I am working on an ALTA survey and one of the attorneys is asking for a table of encroachments. I don't use the work encroachment on my maps, so I was curious how others have handles this. FWIW, there are a few fences that cross the boundary.
I'm curious ...
If you don't call an encroachment and encroachment, what do you call it?
I'm curious ...
I usually say "fence crosses boundary" and have a dimension shown. I'm surprised you use the word on your maps.
In Florida we use, or some of us at least, the term "apparent physical use". I have created the table you are being asked for using "apparent physical use" instead the "E" word, and don't be hesitant to charge for this effort.
Rule 5J-17.052(2)(c)3. All apparent physical use onto or from adjoining property must be indicated, with the extent of such use shown or noted upon the map.
Maybe it's an invasion!
Encroachment Is A Legal Word
Per Black's:
"Encroach. To enter by gradual steps or stealth into the possessions or rights of another; to tresspass or intrude. To gain or intrude unlawfully upon the lands, property ot authority of another."
A surveyor is an authority on where something is. How it got there is not within the realm of his neasuring expertise, therefore "encroachment" is not a term to be used without the advise of wise legal counsel.
Assuming a swing set is 1.5' over the line, all a surveyor can say is "1.5' OVER". It may be there by license, acquiessence, estoppel, indifference or tresspass. It may have gradually moved across the line as the children swung to and fro or it may have been carried avulsively in a single overt or covert act.
Should the lawyer insist it is an encroachment I would gladly add this note. "Encroachment as per Hiram Hitch, Esq." I doubt he would accept such words.
Paul in PA
That is good! Thank you, sir!
Encroachment Is A Legal Word
Just to add to what you said, here is a quote from Evidence and Procedure "Encroachment is a legal term and not a surveying term, and as such, surveyors should not use it on maps or in reports. The terms encroachment and trespass have no place in a surveyor's vocabulary..."
Encroachment Is A Legal Word
Agreed, the word Encroachment is a legal term. You do not know if there was permission given to have the improvement be where it is. I use “intrusion or protrusion across the boundary or easement line" as appropriate.
Miguel A. Escobar, LSLS, RPLS
I'm curious ...
I flip-flop on this issue. I think the obvious argument, is that it is not up to the surveyor to decide whether a particular improvement is a legal "encroachment" or not. if there is a garage that partially crosses a property line, the surveyor shows the garage and the how far it crosses the property line. Is it an "encroachment" in the sense that it is violating someone else's property rights? Yes, it may well be, but the surveyor can easily show the line and its relation to the property line location and let the users of his plat decide what laws are being violated.
On the other hand, it's just a word, and it's quite obvious what context its being used in when shown on a surveyor's plat (to me). Can't we even move without playing some disclaimer game? I could also argue that a surveyor can't decide where a property line is, only a judge or the owners can decide that. Everything is simply our "opinion". But we certainly are licensed to have certain opinions.
For me, I tend to stay away from labeling something as an encroachment. "here's (a map of) the fence, here's the property line, here's the garage, you decide what you want to do with that information. The title company can decide who has title to it, and what they want to guarantee.
I'm curious ...
> I flip-flop on this issue. I think the obvious argument, is that it is not up to the surveyor to decide whether a particular improvement is a legal "encroachment" or not.
How then can we decide where the property line is? We don't, we do not have that authority. We don't decide where the property line is, the evidence and the law tells us where, in our professional opinion, it is. Likewise, we don't decide if a garage is an encroachment, we let evidence and the law decide. Even better, we assist the owners in solving the ambiguity of location of both the property line and the garage.
> If there is a garage that partially crosses a property line, the surveyor shows the garage and the how far it crosses the property line. Is it an "encroachment" in the sense that it is violating someone else's property rights? Yes, it may well be, but the surveyor can easily show the line and its relation to the property line location and let the users of his plat decide what laws are being violated.
If we have already "decided" where the property line is, by definition, haven't we already "decided" if the garage is an encroachment or not?
> On the other hand, it's just a word, and it's quite obvious what context its being used in when shown on a surveyor's plat (to me). Can't we even move without playing some disclaimer game? I could also argue that a surveyor can't decide where a property line is, only a judge or the owners can decide that. Everything is simply our "opinion". But we certainly are licensed to have certain opinions.
>
Absolutely, we are licensed to express our opinion(s). Isn't "property line" a legal term? By showing the garage over the property line, haven't we already expressed our opinion that the garage is an encroachment? If we haven't gathered enough evidence to solve the ambiguity (via estoppel, agreement, acquiescence, practical location) how did we arrive at our opinion of where is the property line?
Only the landowners can ultimately decide where the property line is. A judge cannot decide it for them without being asked to do so. Even if the boundary is adjudicated, the landowners can decide to change it.
> For me, I tend to stay away from labeling something as an encroachment. "here's (a map of) the fence, here's the property line, here's the garage, you decide what you want to do with that information. The title company can decide who has title to it, and what they want to guarantee.
Why not assist the landowners in resolving the issues? Wouldn't that be a service that we could bill for, instead of letting attorneys and title companies collect the fees?
Encroachment Is A Legal Word
Miguel, a question...which is which? or how would you decide of how to lable it?
based on my learning my method has been, if it's into the property that i'm working on from an adjoiner, then it's an intrusion (or encroachment). if it's into an adjoiner from the property that i'm working on, then it's a protrusion.
seems kinda goofy to call it one way in one situation and different in another only due to which side of the line that you're working for.
i just spent five days baby sitting my 2-year old grand daughter and having cartoons encroach upon my sports time while toys protruded from every crack and crevice. my mind has been freed again. B-)
You could always use the language "potential encroachment" implying that the object does indeed cross the boundary, but you are unaware of it's legal status. Gary Kent suggested that on ALTA plans at a seminar I attended a couple years back.
-V
I'm curious ...
> How then can we decide where the property line is? We don't, we do not have that authority. We don't decide where the property line is, the evidence and the law tells us where, in our professional opinion, it is. Likewise, we don't decide if a garage is an encroachment, we let evidence and the law decide. Even better, we assist the owners in solving the ambiguity of location of both the property line and the garage.
I don't have a problem with anything you say on this. However, I think it is still the disclaimer game. I guess we can say we don't "decide" where the property line is, technically we "decide" where our opinion of where the property line is. Isn't that what our survey plat is? Our opinion? I never argue about helping the owners solve an ambiguity.
> If we have already "decided" where the property line is, by definition, haven't we already "decided" if the garage is an encroachment or not?
Don't you think it is up to the owners to decide if their rights have been violated? I show my opinion of the property line, and show the garage crossing that line. I have shown all I need to show and there is no need to label it an "encroachment". It's a garage.
> Absolutely, we are licensed to express our opinion(s). Isn't "property line" a legal term? By showing the garage over the property line, haven't we already expressed our opinion that the garage is an encroachment? If we haven't gathered enough evidence to solve the ambiguity (via estoppel, agreement, acquiescence, practical location) how did we arrive at our opinion of where is the property line?
> Only the landowners can ultimately decide where the property line is. A judge cannot decide it for them without being asked to do so. Even if the boundary is adjudicated, the landowners can decide to change it.
By showing the garage over the property line, you can draw whatever conclusions you want. I have shown (my opinion of) the property line, and shown the garage and where it crosses that line.
> Why not assist the landowners in resolving the issues? Wouldn't that be a service that we could bill for, instead of letting attorneys and title companies collect the fees?
I think that is absolutely the right idea. You think I am not advocating helping the landowner resolve the issues. I don't know why you would assume that. I was merely discussing whether labeling something an "encroachment" was necessary or not. I am saying I can "show encroachments" without giving them that label. I am happy to let the landowners "decide" and assist them in whatever way I can. If I am successful in helping a client resolve a boundary problem and draw the property line going around the garage if that is what they agree to, then the garage would no longer be crossing the line. I wouldn't need to label it "not an encroachment" any more than I would have to label it an encroachment if it did. I would not have an issue with someone labeling it an encroachment either (Like I said before). Obviously I said that I flip-flop on the issue, but for me, avoiding the term is something I tend to do.
Encroachment Is A Legal Word
> Agreed, the word Encroachment is a legal term. You do not know if there was permission given to have the improvement be where it is. I use “intrusion or protrusion across the boundary or easement line" as appropriate.
>
Yes, "encroachment" is a legal term. So are "boundary," "property," "easement," "license," etc. We use these terms to mean things. And, yes, using the terms requires that you first make the determination.
Why don't we "know if there was permission?" Because we don't ask. It seems that we'd rather avoid asking than making the determination. Why not? Avoiding the term avoids the work needed to make the determination and avoids the ability to charge money for value of a professional service. Doesn't that relegate our service to that of a technician rather than that of a professional?
Shouldn't we rather, upon discovery of the "intrusion," stop what we're doing, discuss the matter with the client and the neighbor, discover the permissive use, and properly label the use on our survey? Or, discover that it really is an encroachment, then assist the owners by providing a remedy for the problem, then documenting the remedy on the survey, thereby avoiding use of the word "encroachment?"
How much money will you make labeling the "encroachment" vs. the amount you will make resolving it? How much is our professional service worth? A lot more, when a professional service is actually provided.
JBS
"Garage 1.5' Over" Goes Either Way
One may first assume the garage belongs to the owner of that lot on which the majority sits. For that portion of the garage over the line the label "Garage 1.5' OVER" is placed within the other lot. If the garage is clear of the line, especially when the exagerated property line width obscurs it, the label "0.5' CLEAR" is placed on the garage lot. It is entirely possible to have two garage/(shed) over/clear labels on each side of a common lot line.
Paul in PA
Encroachment Is A Legal Word
:good: :good:
I can only hope to someday be as elequent as you are.
p.s. Still no final word.
Here is what Gary Kent had to say on this issue:
The exact same situation exists with the term "encroachment." There are some who claim that a building that is a foot over a boundary line is an encroachment. Perhaps it is, but that is a legal determination, not a survey determination. The survey determination is that the building is a foot over the line. Is that an encroachment? As a surveyor, I have no idea. Surveyors should avoid making statements or certifications about "violations" and "encroachments" (and, for that matter, whether something is in "compliance") because those are not survey issues.
What is a survey issue, is to convey some of the solutions available that might resolve the problem and offer your assistance along with the advice of their going over those solutions with legal counsel. Just walking away without attempting to clear the title and CYA by showing the crossings facts might make you more money at the time, but might cost you later. Color of title by disclosure might crop up? Another might be that you knew of solutions but did not reveal them which caused direct harm and avoidable expense, they want compensation. I believe a good Attorney could make such a case. We often are depended on and expected by clients to provide more than just locating boundary's, surveyors are the only professionals involved with land ownership and transfers that will do the research needed to discover any problems that the owners are unaware of. Wanted or not, clients expect guidance based on the Surveyor's knowledge and experience, notice, I said guidance, not Legal Advice.
jus
I agree about the use of the word "possible encroachment". I use it all the time (where it applies). I state it as a possible encroachment and dimension it. Now they have been given notice about the physical situation, the legal status determination is between the client and their lawyer.