Leon
The legislative problem you are having in Utah, I'm afraid is going to spread like statutory wildfire. IMHO, the "problem" has been created by surveyors, therefore the public and their legislative representatives are trying to solve the problem.
For decades, our profession has been the one telling the title companies and the regulatory agencies that there are gaps, overlaps, and occupation vs. title problems on dang near every "survey" we have performed, if not then usually a pin cushion has solved the problem. Who else is to blame? Who else tells their clients, the neighbors, and the title insurers that one neighbor "owns" part of another's land, soley because the "commencing at the NE1/4 corner of the SW1/4SE1/4 and running thence South 75 degrees East 24.75 rods" call, when "put on the ground" with the "new" sectional breakdown and the exact turned angle, doesn't match exactly with the 80 year old fence line that was intended and honored as marking the boundary line?
Where should the blame lie? We have tolerated engineering boards to judge the qualifications of prospective licensees since the professions were justifiably split. Many of our "surveying" curriculums in universities are run by engineers and math professors, in the colleges of engineering, and golly-gee, surprise! the surveying degrees are nothing more than "engineering lite" degrees (math is great, less boundary law). The qualified graduates can convert lat/lon to state plane in their sleep and double check it with least squares before breakfast, but they have no idea of how to properly gather parol evidence or be able to differentiate between estoppel and malpractice.
In some "surveying" programs, there is little or no studying of common law. And then we marvel at statements like "surveyors are not qualified to use and apply the law, all they can do is show the facts and advise the clients to call a lawyer".
What else is the public supposed to do? Heck, I practiced like that for years!! Why? Because that is the way I was taught by the "mentors" and read repeatedly in the great treatises of the profession. Thank God for the internet, or I'd still be unenlightened and practicing in the "dark ages". And my reward for studying the law and re-learning how to properly perform resurveys? Yep, I get to spend nearly 3 years and in excess of $60K defending my license because I wasn't practicing according to the "standard of care" as defined and determined by a group of engineers. Go figure. Maybe the legislators are on to something?
Brian
Excellent post!
Sometimes one just wants to throw up their hands and say forget it!!
But that is not solving anything and we just have to keep educating those who simply believe in the mathematics of producing boundary lines.
Why would there be a need for a license, if all you have to do is mathematically lay out the deed lines and/or those dashed lines on a GLO survey plat?
I am really amazed at the the rationale of some who should know better.l
Keith
Leon
Is your dispute over with?
Leon
Still waiting on the district court decision.
In my area a boundary line adjustment is when one sells some property to the neighbor. It gets less scrutiny than a subdivision because it is not creating any new lots, but it still gets examined because you can't do one that ends up creating a non-conforming situation.
A boundary line agreement is just that. It settles an uncertain boundary and does not trigger regulatory review. We do get quit claim deeds exchanged if we can convince the parties to do that. This is because the agreement, even when written, can be challenged on several grounds. The quit claim deeds bar the parties and successors from subsequently challenging the boundary line agreement. But they don't turn it into a conveyance. They just clarify, and put into the chain of title in another form, that any claims in the area are given up if they so existed.
Everyone likes to blame current surveyors for all of these ill results, including unfortunately, current surveyors themselves. The reality that needs to be constantly repeated to clients and legislatures alike, is that our society through its laws has valued speed of division of land for purposes of development and economic growth over precision and certainty at the levels we expect today. This has created a morass of uncertain boundary locations that are extremely difficult to resolve. This is evidenced by the difficulty the courts have in coming to the same solution on any given set of facts. If it takes 10-15 learned judges and justices 3 years and two appeals to resolve the matter (disagreeing every step of the way), how can one blame 2 surveyors for coming to differing opinions? Even if the legislature required a law degree in order to gain a surveying license, the problem would still be there.
The regulatory bodies in Utah need to allow people to settle their disputes outside the courtroom without putting unecessary barriers in the way. It is the governing bodies that created these problems and they should allow people an avenue to fix them. Surveyors are part of the solution, for the most part they have always performed only as asked by society through the government laws and regulations.
I think there may be some differences in what a quitclaim does in various states.
In the Utah code: "A quitclaim deed when executed as required by law shall have the effect of a conveyance of all right, title, interest, and estate of the grantor in and to the premises therein described and all rights, privileges, and appurtenances thereunto belonging, at the date of the conveyance."
The required form of a quitclaim deed has grantors and grantees. A quitclaim deed in Utah is a conveyance same as a warranty deed except it doesn't carry the warranties.
If it walks and quacks like a duck it's probably a duck. A cross quitclaim to a boundary line in Utah is a boundary line adjustment. So far we have the following names for them in code. Boundary line adjustment, lot line adjustment, parcel line adjustment and boundary line agreement. They are all required to be quitclaim conveyances but boundary line agreements and parcel line adjustments have been exempted from review and regulation of P&Z.
What I'm waiting for is for someone to appeal a courts decision in favor of acquiescence and the placing of it into effect because there is not the required quitclaim conveyance recorded. How many losers of an acquiescence case do you suppose would sign a quitclaim deed to the property that they believe they just lost? The common law states acquiescence is not a conveyance of title yet the code requires a conveyance of title. I believe the writers of the code intended to wipe out the common law of boundary agreements. It might be a constitutional issue over land owners rights. How will disputes be solved if the only way to do it is convey title. What if one party won't sign?
Thanks for writing the summary of how we got to where we are at and why there are so many problems between the record and the reality of boundary location. I'll borrow some of that as I plead my case to a legislator.
The point is that a quit claim deed is no longer needed if the thing goes to court and gets a decision. The reason to use a quit claim is as I said above. The effect of it is not necessarily a conveyance. It is a conveyance only if there was something to convey and there is nothing to convey as long as the agreement is honored. But it bars a later claim because even if the party prevailed in setting aside the agreed boundary they would then make the quit claim the controlling document.
So I don't see what your problem is. If the agreed boundary is exempt from zoning or subdivision scrutiny, then the parties have a choice. Agree to the boundary in writing and confirm the agreement with the quit claim deeds. Failing that necessary commitment, maybe it's best they go to court and settle it.
The problem with only reducing the agreement to writing is the same problem with the doctrine and law itself. Someone is liable to turn up a few years down the road with testimony that makes one party think they didn't need to agree because the elements of the agreement under the law were not present. So they can challenge it and say it's not a legal agreement. They can still do that with the quit claim deeds, but they will not, because even if they win on the agreement they still lose because of the quit claim deed. The quit claim deeds are the insurance that the agreement will have affect one way or another. Notice that if this were the case then one of the quit claims will have actually conveyed something but the other never will have.
Quit claim deeds are a conveyance document but not always a conveyance in fact. True of a warranty deed as well, or any other contractual transfer.
I have not seen an answer yet?
What is wrong with a land surveyor accepting a fence corner as the established boundary, setting a survey monument at that site, file the survey plat, collect the fee and go home and have a beer!
Maybe not exactly in that order, but the picture should be clear.
Keith
I fail to understand the rationale of some surveyors who can only use the dashed lines on a PLSS section as the sole evidence of those boundary lines?
Some even go so far as believing these lines have to be established by a government surveyor?
Why?
Well, I would consider that malpractice. We in the private sector are required to look a bit deeper. I would need a reason, not any old reason, but one that complies with the law and is a reasonable application of the evidence to that law, and that stems from a reasonable search for relevant evidence. So, I typically have to wait for Friday for that beer:)
Not disparaging government surveying, but am poking a little fun at attempts to portray these decisions as simplistic. People have rights and they are not surprisingly pretty adamant about receiving due process under the law at times (especially concerning their land).
You know, in some ways I kind of envy Keith in this regard.
He always had the same client (the government) and that client always stipulated that when retracing boundaries common to private land owners that: "if it looked like the adjoiner made a good faith effort to establish the line, so be it, I'm not going to stir up trouble over a few feet."
While our clients certainly have the right to take that stance, it is an attitude that has been rarely found in my clients. 🙁
I can certainly understand your view. I just wish that that quitclaim deeds were optional not required. I don't think all establishment agreements should be held hostage to some formal quitclaim conveyance. I've heard the argument that well it's not a conveyance at all. We'll if that is true I can make the argument that if it's not a conveyance why require a conveyance. It's said that, well the quitclaim deeds ends it forever. On the floor debate this year the legislator stated right out that, well this fix is only good until the next survey. Yeah, everybody laughed but it's the sad truth. I can foresee the day in the future where a title search will include multiple quitclaim deeds for the same line. I've already seen it in some cases. I suppose that it's quitclaim stability of boundaries. As the interpretation of the record and measurement precision changes we need to keep quitclaiming to the same old boundary.
Then consider why the issue of needing the quitclaim deeds arises in the first place. Well, I'd say that either someone decides that the record has a gap or overlap (not always a surveyor) or a surveyor staking out the record finds out the record title math doesn't fit the reality. Depending on what the surveyors personal preferences are for accuracy or dictated by their board (lacking record markers that is very common where I work) then a problem is very likely to arise. If the one and only dividing line established between the properties was located this problem wouldn't exist. Except others will get involved such as title and regulators and insist that if there is a difference in the record title description and the reality things can't go forth without the quitclaim deeds. Without recognizing establishment, established boundaries will never exist.
We do have a lot of boundaries out there not in perfect alignment with the record. It's mostly because of a poor record (at least by current standards). Under the common law most of these are already settled and established. Why can't that just be recognized per the common law. Well, so many insist that the record rules over the reality of the establishment and it's all got to be fixed by new conveyances. We are just drumming up huge problems that don't exist, that the law has dealt with for a long time. If we are gong to insist that the record title description and the boundaries on the ground be in perfect mathematical alignment it will just keep going as each precision from technology is advanced. We will go from a chain to a rod to a foot to a tenth to a hundredth to a millimeter and beyond. We might have multiple versions while stuck on one precision. That's a lot of quitclaim deeds for stability of a boundary that shouldn't move once it's established. The Record Title must yield the the established boundary. That's not a legal fiction that's just common sense. The courts have already given us the solution to these issues. So why the big push to avoid the law and legislate some other solution. Let's learn to apply the law not ignore it.
I would have thought that one could surmise that the private surveyor that I referred to above, would have went through all the necessary steps to come to the conclusion that the Fence corner was in fact a well established boundary fence!
Should have been without saying.
Keith
I don't think that BLM land surveying is quite that simple, and we did have to respect the law that is quoted in sec. 6-12 of the '73 Manual: "That no such resurvey or retracement shall be so executed as to impair the bona fide rights or claims of any claimant, entry man, or owner of lands affected by such resurvey or retracement"
Maybe if more private surveyors would heed this advice, maybe the bogus theory of subdividing sections would go away for non-use!
Keith
See, this is the problem:
"On the floor debate this year the legislator stated right out that, well this fix is only good until the next survey."
Nothing could be further from the truth. Subdivision regulations now control the creation of new parcels, and existing parcels that are retraced or can be agreed on by the parties, can be measured and described with a great degree of precision by any competent surveyor. When all the ancient boundaries have been settled, there should be no disagreement between surveyors going forward. Neighbors of course will still argue over the line based on their continuing mistakes leading to equitable claims.
The reason surveyors have differing opinions is usually because of boundaries that were created either by the parties themselves or when public policy required speed and economy over precision.
I wish you luck in your quest, but I still don't see why quit claims are a big deal. I mean, I write a description, print it onto a standard quit claim deed form, give it to the people, and tell them to go together to the clerk and file them for 10 bucks filing fee. My fee is a few hundred bucks for that extra step at most. It has never been a deal killer when the parties actually do want to settle the line by agreement. It is a deal killer when they are thinking they really don't want to agree and want to fight it out in court at a later date.
One of the things that helps alleviate these problems is teaching young surveyors to agree with previous retracements by other surveyors if the situation is ambiguous and the decision was reasonable (even though yours might be slightly different). We have law in NY to back this up. The level of proof needed when in disagreement with a previous retracement goes up. If surveyors are percieved to be the problem, maybe you could pass legislation similar to this:
Civil Practice Law and Rules
Rule 4522. Ancient filed maps, surveys and records affecting real
property. All maps, surveys and official records affecting real
property, which have been on file in the state in the office of the
register of any county, any county clerk, any court of record or any
department of the city of New York for more than ten years, are prima
facie evidence of their contents.
People have rights and they are not surprisingly pretty adamant about receiving due process under the law at times (especially concerning their land).
And what do they think when a surveyor comes along and disregards all acceptable evidence and sets a brand new shiny brass cap ten feet away from a monument that all landowners have believed to be their corner?
"When all the ancient boundaries have been settled, there should be no disagreement between surveyors going forward."
I agree you are spot on there. The biggest problems are in rural areas where many records and layout where DIY and such. But these are ancient boundaries and most are established under the principles of our common law. They don't need to be settled, their establishment just needs to be documented and accepted.
Hopefully the next generation of surveyors will be better trained, educated and will respect those that have gone before. Hopefully we will leave them some good stuff to follow. If I were you I'd give them some extra homework on quitclaim deeds!
I probably go over the top a bit, but how else do you get someones attention. Thanks for the debate and your input.
Got to get some work done. Doing a boundary line adjustment using quitclaim deeds. BUT, this one is legit as the boundary line is actually being moved to a new location.
Sometimes they go directly to court on bad advise from an attorney and lose because they don't have two differing professional opinions.
Sometimes they get a second opinion and it agrees with the first so they drop it.
Sometimes they get a second opinion that disagrees with the first and then they go to court and maybe win and maybe lose.
But you're not keeping up with the conversation. Although proper retracement is an issue, there are always going to be those cases where people have in good faith established a line different than the record line, and similar (or identical) cases (using the same jurisdictional laws) where they almost have but not quite.
The question is twofold (assuming a reasonable retracement survey opinion is arrived at): 1) how can surveyors best serve their clients in this situation. 2) how can surveyors dispell the notion that they have caused the dispute (if one is present or arises due to the surveyors findings).
To answer these questions we first have to acknowledge that private surveyors do not, and are not likely to have, judicial authority in the good ole U.S. of A. where due process is a constitutionally garaunteed right of the citizenry.
As a licensed surveyor of mostly private boundaries I have probably accepted well over 100 ancient fence corners as alquot part corner monuments. I did so without having the owners agree to anything because they didn't need to in my opinion. I used the fence corner as best evidence of the original survey. I think that going down the path of requiring an agreement or adjustment for every non-original piece of evidence is not the wisest. I suspect that surveyors 100 years ago looking at the prospect of using a new theodolite and engineer's tape had the same thoughts that it is just a matter of time until all the boundaries were correctly located. What they failed to consider enough is that private boundaries can be settled by the owners past actions, not surveyors new methods or measurements. Corpus Juris Secundum supports that right and the BLM Manual is an expression of CJS. Until the courts have completely redefined private ownership rights the owners actions will trump any written record no matter how precise or acurate the record may be. Another way this thread could have been framed is what is real conflict rather than perceived conflict of evidence? I don't beleive that my variance in measuement from the record means that I discovered a meaningful conflict. Just my two cents worth.
