The evil word...>adamsurveyor
> 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.
>
Right on the money, foggy! We need to recognize that our opinions do matter to people and that, when we express our opinion (whether that's by placing a word on a document or by placing a monument in the ground), that we "be right and be able to defend [our] opinion."
JBS
Gary Kent article on this subject
Great info !
> Actually, "adverse possession" is "trespass" that has not been identified or remedied by the dispossessed owner.
>
I understand and agree with what you're saying, Sicilian. I would, however say it a bit differently. Actually, "trespass" that has not been identified or remedied by the true owner, ultimately results in their dispossession by the adverse possessor.
> 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.
This is also true with common law doctrine of repose which applies to implied agreements (acquiescence). We shouldn't go around kicking sleeping dogs. Placing the word "encroachment" on your map kicks the dog pretty hard. It's much easier to resolve the issue between the landowners BEFORE we express such an opinion on our final survey map.
JBS
> 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.
I think Robert forgot the ;o) ;o)
;o)
JBS
The evil word...in Mass.
the board uses this language; "Locate physical occupation lines (e.g., fences, hedges, walls, etc.) between adjoiners; make comments on possible age of possession; verify age by parole and written evidence."
I like how it's worded myself, but I'm not scared to use the word encroach. But, "line of occupation" sounds pretty darn good to me!
Gary Kent article on this subject
I was at a Kent seminar on Alta about a decade ago in New Orleans.
He related the story about how using that 12 letter word on a commercial ALTA in Indy cost him dearly and le$$on learned.
Basically, the gist of his tale was that he was dong the survey on a lot where the building had been razed years before and now was being marked for development. It sounded like high cost downtown business property.
The survey found that the wall of an adjoining building was 1' or so over the property line.
He labeled it with that 12 letter word on his final plat. This caused the title company, attorneys, lenders to go to DEFCON 1.
After all the legal dance and further investigation, It was found that the wall was part of the former building that was razed.
The demo/salvage company left the wall in place. I guess subsequent work made it look like the wall to the adjoining building.
I got the impression that these were old brick commercial adjoining structures.
It sounded that the surveyor was caught with his pants down in his court testimony..
No degree of legal research could have alerted the surveyor.
Maybe an investigation by a structural CE could have helped. Maybe some old photos if there were any available. Maybe some old building plans etc..
But from the tale, it sounded like these were not available.
Oh, please note my disclaimer.
I apologize that my post does not represent what really happened in Indy This is is how I remember the story to the best of my recollection.
The evil word...>adamsurveyor
> 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.
Foggy,
That's making some big assumptions about someone else's thought process.
I don't' think anyone in this thread who advocates for restraint in the use of the word "encroachment" is in the least bit "over cautiousness" or "fearful of accepting responsibility for their professional opinion".
I feel I'm just as confident in my boundary determination (professional opinion) and my skill at locating improvements when I note "Fence Corner 1.5' Across Line" as if I were to note "Fence Corner Encroaches 1.5'". What the first example implies is that I (in this individual set of circumstances, regarding this individual survey) am not confident enough in my ability to determine whether the occupation of the adjoining property was a permissive (and therefore, lawfully performed under an agreement or license and not, by definition, an encroachment) or non- permissive use to certify to that one individual aspect of the survey.
FWIW - the majority of the times this has come up for me has been in the preparation of ALTA surveys for commercial settlements in the Washington DC area (which was about 75% of my work from 2002-2008). More times than not, if a survey was issued using the word "encroachment" either the title company's attorney or (most often, lender's council) would comment that they would prefer to have the word removed, as is implies more knowledge of the situation at the time of the placing of the improvement across the property line than is generally available. Showing and noting the object is "across the line" is more than sufficient to put all parties on notice that, if it is a concern to them, additional research may need to be done to uncover the nature and intent of the parties at the time whatever is "across the line" was placed "across the line".
> > Actually, "adverse possession" is "trespass" that has not been identified or remedied by the dispossessed owner.
> >
> I understand and agree with what you're saying, Sicilian. I would, however say it a bit differently. Actually, "trespass" that has not been identified or remedied by the true owner, ultimately results in their dispossession by the adverse possessor.
>
Not to disagree, but it is tresspass, and it shouldn't be glossed over. I agree that you might not put it on your map, but for adverse possession to take affect, the encroachment or tresspass needs to be clear and notorious. I would take acception to your term 'identified', JB. If I am not mistaken, the owner must be aware of the tresspass and not do anything about it for the statutory length of time. chances are s/he has "identified" the tresspass in order to let it ripen to ownership without objection. I would think if the owner is not aware of it, it might be hard to prove adverse possession.
Right, so why would you make a decision you don't have to make, that may adversely affect someone, knowing full well you most likely don't have enough evidence to enable your decision to stand the test of time?
While surveyors opinions are valuable in court on these issues, it is going too far to render an opinion on the map that necessarily would have to take into account considerations of nuances in local jurisdictional interpretation of statutes year to year, equity, credibility, testimony, and cross examination. The surveyor that makes such a determination is slandering title (even if the court eventually rules the same outcome for the same or differing reasons), and more importantly is depriving at least one party of due process of law.
However, if the word is re-defined in survey terms as pointed out above, then it's just another word for describing something over a record line without using it in the legal sense.
Years ago it was a maxim that one could not be mapped out of title. That has proven to be false, as people rely on maps and said reliance can and does affect their legal position. Surveyors need to understand they are not allowed to publish decisions on the quality of title outside of the litigation process that ensures due process to the participants.
The evil word...>adamsurveyor
I agree, James. Those are exactly the questions I would ask myself when weighing whether or not to use the word.
An additional reason for not using the word "encroachment" is that when we discussed this with our attorney many years ago, he advised us, (and I put this in layman's terms) "Don't do it. What's the point?".
So far, in these discussions, I haven't seen any reason to ignore that advice.
Gary Kent article on this subject
These are comments I recieved this morning from a buyers attorney. The property has been platted and recorded since the last vesting deed so I changed the legal to the Lot/Block/ Subdivision.
I don't have much of a problem labelling something I know is an encroachment but there is no way I can comply with item 6 and we are going to need a serious discussion over item 4, the reference to the bearing vs interior angles must be a generic statement because my survey has all the bearings and distances on it.
4. Draft a Metes and Bounds legal description and insert on the Survey. Each boundary line should have a bearing and distance, (not merely an angle at corner) and the location of an accurate, identifiable point of beginning. The Point of Beginning (“POB”) and the Point of Commencement (”POC”), if any, should be shown on the survey drawing. Curves should show the direction and calls (Degrees, minutes Seconds) and the chord length and Arc.
5. If the Survey legal drafted by the surveyor differs from the Vesting Deed Legal, then the surveyor should add the following statement.
“The Property shown herein is the same property described in the Special Warranty Deed recorded as Instrument xxxxxxxx in the xxxxxx County, Texas records.”
6. Please state if there are any encroachments of the buildings/improvements across any easements, set back lines or utility lines and show them on the survey. If there are no encroachments, please state such in the survey notes.
7. Add a new Revision Date.
If my maps show something that looks, acts and quacks like an enchroachment, I lable it "In use by adjoiner."
> 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.
Keep on pounding Kris. I have been doing it for over 15 years. Nice to know someone younger will still be doing it.
🙂
The evil word...in Mass.
The board might want to change "parole" to "parol"......
The evil word...in Mass.>Adamsurveyor
LOL, only ex-con's verbal evidence is accepted...