The term 'encroachment' describes an illegal act.
In the US, a citizen is innocent until proven guilty in a court of law.
A surveyor is not a judge in a court of law.
The ALTA detail requirements state surveyors should show encroachments without giving a legal opinion.
The only way a surveyor can show or designate an encroachment is when he/she has, in hand, a judgement from a court for the particular property stating that an encroachment exists. We can show that encroachment only.
Richard Schaut
> 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).
S.C. - Agreed
I would have to ask some on this board if they know difference between a Mapper and a Professional Land Surveyor
The mapper simply shows the site conditions and the location of features
A Professional Land Surveyor opines to the boundaries, ownership and occupation
Seems to me that there are more mappers posting here than there are surveyors.
I think Richard has a good argument. Just because someone doesn't use the term on a legal document, doesn't mean they haven't done research. There is an implication that someone has harmed someone else. (If someone builds a garage crossing the property line, and the neighbor doesn't have a problem with that, is it an encroachment? Did they actually acquiesce to the new line?) You are only presenting facts. Whether someone's rights have been encroached upon is a matter of opinion and for courts. I would think the claim of encroachment is a term for the property owner to make as a claim or a court to determine if it has happened.
I will tend to avoid the word because I can show an improvement crossing my opinion of a property line with other terms. Our statute-regulated terminology for the infamous "ILC" (Improvement Location Certificates" require the surveyor to use the term "encroachment" and to make that determination. I guess if I am following the law, and produce an ILC, I have to determine that fact (and without necessarily setting the boundary). I guess I would go ahead and set the property corners if I did have an encroachment to determine.
I don't see that encroachment is an illegal act at all. It is not illegal to acquire property through adverse possession and how can you acquire that way if it's illegal?
I will show and call an encroachment, I will talk to the parties involved (frequently have done that) and explain the potential issues. Aa a matter of fact this happened just last week..long term use of property without permission, new owner etc.. Use since 1985 documented so it has most likely "ripened" to fee ownership...
> I would have to ask some on this board if they know difference between a Mapper and a Professional Land Surveyor
>
> The mapper simply shows the site conditions and the location of features
>
> A Professional Land Surveyor opines to the boundaries, ownership and occupation
>
> Seems to me that there are more mappers posting here than there are surveyors.
Seems to me that the underlying fallacy in just about every thread of this type is that there is a definition of a Professional Land Surveyor.
In fact we're dealing with 50+ statutory definitions of the practice of land surveying (both actual defining of what acts encompass the practice and statutory standards that have to met in that practice); combined with
50+ separate and (generally non-interrelated) bodies of case law that guide direct the practice of land surveying.
The failure to recognize both these facts tends to lead to a intellectual hubris where the posters (myself included) who have a wealth of provincial knowledge infer a universality to that body of knowledge that may or may not exist.
Calling for an encroachment could give an indication we know what we are doing and we want to avoid that whenever possible or risk losing our reputation.
Hey Joe,
I will use the word but it depends. Usually on an ALTA, I will used "Possible Encroachment". Great topic and great arguements on both sides.
Why would using the ALTA standards create the need for "possible" does it change the encoachment in some way.
“A Professional Land Surveyor opines to the boundaries, ownership and occupation.”
Ownership??? That’s a new one! I guess two out of three ain’t bad.
I think I actually agree with Richard on this! I rekon they are having iced tea in hell this morning.;-)
A little perspective might help!
Many here have no problem with setting a shiny new monument a finger length distance away from an old existing monument, yet are shying away from using the word "encroachment" on their survey plat?
I don't get it!
Keith
What's your point, Duane?
All I'm saying is that your line of questioning just reflects the layman's lack of knowledge on the subject.
Ask them if they were to find a 1/2-inch iron rod very close to where one of their property corners is supposed to be, if that is their property corner and see what they say. Even when they have read a copy of their deed from 1988 which calls for a iron pipe, I'll bet 90% of them will still blindly accept that 1/2-incher. Just goes to show.....
Gary Kent article on this subject
Zoning Setbacks and ALTA/ACSM Land Title Surveys
(Reprinted with permission from ACSM Bulletin no. 250 (April 2011), p. 21.)
By Gary Kent
Q: A client of mine has recently obtained an ALTA/ACSM Land Title Survey for a property they are looking to purchase. The building on the property is less than ten years old. The local municipality granted a significant setback variance for the building when it was built. The codified setback is 50 feet and the building was granted a setback of 32 feet. The surveyor who recently completed the land title survey was not aware of the zoning proceedings that took place when the building was built and hence was not aware of a setback variance being granted. On his survey, he described the encroachment into the building setback as a violation of the zoning ordinance applicable to this site rather than an exception (based on the granted setback variance). This rattled my client a bit... is it a standard of practice for ALTA/ACSM Land Title Surveys to identify this type of encroachment as a violation without first investigating whether a variance may have been issued that would more appropriately describe the setback encroachment as an exception? We’ve resolved the matter, but I am curious about ALTA standards with regard to setback encroachments and variances granted for such.
A: One of the issues that surveyors consistently overlook, ignore, or simply don’t realize is that a “violation” (of anything, not just setbacks) is not a matter of survey. Lenders often want the surveyor to certify that there are “no violations” of setbacks. I constantly suggest to surveyors that they should never make such statements or certifications. The survey issue is that the building is 32 feet from the boundary line. Whether that is a violation of the setback is not a matter of survey—it is a legal and/or administrative determination.
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.
One of the sources of the problem you describe is that zoning proceedings like you mention seldom, if ever, appear in the public records or in the title commitment. And the ALTA/ACSM Standards, properly, put no burden on the surveyor to research such information. The current 2005 ALTA/ACSM Standards do not require that surveyors do anything on setbacks other than list the requirements on the face of the plat or map. The new 2011 ALTA/ACSM Standards (effective 2/23/2011) take that a step further and say the surveyor only need list those requirements “as provided by the title company.” Why is this? Because ALTA feels that is how this issue should be addressed on the survey side; they recognize that it is an issue for title companies to grapple with, not surveyors.
I believe another primary disconnect on these issues is that lenders’ attorneys are not familiar with the ALTA/ACSM Standards. They think that in order to obtain a 3.1 zoning endorsement from the title company (which insures that there are no violations of the setbacks, among other things), the surveyor must provide a certification to that effect. That simply is not true. The 3.1 endorsement is an important but fairly risky endorsement. Thus, title companies do their own research into what the applicable setbacks are and make their own determination as to violations or compliance. They do not need the surveyor to make the determination; they will do it themselves.
I am not afraid of the word. You already made a determination as to the location of the property line. Why not make a determination of ownership of the concrete sticking over the line. It is either encroaching on one or the other. And if it is common (say a common drive) then why not state it?
Point being........you can "state it" without using the word "encroachment".
"Here's my line....the concrete one inch north."
From a liability standpoint, never use words you don't have to.
The evil word...> Inch?
Really? 🙂
Like 0.08'?
I disagree. On both counts. I will continue to use the word "encroach" on my maps. And I will not use the term inch on my maps. 🙂
It really is personal choice.
The evil word...> Inch?
Yeah.........in Manhattan and Brooklyn, it's all about inches and fractions. A building offset of 1/16th inch is not uncommon here.
That's just how it's always been done, so we continue to do it.
Queens, Bronx, SI, usually it's in tenths and hundredths of a foot.
The evil word...> Inch?
Hmmmmm
You're good, but to the 1/16th ?
Yikes !
The "E" word is for the courts to decide.
Cheers
Derek
The evil word...> Inch?
If you are competent enough to tell them where the property line is, then you have an opinion of whether this is an encroachment or not. If you opine the line to be in one location, then anything over that line is encroaching. If it is not encroaching, then the line you are calling the property line is not the property line. Instead it runs until it hits the improvement and then follows the improvement until the improvement again breaks the plane of the line you stated on your survey as the property line.