided to call my client instead of dropping him a status report by email.
Well, apparently the owner to the north has been a real ass for a neighbor. My client is not only unwilling to talk with this guy, he's reveling in the fact that the building to the north encroaches. We have a meeting scheduled as soon as I can get something on paper to look at.
I've never had anybody ask me if I can "rewrite" a description for a conveyance that is 12 or 13 years old. I guess if you live long enough you'll get to see a lot.
There is a chance the the northern owner can skate by virtue of estoppel. Could be the southerly owners sat on their hands too long. A very great deal will hinge on who said what to who and when it was said.
The only thing that would change the description would be if the intent of the original survey was to place the boundary to the south of the building.
Since building appeared after the original survey, the grantor is out of luck.
He is gonna have to get some legal advice.............
Stupid people do stupid things. Many times those stupid things lead to smart surveyors making lots of money. Nuff said.
It's not our job to takes sides with our client, just because your client says the neighbor is the bad guy, that isn't always the case.
Don't advise either of them to call attorneys. To protect the health, safety, and welfare of the citizens, the surveyor should mediate
a reasonable Boundary Line Adjustment and attempt to keep peace among neighbors.
paden cash, post: 355062, member: 20 wrote: ...Then I recognized his name...he was the grantor of my client's property back in 2003.
...I guess he felt as though he had some sort of seller's immunity or something...:-S
How funny. I agree with whoever said you shouldn't "take sides", but off the record, it certainly sounds like he is arrogant and the rude one in the relationship. He apparently does think that he has some superior right, but in the face of a discrepancy, the piece he sold off would have the senior right (as far as senior/junior rights, his property would be what's left over of what he sells).
Why the heck wouldn't you get your property line surveyed before you build some structure? Maybe it's back to some sort of thinking that he is the superior owner, and the buyer is some kind of inferior owner.
Anyway, I don't mean to sound like I know it all, just thinking out loud. funny situation.
erwsdot, post: 355087, member: 6038 wrote: To protect the health, safety, and welfare of the citizens, the surveyor should mediate
a reasonable Boundary Line Adjustment and attempt to keep peace among neighbors.
I very much agree with that sentiment but we have to recognize that it isn't Paden who is polluting this relationship. It's apparent that there is already a lot of water under this bridge. The northerly owner may not realize it yet but he is very lucky to have a man like Paden on job, who will still the waters as well as anyone could.
So in this situation, it would be reasonable for the surveyor to suggest the parties come together on a boundary line agreement, maybe a few courses running around the shed. If they reach an agreement, would a lawyer be needed for any part of the transaction? (I assume this could vary by state)
surveyor85, post: 355183, member: 9748 wrote: So in this situation, it would be reasonable for the surveyor to suggest the parties come together on a boundary line agreement, maybe a few courses running around the shed. If they reach an agreement, would a lawyer be needed for any part of the transaction? (I assume this could vary by state)
No lawyer needed in my state.
Mark Mayer, post: 355115, member: 424 wrote: I very much agree with that sentiment but we have to recognize that it isn't Paden who is polluting this relationship. It's apparent that there is already a lot of water under this bridge. The northerly owner may not realize it yet but he is very lucky to have a man like Paden on job, who will still the waters as well as anyone could.
I appreciate the confidence vote Mark.. I don't know how founded it may be, though.
I really don't care who is mad at whom in this situation. I've treated both gents with professional demeanor. As for the differences they have between themselves..that's up to them. I'm merely surveying a common line between the two men's properties. And my client is the only one that is privy to my info. If he wants to share it with his neighbor, he'll direct me so.
I just think it's funny somebody (a non-owner) thinking they can "run and file something" that could change a property line of a 12 year old conveyance, just because they were the original seller. I guess some people will try anything!
surveyor85, post: 355183, member: 9748 wrote: So in this situation, it would be reasonable for the surveyor to suggest the parties come together on a boundary line agreement, maybe a few courses running around the shed. If they reach an agreement, would a lawyer be needed for any part of the transaction? (I assume this could vary by state)
I think that any two parties can draw up an agreement between themselves...they author it. They can probably legally describe the land (but I would be worried they don't have the expertise to come up with adequate language). A Land Surveyor can describe the land lines as a third party (that's what we are authorized to do). If the owners hire a third party to draw up the agreement language, that would probably require an attorney.
That's what I think.
Since there is certainty to the line's original location, a Boundary Line Agreement would not be the appropriate remedy. A Boundary Line Adjustment could fix it as long as the two parties can be civil to one another long enough to come to an agreement as to how to adjust the line and who pays the fees.
As long as any administrative process the local government has is followed and all parties at interest in each parcel consents, this is something that the surveyor can facilitate. No attorney required.
If they won't come to agreement, then I expect that at least a couple attorneys will make out OK in the deal.
eapls2708, post: 355215, member: 589 wrote: Since there is certainty to the line's original location, a Boundary Line Agreement would not be the appropriate remedy.
Good point. It would be questionable.
I agree that a boundary line agreement would be inappropriate. No building permit, no survey stakeout on the bldg, no nothing but some wild scheme to "just go ahead and change that part right there." The agreement would manifest itself in the form of (but not be limited to) complete surveys for both properties, a subdivision/adjoining land merger, new deeds for both and a discussion of the importance of following the land development codes.
Each time a landowner "goofs," they learn. Chances are that person won't do it again but there are others out there who will surely proceed without proper preparation.
mattharnett, post: 355290, member: 6458 wrote: I agree that a boundary line agreement would be inappropriate.
You are correct.
There are actually two animals here in my state, the BLA, a Boundary Line Agreement (which is all but extinct, due to pressure from the counties), and the BLA, Boundary Line Adjustment aka LLA, Lot Line Adjustment.
In WA, the LLA would be appropriate. The reason the counties hate the BLA (agreement) is that it is often used inappropriately, has no review, and gives landowners too much flexibility to move around lot lines (in their estimation).
I dont know how it is done in other states...
dmyhill, post: 355302, member: 1137 wrote: You are correct.
There are actually two animals here in my state, the BLA, a Boundary Line Agreement (which is all but extinct, due to pressure from the counties), and the BLA, Boundary Line Adjustment aka LLA, Lot Line Adjustment.
In WA, the LLA would be appropriate. The reason the counties hate the BLA (agreement) is that it is often used inappropriately, has no review, and gives landowners too much flexibility to move around lot lines (in their estimation).
I dont know how it is done in other states...
My understanding of the laws (in my state) are that a Boundary Line Agreement can only be used if the true location of the common line is unascertainable. And even in a situation where the common line is unascertainable (i.e. it could be over here or over there), the agreed upon line must still conform to the nature of the original line. So if the original line called for a straight line between the parcels the agreed line should also be a straight line.
It seems that in this situation, there isn't a lot of ambiguity in the position of the common line and so a Boundary Line Adjustment (or Lot Line Adjustment, whatever your local flavor of government calls it) would probably be the appropriate course of action.
A little update into this fiasco.
Things are turning out to be not so simple (isn't that the way it always goes?).
This property is at a section line (well travelled and improved) intersection. Its commercial value is apparent. My client wishes to divide his 4 acres into two 2 acre commercial tracts. With the absence of sanitary sewer in the area there are some square footage requirements requiring a minimum area that can be developed.
Guess what? If my client sells or conveys any of his property it will drop the area to dangerously close to being below the area that could provide for two commercial lots. I don't know about other states, but in Oklahoma, property that is devalued due to the actions of others is proof of "damages".
IF the client is willing to sell just enough of his property to the encroacher to get the building "off" his property, he might pull it off......if he can get the property line to be the side of the building. This will require rezoning the property (or a code adjustment) to a zero-lot line clearance. Not an easy thing to do.
It's those two fellas that are going to be screwin' this chicken...I'm just here to hold its tail.
skwyd, post: 355314, member: 6874 wrote: My understanding of the laws (in my state) are that a Boundary Line Agreement can only be used if the true location of the common line is unascertainable. And even in a situation where the common line is unascertainable (i.e. it could be over here or over there), the agreed upon line must still conform to the nature of the original line. So if the original line called for a straight line between the parcels the agreed line should also be a straight line.
It seems that in this situation, there isn't a lot of ambiguity in the position of the common line and so a Boundary Line Adjustment (or Lot Line Adjustment, whatever your local flavor of government calls it) would probably be the appropriate course of action.
I have four recent subjective uncertainty cases where there was evidence 1) the property owners were uncertain (meaning they did not know where the boundary is at the time of the agreement), 2) they agreed to establish a boundary (in these cases by building a fence), and 3) the 5 year Statutory period had passed. Note: they did not get a Survey and a later survey revealed the conflict. In one case the Court ruled it did not matter the fence was not straight. These are all unpublished Appellate Opinions affirming the trial court judgments calling them an agreed boundary. Two are in San Diego County, one is in Marin County, and one is in the City of Los Angeles.
Where these cases fail is 1) there is no evidence the boundary came about because of uncertainty at the time of establishment, and 2) there is no evidence BOTH property owners agreed to establish a boundary. I haven't found any cases where the Court upholds an inferred boundary line agreement due to an ancient survey (allowable under Bryant); in these types of cases the Court almost always rules for the Survey which best harmonizes with the occupation (for good reasons) and the Agreed Boundary Doctrine doesn't get pleaded.
Actually maybe I have, the Buddhist v Nelidov case may be one that does. There's two unpublished opinions, I have the later one because when I picked it up I didn't realize there are two opinions, the first covers the boundary and the second, which I have, is the slander of title case. In my misty memories of reading the first case it discusses the Agreed Boundary Doctrine relative to a 1/16th line surveyed in the 1960s. I don't think the agreement was merely inferred in that case anyway, there was testimony relative to the 1960s transactions.
paden cash, post: 355326, member: 20 wrote: .if he can get the property line to be the side of the building. This will require rezoning the property (or a code adjustment)
What are the setbacks? 35' rear yards will screw you up pretty good but a 4 or 7' rear or side setback might keep you out of a zoning hearing and allow you to hit the 2 acre size preference. I'm assuming, also, that this is not going to be an agreement or adjustment. This will still need surveyed and deeds written.
paden cash, post: 355326, member: 20 wrote: A little update into this fiasco.
Things are turning out to be not so simple (isn't that the way it always goes?).
This property is at a section line (well travelled and improved) intersection. Its commercial value is apparent. My client wishes to divide his 4 acres into two 2 acre commercial tracts. With the absence of sanitary sewer in the area there are some square footage requirements requiring a minimum area that can be developed.
Guess what? If my client sells or conveys any of his property it will drop the area to dangerously close to being below the area that could provide for two commercial lots. I don't know about other states, but in Oklahoma, property that is devalued due to the actions of others is proof of "damages".
IF the client is willing to sell just enough of his property to the encroacher to get the building "off" his property, he might pull it off......if he can get the property line to be the side of the building. This will require rezoning the property (or a code adjustment) to a zero-lot line clearance. Not an easy thing to do.
It's those two fellas that are going to be screwin' this chicken...I'm just here to hold its tail.
Is it possible to create an easement for the building so that the area of the underlying parcel doesn't change?