ENCROACHMENT.
Why do surveyors avoid using that word on a map?
If one has done the necessary research, located enough boundary evidence, applied the appropriate rules/laws of construction, and made a boundary determination...then if we find what looks like an encroachment, acts like an encroachment and is used like an encroachment....why not just call it an encroachment?..why the fear?
> ENCROACHMENT.
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> Why do surveyors avoid using that word on a map?
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> If one has done the necessary research, located enough boundary evidence, applied the appropriate rules/laws of construction, and made a boundary determination...then if we find what looks like an encroachment, acts like an encroachment and is used like an encroachment....why not just call it an encroachment?..why the fear?
Here's why I tend to avoid (but not necessarily never use) it. Encroachment, like many words, has both a general language definition to enter by gradual steps or by stealth into the possessions or rights of another (Websters) and a supplementary legal definition to gain or intrude unlawfully upon the lands, property, or authority of others (Blacks). As a quasi-legal profession I feel it behooves us to differentiate between the two.
I see my license as granting me authority to perform all the actions you list "located enough boundary evidence, applied the appropriate rules/laws of construction, and made a boundary determination", but I think it stops before granting me the authority to pronounce on the lawfulness or unlawfulness of an action.
> ENCROACHMENT.
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> Why do surveyors avoid using that word on a map?
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I just used that term on Monday
"Concrete driveway from adjoiner encroaches onto subject property as shown"
Mentioning a specific apparent encroachment suggests that to be the only encroachment.
I don't use it ever because if there is an encroachment we don't know the history of the encroachment. A judge may rule that the boundary move to include such encroachments adverse possession may apply. And by making a statement that it does encroach you open your liability that it us your opinion that it encroaches when you are not the judge to decide that. I simply say that the building, concrete, fence...etc is "inside such lines, as shown.
I use it freely but usually with a modifier, i.e "appears to be encroaching."
After years, and two survey boards then this term seems to be one that has people in two camps.
Those that say NEVER use the term because it is a legal determination and not one that a surveyor has any right to make.
And those, like me, who feel the word is more of a descriptive term to describe things that fall over a boundary. If we can survey and stake a boundary then are we not making a legal determination also on that line? So showing something over that line is merely showing the conditions as they exist. I've never been called to task if a judge determines that encroachment has ripened into adverse possession or some other means of altering the title lines. I asked our City Attorney about this years ago and he said there is no better term to use and that would not be held liable if a judge was to rule otherwise. Showing something as an encroachment he felt heightens the fact to put all on notice and hopefully to resolve in some amicable way.
I've seen some really oddball terms applied to avoid using the term encroachment but our attorney felt that the term , while a legal term, was used by a surveying in a descriptive manner.
And thinking back, I don't think I've ever used the term on any map but just in reports. The map merely depicts the graphic representation of the lines and surrounding features.
That's my Okie take.
"Nature of the beast"
I tend to depict existing situations as "intrusions" or "protrusions" on my survey drawings and let the clients decide if they are encroachments.
Everyone knows that it is going to cost someone, why scare them with thoughts of lawsuits so early in the process.
Have had many a client express that the area is not a problem and wish to fix it, usually at a cost to the intruder.
A 328ft x 8ft triangle went for 12K a few years ago so a fast food station could keep its drivethru.
Because there's never enough evidence and it has no standing anyway in the eyes of law enforcement officials. Law enforcement will enforce trespass but only up to the point where the alleged transgressor is an adjoiner and claims rights or ownership. Then they call it a civil matter and want a court order. So you're going out on a limb for nothing.
> ENCROACHMENT.
>
>
> Why do surveyors avoid using that word on a map?
>
> If one has done the necessary research, located enough boundary evidence, applied the appropriate rules/laws of construction, and made a boundary determination...then if we find what looks like an encroachment, acts like an encroachment and is used like an encroachment....why not just call it an encroachment?..why the fear?
You answered your own question. It's typically because the surveyor "has NOT done the necessary research," "has NOT located enough boundary evidence," and "has NOT applied the appropriate rules/laws of construction," and "has NOT made a boundary determination."
It would appear that our profession has too often reduced itself to a technical process of "showing the facts" without profession to have the expertise to recognize something as simple as an encroachment. Personally, I have no problem expressing my professional opinion if a neighbors improvements encroach upon the land of another. My opinion is just that, an opinion. However, it is based upon, 1) a proper determination of the boundary, and 2) a proper determination on who made the improvements. That takes investigation that too few seem willing to perform.
JBS
I've had a boss tell me to take the word off of the survey. (and never use it again)
When I asked why, he said we don't determine ownership, we just show the conditions.
I posted this on my FB page a few moments ago and have already gotten many answers from people that are our clients and not in our profession.
A survey question for my non surveying friends. If you get a map showing your property with your neighbors house, garden or such over your property line then which term would you immediately recognize this as. A) Protrusion B) Intrusion C) Encroachment.
So far they have ALL said encroachment and even one said that it could ripen into ownership. She is a bike riding buddy who had one contract law class years ago.
You have done whatever work you need to do to establish the property lines. Each line has a beginning and end, a direction and a length.
"Encroachment" has connotations which a Land Surveyor may not be able to determine.
ENCROACHMENT. An unlawful gaining upon the right or possession of another; as, when a man sets his fence beyond his line; in this case the proper remedy for the party injured is an action of ejectment, or an action of trespass;
Encroachment : entry to another's property without right or permission;
Encroach: To take another's possessions or rights gradually or stealthily;
Can you say it's "unlawful"?
Can you say it's "without right or permission"?
Can you say it was done "gradually or stealthily"?
Maybe you can, maybe you can't. In any case, it's an unnecessary usage.
Fences, structures and other items apparently owned by adjoiners that seem to be over the line can simply be described as "0.5 East" or "1.8 North" of the line.
> Because there's never enough evidence ...
That's like saying "Because [surveyors] never [take the time to gather] enough evidence ...." The evidence is there. It takes time and effort to gather it.
>... and it has no standing anyway in the eyes of law enforcement officials. Law enforcement will enforce trespass but only up to the point where the alleged transgressor is an adjoiner and claims rights or ownership. Then they call it a civil matter and want a court order. So you're going out on a limb for nothing.
You're right, there, Duane. Excellent point. Boundaries and trespass are a civil matter that can only be enforced when the officer knows that a trespass has been committed. I'm not so quick, however, to agree about "going out on a limb for nothing." I would recommend that, before "going out on the limb," the surveyor should be having a conversation about the findings with both the client and the neighbor about the improvements in order to determine if they are, in fact, encroaching. Once the conversation is had, nobody is going to be surprised at the depiction of an "encroachment" if they are already aware.
JBS
Well, so far all my non surveying friends have said that showing anything over the line is, to them, an encroachment. Only one so far has mentioned ownership issues but they all think the term is descriptive of the facts on the ground. None have said that a Surveyor cannot determine something encroaching on the title boundaries.
Just got one that added another term. D). Greedy Bastards. She is from San Antonio.
JBS
> Personally, I have no problem expressing my professional opinion if a neighbors improvements encroach upon the land of another. My opinion is just that, an opinion. However, it is based upon, 1) a proper determination of the boundary, and 2) a proper determination on who made the improvements. That takes investigation that too few seem willing to perform.
Kinda depends on you location and scope of practice. I'm more likely to be surveying a property that's held in a REIT through a chain of 15 LLCs with an adjoining property that's owned by Swiss Re or Deutsche Bank than somewhere where I can actually talk to the owners.
Hey, pay me for my time and I'm more than willing to do the proper investigation to determine who made the improvements and if the use of the adjoining property is an encroachment or permissive; but until someone wants to compensate me for that, "6' chain link fence 1.3' across line" suffices for the owners, lenders and title insurers just as well as "6' chain link fence, encroaching 1.3' on adjoiner"
JBS
> Hey, pay me for my time and I'm more than willing to do the proper investigation to determine who made the improvements and if the use of the adjoining property is an encroachment or permissive...
That's the rub, right there, James. That's where communication skills and business sense come in to play. We can choose to stay in the game, or we can choose to walk away. Those who stay, get to play.
JBS
I don't know; "Encroach" = "to enter or force oneself gradually upon another property or rights."
(my little Merriam Webster Dictionary)
I am not shy about using the word since virtually any violation of property lines (without permission) falls within the definition.
Whether the rights have solidified into ownership does not mean that an encroachment isn't evidence of that potential ripening of title. (Still an encroachment)
Don't let non-professionals choose the terms you would use on a survey map. It's your opinion and your liability, so you should choose your words carefully.
My doctor doesn't let me diagnose myself......he may ask how I feel, or what's wrong, but the diagnosis is his, and he chooses the terminology.
The same with an attorney. I don't go into my attorney's office and start off by choosing what cases and precedents should be called upon. (unless it's a survey issue, heh heh).
