Property Lines & Encroachments

Nice Page Ron 🙂 and a great premise. It seems that almost daily I read someone else posting how "no-one is getting a survey anymore".:-@ I agree that a major part of this is the public is totally unaware |-) until its too late that they may need a survey. Relator's need to be informed, Title co's need to educate there policy holders, even if its at closing, that what there signing doesn't guarantee didily squat with regards to the boundaries of the property.

Baby-boomers and other older generations know what a surveyor is and at one point held our profession up as a respectable industry that ultimately was there to help the land owner.:{: :angel: :}:

Sadly in contrast :'( . My generation, and all of the Lettered generations, x, w, y :-O ect have no idea what a surveyor is unless it has been due to a bad experience. :-@ They don't know why they would need a survey, and if they need one, why it should cost so much. :rain: Seems like our level of respect with the GP and landowner has dropped down towards the level of money grubbing attorneys and used car salesmen.:-(

I hope that even if on a local level I can help change this. :bye: Myself and a few other great volunteers (through our local Professional society) donate time at local job fairs, high school presentations, college campuses, and basically anywhere that we can get a large audience to simply explain the profession. I don't think it matters weather you (every professional) are out there promoting your business, or promoting education, or simply answering questions about the profession, just getting out there helps in every way.:good:

Ask yourselves. What are you doing to change the public perception?

Cheers

One of the things I have been doing for nearly the past year, is our local paper has an "Ask an Expert" section that runs twice per month. I write a short 150-200 word narrative on many subjects, directed at the general public, such as "What is a property line? Why are monument important? How to avoid a boundary dispute? How do I handle a boundary dispute? How are boundaries created? etc.

It costs about $110/month, but I have had pretty good feedback from the public so far. I would like suggestions of future topics if anyone has any. I'll be leaving soon, but will check back on Monday.

When I lived and worked in the city I would get calls from people that had bought a house in a new subdivision that didn't have a clue where their boundaries were or even that they were marked. Usually I would tell them that there is supposed to be markers and what they should look for. I never went out to many because when I told them what a survey might cost most lost interest fast. Free advice on the phone I suppose, you can go to the recorders office and get a copy of the plat. A few times that I did go out the markers were there and quite easy to find if you knew how and where to look and the right tools. I generally found little money in doing this and tried to avoid it. I won't even entertain this work now. I'm not a free government service provider.

Most do not choose to look out for their own interests by researching what ever endeavor they are getting in to. Most have been taught to depend on professionals and don't worry about the details. That is part of their training and few will appreciate being told, even with the intent of educating, anything. If you don't reach the so called professionals in land transactions, including finance, the general public will choose to remain ignorant, and when bit, will shout about how others should have been protecting them from calamity. Aim any attempts of education at the professionals and let the chips fall where they may.
jud

Here is an example of an encroachment I recently found.
The property was being offered for sale by the second owner.
The property was subdivided 12 years ago, house built 10 years ago.
Neither the seller nor the neighbor was aware of the encroachment.

Honestly, I feel real bad for the sellers, who never knew of the problem and now they are faced with dealing with the situation.

I have several photographs posted on my facebook site that show some of the encroachments that I have found recently.

It is a real eye opener for realtors and title companies.
This is the type of information that I'm attempting to convey.

Not uncommon for sidelines around a cul-de-sac to be radial to the radius point. What you show here was nothing but intentional, with knowledge even though the current owners may claim ignorance with some justification. Those owners could clear title by exchanging written and recorded permission to each other to occupy the lands as they are without getting into re platting, adjustments or other legal means. You have disclosed the overlap of occupation and therefor made public the clouded title, which will effect title insurance and any financial efforts by the owners. Some will say title has passed and you should recognize it, I don't believe that is what a surveyor should do. Both owners should be informed of the problem and given the solutions available to them so they can make an informed choice. Whatever the cause, I don't believe it was ignorance of the true line, at least by the original builder and owner. I am a believer that all property placed on the market needs to have a survey of record, could be 30 years ago when it was done, a new survey would not be required if all of the original monuments set during a filed survey of record are in place.
jud

Video 6 about the court case over encroaching fence and dogs said the survey cost $350. Do you really want to advertise that?

Video 7 has embedding disabled and won't play in place. You have to right-click and pick "watchin youtube". Can you make that automatic?

I have always like Sgt Friday's line, "We just report the facts mam".

We make our decisions as to what the facts are and what is just last weekends mow line among more/less revealing evidence on the ground being in place for x years.

Our clients and their other advisers need a beginning place to see what is and is not. A first draft to make decisions from and to gather more evidence from what is remembered of why things are as they exist now as apposed to how was it intended.

Too many times there is such a rush to close, it is forgotten that covering all bases and taking care of the little details is a necessary part of any transaction.

Unwanted findings are not always a wall that stops or kills the deal. Cool heads and informed professionals get thru this. Those not familiar with negotiating and resolving problems are the ones that point fingers and stall the process.

Like there are ambulance chasers, there are goat stake chasers that will fight for anything their clients want.

That is why I would prefer to show the facts and when it gets to the point that client says fence is 27yrs old and neighbor says fence is 6yrs old, I don't believe it is my place to decide who is right or wrong. Both are probably stretching the facts. Of course photos and other sources will reveal the facts that are beyond what the initial survey is for.

Most of the time, it is discussed that problems may exist and the scope of the survey will be to point out any problems. Hardly ever is the price for a survey agreed upon in the beginning that for a fee of $xy we sill solve all or any problems for the client.

"Otherwise they may find them-self in the mist of a legal battle that should have been avoided."

Ha-ha that's a good one! I've been in the mist of a legal battle a few times myself, usually caused by the gas the attorneys were spewing.

"Too many times there is such a rush to close, it is forgotten that covering all bases and taking care of the little details is a necessary part of any transaction."

This is too true and who is it who does not want to hear about an encroachment?

It's the Neighborhood Professional, the Realtor (tm).

I am tired of hearing from new clients about the fact that they know where their boundary is because the realtor (erroneously) has shown it to them. Let's face facts about who is to blame in the current situation. As for the title companies, they routinely disclaim liability for problems which could be revealed by a "competent survey".

The new owner is left with the problem; all of the "professionals" have been paid at that point, except for the surveyor.

> "Too many times there is such a rush to close, it is forgotten that covering all bases and taking care of the little details is a necessary part of any transaction."
>
> This is too true and who is it who does not want to hear about an encroachment?
>
> It's the Neighborhood Professional, the Realtor (tm).
>
> I am tired of hearing from new clients about the fact that they know where their boundary is because the realtor (erroneously) has shown it to them. Let's face facts about who is to blame in the current situation. As for the title companies, they routinely disclaim liability for problems which could be revealed by a "competent survey".
>
> The new owner is left with the problem; all of the "professionals" have been paid at that point, except for the surveyor.

'professionals' - now that's lol funny.

the realtor doesn't care about anything but keeping the deal together and the title company doesn't make money by paying claims, the seller doen't care because he don't know and the buyer is left to to dry - 'professionals' yep - LOL

Deed lines are not property lines. Curtis Brown, author of Boundary Control and Legal Principles said in a talk he gave to the Ariz. land surveyors in 1979:
In my early writings, I generally advocated that surveyors should locate land boundaries in accordance with a written deed; all conveyances based upon unwritten rights should be referred to attorneys for resolution. Within recent years there have been cases, and one in particular, wherein surveyors have been held liable for failure to react to a change in ownership created by prolonged possession. The purpose of this paper is to re-examine what a surveyor should do in the event title has been altered by a legal transfer of title by prolonged possession.

and From Wigmore’s compendium on “Evidence”, 2nd. Edition, Vol. 5 Section 2476:
“It is not necessary, and it is not humanly possible, for the symbols of description, which we call words, to describe in every detail the objects designated by the symbols. The notion that a description is a complete enumeration is an instinctive fallacy which must be got rid of before interpretation can be properly attempted. …”(Similar cautions against relying on the written description exist in Corpus Jurist, Corpus Jurist Secundus, American Jurist and American Jurist 2nd.)

For a surveyor, neither the written description nor the plat will control the boundary lines; it merely defines the area to be searched. Physical evidence of occupation and control will mark the location of legal property lines.

Our job is not to perpetuate the written record but to assist the land owners to protect the rights they have established in the occupation and control or their property.

Who determines the location of the boundries of the parcels refered to in Black's dictionary definition of Alienation if not a surveyor?
Alienation
In real property law, the transfer of the property and possession of lands, tenaments, or other things, from one person to another. The term is particularly applied to absolute conveyances of real property. The voluntary and complete transfer from one person to another. Disposition by will. Every mode of passing realty by the act of the party, as distinguished from passing it by the operation of law. See also Restraint on alienation.

Restraint on Alienation
A provision in an instrument of conveyance which prohibits the grantee from selling or transfering the property which is the subject of the conveyance. Most such restraints are unenforceable as against public policy and the law's policy of free alienability of land. See restrictive covenant.

Lawyers are not capable of determining when record descriptions are inaccurate nor are they capable of correcting inaccurate descriptions, surveyors do that.

The statute of frauds requires an accurate writing when real estate interests are sold, it does not prevent owners from establishing boundaries different than the original ones.

Once surveyors realize the rights of the land owner here in the US, (Our own rights, if we own land), we might learn the provide the most important and remunitive service we could provide which is the ability to detect errors in the written record and provide a means to correct the inaccurate record.

The only way a surveyor can show the position of an encroachment is if he has the judicial opinion for the particular problem for the particular parcel of land being surveyed in hand before he enters the property. We have no authority to declare that a difference between a deed line and an occupation line is an encroachment!

Deed staking is not professional land surveying!

Remember what title insurers say about land surveyors duty in the July 2007 ALTA/ACSM Min. Acc. Stds:
Background
The lines and corners on any property survey have uncertainty in location which is the result of (1) availability and condition of reference monuments, (2) occupation or possession lines as they may differ from record lines, (3) clarity or ambiguity of the record descriptions or plats of the surveyed tracts and its adjoiners and (4) Relative Positional Accuracy.
The first three sources of uncertainty must be weighed as evidence in the determination of where, in the professional surveyor's opinion, the boundary lines and corners should be placed.(NOT the lawyers opinion that a description controls!)

Richard Schaut

> ... Within recent years there have been cases, and one in particular, wherein surveyors have been held liable for failure to react to a change in ownership created by prolonged possession. The purpose of this paper is to re-examine what a surveyor should do in the event title has been altered by a legal transfer of title by prolonged possession.> ...

Richard, from that point on, you lost me

I think the thrust of this thread is really a question of should a perspective property owner get a survey.

What say you?

Anyone who buys land in the US should have a survey done. The purpose of the survey however, is not to show the difference between the deed line and the occupation line. It is to be sure the record description is accurate or, as often happens, an innacuracy will be discovered and a correction to the record is found to be necessary.

The material from the 2007 ALTA/ACSM material makes that clear and it should not be necessary to point out that the surveyor is the only one capable of providing the correction material when one is necessary.

Far too often in the past, we have quit after doing less than 1/2 of our job when we showed 'encroachments' that we have no authority to determine.

Rather than 'create' a problem by following inaccurate descriptions, we must learn to discover and correct problems.

Once we do that, we will be too busy making too much money to complain about not having enough work. Nobody wants to deal with anyone who 'finds' problems without being able to solve those problems.

Note that all the authorities I cited above are authorities that guide judges, not case law.

Case law is not a reliable guide for surveyors because judges make decisions using the information provided in the attorney's arguement and most attorneys demand that the description controls, which is wrong!

Richard Schaut

The physical dimensions of the Deed line may not exactly match the Deed mathematics.

This is because every Deed has to eventually be marked out and there has never been a perfect Survey yet.

> Anyone who buys land in the US should have a survey done. The purpose of the survey however, is not to show the difference between the deed line and the occupation line.
>
> Rather than 'create' a problem by following inaccurate descriptions, we must learn to discover and correct problems.
>

So then, it's really not a problem if some property owner builds a fence or driveway onto the neighbor. Are you saying then, let's just all agree then the property owners can move the location of the physical deed line?

> Physical evidence of occupation and control will mark the location of legal property lines.

> Our job is not to perpetuate the written record but to assist the land owners to protect the rights they have established in the occupation and control or their property.

I'm sorry, but this hippy-dippy vision of descriptionless & markerless surveying is hilarious. Property lines are not so prone to shifting due to various owners whims on where they mow, put their tree stand, build their fences etc. The written record does exist to protect the interests in land a given title holder will have.
>
> Deed staking is not professional land surveying!

And neither is occupation / fenceline staking! The true professional seeks evidence from both ends of the spectrum.

If it was so easy to just go out and survey the fences and roads and/or
just go out and survey the deed metes and bounds; it would only take
survey technicians to do it.

Keith

>
> This is because every Deed has to eventually be marked out and there has never been a perfect Survey yet.

Fraudulent deeds DO NOT HAVE TO BE MARKED OUT!

Alienation
In real property law, the transfer of the property and possession of lands, tenaments, or other things, from one person to another. The term is particularly applied to absolute conveyances of real property. The voluntary and complete transfer from one person to another. Disposition by will. Every mode of passing realty by the act of the party, as distinguished from passing it by the operation of law. See also Restraint on alienation.

Restraint on Alienation
A provision in an instrument of conveyance which prohibits the grantee from selling or transfering the property which is the subject of the conveyance. Most such restraints are unenforceable as against public policy and the law's policy of free alienability of land. See restrictive covenant.

HOW WOULD YOU FIND THE BOUNDARIES OF: Every mode of passing realty by the act of the party, as distinguished from passing it by the operation of law.; certainly not by following a deed because there is no deed record for parcels of land created by acts of the parties!

Try to understand your rights as a land owner here in the US because, if you don't know what your rights are, you cannot help others protect their rights.

Richard Schaut