I understand that boundary disputes are probably the most complicated thing us surveyors can get involved in. Both sides of the “fence†have their own agenda.
What are some of the ways we can solve these problems? And what types of tools do we have?
To get the ball rolling, how about a real world example: Susie has recently hired you to locate her boundary line, her deed reads “the westerly 104 feet of Lot 1,†Your field survey shows she has built her fence at the 100 foot mark. Your client wants you to monument her boundary line. You recognize your situation calls for filing a Record of Survey. Also, your client refuses to talk to her neighbors.
Besides giving your client a copy of the filed ROS, what else should you do?
Thanks for the input!
Ben
Solving Boundary Disputes
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Ben Lund
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Ian Wilson
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Does the deed go on to state that the fence is the boundary line?
Does the adjoiner have a block wall or other permanent structure built next to the fence?
Is everyone relying on the fence that Susie built as the property line?
If the answer to any of the questions is Yes, then you may have a potential boundary problem. The adjoiners MAY have gained rights to the strip of land outside Susie's fence.
If the answer to the questions is No, then the fence is just a fence and there is no need to set the neighborhood at war.
The biggest and most important tool we have to use, as surveyors, is our brains following the admonition similar to that given to physicians by Hippocrates: DO NO HARM!!! Unfortunately, it is often the surveyor with a lack of experience or poor judgement who CREATES problems where none existed thereby doing great harm to the neighborhood and our profession.
What about the deed triggers the need for filing and RS?
Does the adjoiner have a block wall or other permanent structure built next to the fence?
Is everyone relying on the fence that Susie built as the property line?
If the answer to any of the questions is Yes, then you may have a potential boundary problem. The adjoiners MAY have gained rights to the strip of land outside Susie's fence.
If the answer to the questions is No, then the fence is just a fence and there is no need to set the neighborhood at war.
The biggest and most important tool we have to use, as surveyors, is our brains following the admonition similar to that given to physicians by Hippocrates: DO NO HARM!!! Unfortunately, it is often the surveyor with a lack of experience or poor judgement who CREATES problems where none existed thereby doing great harm to the neighborhood and our profession.
What about the deed triggers the need for filing and RS?
Ian Wilson, P.L.S. (CA / NV / CO)
Alameda County Surveyor
Alameda County Surveyor
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Ric7308
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Ian,
I believe it is (as Ben stated) "the westerly 104 feet of Lot 1" which triggers the requirement.
Ben,
Ian provides good examples of dialog your brain should be having with itself when analysing the situation.
A couple of days ago, I was tasked with retracing a subdivison lot and replacing any monuments not found. 3-5 acre lots in horse country. For the most part, existing fences were within 0.5' to 1 foot from corner. At one corner, I set the monument about 6.5' away from the fence intersection, away from the client's property. I noticed that down the fenceline, it was obvious the fence had an angle point deviating into the client's property and would have lined up with the monument. The next door lot was vacant and undeveloped.
When later walking the boundary with the client and pointing out this monument, the client immediately pointed out that he always recognized the angle in the fence and thought it should have been a straight line.
I will file a Corner Record showing the new replacement monument, and typical for me, probably show the fence as reference and to aid in future recovery.
Ric
I believe it is (as Ben stated) "the westerly 104 feet of Lot 1" which triggers the requirement.
Ben,
Ian provides good examples of dialog your brain should be having with itself when analysing the situation.
A couple of days ago, I was tasked with retracing a subdivison lot and replacing any monuments not found. 3-5 acre lots in horse country. For the most part, existing fences were within 0.5' to 1 foot from corner. At one corner, I set the monument about 6.5' away from the fence intersection, away from the client's property. I noticed that down the fenceline, it was obvious the fence had an angle point deviating into the client's property and would have lined up with the monument. The next door lot was vacant and undeveloped.
When later walking the boundary with the client and pointing out this monument, the client immediately pointed out that he always recognized the angle in the fence and thought it should have been a straight line.
I will file a Corner Record showing the new replacement monument, and typical for me, probably show the fence as reference and to aid in future recovery.
Ric
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Ben Lund
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Ian, the answer to all of your questions is “no”, the fence is just a fence. To answer what is triggering the RS: we are monumenting the boundary. 8762 (b)(1) thru (5) apply. (2) is arguable.
My question is, now what?
Besides giving your client a copy of the filed ROS, what else should we do (besides use my brain)?
Am I done?
Do I send a copy of the ROS to the neighbor?
Do I advise my client to hire an attorney and get some legal advice?
Do I impart my opinion (that might teeter on giving legal advice) and tell her to move her fence to the 104’ mark?
Do I suggest both parties sign the RS and “agree” to the line I establish?
Thanks,
Ben
My question is, now what?
Besides giving your client a copy of the filed ROS, what else should we do (besides use my brain)?
Am I done?
Do I send a copy of the ROS to the neighbor?
Do I advise my client to hire an attorney and get some legal advice?
Do I impart my opinion (that might teeter on giving legal advice) and tell her to move her fence to the 104’ mark?
Do I suggest both parties sign the RS and “agree” to the line I establish?
Thanks,
Ben
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E_Page
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Ben,
I think Ian was looking for a more specific answer than "8762 (b)(1) thru (5) apply. (2) is arguable". If I'm assuming Ian's intent incorrectly, I'll make it my question to you:
How, specifically, do you see each of these subsections applying to the situation, and why is (2) arguable?
I'm not saying that you're right or wrong. I just want to follow your logic.
I think Ian was looking for a more specific answer than "8762 (b)(1) thru (5) apply. (2) is arguable". If I'm assuming Ian's intent incorrectly, I'll make it my question to you:
How, specifically, do you see each of these subsections applying to the situation, and why is (2) arguable?
I'm not saying that you're right or wrong. I just want to follow your logic.
Evan Page, PLS
A Visiting Forum Essayist
A Visiting Forum Essayist
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dmi
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Consider Hiring Ian or Evan to do the job
Ben,
I am sorry I just could not resist. Ian and Evan are just the tops. Look carefully at what they asked and I think you will find your answers. Basically, the individual (COMPLETE) factset is going to dictate your actions.
I am sorry I just could not resist. Ian and Evan are just the tops. Look carefully at what they asked and I think you will find your answers. Basically, the individual (COMPLETE) factset is going to dictate your actions.
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Ian Wilson
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PLS Act §8762(b)(1) refers to material evidence. You admitted that the fence was just a fence. You have provided no further material evidence which does not appear on a record map. (1) does not apply.
(2) refers to a material discrepancy. The fence is not a monument. You have provided no additional fats that would lead me to believe you have found a material discrepancy. (2) does not apply.
(3) refers to evidence that would lead to an alternate position for the boundary. You have provided no evidence of this. The fence is just a fence. (3) does not apply.
(4) You admit to locating the line during tour survey, but you also intend to set monuments. (4) is for use in those cases when you don’t want to set a durable monument. (4) is the trigger for those setting nothing at all or those less-than-permanent hubs (or plastic plugs and caps in pipes and rebar) (4) doesn’t really aply in this case.
(5) is the only one that MIGHT apply. If you set monuments to mark a line established in the field not already shown on a record map, you must file an RS.
However, you don’t mention that there isn’t already an RS on file for the parcel. Remember: ASSUME NOTHING!!!
What else to do?
Of course you provide your client with a copy of your preliminary RS and then a copy of the RS as recorded. You are not under any obligation to provide a copy to the adjoiners and may even be breaking client privilege if you do so.
Beyond the fact that advising your client to hire an attorney is the worst cop-out possible for any professional land surveyor worthy of their license, what purpose would this serve? There is no dispute. There is no question of law that is destined to end up in court. There is no need for an attorney at all in this case.
Just because a fence is not on the exact property line does not mean that there is a boundary issue. You would do well to inform your client that the fence and the property line are not contiguous and that they should remain vigilant and defend against any permanent structures being built by adjoiners against the fence. It is not necessary to move the fence.
As far as your client and the adjoiner signing the RS, this is worthless. If you intend to have the parties sign the RS BEFORE it is recorded, this is not possible under our current PLS Act.
If your client is worried about the 4’ space between her fence and the boundary as you have located it, suggest a written license. All she need do is prepare a written agreement that says that the fence and property line are not the same. The adjoiner is welcomed to use the strip for reasonable purposes but that no permanent structures can be place on the strip. Issue the license for a specific period of time or until the adjoiner conveys the property. Have the adjoiner sign the license. Now, the use of the strip can never ripen into fee ownership because it is by permission. This written license defeats any claim of adverse use since it is by permission.
(2) refers to a material discrepancy. The fence is not a monument. You have provided no additional fats that would lead me to believe you have found a material discrepancy. (2) does not apply.
(3) refers to evidence that would lead to an alternate position for the boundary. You have provided no evidence of this. The fence is just a fence. (3) does not apply.
(4) You admit to locating the line during tour survey, but you also intend to set monuments. (4) is for use in those cases when you don’t want to set a durable monument. (4) is the trigger for those setting nothing at all or those less-than-permanent hubs (or plastic plugs and caps in pipes and rebar) (4) doesn’t really aply in this case.
(5) is the only one that MIGHT apply. If you set monuments to mark a line established in the field not already shown on a record map, you must file an RS.
However, you don’t mention that there isn’t already an RS on file for the parcel. Remember: ASSUME NOTHING!!!
What else to do?
Of course you provide your client with a copy of your preliminary RS and then a copy of the RS as recorded. You are not under any obligation to provide a copy to the adjoiners and may even be breaking client privilege if you do so.
Beyond the fact that advising your client to hire an attorney is the worst cop-out possible for any professional land surveyor worthy of their license, what purpose would this serve? There is no dispute. There is no question of law that is destined to end up in court. There is no need for an attorney at all in this case.
Just because a fence is not on the exact property line does not mean that there is a boundary issue. You would do well to inform your client that the fence and the property line are not contiguous and that they should remain vigilant and defend against any permanent structures being built by adjoiners against the fence. It is not necessary to move the fence.
As far as your client and the adjoiner signing the RS, this is worthless. If you intend to have the parties sign the RS BEFORE it is recorded, this is not possible under our current PLS Act.
If your client is worried about the 4’ space between her fence and the boundary as you have located it, suggest a written license. All she need do is prepare a written agreement that says that the fence and property line are not the same. The adjoiner is welcomed to use the strip for reasonable purposes but that no permanent structures can be place on the strip. Issue the license for a specific period of time or until the adjoiner conveys the property. Have the adjoiner sign the license. Now, the use of the strip can never ripen into fee ownership because it is by permission. This written license defeats any claim of adverse use since it is by permission.
Ian Wilson, P.L.S. (CA / NV / CO)
Alameda County Surveyor
Alameda County Surveyor
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D Ryan
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- Location: Arcata, CA
Some observations I’ve made over the years:
Young surveyor- feels he created the problem and needs to solve every boundary discrepancy he encounters.
Medium experience surveyor-learns to accept the fact he didn’t write the descriptions he’s retracing nor did he cause anyone to put the fence where it is. Does diligent work, sets monuments where the calls fall and files his survey. Experiences some nervousness and second guessing of himself when he encounters discrepancies, but communicates with landowner as to options.
Veteran surveyor-Does essentially the same as medium experience surveyor, but has more tools and experience at his disposal to suggest and facilitate solutions. Has a sixth sense of when disaster will strike but sets his monuments where he’s confident they go, files his survey, and sleeps well at night.
Amid all of this, one thing that bothers me is when surveyors are accused of creating the problem, when in fact if they do their research, and follow sound methodology, they are no more at fault for “discovering†an existing situation than a doctor who discovers a tumor can be faulted for causing it.
Young surveyor- feels he created the problem and needs to solve every boundary discrepancy he encounters.
Medium experience surveyor-learns to accept the fact he didn’t write the descriptions he’s retracing nor did he cause anyone to put the fence where it is. Does diligent work, sets monuments where the calls fall and files his survey. Experiences some nervousness and second guessing of himself when he encounters discrepancies, but communicates with landowner as to options.
Veteran surveyor-Does essentially the same as medium experience surveyor, but has more tools and experience at his disposal to suggest and facilitate solutions. Has a sixth sense of when disaster will strike but sets his monuments where he’s confident they go, files his survey, and sleeps well at night.
Amid all of this, one thing that bothers me is when surveyors are accused of creating the problem, when in fact if they do their research, and follow sound methodology, they are no more at fault for “discovering†an existing situation than a doctor who discovers a tumor can be faulted for causing it.
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David Lanphear
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Ian Wilson
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Dave:
I understand what you're saying. In this case, there is no problem. The fence is just a fence. The boundary is what it is. And, yet, the situation is seen as a problem and, perhaps, one of such gargantuan proportions that attorneys need to be hired to solve it.
Justice Cooley alluded to the existence of surveyors who strike fear in the hearts of landowners because of the surveyors need to "fix" the monuments set in error.
I understand what you're saying. In this case, there is no problem. The fence is just a fence. The boundary is what it is. And, yet, the situation is seen as a problem and, perhaps, one of such gargantuan proportions that attorneys need to be hired to solve it.
Justice Cooley alluded to the existence of surveyors who strike fear in the hearts of landowners because of the surveyors need to "fix" the monuments set in error.
Ian Wilson, P.L.S. (CA / NV / CO)
Alameda County Surveyor
Alameda County Surveyor
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goodgps
- Posts: 642
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- Location: Modesto, Ca
This case sounds all too familiar.
Two exact examples yeild tow different reactions.
One is a current lawsuit; the other is an out of court litigation between clients lawyer and neighbor.
OK,
Based upon life experience, having seen a bunch of these over the decades,
I am now under the opinion "PROTECT YOUR LICENSE FIRST"
If your client just wont talk to her neighbor, write a dang great letter of indemnification exonerating you from harm should a lawsuit erupt. (and you know something will happen) ALSO, create an encroachment exhibit, besides the ROS that clearly shows your findings and states that according to your client, SHE placed the fence line.
Also offer your services (for a fee) to be an expert witness.
NOW, file your record of survey if you are still doing the job, show the fence line as built by your owner, and wait for the fall out.
As a matter of habit, I place business cards on immediate neighbors stating that I am surveying etc . . . .so dont shoot etc. . . and all this here bit.
If you've done that, the neighbor will have your contact info and may call you first before dragging you in on a lawsuit. You can point the neighbor to the ROS which shows the encroachment (it's a public document). At this time you can explain your position as a consultant only and NOT A DEFENDANT !
or heck . . . Hire Ian or Evan like Dane says ??
PS If you are monumenting the line, a ROS must be filed. If you are bailing then I s'pose not.
Susie probably just wants to move her fence to the correct line.
She should've hired a surveyor before placing the fence in the first place
Grumpy "good" grief
Two exact examples yeild tow different reactions.
One is a current lawsuit; the other is an out of court litigation between clients lawyer and neighbor.
OK,
Based upon life experience, having seen a bunch of these over the decades,
I am now under the opinion "PROTECT YOUR LICENSE FIRST"
If your client just wont talk to her neighbor, write a dang great letter of indemnification exonerating you from harm should a lawsuit erupt. (and you know something will happen) ALSO, create an encroachment exhibit, besides the ROS that clearly shows your findings and states that according to your client, SHE placed the fence line.
Also offer your services (for a fee) to be an expert witness.
NOW, file your record of survey if you are still doing the job, show the fence line as built by your owner, and wait for the fall out.
As a matter of habit, I place business cards on immediate neighbors stating that I am surveying etc . . . .so dont shoot etc. . . and all this here bit.
If you've done that, the neighbor will have your contact info and may call you first before dragging you in on a lawsuit. You can point the neighbor to the ROS which shows the encroachment (it's a public document). At this time you can explain your position as a consultant only and NOT A DEFENDANT !
or heck . . . Hire Ian or Evan like Dane says ??
PS If you are monumenting the line, a ROS must be filed. If you are bailing then I s'pose not.
Susie probably just wants to move her fence to the correct line.
She should've hired a surveyor before placing the fence in the first place
Grumpy "good" grief
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Ric7308
- Posts: 709
- Joined: Thu Nov 17, 2005 2:50 pm
Ian,
With the exception of "...(4) doesn't really apply in this case.", I disagree with your interpretation of 8762(b)(4). I am not sure where you have interpreted "durability" of monument within this section. If you have something to that effect, I would like to see that.
The deed states "westerly 104 feet of Lot 1". Assuming that Lot 1 is shown on a record map somewhere, it could be argued that the "westerly 104 feet" could be "ascertained from an inspection of the subdivison map,...". Of course, as you stated, there could be other factors that would prevent that from being easily ascertained.
Based on ONLY the information that Ben provided and the assumption that in this EXAMPLE, he has already checked for a record map showing the division of Lot 4 as stated in the deed, 8762(b)(5) would be the primary reason why an RS is required. The boundary line separating the "westerly 104 feet" from the remaining portion of Lot 1 is "...described in any deed or instrument of title recorded in the county recorder's office not shown on any..."
This would be required whether Ben set monuments marking this division or if he only prepared and delivered a map showing the division without setting monuments.
In addition, being that in this example, we are presented with a metes and bounds description of a portion of a lot, David has a point in that the adjoining description (remainder of Lot 1) may be a metes and bounds description conveyed by the same Grantor, that conflicts with the client's deed. It would be prudent to investigate that in this case and maybe help two sides "correct" an issue they didn't know existed.
Ric
With the exception of "...(4) doesn't really apply in this case.", I disagree with your interpretation of 8762(b)(4). I am not sure where you have interpreted "durability" of monument within this section. If you have something to that effect, I would like to see that.
The deed states "westerly 104 feet of Lot 1". Assuming that Lot 1 is shown on a record map somewhere, it could be argued that the "westerly 104 feet" could be "ascertained from an inspection of the subdivison map,...". Of course, as you stated, there could be other factors that would prevent that from being easily ascertained.
Based on ONLY the information that Ben provided and the assumption that in this EXAMPLE, he has already checked for a record map showing the division of Lot 4 as stated in the deed, 8762(b)(5) would be the primary reason why an RS is required. The boundary line separating the "westerly 104 feet" from the remaining portion of Lot 1 is "...described in any deed or instrument of title recorded in the county recorder's office not shown on any..."
This would be required whether Ben set monuments marking this division or if he only prepared and delivered a map showing the division without setting monuments.
In addition, being that in this example, we are presented with a metes and bounds description of a portion of a lot, David has a point in that the adjoining description (remainder of Lot 1) may be a metes and bounds description conveyed by the same Grantor, that conflicts with the client's deed. It would be prudent to investigate that in this case and maybe help two sides "correct" an issue they didn't know existed.
Ric
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Ian Wilson
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Ric:
This was a weak attempt at humor.
(4) refers to points and lines ESTABLISHED by the field survey. It purposefully avoids making reference to setting anything, perhaps because those who crafted the sub-paragraph were anticipating those who would "duck" the issue by not setting monuments.
I often run into those who claim that, because they don't set anything or only set hubs rather than iron, they don't have to file an RS. (Nothing could be further from the truth, but that is a common misconception.) I have even been told, on occasion, that "you only file RSs when you set durable monuments".
And, of course, you know my feelings about plastic plugs/caps and people not proud enough of their own work to set "real" monumnents. (tongue in cheek humor).
Finally, Ben's post mentions only one document, the deed. He doesn't mention anything about a search for other documents. I am simply pointing out that in the face of an already existing RS on the parcel, another RS is not necessarily required. In other words, we can't assume anything and we need further information.
This was a weak attempt at humor.
(4) refers to points and lines ESTABLISHED by the field survey. It purposefully avoids making reference to setting anything, perhaps because those who crafted the sub-paragraph were anticipating those who would "duck" the issue by not setting monuments.
I often run into those who claim that, because they don't set anything or only set hubs rather than iron, they don't have to file an RS. (Nothing could be further from the truth, but that is a common misconception.) I have even been told, on occasion, that "you only file RSs when you set durable monuments".
And, of course, you know my feelings about plastic plugs/caps and people not proud enough of their own work to set "real" monumnents. (tongue in cheek humor).
Finally, Ben's post mentions only one document, the deed. He doesn't mention anything about a search for other documents. I am simply pointing out that in the face of an already existing RS on the parcel, another RS is not necessarily required. In other words, we can't assume anything and we need further information.
Ian Wilson, P.L.S. (CA / NV / CO)
Alameda County Surveyor
Alameda County Surveyor
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goodgps
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- Location: Modesto, Ca
Ben,
do you believe an encroachment exhibit and indemnification letter enough, or at least a start towards a solution of most boundary disputes ? or were you looking for other types of solutions. Maybe I dont understand the original question.
PS fellas, I'm a bit out of sorts due to losing a good friend very recently. (only 45 years old) sorry if I'm not following too well.
g
do you believe an encroachment exhibit and indemnification letter enough, or at least a start towards a solution of most boundary disputes ? or were you looking for other types of solutions. Maybe I dont understand the original question.
PS fellas, I'm a bit out of sorts due to losing a good friend very recently. (only 45 years old) sorry if I'm not following too well.
g
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goodgps
- Posts: 642
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- Location: Modesto, Ca
DWolley,
Well said my man, Well said. Attorneys have an obligation to side with their clients but we must run the straight and narrow.
I've had many a potential client leave my office because i wouldnt move a property line to fit their desire. The scary statement that they make upon departure is "if you wont do it, I'll find another surveyor who will"
Somehow I think they do find "that guy" "that guy" is the desparate dangerous guy. dont be "that guy"
Great advice from DWolley !!
Well said my man, Well said. Attorneys have an obligation to side with their clients but we must run the straight and narrow.
I've had many a potential client leave my office because i wouldnt move a property line to fit their desire. The scary statement that they make upon departure is "if you wont do it, I'll find another surveyor who will"
Somehow I think they do find "that guy" "that guy" is the desparate dangerous guy. dont be "that guy"
Great advice from DWolley !!
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Ben Lund
- Posts: 371
- Joined: Thu Aug 30, 2007 3:07 pm
First, I need to apologize. In my haste to answer Ric’s question about what triggers the RS, it looks like I have misread section 8762. Then I misunderstood Ian’s question. Here are some of my thoughts:
8762(b)(1) I do not know the definition of “material evidence.” I can only presume Ian’s interpretation is correct and thus (1) does NOT apply. If “material evidence” includes the language in the deed then (1) DOES apply.
8762(b)(2) If there is a discrepancy between the “position of points or lines, or in dimensions” of the boundary solution and any records, then it looks like I file an RS. Unless I can establish that Lot 1 is exactly how it is shown on all recorded and filed surveys previous to mine and my solution matches all of them, (2) DOES apply.
8762(b)(3) I’ll be honest, this one really confuses me. Does this mean that if Lot 1 is shown differently on different surveys, then my solution is going to be different then a previous survey and thus I file a RS? Bottom line, it could be argued that (3) DOES apply.
8762(b)(4) My deed lines do not show on any previous survey, therefore (4) DOES apply.
8762(b)(5) For the reason in (4), (5) DOES apply.
Thank you to all that have contributed. From what I’ve read, the following is a summary of the “tools” at our disposal (I have not placed them in any particular order, but have put the owner of the idea in parenthesis):
1. Written license giving permission to the neighbor to use the 4’ space. Great idea! I’m not sure you need the adjoiner to sign (let’s say they refuse). Maybe a certified mail delivered letter explaining your giving your neighbor a license to use your land. This could be used as evidence defeating an adverse possession or prescriptive rights claim. (Ian)
2. Write a letter of indemnification and send it to your client. This letter could disclose particulars facts and summarize previous conversations in order to help you in case of a lawsuit. This letter could be accompanied with an encroachment exhibit stating facts and findings. (Good)
3. Allow for the parties to craft there own solution. Be polite as possible and explain you are a neutral party by law. This could save you getting dragged into a lawsuit, and a simple explanation on why the boundary is where it is might solve everything. (Good and Dave)
4. File the RS and remind your client that you also provide expert witnessing services (This one is my favorite! Hee hee). (Good)
5. Boundary line agreement. I have read about these but have never seen one. Has anyone actually done one? (Dave)
6. Lot Line Adjustment. All parties affected must sign, and be careful about violating ordinances (including min lot size, setbacks, cross lot drainage, etc). (Dave)
My original question could be stated, “What would you do (given all of your knowledge) if you were the owner of the 104 foot parcel?”
Thanks again for all the advice!
Ben
8762(b)(1) I do not know the definition of “material evidence.” I can only presume Ian’s interpretation is correct and thus (1) does NOT apply. If “material evidence” includes the language in the deed then (1) DOES apply.
8762(b)(2) If there is a discrepancy between the “position of points or lines, or in dimensions” of the boundary solution and any records, then it looks like I file an RS. Unless I can establish that Lot 1 is exactly how it is shown on all recorded and filed surveys previous to mine and my solution matches all of them, (2) DOES apply.
8762(b)(3) I’ll be honest, this one really confuses me. Does this mean that if Lot 1 is shown differently on different surveys, then my solution is going to be different then a previous survey and thus I file a RS? Bottom line, it could be argued that (3) DOES apply.
8762(b)(4) My deed lines do not show on any previous survey, therefore (4) DOES apply.
8762(b)(5) For the reason in (4), (5) DOES apply.
Thank you to all that have contributed. From what I’ve read, the following is a summary of the “tools” at our disposal (I have not placed them in any particular order, but have put the owner of the idea in parenthesis):
1. Written license giving permission to the neighbor to use the 4’ space. Great idea! I’m not sure you need the adjoiner to sign (let’s say they refuse). Maybe a certified mail delivered letter explaining your giving your neighbor a license to use your land. This could be used as evidence defeating an adverse possession or prescriptive rights claim. (Ian)
2. Write a letter of indemnification and send it to your client. This letter could disclose particulars facts and summarize previous conversations in order to help you in case of a lawsuit. This letter could be accompanied with an encroachment exhibit stating facts and findings. (Good)
3. Allow for the parties to craft there own solution. Be polite as possible and explain you are a neutral party by law. This could save you getting dragged into a lawsuit, and a simple explanation on why the boundary is where it is might solve everything. (Good and Dave)
4. File the RS and remind your client that you also provide expert witnessing services (This one is my favorite! Hee hee). (Good)
5. Boundary line agreement. I have read about these but have never seen one. Has anyone actually done one? (Dave)
6. Lot Line Adjustment. All parties affected must sign, and be careful about violating ordinances (including min lot size, setbacks, cross lot drainage, etc). (Dave)
My original question could be stated, “What would you do (given all of your knowledge) if you were the owner of the 104 foot parcel?”
Thanks again for all the advice!
Ben
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Ian Wilson
- Posts: 1087
- Joined: Sat Aug 03, 2002 6:58 am
- Location: Bay Area
Ben:
The only material evidence you have presented is the deed. You admitted that the fence was just a fence. There is no discrepancy in the material evidence. §8762(b)(1) does not apply in this situation.
If there was a shed built by the adjoiner and abutting the fence, this might be evidence that the fence has been relied upon as a boundary line. In this case, that would be a discrepancy in material evidence.
=====
According to your scenario, it would appear that you are surveying a parcel that has not been surveyed before. You find no monumentation at any of the points you look (fence line and 104’ line). You admitted that the fence is just a fence. There is no material discrepancy. §8762(b)(2) does not apply.
A material discrepancy would be one (different case – one of my own) where you found the north line of the parcel to be mapped at 400.00 feet long and you found the monuments described as being set by the engineer who prepared the parcel map that were only 320’ apart. That would be considered a material discrepancy. That would require filing a Record of Survey.
Note that finding a 1” IP tagged LS abcd when the map calls for a 1-1/4” IP tagged RCE abcde is not a material discrepancy in and of itself. (In this case, I would highly recommend a call to the LS and filing a Corner Record.)
This always begs the question: What constitutes a material discrepancy? That is up to you. Many states have survey tolerance statutes. California does not. It is considered that we are professionals once we earn that license. As such, it is up to us to determine what constitutes a material discrepancy worth of an RS. (And, for the record, in my opinion, it varies with the terrain, land cost and survey difficulty.)
=====
§8762(b)(3) is an odd duck. I have a Parcel Map going to record soon that illustrates exactly this situation. The Parcel Map that created the parcel for which I am preparing a new Parcel Map for my client show a particular bearing and distance for the east line of the parcel. The monument at the northerly end of this line lies some 20 feet easterly of the position as shown on the map. Thee is an old chain link fence, built shortly after the original Parcel Map was recorded that runs monument to monument. There is a garage and a house built parallel with the fence and the line as monumented but at a significant squew to the line as mapped. This represents an alternate position for the line.
If I were to find a series of maps that defined a particular line as running from one monument to another and then found an original stone some distance form the record iron pipes, that could create an alternate position for the line.
In your scenario, reliance on the fence could create an alternate position for the line. However, since the fence is just a fence and has not been relied upon, it should not be considered as a likely position for an alternate location for the boundary of your client’s land.
=====
§8762(b)(4) is the sub-paragraph designed to separate the setting of a monument, thereby triggering the RS (§8762(b)(5) and the idea that if a monument is not set then an RS is not necessary. The key word in sub-paragraph (4) is ESATBLISHMENT. From Wells Lamont, if the client or adjoiner understands your work to have located the property line, even if you set nothing to mark the line, you have ESTABLISHED that line.
In your scenario, you are planning to set monuments to mark the corners of your clients land. (4) does not apply entirely.
=====
§8762(b)(5) is the sub-paragraph that requires the filing of an RS whenever “…points or lines [are] set…” In other words, if you set a monument to mark a line or a point not already shown on a record map, you are required to file an RS unless the point was set for a Parcel Map or Final Map in process.
I’ll admit that the difference between sub-paragraphs 4 and 5 is rather fine. The intent of 4, however, is to force the RS even when monuments are not set.
Good night all! I’ll be here through the end of the week. Don’t forget to tip your bartender and cocktail person!
The only material evidence you have presented is the deed. You admitted that the fence was just a fence. There is no discrepancy in the material evidence. §8762(b)(1) does not apply in this situation.
If there was a shed built by the adjoiner and abutting the fence, this might be evidence that the fence has been relied upon as a boundary line. In this case, that would be a discrepancy in material evidence.
=====
According to your scenario, it would appear that you are surveying a parcel that has not been surveyed before. You find no monumentation at any of the points you look (fence line and 104’ line). You admitted that the fence is just a fence. There is no material discrepancy. §8762(b)(2) does not apply.
A material discrepancy would be one (different case – one of my own) where you found the north line of the parcel to be mapped at 400.00 feet long and you found the monuments described as being set by the engineer who prepared the parcel map that were only 320’ apart. That would be considered a material discrepancy. That would require filing a Record of Survey.
Note that finding a 1” IP tagged LS abcd when the map calls for a 1-1/4” IP tagged RCE abcde is not a material discrepancy in and of itself. (In this case, I would highly recommend a call to the LS and filing a Corner Record.)
This always begs the question: What constitutes a material discrepancy? That is up to you. Many states have survey tolerance statutes. California does not. It is considered that we are professionals once we earn that license. As such, it is up to us to determine what constitutes a material discrepancy worth of an RS. (And, for the record, in my opinion, it varies with the terrain, land cost and survey difficulty.)
=====
§8762(b)(3) is an odd duck. I have a Parcel Map going to record soon that illustrates exactly this situation. The Parcel Map that created the parcel for which I am preparing a new Parcel Map for my client show a particular bearing and distance for the east line of the parcel. The monument at the northerly end of this line lies some 20 feet easterly of the position as shown on the map. Thee is an old chain link fence, built shortly after the original Parcel Map was recorded that runs monument to monument. There is a garage and a house built parallel with the fence and the line as monumented but at a significant squew to the line as mapped. This represents an alternate position for the line.
If I were to find a series of maps that defined a particular line as running from one monument to another and then found an original stone some distance form the record iron pipes, that could create an alternate position for the line.
In your scenario, reliance on the fence could create an alternate position for the line. However, since the fence is just a fence and has not been relied upon, it should not be considered as a likely position for an alternate location for the boundary of your client’s land.
=====
§8762(b)(4) is the sub-paragraph designed to separate the setting of a monument, thereby triggering the RS (§8762(b)(5) and the idea that if a monument is not set then an RS is not necessary. The key word in sub-paragraph (4) is ESATBLISHMENT. From Wells Lamont, if the client or adjoiner understands your work to have located the property line, even if you set nothing to mark the line, you have ESTABLISHED that line.
In your scenario, you are planning to set monuments to mark the corners of your clients land. (4) does not apply entirely.
=====
§8762(b)(5) is the sub-paragraph that requires the filing of an RS whenever “…points or lines [are] set…” In other words, if you set a monument to mark a line or a point not already shown on a record map, you are required to file an RS unless the point was set for a Parcel Map or Final Map in process.
I’ll admit that the difference between sub-paragraphs 4 and 5 is rather fine. The intent of 4, however, is to force the RS even when monuments are not set.
Good night all! I’ll be here through the end of the week. Don’t forget to tip your bartender and cocktail person!
Ian Wilson, P.L.S. (CA / NV / CO)
Alameda County Surveyor
Alameda County Surveyor
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bruce hall
- Posts: 640
- Joined: Sun Oct 05, 2003 9:18 pm
- Location: huntington beach, orange county, california
Gosh Dave
that seems like a zillion years ago. And it was. Jeremy Evans, the editor of the California Surveyor asked for photos for the cover. I sent him that one of my son and I staking the soccer fields. I also sent some other survey related photos that didn't make the final cut. Jeremy is still around, he works for Psomas in Costa Mesa and teaches survey college classes. My son, Ezra, is still around also. He worked with me today. He helps me when when he is between jobs. He sells stuff- mortgages, time shares, etc.
So that's what's inside the cover huh. Well done Jeremy.
So that's what's inside the cover huh. Well done Jeremy.
Bruce Hall Land Surveyor No. 4743
5732 Middlecoff Drive
Huntington Beach, Ca. 92649
714 840 4380
5732 Middlecoff Drive
Huntington Beach, Ca. 92649
714 840 4380