We dimension the building. We then will show dimensions where it goes over the property line and say "SEE SURVEYOR'S NOTE". We then will have a note describing our physical findings. We never use the word encroachment. We will say we measured the building as being over the property line as shown on the drawing. Leave it up to the attorneys to decide the meaning of our findings. I view the role of the surveyor as a finder of fact only. Once the surveyor points it out it falls in the attorneys lap. I am saying this while wearing my Trimble hat and not my suit.
In the context of this situation we are in pretty close agreement. I've seen Surveyors show 'Boundary by Adverse Possession', 'prescriptive easement' and 'encroachment just to name a few. Apart from a judgment to that effect we should go there.
On the flip side, I don't agree our role stops at discovery and reporting. Many of us do have the knowledge to assist owners in solving problems. I draw the line at advising probable outcomes, etc. If we can help keep the peace while staying within our knowledge and experience we should.
Plottable is most definitely an "official" word. B-)
Also, I use the phrase "Not Survey Related" for all of the exceptions listed about things like taxes and whatnot.
As for encroachments, if I see something that appears to be an encroachment (most often things like fences) I will simply note on the survey the feature and where it is located in relation to the boundary line I've determined. So I might have a note that says, "Westerly end of wood fence is 3.2 feet south of boundary at this point" and leave it at that. I don't call it an encroachment either way.
I think the key here is that if you have two adjoining property owners that aren't in a "heated dispute" then as a surveyor, you can offer your professional opinion based upon the expertise you might have and go with that. If it is a reasonable resolution to a problem that both land owners accept, then there's no problem.
In my experience, the only time that any legal involvement needs to happen is when the involved parties are dead set on not agreeing with each other.
I've seen a couple of overlap disputes that came about due to very old legal descriptions that weren't clear. And each side would argue why they had a right to the disputed land over the other. And compelling arguments were put forth by attorneys and such. Then, at the end of it all, the judge says, "Okay, just split it down the middle and file new deeds to reflect an unambiguous boundary!"
Good information here.
Regarding the initial question about the note on the title report: I wouldn't stress about it. Keep in mind that the author of the report has not seen my/our/your survey yet. At the stage that we are preparing our survey report is usually titled "Preliminary Commitment for Title Insurance" and as the process evolves these types of exceptions are either removed or clarified by reference to the survey. Only rarely am I notified or provided the final Report of Insurance which is a result of the survey and other efforts.
I agree it's always best to help your client but we do 400-500 ALTAs a year. 99% of the time it is fine, it is that 1% that burns you. I have done this for 25 years and seen us burned for reasons you can't dream up if you tried. That client who is all friendly when you are saving them money will change quickly when their money is involved. I have sat in depositions and watched long time clients lie to avoid paying money they should pay and use us as a scape goat. Even the cases we win we lost because attorney fees are paid by us till we reach our deductible.
Be careful nice guys often get burned.
I agree with what David said below about not labeling the "encroachment". I don't know if I knew the exact reasoning that he outlined or if it was just something I'd been taught and continued to do that way.
Do you have a note to the effect that your survey is based on the title report provided and is subject to the findings that a clear and accurate search might disclose? That sort of points the finger back at them, but as long as you have shown and dimensioned the features along, on, or over the property line I think you've done your part. Since it is an ALTA survey the research documents are provided to you. (That's my opinion.)
This is an area that has bothered me for many years. It's shifting liability from the attorney to the surveyor. Can anyone direct me to the page and paragraph in the ALTA specs where it says the surveyor MUST make a determination of the effect of the items listed in Schedule B - Exceptions, much less that the surveyor is required to put that in writing on the plat?
Sure, the attorney wants you too, but where is this required in the ALTA specs.
I see where we must show evidence of any easements based on provided documentation and evidence in the field. I'm down with that, but to then have to determine how it affects the subject property is FAR beyond our expertise. That is a lawyer call, but he wants us to do it to cover his azz.
Like sheep, we do what the attorney asks instead of saying " Wow!! That's your job! Isn't that why you get the BIG bucks?".
I believe that a simple” Survey Exception N/A” should suffice followed by a concise list of the encroachments that are depicted hereon.
While the standards are indeed silent as to addressing exceptions, the requirement to do so can be specified through operation of Optional Item 22. It can also be readily incorporated in the RFP/contract/work order.
Usually the Attorneys don't know either, that's why they try to get the Surveyor to fill in the check box for them.
It's not like Attorneys have some magic way to divine unknown facts from nothing.
Ask an Attorney a legal question...first words out of their mouth, "what side am I on?" They argue, not Judges.
ITEM 22, THE BLANK LINE FILL IN WHATEVER YOU WANT?
Yes they can request most anything they want. As long as it is done up front and they know that it will cost extra. BUT, I have been told that the listing of all of the exception items is an ALTA requirement. I have also been told that it is "standard drafting practice".
No, there is no requirement for making determinations beyond our field. If it's geometry, it's mine. If it's "an opinion" then that is the lawyers stuff. He wishes to put all of the liability on us and plays CYA, all for free, because being a "requirement" we cannot charge extra for doing that. ( I have been told that dozens of times.)
THEY get to tell us what our job is and then whine that we charge too much. Their rates are fair and equitable, ours are "outrageous".
We've done it to ourselves. Willingly. Without thinking about it. :-X
> This is an area that has bothered me for many years. It's shifting liability from the attorney to the surveyor. Can anyone direct me to the page and paragraph in the ALTA specs where it says the surveyor MUST make a determination of the effect of the items listed in Schedule B - Exceptions, much less that the surveyor is required to put that in writing on the plat?
I don't make that determination. If the exception is plottable, I show it and include a note like "Utility easement per 123 O.R. 456 affects subject property and is shown hereon." If I can't locate it, the note says "Utility easement per 123 O.R. 456 may affect subject property but is not shown hereon."
I also have a standard note that limits the scope of the survey to the described property and plottable encumbrances referenced in the title report, specifically excluding matters concerning "taxes, financing, leases, liens, unrecorded documents and other intangible title matters."
I agree that attorneys do not know any more than the surveyor. The fact is the surveyor often has a better take on these matters than the attorney due to the surveyors experience in the field. Having said that the attorney had the power to file a quiet title action and to issue subpoenas. These are the two most powerful tools in determing the unkown. That is why attorneys and not surveyors need to make the judgment calls or bring it to court if necessary.
The comments I have read seems to show a common belief how to handle these matters, unforetunately I believe this group is the exception and not the rule. If surveyors told lenders, title companies and the attorneys what has been said in this thread this conversation would be moot.
As others have stated- you don't have to answer everything. I've had this discussion with clients, their attorneys, and title companies more times than I care to recall. I should have a standard recording by now.
The issue I see is this creates an infinite loop situation. Send off the survey, everyone puts their 2 cents in, commitment gets updated, and suddenly there are 2 or 3 new exceptions, all referencing your survey. Then somebody wants to know why your updated survey doesn't address the new exceptions that only reference your original survey...
In reply to cptdent:
His question, "Can anyone direct me to the page and paragraph in the ALTA specs where it says the surveyor MUST make a determination of the effect of the items listed in Schedule B - Exceptions, much less that the surveyor is required to put that in writing on the plat?"
Here's the way I read it from the 2011 Minimum Standard Detail Requirements For ALTA/ACSM Land Title Surveys. Part 6 C i & ii address this I believe.
C is for: Easements, Servitudes, Rights of Way, Access and Record Documents.
Under C, i is for: The width and recording information of all plottable rights of way, easements and servitudes burdening and benefitting the property surveyed, as evidenced by Record Documents which have been provided to the surveyor.
Under C, ii is for: A note regarding any right of way, easement or servitude evidenced by a Record Document which has been provided to the surveyor (a) the location of which cannot be determined from the record document, or (b) of which there was no observed evidence at the time of the survey, or (c) that is a blanket easement, or (d) that is not on, or does not touch, the surveyed property, or (e) that limits access to an otherwise abutting right of way, or (f) in cases where the surveyed property is composed of multiple parcels, which of such parcels the various rights of way, easements, and servitudes cross.
So it seems to me that part i is for items that can be plotted and part ii is for items that cannot be plotted, but still require a note. The way I read that, is that basically any "right of way, easement or servitude" requires it to be plotted OR a note explaining why it cannot be plotted. For exceptions that reference a deed, but do not have anything to do with a "right of way, easement or servitude", I like to state, "Not Survey Related". All other exceptions that don't reference a deed, such as the "surveyor's exception", taxes due, etc. can thus just be left blank, as many have already stated.
The big question then is, what kind of note is required?
For instance, are we required to say if it affects the property? Are we required to explain why it cannot be plotted? Easements and right of ways are usually fairly straight forward, it's the servitude's that we, as surveyors, may not be qualified to interpret. (Servitude: a device that ties rights and obligations to ownership or possession of land so that they run with the land to successive owners and occupiers.)
What are your thoughts on what the note must say?
I subscribe to the "Lucas Letter" which is monthly letter that deals with surveying case law. The February letter was about this issue exactly and two surveyors that paid heavily for that certification. I would post it here but Lucas is an attorney and a surveyor so I'm not going to chance getting sued;-). Jp
Jp7191,
Maybe you could paraphrase the story into something short? As a warning to what could happen by a seemingly innocent mistake.
Thanks