Tom Adams, post: 355341, member: 7285 wrote: Is it possible to create an easement for the building so that the area of the underlying parcel doesn't change?
Or perhaps a long term lease of the required portion?
Is there enough room on one or each side of the building that a LLA with equal land area exchange can be made without diminishing the value of your client's property? That is move the part of the line adjacent to the building to a location that meets minimum setback (or a reasonable lesser amount by variance) while moving other parts of the line in the opposite direction to balance the areas?
The answer is clear. Owner A needs to convey a parcel of a certain area to Owner B and Owner B needs to convey an identically-sized parcel to Owner A. The critical part being to get the building on the correct owner's land. The equal land swap will preserve the ability to not play too close to the fire with the bureaucratic red tape requirements.
Here, we don't really have such things as lot line adjustments or agreements. You simply create whatever tract is required and roll on. The only challenge to this is in cities that dictate a process for lot splits. Even then all you are doing is split a specific lot into two pieces that are still recognized as being a part of the original lot number or name. You can do nearly anything elsewhere.
In California the building owner could be a "good faith improver." A good faith improver would have to pay money damages for the land encroached upon.
I have seen it happen here and the two solutions are to swap property of equal value/acreage or let new owner sell back to previous owner a strip back to cover set back line.
The plot thickens (foreboding organ music in background...possibly Bach's Fugue in C minor...).
The client has contacted me and changed our meeting from tomorrow at my office...to next Tuesday at his attorney's office.
Bring drawings.
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.
[INDENT]RCW 58.04.007 Affected landowners may resolve dispute over location of a point or lineÛÓProcedures.
Whenever a point or line determining the boundary between two or more parcels of real property cannot be identified from the existing public record, monuments, and landmarks, or is in dispute, the landowners affected by the determination of the point or line may resolve any dispute and fix the boundary point or line by one of the following procedures:
(1) If all of the affected landowners agree to a description and marking of a point or line determining a boundary, they shall document the agreement in a written instrument, using appropriate legal descriptions and including a survey map, filed in accordance with chapter 58.09 RCW. The written instrument shall be signed and acknowledged by each party in the manner required for a conveyance of real property. The agreement is binding upon the parties, their successors, assigns, heirs and devisees and runs with the land. The agreement shall be recorded with the real estate records in the county or counties in which the affected parcels of real estate or any portion of them is located;
(2) If all of the affected landowners cannot agree to a point or line determining the boundary between two or more parcels of real estate, any one of them may bring suit for determination as provided in RCW 58.04.020.[/INDENT]
It could be read to mean that the line is simply in dispute, meaning one guy wants it over there, for whatever reason. Now, in practice, most counties (if any) allow this, simply saying that if a surveyor can stake it somewhere, it is can be determined what the line is.
The kind of fly in the ointment, I suppose, is that acquiescence is recognized here as a means of establishing a boundary. So if I go out with my neighbor, build a fence, and shake hands, or write a letter or whatever that this is our boundary, who can say differently? It won't be the line of the legal lot, but it will be the edge of your ownership.
In the example above, I am guessing that since the guy built something over the line 5 years ago, the client had some idea that it might not all be good, meant to get it surveyed, and now wants to make sure an adverse possession claim doesn't happen.
I am curious what the statutes in the state of the OP have to say.
paden cash, post: 355402, member: 20 wrote: The plot thickens (foreboding organ music in background...possibly Bach's Fugue in C minor...).
The client has contacted me and changed our meeting from tomorrow at my office...to next Tuesday at his attorney's office.
Bring drawings.
And...there it is. Questions:
Did he have any idea that the building was being constructed on his property when it was being built?
Did he see it being built at all? (If so, he saw it being built on his property, even if he didn't know it at the time.)
Just curious how it all turns out. Keep us posted.
dmyhill, post: 355421, member: 1137 wrote:
[INDENT]Now, in practice, most counties (if any) allow this, simply saying that if a surveyor can stake it somewhere, it is can be determined what the line is.[/INDENT]
[INDENT][/INDENT]
Correction: Most counties DO NOT allow the agreement process to be used, saying that if a surveyor can even guess on a location of a line, it can be determined.
dmyhill, post: 355582, member: 1137 wrote:
[INDENT] [/INDENT]
Correction: Most counties DO NOT allow the agreement process to be used, saying that if a surveyor can even guess on a location of a line, it can be determined.
Guess? really? I can't disagree, but that seems like kind of a vague rule. If it can't be determined with some kind of certainty, then I would guess that another surveyor can come along and estimate a different location. (?) But I reread your post. Your saying that some official in the County is making that rule. That explains it.
Tom Adams, post: 355584, member: 7285 wrote: Guess? really? I can't disagree, but that seems like kind of a vague rule. If it can't be determined with some kind of certainty, then I would guess that another surveyor can come along and estimate a different location. (?) But I reread your post. Your saying that some official in the County is making that rule. That explains it.
I had an conversation with the guy that makes this type of determination at King County (actually now retired). He said if there was any way for a surveyor to put a line on the ground, it couldn't be the agreement process, they just wouldn't allow it. It might be stretch to say, "guess", perhaps hyperbole on my part.
The status of a county as a "charter county" apparently makes a difference in all of this as well. It is an interesting way that counties maintain control, and also maintain a revenue stream via the review process.
I add this in case this is useful for someone searching this thread in the future:
http://www.atg.wa.gov/ago-opinions/authority-county-impose-procedural-requirements-recording-property-boundary-disputes
AGO 2005 No. 2 - Mar 7 2005
Tom Adams, post: 355584, member: 7285 wrote: Guess? really? I can't disagree, but that seems like kind of a vague rule. If it can't be determined with some kind of certainty, then I would guess that another surveyor can come along and estimate a different location. (?) But I reread your post. Your saying that some official in the County is making that rule. That explains it.
I've heard a few Surveyors express this before. And I can put a line on the ground in most cases. The problem arises when I can also put a different line on the ground and feel that it is equally valid (for example when I have multiple and/or conflicting monuments). It isn't that it can't be laid out. It is just that it can't be laid out with any level of certainty.
dmyhill, post: 355586, member: 1137 wrote: I had an conversation with the guy that makes this type of determination at King County (actually now retired). He said if there was any way for a surveyor to put a line on the ground, it couldn't be the agreement process, they just wouldn't allow it. It might be stretch to say, "guess", perhaps hyperbole on my part.
The status of a county as a "charter county" apparently makes a difference in all of this as well. It is an interesting way that counties maintain control, and also maintain a revenue stream via the review process.
It seems like Counties hate boundary line agreements. The Surveyor really needs to stand up to them and say when a description can be interpreted two different ways and the line is uncertain. (easier said than done). Sometimes an agreement is a good, inexpensive way to resolve a (current or potential) problem.
Someone who has a property worth only $2,000 shouldn't have to spend $3,000 to get some surveyor to put their license on the line and make a non-certain determination that could be so easily resolved. Anyway, that's my gripe. I don't think a county employee should be making decisions as to whether a boundary line is certain and can be established by a land survey or not.
I've never heard that a county has any authority over boundary line agreements as they are theoretically not used to change a boundary location but to give certainty of definition to an existing boundary. If the county wants to halt a BLA because they do not believe it to be uncertain, they should have to bring suit and then have the burden of showing that it is uncertain.
I had a planning department hold up a building permit for a client of mine, after I had helped him and his neighbors with boundary line agreements for each side of their property. His attorney was arguing with the City and he said they were not getting any traction. I wrote a two page letter to the City explaining my objective uncertainty to the boundary and that a surveyor was the only one that could make that determination. In addition all of the evidence was documented on my Record of Survey along with agreed upon line that recorded at the County. I asked them to forward it to the City attorney for his opinion.
I have been deposed by the City attorney in the past and embarrassed him during a deposition a year before. He would not give us anything in writing, but the agency said he agreed with what I had written and they could not hold up my clientÛªs permit.
Skwyd,
California surveyors are required to have objective uncertainty to the location of a boundary, but homeowners can have subjective uncertainty in California, agree to a boundary (for example a fence) and after 5 years it will become the boundary. See the California case Kliban v. Dixon (unpublished) that I worked on.
http://www.leagle.com/decision/In%20CACO%2020110126026/KLIBAN%20v.%20DIXON
When a surveyor is involved, it is required that the agreed upon boundary is between the extreme of the uncertainty. However, I donÛªt believe it has to be straight, if the agreed upon line runs along the historic occupation line between the property. I have one that I am working on now for parcels that were developed in the early 1900Ûªs. I have the lower part of the boundary running along a 6 foot concrete wall, where I angle it to be foot off the neighborÛªs house and continue to an existing monument. The side line consists of three lines now, where the original was one.
Also check out Kempton v. Cooper (2009).
http://www.leagle.com/decision/In CACO 20090605009/KEMPTON v. COOPER
Cooper had agreed with Kempton's predecessor that the fence was the boundary. After acquiring her property Kempton had a Survey which showed the fence encroaching about 1.5' in front to zero in rear. Cooper's Surveyor came to the same conclusion (there is a Corner Record on file at the L.A. County Surveyors office). Kempton sued Cooper, the City and her predecessor and was eventually declared a vexatious litigant.
Martin v. Van Bergen, 209 Cal.App.4th 84 (2012), appears to declare objective uncertainty is required but there is a new subjective uncertainty case in San Diego County, Soroush-Azar v. Palmer, Not Reported in Cal.Rptr.3d (2013). There is another but that one is an objective uncertainty case, Boulder Skies Limited Partnership v. Prazma, Not Reported in Cal.Rptr.3d (2014).
