I'll Stick with Gary Kent On This Topic
From above:
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.
Perhaps a call to one's insurance carrier might shed a little light on the issue.
I'll Stick with Gary Kent On This Topic
How then can you determine it is "over the line"? If you can say it is over a line, but if you cannot determine if it is encroaching, then you cannot determine that the line between iron "A" and nail "B" is the property line. Property line is a determination of rights. And if you determine that Jimmy owns to that line, but Jamie has a building to a half foot over that line. Either the line between the points is not the property line or the building is encroaching. There is no between. If Jamie has a legal right to occupy to that point, then the property line bends at that wall. So, which is it? If you are willing to make a professional opinion of the location of the line, you are making an opinion on the validity of the occupation, but you are just too scared to admit it.
I guess next you will say that a football player over the line of scrimmage should not draw a flag for encroachment.;-)
I'll Stick with Gary Kent On This Topic
To keep the analogy, when a football player is "encroaching", it remains for the referee to call the penalty, not the players, coaches, network announcers or water-boys.
We are not the referees.......we are the instant replay cameras. 😉
Umm, incorrect, you are a commentator
But before the ref calls it, the commentators will say what the flag is for. You are incorrect, as the "experts", it is our job to comment. We make decisions if it the property corner or a rebar in the ground. We make decisions if the record "fits" or not. And we make a decision on that improvement. You do that when you put 0.17' north of property line. Do you put a distance on every improvement as to north and south of some imaginary line, or are you referencing it to a line that you have made an expert opinion as to the validity of? If it is just an arbitrary line, then your numbers are pointless and you are a charlatan. If you are opining the line you show to be a property line, you are commenting to the validity of the line, so why when it is an improvement do you only want to be a camera instead of a commentator?
> 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 don't think so.....to 'encroach' is "to gain or intrude unlawfully upon the lands, property, or authority of another." At least according to Black's Law.
An encroachment is tresspassing. If adverse possession has ripened, the intrusion is no longer an "encroachment" because title has passed to the person who was tresspassing. It was illegal until action had ripened to the legal amount of time.
Acquiescence is another matter. I would suggest that it may not be an "encroachment" if the neighbor has said or done anything to acquiesce. There again your use of the term "encroach" may be technically wrong and a legal judgement. You should do your homework to determine whether they have legally acquiesced to the intrusion as well.
If you do not know that, should you be labeling the "intrusion" as an encroachment? Aren't you using a term you don't even understand? If you do use it, you should do enough homework to know for a fact that it is indeed and encroachment.
Of course I am not a lawyer and wouldn't sign and stamp to the above argument.;-)
The evil word...>adamsurveyor
"Illegal means "against or not authorized by law." Unlawful means "contrary to, prohibited, or unauthorized by law...while necessarily not implying the element of criminality, it is broad enough to include it." (Black's Law Dictionary)"
So, what I am hearing is that, for instance here in MA, that the act of adversely possessing property for 20 years is unlawful, illegal, and a criminal act until it ripens to fee ownership. It is, in fact, 'trespassing' which is a criminal act, i believe.
Encroaching is a civil matter and therefore it is our call to make. It may be unlawful without being illegal.
I believe that I do have a pretty good handle on the "word" in spite of your condescending attitude.
Some of this comes down to over cautiousness and fear of accepting responsibility for your professional opinion. Don't be scared, be right and be able to defend your opinion.
Umm, incorrect, you are a commentator
Commentator works just as well as camera.
You report what you see......but the ref and only the ref can call the infraction and impose the penalty.
🙂
because protrusion and intrusion are better adjectives for the items extending over the lines. We don't always know whether it's there by permission or illegally. That's why I don't use encroachment.
The evil word...>foggy
> "Illegal means "against or not authorized by law." Unlawful means "contrary to, prohibited, or unauthorized by law...while necessarily not implying the element of criminality, it is broad enough to include it." (Black's Law Dictionary)"
>
> So, what I am hearing is that, for instance here in MA, that the act of adversely possessing property for 20 years is unlawful, illegal, and a criminal act until it ripens to fee ownership. It is, in fact, 'trespassing' which is a criminal act, i believe.
>
> Encroaching is a civil matter and therefore it is our call to make. It may be unlawful without being illegal.
>
> I believe that I do have a pretty good handle on the "word" in spite of your condescending attitude.
>
> Some of this comes down to over cautiousness and fear of accepting responsibility for your professional opinion. Don't be scared, be right and be able to defend your opinion.
My apologies. I was being a little bit flippant but also partially joking. I thought the smiley-face might imply that. You probably know more about it than I do. I am definitely not an expert, and should not have used condescending language.
I am having trouble seeing your differences between 'illegal' and 'unlawful'. but appear to mean 'not lawful'. The definition was very short for illegal but "not authorized by law" would imply to me to be a broad enough language to also "not imply the element of criminality but broad enough to include it."
Encroaching may be a civil matter, but would still argue that it is unlawful (or illegal?) until the time has ripened. If a person is "encroaching" and the rightful owner kicks him off, the rightful owner has the legal standing if I am not mistaken until title is transferred by adverse possession and the opposite is true.
Some of this may come down to over-cautiosness and fear, but some if the cautiousness might be trying to use appropriate terms.
Anyway, sorry for the rude-appearing post. I don't have a fit over the use of "encroachment" but generally avoid it.
Umm, incorrect, you are a commentator
And I do call what I see... An encroachment. If you do not use the word, that is your choice. I use the word only on a plat, and the plat is only released when I feel that I know enough to make an informed commentary on the property line. As an expert, I can call it an encroachment without fear of a lawsuit, because I have enough evidence to support the contention that the line, in my opinion is in such a position where it is apparent that the improvement has crossed the plane. I make no guarantee that my opinion will prevail, just as your lawyer makes no guarantee they will win a case. But I am willing to stand before a judge, lay out the evidence of why I find a property line to be in a particular place and, in the event that is the correct location, why the improvement is over that line.
I like how Law dot com defines encroach and encroachment:
encroach
v. to build a structure which is in whole or in part across the property line of another's real property. This may occur due to incorrect surveys, guesses or miscalculations by builders and/or owners when erecting a building. The solutions vary from giving the encroaching party an easement or lease (for a price, usually) for the lifetime of the building, or if the structure is small, actually moving it onto the owner's own property.
encroachment
n. the act of building a structure which is in whole or in part on a neighbor's property.
You did know that Blacks is not the final say on a legal definition, right?;-)
I have been watching this go back and forth. Mr. Morgan has nailed it.
I agree that we are charged to show the location of improvements relative to the line, as in "fence 0.2' East." However, the improvement may, or may not, be an encroachment, depending on a lot of things.
IF the record line is not the ownership line due to acquiescence or adverse possession, then there is no encroachment. Was the owner given permission to have the improvement over the line? If so, no encroachment.
Does the surveyor often have access to the facts that decide that? Not usually.
Besides, the word "encroachment" takes up a lot of space on the map .... 😉
KS
Here is my question for those who refuse to use the word
If you never use the word encroachment and your state MTS, Standards of Practice or whatever it is your board has decided to call your rules to live by says you are to show encroachments, are you violating the rules?
Which brings up the question, what does your state call the situation
AL uses Encroachment and wants it noted (rule 1.03.11)
GA calls them encroachment and says to show them (15-6-67.4.f)
SC is a little more ambiguous, leaving the choice of projection or encroachment to the choice of the surveyor (SC Standards of practice manual for surveying, 49-160.1(s) ).
Anyone else got some states that they know?
Personally, I just didn't call out the specific encroachment with any word. That is, I would show the object in question, label what it is and show dimension(s) to the property line. If indeed it is an encroachment, it is shown. If it's not technically an encroachment or falls under some other term, it's still shown. Doesn't really matter the technicality of what to call it at that point. It's there and I've shown it.
Here with the Torrens Title system it is possible to follow
intent and thereby redetermine most boundaries with certainty. On my survey plan I show the boundary offsets to boundary occupation and when necessary to write a report where a building straddles the define boundary line I will use the descriptive terms encroaches, encroachment.
For the film buffs the issue of encroachment arises in the movie Stuart Saves His Family
RADU
Wendell....I agree completely.
That is also how we do it here in Hawaii. Although by no means legal binding, our HALS came up with some mapping standards for what are referred to as C-42 or "perimeter surveys" for real estate sales that suggest just this sort of wording.
It seems to work really well without the surveyor having to make any assumptions about the ownership of the improvements or any agreements that we may not know about. For our part, it's simply about disclosing the facts on the ground.
Take as much time as you can invoice. You will still never be able to know what the parties will end up saying in court or who the Judge or Jury will find the most credible. And other parties can magically come out of the woodwork with fascinating tales. To think that ALL evidence can possibly be recovered in a survey is naive.
Some evidence never surfaces until and unless there is a court proceeding. This is especially true in the case of whether encroachments actually exist or not.
It is interesting (but not surprising) that so many surveyors have so many differing opinions on the word. It relates to our profession and surveyors could be the ones to define it. Or surveyors could learn the current legal definition and stick with it. In either case lending credibility to our own worth.
Instead, surveyors will simply argue about it and all do their own thing. This leads to much unnecessary litigation and the perception that surveyors don't know what their doing because they all tell you something different.
Actually, "adverse possession" is "trespass" that has not been identified or remedied by the dispossessed owner.
The idea is that the law is not interested in dealing with property rights disputes that suddenly arise from "ancient" claims, hence the development of a statutory period for adverse possession claims.
> Take as much time as you can invoice. You will still never be able to know what the parties will end up saying in court or who the Judge or Jury will find the most credible. And other parties can magically come out of the woodwork with fascinating tales.
>
That's precisely why surveyors need to gather and document the evidence they are given. You may not be able to "know what the parties will end up saying in court," but you can surely sit in the witness stand and say, "Yes, your Honor, I heard his testimony. But, that's not what was said to me before this issue arose. Here's what the party said back in ____ when I made my investigation."
>To think that ALL evidence can possibly be recovered in a survey is naive.
There is no requirement in law to gather "all" of the evidence. It's not only naive, but an impossible expectation. Lex non cogit ad impossibilia.
> Some evidence never surfaces until and unless there is a court proceeding. This is especially true in the case of whether encroachments actually exist or not.
>
That's why the rules allow the expert witness to be present during the court proceedings. When evidence comes to light (the evidence should come to light prior to the hearing during discovery as well), the expert is required to evaluate the evidence and to reconsider their opinion. If new evidence is presented which changes the expert's opinion, so be it. That's also why the expert's report isn't due for 30 days after the close of lay discovery. It gives the expert time to reconsider or reformulate their opinion.
> It is interesting (but not surprising) that so many surveyors have so many differing opinions on the word. It relates to our profession and surveyors could be the ones to define it. Or surveyors could learn the current legal definition and stick with it. In either case lending credibility to our own worth.
>
There is no reason for surveyors to ever "redefine" a word which has been defined by the legal system. Our profession is part of the legal system. We need to understand the words that are used and need to learn to use them in the context they are intended.
> Instead, surveyors will simply argue about it and all do their own thing. This leads to much unnecessary litigation and the perception that surveyors don't know what their doing because they all tell you something different.
I couldn't agree with you more, Duane. Our profession is in an incredibly sad state, in my opinion. We have failed to teach and learn the laws which govern real property which our profession is charged with protecting. As a result, we make ill-informed decisions which foster litigation, rather than prevent it.
JBS
In Florida, we are directed to say "Apparent Physical Use". I never use the term encroachment, I'll show the data and will call out the dimension with a direction (N,S,E,W) and leave it at that.
