OK, the poll has been up for two days now. Almost 800 views and 14 responses. Score one for the Shrinking Violet’s Brigade. Anyway, the results please……
I have it that 5 or 6 people picked choice 1 in which you research each line back to its creation and 10 or 11 pick choice 2 in which you research the current and all adjoiners unless something leads you to research back further.
The uncertainty is due to having gone into the thread where we were supposed to state our reasons. I found three people there who made their choice clear although they didn’t respond in the poll. Also, in the poll, three people chose 1, 2, and 3 depending on the situation. This counts as picking choice 2, where you default to just pulling the current records, but then you take it back to the Mayflower Compact if necessary, something I do on only about 1 out of every 10 or 15 surveys.
But intellectual honesty prevents one from declaring victory based on this poll. The rules of logic command us to WEIGH voices, not to COUNT them. The more telling indicators should be found in the “reasons” thread found just above the poll. Looking at that discussion, I see that well-thought out and well-articulated opinions are few in number and that the issue needs to be examined further.
All we can derive at this point is that a sizable number of practitioner’s believe in either method. It now remains to see if it can be determined which is correct.
I will restate and reword the opinions I gave when I started the reasons discussion. It seems that Kent and his side believe that in going back to parcel line creation, one may find that the current legal description may have been re-written and at odds with the original description and that senior rights may lead one to place a corner at a location different from where the current deed and current monumentation, and likely, current occupation indicate.
I argue this on two points. First, if the parcel was monumented when it was cut out many years ago, and the location was accepted by everyone, and likely a fence was built… then that corner stands, regardless if it was marked at 201’ instead of the 200’ described in the deed. There is no reason to invoke senior rights, when the original marked corner is found. Second, even if it doesn’t stand, it still stands because of repose. Either way, it’s the corner.
Kent seems to want to describe our role as the finder of all possible problems for a property parcel, and only after we have apprised the owner and other surveyors of such have we earned our pay and to do otherwise is negligent. I disagree. Certainly if there are major problems to be found it is our duty to do so. But our job is not to go back and subject every preceding conveyance to the microscope and reveal trifling details that would only interest another obsessive surveyor. A foot this way or that from fifty years ago does not prevail against found original monuments backed up by fences and walls. I see property parcels as more stable than that, and what I have seen of court cases assures me that I am on the right track.
Your opinions are welcome.
Stephen
> I will restate and reword the opinions I gave when I started the reasons discussion. It seems that Kent and his side believe that in going back to parcel line creation, one may find that the current legal description may have been re-written and at odds with the original description and that senior rights may lead one to place a corner at a location different from where the current deed and current monumentation, and likely, current occupation indicate.
Actually, the better statement would be that in determining how the boundary is described in the documents under which a landowner would be able to prove record title, the surveyor is actually in a position to give a meaningful opinion that cannot be given in ignorance of that description.
> I argue this on two points. First, if the parcel was monumented when it was cut out many years ago, and the location was accepted by everyone, and likely a fence was built… then that corner stands, regardless if it was marked at 201’ instead of the 200’ described in the deed. There is no reason to invoke senior rights, when the original marked corner is found. Second, even if it doesn’t stand, it still stands because of repose. Either way, it’s the corner.
So what your argument would be is that if there are fences then it doesn't matter what the writings say?
> Kent seems to want to describe our role as the finder of all possible problems for a property parcel, and only after we have apprised the owner and other surveyors of such have we earned our pay and to do otherwise is negligent.
The better statement would be that the role of the surveyor is to discover those possible problems that the surveyor would want to know about if he or she were the client, particularly if the costs associated with failure to do so are potentially much higher than the effort necessary to identify the problem.
The reason why land surveying exists as a profession is as a part of the land ownership system, as disinterested experts who can interpret the writings that evidence the arrangements that have been made for the disposition of property. If you don't examine the record of those arrangements, you're simply providing a piece of paper that suggests that perhaps you did. The ethical surveyor would have to add many prominent disclaimers to that piece of paper that basically amount to "this is not a map of a survey" and in many states that wouldn't be professional acceptable.
"Kent seems to want to describe our role as the finder of all possible problems for a property parcel, and only after we have apprised the owner and other surveyors of such have we earned our pay and to do otherwise is negligent. I disagree. Certainly if there are major problems to be found it is our duty to do so. But our job is not to go back and subject every preceding conveyance to the microscope and reveal trifling details that would only interest another obsessive surveyor. A foot this way or that from fifty years ago does not prevail against found original monuments backed up by fences and walls."
I agree with you that it can't be negligent to perform the services agreed to by contract with the client, if the client is apprised of the differing choices they have. I don't like MTS's and would not want to see them include some language limiting the ability of people to contract for a service they feel they can afford.
On the other hand, my job is usually to examine every trifling detail because there is disagreement. I should be allowed to contract with a client to do that. You should be allowed to contract with a client not to do that. One business model performs large numbers of less researched (but usually sufficient) survey work. The other business model performs fewer, but more detailed survey work. Consumers have a choice if they are made aware of it. If they are not made aware of it, then that is a problem.
I don't think this discussion has anything to do with whether a foot this way or that from 50 years ago prevails over original monuments. The fact is the only contract that matters for the purpose of determining the line is the one written between the original parties. And it must be interpreted in light of the circumstances at that time. When working with anything other than that, you are working on a professional judgement that the original is the same as what you have, and that the original circumstances don't affect the outcome. This is a tactical judgement that the client needs to be informed of. Do they want you to make assumptions or do they want an opinion based on the best information available?
If you don't have a written contract, and I'm the consumer, I'm expecting the best information. I don't know that you have these things going on in your head about how far you think it's necessary to research. So, a verbal or written contract that just says "I'll survey it for 50 dollars" includes the requirement of searching the record until you find everything that might be pertinent to the boundary. And a clear contract violation would then be not examining the original documents of conveyance (they are the only ones that count).
So, what is correct? It is doing what you said you would do.
> I agree with you that it can't be negligent to perform the services agreed to by contract with the client, if the client is apprised of the differing choices they have. I don't like MTS's and would not want to see them include some language limiting the ability of people to contract for a service they feel they can afford.
To my mind this issue is central to professional ethics. It is a given that very few consumers of surveying services are sophisticated enough to understand the full ramifications of a specification to which a survey might be made. Surveyors, on the other hand should understand the larger consequences of some lesser service and the hidden costs incurred not only by the consumer but all of his or her neighbors for years. This superior understanding is why land surveyors are organized as a profession in the first place.
Minimum Technical Standards exist as a consensus view of what an informed consumer would want if they actually understood the ramifications of what a surveying service really provides. They also avoid practices that impose potentially large costs on adjoining landowners whose vested property rights might be ignored by some substandard effort. As a point of curiosity, why would surveyors need to be licensed in a scenario where the customer was always right when the scope of a service was to be determined?
The real question is what sort of a service is actually the most economical, which in practice really is an estimate based upon many hidden costs of crummy surveying and many hidden benefits of good quality surveying.
Junior/senior issues get retracted back, but those are rare here in PLSS land and since the passage of the Marketable Title Act any problems have a time limit anyway. The Supreme Court ruled on it this year saying our hands are tied.
Well, MTS's are an attempt to codify the consensus of the profession. But they are better suited to "technical" matters as the name suggests. And they are "minimum" as well. What you are suggesting is a maximum in spite of a professional judgement that it may not be necessary. The poll here does not show a consensus that the maximum is needed as a minimum.
I'm not arguing for substandard work. But the majority of responses indicate that standard work is less than what you propose and that it is sufficient in many cases. Of course, consumer protection statutes may find otherwise.
I stop researching when I'm confident that what I'm still looking for will not substantially change my opinion if I find it. It's impossible to know for sure without finding it or making absolutely sure it doesn't exist. But if the client will not authorize the expense, then it's over.
It just seems impossible to me to make a bright line rule about how much research is the minimum needed on any particular survey.
What did the supreme court say? What was the case?
I can't seem to get the link to work, just copy paste this and it will take you there, an interesting read to be sure. I've never paid much attention to the law, although I've discussed the implications of it with title people and attorneys, this case kinda makes it more important to me.
> Well, MTS's are an attempt to codify the consensus of the profession. But they are better suited to "technical" matters as the name suggests. And they are "minimum" as well. What you are suggesting is a maximum in spite of a professional judgement that it may not be necessary. The poll here does not show a consensus that the maximum is needed as a minimum.
I see Minimum Technical Standards as a restraint on surveyor optimism and an acknowledgment of Murphy's Law. Were there no standards, it isn't at all clear to me that the Mortgage Loan Inspection might eventually be considered too rigorous a product for most clients who really just needed a US Power Squadron "survey".
That is an interesting result, but it does seem equitable at least in that case. But the act does have to do with quality of title, which may or may not be affected by limits of title via the correct boundary. I don't think I would limit my research based solely on that act. The opinion mentions there is disagreement between states on how to interpret it. Sometimes the more they try to simplify, the more intricate the problem becomes.
For instance, wouldn't we be allowed to use the parent tract original description (which the court ruled could not be used to defeat the easment) in coming up with an opinion of the location of the easement? Suppose the easement grant says something like "10 feet wide along the easterly boundary of.....". How would we place it on the ground if we can't use the previous description of the parent tract? What if a description subsequent to the easement conveyance placed the line through a house that was built in 1890 near the time of the original survey and would result in the poles not being located in the easement, but the original description (which theoretically we can't use due to the act) would not put the line through the old house and would agree with the location of the poles in the easement?
And around and around we go.
I'm trying to understand how a marketable title act would substantively affect the boundary location? Apples and oranges........
If you have an ambiguity in a description that can only be solved by evidence found in a document older than 40 years, I don't see anything in the law preventing a land surveyor (or a court) from properly using it to do so.
If you research in the #1 category 3 times out of 10, there are 7 chances of something or someone sneaking up on you and slapping you with some negligence. I'll admit, I have researched in all the categories but mostly on the 2 level. I'm finding out that this leaves me open for being slapped. I'm holding my breath most of the time when I do this. Everyone gets down on Kent for maxing everything out to the maximum max. I think Kent, as a surveyor, is the surveyor most would want to hire but not want to pay the invoice but there would be no surprises.
> Everyone gets down on Kent for maxing everything out to the maximum max. I think Kent, as a surveyor, is the surveyor most would want to hire but not want to pay the invoice but there would be no surprises.
My observation is that there are essentially two different categories of boundary surveyors: (1) those a buyer would want to hire and (2) those only a seller might want to. Sellers like plausible deniability. Buyers are usually stuck with what didn't get discovered. There is a solid niche market for reliable, thorough surveys, particularly when litigation is on the horizon. I'm not sure where the bottom is for the alternatives where cost is the primary driver instead of quality.
The reality is that probably about 80% of the surveys I see that were made by what I'd classify as sellers's surveyors have some significant defect in them and I don't mean a North arrow suitable for the Country Music Hall of Fame. As standards get relaxed, the failure rate really goes up. I'm sure that part of the reason I think that the level of research I've mentioned is warranted is that I see such a quantity of spastic mistakes that are pretty much the result of minimal research and a streamlined methodology for conducting a land survey to try to work within an unrealistically small time budget.
Make that:
> I see Minimum Technical Standards as a restraint on surveyor optimism and an acknowledgment of Murphy's Law. Were there no standards, it isn't at all clear to me that the Mortgage Loan Inspection might NOT eventually be considered too rigorous a product for most clients who really just needed a US Power Squadron "survey".
A US Power Squadron "Survey" would of course be a one-page letter with a description of the property and the surveyor's certificate to the effect that: "PROPERTY FOUND AS PREVIOUSLY DESCRIBED" or "PROPERTY NOT FOUND".
I not saying it, my title and attorney friends are saying it. I'm still researching back but they feel they have protection now. Anyway I haven't changed what I do but the argument is there to do some things differently.
> I not saying it, my title and attorney friends are saying it. I'm still researching back but they feel they have protection now. Anyway I haven't changed what I do but the argument is there to do some things differently.
This is a great example of the difference between title law and boundary law. For title companies insuring title and attorneys litigating title issues, it is very relevant, however, it doesn't change boundary law or the responsibilities of a land surveyor.
Hmm, well since I'm working on a project very similar to the supremes case I'd say this law has big implications to what I do. The subject deed is from the late 70s so not exactly the same but.... Then there's another project were incorrectly transferred parcels. This goes back over 40 years so yeah this law applies to my work.
Of course MLI's were developed by clients to cut costs from MTS based services. And I've seen requests for MLI's to replace ALTA's now. And there is the elimination of even the MLI's via owners affidavits.
So, clients do drive markets, regardless of or in reaction to standards of practice.
It may be better to have nothing than something less than thorough.
"There is a solid niche market for reliable, thorough surveys, particularly when litigation is on the horizon."
Indeed, clients who want absolute risk avoidance could give a whit about cost to get there. If they have 100 million at stake, they search for the most thorough professionals to help them reach a successful completion. The $1000 crap survey can't hold a candle to the $10 to 100k fee that gathers ANY and ALL details that can shut the door on risk. They want zero risk if they can get it and damn the cost to get there.
These are the clients that have no faith in meeting minimum standards. They demand enhanced experience, knowledge and skills as a bare minimum. They always expect to pay premium fees for excellence and don't hesitate to pay for it. They will always rule OUT the low bidders.
