[USER=8136]@thebionicman[/USER]
They weren't full aliquot parts. One was like the south 18.7 acres of the east half of the east half of the southeast quarter. Another was a smaller acreage described as the south 4.8 acres of the west half of the east half of the southeast quarter. The third was worse in that it was the south 1.2 acres of the east half of the west half of the southeast quarter lying east of Pneumonia Creek. The survey conducted years later actually defined precisely those three tracts in such a way that anyone could find the boundaries but required a break down of the entire section and determining the center line of the creek (assuming center line was the intended boundary). The surveyor wrote precise metes and bounds descriptions for each of the three parcels which clarified everything. The deed created five years later should have mentioned the three early area-based descriptions but then doing a "more particularly described as" approach to add the precise metes and bounds descriptions so as to provide a far better wording to be used on future deeds.
Another part of the initial issue was that the early descriptions included areas that had already been deeded to the State Highway Commission for a US highway. A logical question was whether or not the areas listed were intended to include or exclude the highway land. The survey took care of that problem.
Holy Cow, post: 432945, member: 50 wrote: [USER=8136]@thebionicman[/USER]
They weren't full aliquot parts. One was like the south 18.7 acres of the east half of the east half of the southeast quarter. Another was a smaller acreage described as the south 4.8 acres of the west half of the east half of the southeast quarter. The third was worse in that it was the south 1.2 acres of the east half of the west half of the southeast quarter lying east of Pneumonia Creek. The survey conducted years later actually defined precisely those three tracts in such a way that anyone could find the boundaries but required a break down of the entire section and determining the center line of the creek (assuming center line was the intended boundary). The surveyor wrote precise metes and bounds descriptions for each of the three parcels which clarified everything. The deed created five years later should have mentioned the three early area-based descriptions but then doing a "more particularly described as" approach to add the precise metes and bounds descriptions so as to provide a far better wording to be used on future deeds.
Another part of the initial issue was that the early descriptions included areas that had already been deeded to the State Highway Commission for a US highway. A logical question was whether or not the areas listed were intended to include or exclude the highway land. The survey took care of that problem.
Thats kind of my point. If the Survey is recorded now there is no problem to solve. This case does have a few twists that would justify new descriptions. Done properly rhe language will preserve the manner of title creation..
Fortunately, the survey was filed. However, the current deed makes no reference to it in any form and does not mention the far superior descriptions.
Without the recorded survey, a future surveyor could arrive at a very different conclusion as to where the boundaries were intended to be due to the area lost to the highway deed prior to the creation of the bastard tracts. They were counting area they did not own in the areas listed, such as South 18.7 acres. Thus each real acreage was substantially smaller than as listed, especially the 1.2 acre tract.
This would be a disaster in a non-recording state.
RADAR, post: 432894, member: 413 wrote: Would providing a copy of the survey, today, start the clock all over again?
-Dougie
It would if you signed and dated with the current date. But why would you do that? If the copies are provided with the original signature and original date, then that is the date of the survey and issuing additional copies at any time after that does not change the effective date of the survey, map or liability.
The actual length of liability depends on how the law is worded. If it is a statute of limitations or a statute of repose. A statute of limitations typically is interpreted so that the clock begins running when a problem was or should have been discovered. A statute of repose closes the door on liability after a specified time period, whether or not any errors are discovered after that period has passed.
In CA, we have both. The wording is a bit confusing, but according to a AG Opinion a few years back, we have a statute of limitation of 3 years, and a statute of repose of 10 years.
eapls2708, post: 433075, member: 589 wrote: It would if you signed and dated with the current date. But why would you do that? If the copies are provided with the original signature and original date, then that is the date of the survey and issuing additional copies at any time after that does not change the effective date of the survey, map or liability.
The actual length of liability depends on how the law is worded. If it is a statute of limitations or a statute of repose. A statute of limitations typically is interpreted so that the clock begins running when a problem was or should have been discovered. A statute of repose closes the door on liability after a specified time period, whether or not any errors are discovered after that period has passed.
In CA, we have both. The wording is a bit confusing, but according to a AG Opinion a few years back, we have a statute of limitation of 3 years, and a statute of repose of 10 years.
In my neck of the woods (Florida/non-recording state) property closings take place every day facilitated by old copies of maps. Buyers or sellers will frequently use any means necessary to come up with some kind of copy. It seems the only requirement oftentimes is that the map be somewhat legible. To most buyers/sellers the survey map is given little value other than just being an obstacle to get around having to pay for. It would surprise me if most Florida surveyors are not aware of this fact. Therefore, any time a Florida surveyor hands out old copies of maps he/she ought to be aware of what that copy is going to be used for...a closing. And, being a member of a profession entrusted by the Public to be knowledgeable in all matters having to do with surveying and mapping, your participation in facilitating a closing by producing the old map (and, by you providing the map some clever lawyer could argue it was your participation that allowed the closing to take place) may expose you to some liability if an unknown problem existed in your old survey.
In Florida, our statute has the discovery language. So, can anyone guarantee me that my providing the map (old copy of a survey done by me 10 years ago) that will used for a new closing can cause me no harm? Maybe there was an old 20 foot AT&T easement that went through the property which I was unaware of and my old map did not locate it (lets just say that today the easement is clearly marked, but when we did the survey perhaps it was not...but who would be able to prove this)? Don't think the title insurance company wouldn't be interested in who the surveyor was? And, no matter how old the old map was, could you possibly see the title insurance lawyer wanting the Court to agree that your producing the "new" copy and providing it to the seller to facilitate the closing (Ok, so maybe you honestly did not have a clue what the map was going to be used for...can you be positive that's going to get you out of legal jeopardy?) started the clock running for your liability?
Certainly, as surveyors we deal with matters everyday that the Public would pay little mind to, and that the Public could hardly be expected to catch if there was a problem. For example, we know fences are subject to be built and we know that fences sometimes cause encroachments. Very possible an old survey located a fence that wasn't there anymore, but a new fence had been built which created an encroachment. The point is, as professionals we should refuse to participate in any activity that could cause harm to a new buyer because we ought to know better. As professionals, we understand the potential harm that can befall an innocent unsuspecting buyer relying on an old survey. Even if you don't care about the money the survey industry loses out on when closings are allowed to proceed using out of date surveys, your professional awareness of potential problems with out of date surveys ought to be enough to want to see this practice ended.
Starting my 58th year in this line of work so this isn't my first rodeo, and I have long refused to facilitate closings with old survey maps; and, when a surveyor gives out an old map you can pretty much guarantee it will be used for a closing. I won't do it. My entire business model deals with current information, and current information only. Sorry if I ruffled any feathers.
I. Ben Havin, post: 433079, member: 6834 wrote: In my neck of the woods (Florida/non-recording state) property closings take place every day facilitated by old copies of maps. Buyers or sellers will frequently use any means necessary to come up with some kind of copy. It seems the only requirement oftentimes is that the map be somewhat legible. To most buyers/sellers the survey map is given little value other than just being an obstacle to get around having to pay for. It would surprise me if most Florida surveyors are not aware of this fact. Therefore, any time a Florida surveyor hands out old copies of maps he/she ought to be aware of what that copy is going to be used for...a closing. And, being a member of a profession entrusted by the Public to be knowledgeable in all matters having to do with surveying and mapping, your participation in facilitating a closing by producing the old map (and, by you providing the map some clever lawyer could argue it was your participation that allowed the closing to take place) may expose you to some liability if an unknown problem existed in your old survey.
In Florida, our statute has the discovery language. So, can anyone guarantee me that my providing the map (old copy of a survey done by me 10 years ago) that will used for a new closing can cause me no harm? Maybe there was an old 20 foot AT&T easement that went through the property which I was unaware of and my old map did not locate it (lets just say that today the easement is clearly marked, but when we did the survey perhaps it was not...but who would be able to prove this)? Don't think the title insurance company wouldn't be interested in who the surveyor was? And, no matter how old the old map was, could you possibly see the title insurance lawyer wanting the Court to agree that your producing the "new" copy and providing it to the seller to facilitate the closing (Ok, so maybe you honestly did not have a clue what the map was going to be used for...can you be positive that's going to get you out of legal jeopardy?) started the clock running for your liability?
Certainly, as surveyors we deal with matters everyday that the Public would pay little mind to, and that the Public could hardly be expected to catch if there was a problem. For example, we know fences are subject to be built and we know that fences sometimes cause encroachments. Very possible an old survey located a fence that wasn't there anymore, but a new fence had been built which created an encroachment. The point is, as professionals we should refuse to participate in any activity that could cause harm to a new buyer because we ought to know better. As professionals, we understand the potential harm that can befall an innocent unsuspecting buyer relying on an old survey. Even if you don't care about the money the survey industry loses out on when closings are allowed to proceed using out of date surveys, your professional awareness of potential problems with out of date surveys ought to be enough to want to see this practice ended.
Starting my 58th year in this line of work so this isn't my first rodeo, and I have long refused to facilitate closings with old survey maps; and, when a surveyor gives out an old map you can pretty much guarantee it will be used for a closing. I won't do it. My entire business model deals with current information, and current information only. Sorry if I ruffled any feathers.
I'm not sure I see the inherent dangers in using old surveys. There are transacitions every day that rely on surveys from the 19th century. Like those, my surveys have a date on them. They only represent the facts as of thst date. I have a very hard time seeing how I would aquire additional liability based on things that happened after that date ( like an easement becoming more apparent) . All proffesional service providers take on some risk of liability when we provide a product. The choicebetween providing my survey and running the very small risk of someone trying to claim the facts were different at the time of my survey (as in your example) and the possibility that a differnent survey will come up with a different boundary because they don't have my survey is an easy one for me.
The more liability we take on the more we can charge. The more liability we try to avoid the more our services move down the spectrum from proffesional to technical.
There is room in the market for both proffesional and technical service providers, but the problem is that at this point we don't really have a way to differentiate to the puplic which service we are providing them.
Holy Cow, post: 432754, member: 50 wrote: I thought forever was the timeline in the statute of limitations.
In Florida they are.
"The courts have adopted the ??discovery rule,? i.e., the statute of limitations for a land surveyor??s error does not begin to run until the error is discovered". Then, one is liable for 2 years.
To me that means forever.
Aliquot,
As far as I can tell by talking to my nearest competitors/friends, we have all ceased giving out old survey maps. There may be more upsides than downsides; but, in my perhaps shallow way of thinking I can only appreciate the negative consequences, tiny as they might seem to be until that "once" in a million happens...
I will run it by my grandson (attorney) when we get together this evening, re what the position of my errors and omissions insurance provider likely would be with regards to me willy nilly providing copies of old surveys to whomever needs/asks for one. For example, I wonder whether I could positively count on them for protection? Or would I be on an island in the tiniest of possibilities Murphy's Law kicks in.
I don't know about others, and I realize I'm possibly the biggest SOB on this site, but I went into this business strictly to earn a living. And, among my objectives today as they were when I first started are, how can I minimize my exposure to bad things happening. Unfortunately, I suppose, that means requiring money for an updated survey ANY TIME I provide something.
aliquot, post: 433115, member: 2486 wrote: I'm not sure I see the inherent dangers in using old surveys. There are transacitions every day that rely on surveys from the 19th century. Like those, my surveys have a date on them. They only represent the facts as of thst date. I have a very hard time seeing how I would aquire additional liability based on things that happened after that date ( like an easement becoming more apparent) . All proffesional service providers take on some risk of liability when we provide a product. The choicebetween providing my survey and running the very small risk of someone trying to claim the facts were different at the time of my survey (as in your example) and the possibility that a differnent survey will come up with a different boundary because they don't have my survey is an easy one for me.
The more liability we take on the more we can charge. The more liability we try to avoid the more our services move down the spectrum from proffesional to technical.
There is room in the market for both proffesional and technical service providers, but the problem is that at this point we don't really have a way to differentiate to the puplic which service we are providing them.
dwayne, post: 432868, member: 12506 wrote: Is their a benefit to the public if the records of a boundary retracement are shared?
When I find a monument I know who set it, when they set it, what evidence they used to set it, and what dimensions to other monuments that surveyor measured, which monuments they held, which they rejected. How could that help but improve the quality of the surveys?
Plus, I know that my reasoning is going to be on display to one and all for ever and all time. Even after my monuments are rusted away my survey will go on. For most of us that doesn't make any difference. But it sure helps keep some people on the straight and narrow.
dwayne, post: 432868, member: 12506 wrote: Is the activity of a land surveyor's boundary retracement proprietary?
Your control and raw data is still your own.
I. Ben Havin, post: 433079, member: 6834 wrote: In my neck of the woods (Florida/non-recording state) property closings take place every day facilitated by old copies of maps. Buyers or sellers will frequently use any means necessary to come up with some kind of copy. It seems the only requirement oftentimes is that the map be somewhat legible. To most buyers/sellers the survey map is given little value other than just being an obstacle to get around having to pay for. It would surprise me if most Florida surveyors are not aware of this fact. Therefore, any time a Florida surveyor hands out old copies of maps he/she ought to be aware of what that copy is going to be used for...a closing. And, being a member of a profession entrusted by the Public to be knowledgeable in all matters having to do with surveying and mapping, your participation in facilitating a closing by producing the old map (and, by you providing the map some clever lawyer could argue it was your participation that allowed the closing to take place) may expose you to some liability if an unknown problem existed in your old survey.
In Florida, our statute has the discovery language. So, can anyone guarantee me that my providing the map (old copy of a survey done by me 10 years ago) that will used for a new closing can cause me no harm? Maybe there was an old 20 foot AT&T easement that went through the property which I was unaware of and my old map did not locate it (lets just say that today the easement is clearly marked, but when we did the survey perhaps it was not...but who would be able to prove this)? Don't think the title insurance company wouldn't be interested in who the surveyor was? And, no matter how old the old map was, could you possibly see the title insurance lawyer wanting the Court to agree that your producing the "new" copy and providing it to the seller to facilitate the closing (Ok, so maybe you honestly did not have a clue what the map was going to be used for...can you be positive that's going to get you out of legal jeopardy?) started the clock running for your liability?
Certainly, as surveyors we deal with matters everyday that the Public would pay little mind to, and that the Public could hardly be expected to catch if there was a problem. For example, we know fences are subject to be built and we know that fences sometimes cause encroachments. Very possible an old survey located a fence that wasn't there anymore, but a new fence had been built which created an encroachment. The point is, as professionals we should refuse to participate in any activity that could cause harm to a new buyer because we ought to know better. As professionals, we understand the potential harm that can befall an innocent unsuspecting buyer relying on an old survey. Even if you don't care about the money the survey industry loses out on when closings are allowed to proceed using out of date surveys, your professional awareness of potential problems with out of date surveys ought to be enough to want to see this practice ended.
Starting my 58th year in this line of work so this isn't my first rodeo, and I have long refused to facilitate closings with old survey maps; and, when a surveyor gives out an old map you can pretty much guarantee it will be used for a closing. I won't do it. My entire business model deals with current information, and current information only. Sorry if I ruffled any feathers.
BRAVO! that's exactly my experience here in Florida as well... and my line of reply when asked about getting copies. If it comes out of MY OFFICE, it will be current and updated. If they spend 3 days time digging into old records and use that to close, that's none of my business.
We are supposed to be more knowledgeable regarding these issues than the general public. If they don't want to listen to our advice on the issue, that's on them.
ANdy
I think it's unfortunate that we even have to have these types of conversations. But the same people (realtors, lawyers, land-owners, etc), who're wanting our products, time, and services for free, or next to free, are the same ones who're wanting us to carry the bag for most of the liability too.
I see the concern you FL guys have. If that were my experience, I might completely agree with you.
Having worked in several regions of the country, recording and non-recording jurisdictions, I have seen RE agents and even RE transactional attorneys try to get off cheap by using an old map and/or trying to con the surveyor into updating an old survey only to the extent of adding a name to the certification (thereby requiring a new date), but without benefit of a reasonably thorough field check and review of a new PTR to determine if any conditions have changed.
It's unlikely that a recently provided copy having only the original date on it would renew any liabilities, even with a discovery rule in the law because the discovery rule isn't just "from when the error is discovered" but rather "from when the error was or should have been discovered." The statutory language might not reflect it, but I would be very surprised to find that the "or should have been discovered" part of the standard has not been applied by the courts in FL or any other US jurisdiction.
Theoretically, the point of discovery rule makes liability an unending thing and I can understand the concern that providing a copy of an old drawing is providing a new opportunity for an error to be found, thereby starting the discovery rule clock. In the vast majority of circumstances, I would expect that a court would find that where many years have passed, that there should have reasonably been ample opportunity to have discovered any errors of significance well before the map copy was provided.
Where bypassing the step of having a survey performed when it should be by using outdated maps is a chronic problem, I'd consider having a "reissue" red ink stamp that reads something like "This map reflects conditions as of the original date shown hereon, surveyor makes no representation that this map accurately reflects current conditions, and assumes no liability for the failure of others to recognize changed conditions, whether physical or of record. The holder of this copy assumes any and all liability for the improper use of this map or the improper reliance on the information shown hereon."
That may not faze an unscrupulous RE agent or attorney, but it might give many buyers pause to reconsider whether an updated survey would be worth the relatively minor added cost to acquiring the property.
thebionicman, post: 433011, member: 8136 wrote: Thats kind of my point. If the Survey is recorded now there is no problem to solve. This case does have a few twists that would justify new descriptions. Done properly rhe language will preserve the manner of title creation..
I don't know about you, but I have surveyed behind a quite recorded surveys with problems that needed solving. And I'm not referring to just ancient surveys that update measurements. I'm talking recorded surveys that completely bastardize the title lines. To me simply following the footsteps of the latest recorded survey by XYZ Surveyors, Inc without verifying the title and all additional evidence is a disservice to the client and to ourselves as professionals. I'd hate to stand in front of a judge one day and say I ignored the deed description that created the parcel and has been used for the last one hundred years of transfers and followed XYZ Surveyors, Inc. recorded survey for the last transfer 2 years ago that missed the found axles 15' away and have been in place for 100 yrs. Which has created a hell of a mess when the adjoiner had their property surveyed.
My point just cuz its recorded don't make it right.
A few years ago I attended a continuing education seminar where the instructor brought up this subject (re old maps...handing out copies etc.). When providing maps for a client, the class was advised to never provide one single map in addition to what was absolutely required. Never give out any "extra" copies. Essentially, just provide one copy for each party the survey was to be "certified to". The instructor suggested that after providing the absolute minimum number of maps we should look forward to the day when all of the copies had vanished so that nobody could find even a single one of them. He told the class that would be when we were finally free of responsibility for that map. He then made the point there was never a good reason to ever give out an old map. I talked to my grandson (attorney) last night, and he basically said there was no way a surveyor could be positively sure his/her providing old maps to assist parties in a closing would never invite problems for the surveyor. So, why? I still haven't heard a good reason here on the advisability of giving away old copies of surveys. Other than being a nice guy.
JKinAK, post: 432888, member: 7219 wrote: For those in states which don't require recordation of boundary plats, corner replacement, and surveys that reveal material differences in boundary locations... all of which are clearly beneficial for maintaining a cohesive boundary fabric... What is the rationale behind making boundary info difficult or impossible to obtain?
Some states observe the "Maine Rule" when evaluating claims of adverse possession. It requires knowledge by the possessor that the land they are claiming is not in fact theirs. Client-surveyor privilege in Maine allows the client to forbid a PLS from disclosing information to other parties. A recorded plat showing their encroachment would be a breach of contract.
