I am increasingly concerned about some townhouse resurveys that I have been asked to do. The usual situation is, perhaps five 20' x 90' lots in a "block". We find capped rebars in reasonable agreement with the Plat; set up and locate the unit; or more usually, try to locate the footer where exposed. I have also been asked to "project" the line vertically, as on a 3 story T.H.s, in case there is some out of plumb "lean encroachment". BUT, would it not be more correct to assume that the intent of the original grantor and grantee is to convey the unit on the lot; that the unit defines the lot, not the corner markers (fans of Mr. Lucas please chime in). Then might we have the party wall (if it can be determined) as the boundary, and a slight angle, if necessary, in the line to the existing corner marker to define the yard?
Also, often the units are staggered 2' in, 2' out, etc. in which case the outer material, vinyl or brick or stone, wraps around the 2' corner, clearly "encroaching" by 2 or 4 inches, if holding the rebar corners as the "correct boundary". Also, roof lines, eaves, gutters, downspouts etc overlap and "encroach" unit to unit.
So, can we, should we, add language to a townhouse development plat along the lines of "party walls define the lot boundaries", "overlaps of eaves, gutters etc. are not construed to be encroachments, define mutual usage and maintenance easements etc.?
I have wondered all of the same things.
There was a typical townhouse development as you describe (postage stamp lots) that failed in the early 90's recession. About 3 of the 10 buildings got built. I got the contract to stake the other 7 buildings about 7 or 8 years ago. These buildings vary from 4 to 8 units each. They have lanes between the buildings (3 stories-garage first floor and living units floor 2 and 3). There is a Subdivision Map but this in the City of Sacramento where a normal monument is a 1-1/2" magnail (no tag) and a major monument is a 2-1/2" magnail (no tag). The only monumentation on the Subdivision map was the arterial street centerline out front which was all destroyed by median construction.
All of the interior lanes were in (curbs and asphalt) so at least there was something to go on. I topo'd the curbs and fit the subdivision map to them as best as possible. Then I staked the buildings. I suppose they could be "off" a little from where the original surveyor would have put them.
I think the unit owners are buying a unit that they see in a common development (all the exteriors and landscaping and lanes maintained by the HOA) and the common walls are the established boundaries. If the unit is the right size per the plat then it doesn't matter if my unit should be shifted 0.5' east or west or north or south because I still get the same sized unit and the exterior siding is maintained in common anyway.
Have you looked at the HOA docs? I've seens things like the common walls and "encroachments" by the developer (gutters, block decor, lean, etc.) covered in the HOA docs. They basically say the common wall is the property line, and anything the developer installed is not an encroachment.
I've surveyed several apartment-to-condominium conversions in the Phoenix, AZ area. In every case, the 3D boundary lines were "paint to paint", leaving anything outside the initial layer of paint or carpet in the Common Area. Many of them (i.e. most) would deviate significantly from the original architectural plans either during construction or because of changes after the units were built. As such, we would survey the inside of each and every apartment, even if they were technically considered duplicates. But I digress, I'm moving away slightly from the subject at hand.
The Vertical Property Line May Not Be Plumb
Assume perfectly centered townhouses on the lot lines, which begin to settle lean. The lot line follows the unit and it is not an encroachment. The unit itself is the moving monument, that pin in the ground is only a place to start from.
Paul in PA
> So, can we, should we, add language to a townhouse development plat along the lines of "party walls define the lot boundaries", "overlaps of eaves, gutters etc. are not construed to be encroachments, define mutual usage and maintenance easements etc.?
The language should already be included in the CC&R's which are typically filed concurrently with the plat. Condominiums (as opposed to PUD's) have statutory CC&R's which typically contain language similar to the following:
>57-9-13(4) In interpreting the condominium plat or any deed or other instrument affecting a building or unit, the boundaries of the building or unit constructed or reconstructed in substantial accordance with the condominium plat shall be conclusively presumed to be the actual boundaries rather than the description expressed in the condominium plat, regardless of the settling or lateral movement of the building and regardless of minor variance between boundaries shown on the condominium plat and those of the building or unit.
Because the Planned Unit Developments don't fall under the condominium statute, this declaration must be made separately somewhere in the covenants. The surveyor making the plat should always work closely with the attorney drafting the covenants to make sure the plat is consistent with the covenants. If the language isn't in the covenants, it would be appropriate to place it on the plat, but I wouldn't recommend it. The language should be made part of the covenants.
JBS
