Common law agreement doctrines are very limited in their application. I think there are places where they are beneficial but the requirements of the law don't allow most of the things that seem to scare so many folks to death. Landowners just can't agree to move their boundary lines willy nilly. Fraud is still fraud and the limited purpose of boundary by agreement is not to allow fraud. Moving a line is just that and needs a conveyance. Settling a location of an uncertainty is not moving a line.
What clouds up so may folks perception is that settling uncertainty by fixing a lines position is moving it. If it's not known where it was before it was settled, where did it move from and how much. The court figured this out and made law. But most folks logic is it must of moved, so it did move and therefore we must need a conveyance. I think this is what drives the effort in Utah to require conveyances for boundary line agreements. I can understand it, I used to have the same logic.
But now with P&Z out of the way I'll be able to do a lot of work that I was doing but shut down when the regulations sent landowners into a tizzy and simple deals became monsters of paperwork and such (mostly boundary adjustments). So I'm just going to reap the rewards even though I don't totally agree with the process and help settle boundaries where I can get the owners to agree and sign the quitclaim deeds. Because these are conveyances, yes, lien holder's WILL need to be in the loop. But, usually when these issues come up is at transfer/sale time so it's workable then.
I do think a lot of boundaries will be moved to a new and improved survey position and not held to the old established position just to get the agreements though. So in that sense surveyors will be relieved from having to find any boundary, original, established or retraced. Stakeout and get the quitclaims and you're just fine. If a landowner wants to sell and get the money they are going to do whatever they need to do. At least we've got the regulators out of the picture and can do something! I supported that all along. There may be some hope for America.
What Does it Mean to Survey Property?
The POB article by Jeff Lucas is in print and should be read by all.
Keith
What Does it Mean to Survey Property?
Well, that would be a start. But what if we all then comment on what it means. How many different interpretations would we get? And could we agree to split the differences and come up with one interpretation that all could agree on? For those that don't comment within a given time, can we hold them to agreement with one position or another, or are they perpetually free to present another interpretation? Maybe Wendell could enact a BEERtute to give us some guidance:)
What Does it Mean to Survey Property?
HUH?
First - I have really enjoyed your perspective in this series of posts. Thanks for taking the time to put your thoughts down.
> 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.
That bold area creates a pretty wide opening for individual views.
For instance, is the situation ambiguous because a prior surveyor did not feel like going an extra 500 feet to measure an original monument or if they just slapped some iron in the ground in a zig-zagging fence row without determining the status of the fence?
I agree with that.
Hire the most qualified surveyor you can find and pay them well. Get quality documents that will save you thousands of dollars and other problems down the line. The clients that do this are either experienced folks in the know or have already been been burned pretty good in the past. Everyone else shops for the lowest bid and gets what they won't pay for.
You could be right in cases where the common boundary is objectively certain.
A half description, however, is inherently ambiguous despite the testimony of Monty Siebel in Bryant. An establishment of a line splitting a parcel in half would probably not be fraudulent unless there is a substantial discrepancy such as they split it 1/3 and 2/3s or something like that. I would think fraud would require an actual intent to defraud the Bank such as the two property owners colluding to actually include a much larger area in the non-encumbered lot.
[sarcasm]Defrauding a bank. Is that paying it forward?[/sarcasm]
> A boundary line agreement that is litigated results in a binding decision on all parties. One that we reduce to writing in order to avoid court would need the signatures of all people with an interest in the property or those not signing could later have it nullified.
>
No. Read the decisions concerning the location doctrines. It is repeatedly held that there is NO CONVEYANCE. Only the landowners are involved, no lien holders.
> However, the greater danger would be the foreclosure on a pre-existing mortgage. That would destroy the agreement by law, whether the lender (who had not signed off on the agreement) liked it or not. I have not seen this happen with an agreed line, but have seen it happen with easements that people have given without getting the lender to sign off.
Please post the law that says a foreclosure destroys a valid boundary line agreement (there is probably a reason why you've never seen one).
A valid boundary line agreement is a whole different animal than an easement. Easements have to be created, either by reservation, grant, or prescription. A valid boundary line agreement is the establishment of the line described in the deed. Again, there is no conveyance.
I have read a lot of California Agreed Boundary cases in the last month or so and I have never seen any discussion of Deed of Trust holders. The Courts seem to never think of that; they focus on the parties in the dispute, usually adjoining landowners.
In California the Title is vested in the Trustee under a Deed of Trust. The buyer recieves a Grant Deed then signs a Deed of Trust (usually recorded sequentially) which transfers the interest to the Trustee. These are popular in California because they can be foreclosed without a Judge, unlike a traditional two party mortgage. I can't imagine none of the parties ever had a Deed of Trust; it just doesn't seem to come up.
I've read many from many different states, and I've never seen a court address the deed of trust. Gee, I wonder why??
It is because apparently every court seems to understand what many surveyors refuse to learn or understand.
This is pretty basic law. There can be no enforceable agreement between parties who do not have the right to make one. If you are helping people make agreements and not informing them that the agreement may not be valid without signatures of all owners of the property, then you very well may find yourself with charges of misconduct against you. In the case of a mortgagee we may not need the signature on the agreement itself. If you send the proposed agreement to them and ask for a return letter stating whether they agree or disagree, that will probably do. They must be informed and given the opportunity to consent or object, otherwise they can later challenge it.
Again, from a practical standpoint it might not be likely to come up in a boundary agreement, but it is the law and it does apply to them. Both deeds and boundary line agreements are contracts and they will be void or voidable if they do not have all the elements of a valid contract. A court decision is different in that it settles the matter for all interested parties. Mortgagees are notified, and can weigh in on the case on one side or another, so they are not denied due process.
Surveyors involving themselves with helping people settle their boundaries by agreement must realize they are walking a very fine line. It could be claimed they are practicing surveying outside their area of expertise or practicing law without a license. Practicing attorneys may know of local jurisdictional procedural rules that must be followed or the agreement will be void. The surveyor should always encourage the parties to consult with an attorney. When and if they decline, the agreement should contain language to the affect they know they are declining legal representation.
If all you can do is get the parties to sign an agreement, that's fine. But, to avoid repercussions down the road you must make sure you have completely informed them of all their options.
Thanks Jon,
I'm enjoying the conversation as well. I think it shows how much surveyors are dedicated to helping the public with their land. And in spite of that, how many think surveyors are the problem. But nobody ever said life was fair. We are at the mercy of history, landowners, attorneys, legislators, societal trends, economic constraints and a whole host of other obstacles and yet we continue to try and improve things for the benefit of the public.
One thing that benefits the public is stability of land boundaries. Prior retracement surveys that the parties know of or should have known of (recorded) are important to try and agree with. The question is one many would say is "judgement" (including some judges before I got through with them). The question really is about evidence and the level of proof one can infer from it, coupled with equitable concerns (the only judgement part).
In most areas today, if an equitable problem has not turned up (line through a pre-existing house or something) within 10 years, then the previous retracement has no detrimental equitable affect. More likely there would be improvements based on it that it would now be unequitable to disturb.
The evidentiary part is tough. Maybe you go the extra 500 feet and find something, but that something then has to have a real good chain of history to make it certain it is what you think it is. Is it called for or uncalled for, how does it fit other evidence, how well is it described and how well does it match that description (if applicable), is there any testimonal evidence, etc..
If the previous retracement ignored standard procedures such as not finding any existing monuments but rather using a current road intersection mentioned in a deed from 1920 and setting new monuments 2 tenths or 2 or 20 feet away from old buried iron pipe I find at each corner that are corroborated by other evidence, then I would reject it. In a case like that the evidence shows beyond any reasonable doubt where the original boundary is. But after 10 years there may well be unwritten rights based on the mistaken survey that I would have to note the possibility of on the map.
Other situations are where the results are absurd. One I questioned had come to an opinion that eliminated an entire lot from a block of about 20, 50 foot wide lots.
So if a boundary line agreement (contract) carries all this baggage and is voidable due to some technical detail not covered wouldn't a quitclaim conveyance (contract) be subject to the same. Why then is a quitclaim conveyance considered final and a BLA not. If all these details and notices and due process is not included in the process that results in the parties signing a quitclaim deed (including the lenders if needed), but never the less, a party signed it really not having been informed of all their rights to due process and such, is the quitclaim deed subject to being voided, and as such parties that depend on the record as notice placed in jeopardy and should disregard it. To me this seems how many are considering a boundary line agreement (that contract is worthless, probably defective, probably some sort of fraud or inequity, two complicated to actually have been done right and since a surveyor couldn't have actually collected the required evidence should be assumed void). I mean isn't that how the majority of the survey world has been told and is being told to view these things. If the parties sign a quitclaim deed is all this wiped away, and as such the surveyor shouldn't be concerned about the same details or liabilities?
I'll explain what I've seen happen multiple times. A stakeout type places a deed on the ground. It misses just about everything. The landowners don't like it but decided to accept it to avoid all the hassle to challenge it (they assume the surveyor is right). They are told they need to quitclaim to the new survey to clear things up. They do it and proceed to move their improvements (less cost then going to court). Question, could this be later challenged and the quitclaim deed voided and the surveyor held responsible for damages, and further charged with practicing law without a license?
Maybe a more fundamental question. If you quitclaim you rights and interest in land did you also quitclaim you rights to due process to coming to that decision?
As already discussed, the quit claims address certain concerns and the agreement other concerns in order to make things permanent. But it fails if one or the other or both are not done properly. There would be different results depending on which one fails.
"A stakeout type places a deed on the ground. It misses just about everything. The landowners don't like it but decided to accept it to avoid all the hassle to challenge it (they assume the surveyor is right). They are told they need to quitclaim to the new survey to clear things up. They do it and proceed to move their improvements (less cost then going to court). Question, could this be later challenged and the quitclaim deeds voided and the surveyor held responsible for damages, and further charged with practicing law without a license?"
If the quit claim deeds are done properly then they will stand up, unless one or the other party committed fraud in collusion with the surveyor. The surveyor could be held liable for damages under either a contract or professional negligence theory if either could be proved and it is challenged within the statute of limitations for either. Damages are usually actual cost of moving the improvements, executing deeds, loss of value, etc.. Does not matter if the surveyor did it for free or charged a lot of money.
In NY, statute of limitations is (basically) 3 years for professional negligence, 6 years for contract.
Unfortunately, the type of survey you mention is probably performed very cheaply; the surveyor has no money or assets, nor do they have EO insurance. So, the landowners would only accomplish more legal debt by suing.
If you choose your professional services based on low price you take certain risks.
So basically what Utah is encouraging by the use of quitclaim deeds to fix all real or perceived title issues is shoddy and cheap surveying. The recorders just want their records cleaned up and the insurance folks just want to collect premiums without any risk. Nobody really cares if landowners are run over or if their established boundaries are honored. Same ole same ole, if it costs anything more than minimal let's figure out out to do it for nothing.
I'd expect with the further expansion of the use of quitclaim deeds to pseudo adjudicate all boundaries, combined with GIS to produce the descriptions, along with the rich Utah history of metes without bounds descriptions (nothing in the ground or called for), that land surveying, and all the related problems perceived to be connected to it, could just simply be eliminated. Gin up the description while rubber banding the shapefile in the GIS until the landowners say OK, punch the return key to build the description and produce the quitclaim deeds, have them sign, record them and you're done! In case you did want markers in the ground you could hire some technicians to put them in.
Might seem like sarcasm, and maybe it is, but I see the train coming straight at us. Maybe it's what needs to be done, it certainly would be cheap and quick.
Ditto Jon, this whole thread and your contributions has(have) been great. I like that NY law. It is even more reason to have, on your plat, a clear depiction of what you did and how you came to your conclusions. I have always felt that if I resolve an apparent ambiguous problem in a reasonable manner, the better I show my thought process, the more likely the following surveyors will accept what I did (I hope). It is always so ambiguous and problematic when you see a field of hard-to-determine problems and have a previous survey with maybe a call to a couple of monuments (or not even that) and some lines with bearings and distances on them and nothing else.
One last time.
From Downing v. Boehringer, 349 P.2d 306 (1960):
When such an agreement is executed and actual possession is taken under it, the parties and those claiming under them are bound thereby. In such circumstances, an agreement fixing the boundary line is not regarded as a conveyance of any land from one to the other, but merely the location of the respective existing estates and the common boundary of each of the parties. Kunkle v. Clinkingbeard, 66 Idaho 493, 162 P.2d 892; Balmer v. Pollak, 67 Idaho 494, 186 P.2d 217; Clapp v. Churchill, 164 Cal. 741, 130 P. 1061; Tripp v. Bagley, 74 Utah. 57, 276 P. 912, 69 A.L.R. 1417 and Annotation 1433; Fallert v. Hamilton, 109 Cal.App,2d 399, 240 P.2d 1007; Tillinger v. Frisbie, 132 Mont. 583, 318 P.2d 1079; Annotation 113 A.L.R. 425; 11 C.J.S. Boundaries § 77; 8 Am.Jur., Boundaries, § 88.
Please note all the citations from various states and sources. If your state laws are different, then carry on as you see fit.
Brian, That is all true, not sure what your point is? I guess what you are not seeing is the difference between the affect of a court decision and the affect of a contract. But I could be wrong.
If you try to reduce the implied agreement to writing, and it is not a valid writing, then you still have an implied agreement (if it existed in the first place). But, that would still need to be litigated successfully in order to get title insurance or use the area in dispute for collateral for a loan. It makes no difference to others how you get clear title. A valid written agreement, a deed, a court decision, any (or any combination) will work and they don't care if it's a conveyance or not.
How true. One older local surveyor went to court and did not provide evidence he had due to concern over giving our proprietary information. It was a protracted subdivision that he had been surveying in since the 1950's and he had the best evidence of the original lines. He thought that by entering his huge basemap into evidence, all the other surveyors would get his information and be able to undercut his prices. Actually you can enter these types of things without them subsequently being available to the public, but the attorney for his side either didn't know or didn't tell him that. At any rate, he lost the case when he should have won. This has caused untold havoc in that subdivision because most of the surveyors in the area rightly agree with his work but the court decision based on one faulty survey moved the lot lines 20 feet. Now the problem is starting to work its way out from the lines per the court decision and it ain't gonna be pretty. Which do you hold? The proper retracement position or the lines per the court decision (which make structures that were built near the time of original survey sit straddling lot lines). But the one faulty survey did know of his work and ignored it in favor of a current road intersection, originally shown on a 1920 map. Basically started his own new subdivision based on the current intersection because that is easy, quick, and cheap. But, he was able to convince the court he was correct.
So, not only is it good to show enough on the map, but better bring your best evidence to court as well.