California Surveyors Forums

I just finished reading the article from California Surveyor Issue #90 that Dave Wooley recommended in another thread.

There are a few points that may warrant discussion, but I have what seems like some basic questions.

I've often heard that preparing agreements and deeds, such as those for a Boundary Line Agreement, is strictly the domain of attorneys. Although it is not explicitly addressed, this article seems to have as a basic premise that, not only may a surveyor prepare these documents, but there are times when a surveyor should do so to serve the client.

So my questions are: May surveyors prepare these documents or is that practicing law without a license?

Should surveyors prepare these documents when they are warranted?

How many of you do this as part of your practice?

What concerns (primarily in terms of liability) should a surveyor consider when preparing these documents?

If you do prepare the BLA agreement and QCDs, under what circumstances will you defer to an attorney to do it, or in other words, what criteria do you use to decide whether you do it or you defer to an attorney?

The two we have done in my time here, he had been given an example by the title company, did some editing of the exhibits, asked for review by the title Co. and the County Planning Dept. so they would be comfortable it was not a Lot Line adjustment and then asked the parties involed to have their leagal consuel review and approve. Everyone was happy. I would proabaly not have been comfortable without the att. review, as we are the experts on all the issues that are attached to land ownership.

I've prepared deeds before - for Caltrans acquisitions. Typically, before that project we were preparing only the legal descriptions, but the Caltrans Task Order said that we were to prepare the deeds and they provided us the electronic form for their grant deed or easement deeds that we were to fill in with the legal description and they provided any additional clauses or language. I've never prepared a deed for a private project. The closest would be an LLA.

It falls under contract law. A land owner can survey their own property, so I assume that 2 parties could write up their OWN contract. As with any profession there are certain types of work product that look simple when you (a non professioanl) look just at the finsihed work product. In fact many times, what goes into that seemly simple document is complex and the results of hundreds of years of evolution. There are technical issues that could invalidate the agreement if challenged for some reason, that a lay person,surveyor trying to be helpful, might not be aware of.

The way I have seen surveyors help in the past is that they prepare the entire set of documents and indicate to the client that there maybe technical legal issues of which the surveyor in not aware that could cause problems and that the document set does not represent anything other than an instrument for the facilitation of the discussion between parties and that for the purpose of protecting the interestes of both parties the final documents should be reviewed by a legal professional prior to final execution and recordation.
In other words you provide the portion of the document that you legally can, the legal description . The legal contract portion is really up to the interested parties to craft amongst themselves, with or without benefit of legal counsel.


I guess, I dunno. I am just a surveyor. But if its up to me, I would not hire a plummer to do a carpenter's job.- Iam just saying.....

Good advice, all. Ryan, In your case, it sounds like Caltrans got DEA to not only provide descriptions, but to do the legal secretary work of filling in the predetermined names, dates, etc. in the blanks of a predetermined form. I'm not demeaning the work, just putting it into perspective.

Dane, what you, just, geee, maybe said has been my understanding of our roles in the process, but as I think of it, I do feel confident enough to do as RAM suggested: prepare the documents that I know will be required and have the client have his attorney review them before execution.

What brought this up is a current situation that I am trying to wrap up. Some of you may recall a survey that I posted on several months ago wherein a previous owners title company erroneously would not recognize a long standing boundary, locally accepted with the knowledge that it was not the aliquot line. The title company would only recognize the aliquot. A PM got filed per the title company's view and a gap was created ( a real one that no one laid claim to after the PM).

Now, the adjoining landowners are in agreement as to where the line should be placed. I have completed an RS reflecting this intent, and the only thing holding it up is that my clients attorney has not prepared the necessary BLA documents. He apparently told my client that no such documents need be prepared or filed and that my RS would be sufficient to execute the agreement. And this is an attorney who is supposedly knowledgeable in land law.

So, Dave's mention of this article caught my attention. The premise got me thinking if there is a good reason why we, as boundary specialists, should not be preparing these as part of our services. My cautious side however, warns me of hidden issues, as you point out, Dane.

In the current situation, to attempt to expedite matters, I will prepare the documents and have my client provide them to his new attorney for review before execution.

Thanks for the feedback, guys.

What does your client's attorney plan to do so that your client has marketable title? Your record of survey will not fix that issue. From what I can tell the best practice is to record an agreement between parties. record quitclaims (title companies will never believe you when you tell them that, in fact, rights have transfered via unwritten action) record new deeds describing the new parcels that result from the agreement, go down to the tax assessor's office make the appropriate changes there so that folks are actually paying taxes on what they claim to own. Oh wait a minute, any mortgage companies involved here, any deeds of trust? Probably need a reconyence or a loan subbordination or whatever the heck they call it... the last thing you want is to do all of this work- have a default on a loan and the mortgage forclose on the aliquot line, that eveyone no longer honors as the line, except the mortgage company....... hum I am sure I am forgetting something........ I guess all those years I put in at the big land development slave shop might actually be worth a CLSA post or 2


Cheers

As far a preparing deed forms for conveyance, it may be viewed this way, "Data base" Most of us do not have a data base and we don't insure title. When a title company issues a deed form, they (should've) researched the property to insure that there were no underlying fee interests, or other restrictive interests. Boundary Line agreements (certificates) are just that.
An Agreement.
It is the responsibility of the land owners to consumate this agreement, not the land surveyors. As far as the legal descriptions go, Dane is right, Have a Land Surveyor do that portion,

Have you ever seen some of the legals prepared by a legal assistant ?

Now where's my pipe wrench and plumbing snake . . . .

Thanks for the input.

First, I am aware of the importance of the QCDs in this process. That they are required is not a question. And the idea that I would suggest that anyone other than a surveyor write the descriptions? Ha! Not a chance!

On the advice of the County Surveyor, we put this through the County Planning LLA process just for the reasons some of you have cited.

To complete the process, there's no way I'm going to just deliver the map to my client and tell him he's on his own to finish it up. He came to me for professional guidance in the matter. If I hadn't given him the guidance to file the agreement and QCDs to complete the process, his attorney would have left him hanging with an unconsumated agreement.

Dave, I see your point that an attorney may be overkill in this instance. Both owners own the land free and clear, so no Deeds of Trust to be concerned about. I'll go ahead and prepare the documents and provide them to the title company (not the same one that contributed to starting this mess). As long as they don't want to make the case that the fee for the strip lies with my client's predecessor's predescessor's predecessor in title, there should be no issues.


I've got a framing hammer. Does that make me a carpenter? I'm just, gee, like maybe asking...

I've used a boundary line agreement. This after an exhaustive seach of recorded and unrecorded documents. I demonstrate on the Record of Survey where the uncertainty is and show the executed line of agreement.

I don't see where planning has jurisdiction over the location of a boundary line that can't be determined with certainty.

Property owners must be able to improve their property and be assured they arent building on someone elses property.

I worked with an attorney a couple of months ago, who was going to change a boundary to the location of an existing fence which encompassed about 5 acres. I told her I thought that we would be circumventing the Map Act and I would not do it.


I've attached BL Agreement I've used in the past.

I would be curious to find out if in fact property owners could agree to a boundary that can be determined with certainty by a correct survey. I know I've seen this done in the past, but I remember reading a case that overturned a line of agreement because it could be surveyed with certainty. It was quite a while ago and I don't remember the nuances.

I would assume a Lot Line Adjustment could be overturned as well as if an inequity occured from an incorrect retracement survey.

Evan,
I hope you did not think I was suggesting that an attorney prepare the legal descriptions. I do not believe that this is necessary., maybe be even illegal. I was refering to the pages that spell out who the parties are and what the extent of their agreement is.

Larry,
A boundary line agreement is a legal remedy. For this remedy to be available as a solution to the property owners certain elements must be in place, otherwise it (the BLA) is not a valid legal remedy. The major element is that the true location of the boundary is uncertain. Some folks add to this an element that the true location of the boundary is in dispute. The dispute over the true location being the factor that makes the true location uncertain.
Generally from my experience, whenever there are elements, there are tests for those element. For example the uncertainty of location cannot be based on the fact that neither party ever bothered to make an attempt to find out the true location. Bryant v Belvins gives us the concept that the boundary is not uncertain if its location can discovered by a survey conducted on the ground(wildly paraphrased). Another test of the element of uncertainty is that the true location cannot be known by one party while at the same time it is unknown to the other. This is an estoppel issue.

It had seemed to my that property owners are free to dispose of their property in any legal manner that they see fit, but they cannot use the BLA just because it is convenient. The use of the BLA cannot be used to get around the SMA. It is a legal remedy for use to fix certain legal problems not all boundary issues when the concerned parties are willing to agree the boundary is someplace where they would like it to be.

Wow, Dane! That was a fine piece of writing! Very well said!

That is clearly at the heart of the use of BLA's!!!

(I'm going to steal a bunch of it...)

Dane,

I don't know if you read the article from Cal Surveyor #90, but you just offered a fairly convincing argument against the author's primary proposed reason for offering a BLA as a solution. That is that the owners cannot afford the full cost of the surveying necessary to determine the boundary, or the cost of the surveying may be very high relative to the value of the land.

As I recall, Bryant and Blevins did not have an executed agreement in place, but rather appeared to have an implied one in place based upon past actions. I wonder how it might have affected the outcome had there been a written agreement in place.


In my case, there were two lines, each monumented, each easily retraceable by a surveyor, and each readily apparent to the local landowners by the two sets of monuments present. As a matter of fact, it was because of the knowledge of the two sets of lines that I was initially hired.

Because of the odd nature of this one, that each parcel prior to the BLA were readily retraceable and the strip in question was a discreet and defineable area, we submitted it as a LLA, not to give the County discretionary authority, but so that all relevant agencies would be notified in one step.

I imagine a wild weekend around your house is the kids are at a weekend sleep over, the wife has gone to visit her mom and its just you and a stack old Cal Surveyors and a couple of six packs of ice cold MR PIBB.


I miss remembered some of the details of the Bryant v Blevins opinion, so let me just cut and paste some relevant sections below.


When coterminous landowners are uncertain as to the true location of their common boundary, they may establish that boundary by agreement, pursuant to a legal theory commonly referred to as the "agreedboundary" doctrine. This case presents the question whether a court should apply that doctrine to resolve a boundary dispute where available legal records provide a reasonable basis for fixing the boundary and the party relying upon the doctrine fails to establish that uncertainty as to the location of the true boundary led to an agreement between the landowners to create a boundary at an agreed-upon location. We hold that the doctrine is inapplicable under these circumstances. Accordingly, we reverse the judgment of the Court of Appeal, which affirmed the trial court's finding that the doctrine applied to this case.


(3) Although the agreed-boundary doctrine is well established in California, our case law has recognized that the doctrine properly may be invoked only under carefully specified circumstances. As this court stated in Ernie v. Trinity Lutheran Church, supra, 51 Cal.2d 702, 707: "The requirements of proof necessary to establish a title by agreed boundary are well settled by the decisions in this state. [Citations.] The doctrine requires that there be [1] an uncertainty as to the true boundary line, [2] an agreement between the coterminous owners fixing the line, and [3] acceptance and acquiescence in the line so fixed for a period equal to the statute of limitations or under such circumstances that substantial loss would be caused by a change of its position." (Ibid.)


In the years since we reiterated in Ernie v. Trinity Lutheran Church, supra, 51 Cal.2d 702, the requirements of the agreed-boundary doctrine, numerous Court of Appeal decisions have held that the doctrine should not be applied broadly to resolve boundary disputes where there is no evidence that the neighboring owners entered into an agreement to resolve a boundary dispute and where the true boundary is ascertainable from the legal description set forth in an existing deed or survey. (See, e.g., Armitage v. Decker (1990) 218 Cal.App.3d 887, 902-904 [267 Cal.Rptr. 399]; Mesnick v. Caton, supra, 183 Cal.App.3d at pp. 1256-1258; Finley v. Yuba County Water Dist. (1979) 99 Cal.App.3d 691, 698-701 [160 Cal.Rptr. 423].) The common theme of these decisions is a deference to the sanctity of true and accurate legal descriptions and a concomitant reluctance to allow such descriptions to be invalidated by implication, through reliance upon unreliable boundaries created by fences or foliage, or by other inexact means of demarcation.

For the foregoing reasons, we reject the Court of Appeal's application of the agreed-boundary doctrine to the facts of this case. In our view, an unduly broad application of the doctrine tacitly encourages a lack of due diligence on the part of property owners by tempting them not to consult legal descriptions in an effort to reach amicable resolution of their disputes, and instead induces property owners to resort to the courts to resolve their boundary disputes. We should not promote such a potentially litigious alternative. Guided by the principles set forth in Ernie , and mindful of the objectively certain legal description of defendants' property and the absence of any evidence suggesting that uncertainty as to the true boundary led to the creation of a "fence-made" agreed boundary, we approve the reasoning set forth in Armitage v. Decker, supra, 218 Cal.App.3d 887, and hold that defendants have failed to establish the "uncertainty" and "agreement" required in order to establish an agreed boundary.

Dane,

Have you been spying on me? I prefer root beer or canadian beer while I'm poring over the old survey magazines.

I'll have to rad the substance of your post more thoroughly later. I'm gonna be a little busy for the next few days.

I came across an example where Parcels A, B, and C had legal descriptions that created gaps and gores. It was suggested to “convey each parcel as originally recorded to a Trustee who would then use correct descriptions on new documents and convey the respective areas to the corresponding owners in a proper manner.”

Cheers,
Ben

I must have quite a different interpretation of this issue than many, but it’s my take that this test cited in Bryant v Blevins and Ernie v. Trinity Lutheran Church is for boundaries that are going to court. It’s not for two owners who are in total agreement of where they want a boundary to go. Other than ensuring you’re not violating a local subdivision ordinance, what is to prevent two agreeable property owners from conveying to an agreed line, whether they know where the true boundary is or not?

I'm pretty certain this test of whether the true boundary is uncertain or not only comes into play except where litigation is contemplated or underway, such as when one of the owners feels there has been agreement due to a long standing fence, for instance, but the other disagrees. Then the first party may sue the other citing the “agreed boundaryâ€￾ principle.

Dave Ryan

Dave,

I had similar thoughts, but the idea behind the uncertainty has to do with honoring the written document. If there is no uncertainty, in the written document,then why not honor it. If you want to re-subdivde the property as a matter of convenience between the owners, then do that but don't call it a boundary line agreement.

Dave,
Chapter 5 page 5.7 “Agreement or Acquiescence” in Wattles’ “Writing Legal Descriptions” clarifies some issues you brought up. Here are some snidbits:

“In the case of Kirkegaard v. McLain (199 CA 2d 484), an arbitrary line on what both parties believed was the rue line was agreed to for the purpose of building a fence and, without recourse to a survey to determine the true line, this might have constituted acquiescence if both parties were mistaken. But ‘acceptance’ of a line not ‘known’ was enough to support the trial court’s conclusion that there had been an agreement to locate a ‘doubtful’ boundary.” … “In the appeal the decision stated, ‘There is respectable written authority by Justice White, with hearing denied by the Supreme Court, holding in Rast v. Fischer that where adjoining land owners, instead of having a survey according to the descriptions of their deeds, assume that stakes found by them denote the true line and accept it, their acquiescence is treated as a mistake and neither of them is estopped from claiming the true line; that evidence of an agreed boundary must disclose a valid preexisting agreement, and, to be valid, that agreement must have been based on a doubtful line.’”

“In contrast, as long as adjoining owners hold their occupation on a line by agreement (either oral, written, express, or implied), their condition is status quo and the excess is held by the same tenure as that holding the main body of land – but, if either party decides to transfer title to or from the agreed line, it will not hold without a document containing words of conveyance for that portion of the land bounded by the agreement which is not included within the description.” (Young v. Blakeman 153 C477, 95 P 888 and Ogden’s Calif. Real Property Law (1956))

I thought this was interesting:

“Statutes of limitation vary from state to state, but it has been held that extended occupation of land beyond the true line of a deed does create a certain form of title ownership. However, where the boundary line of tenancy is not coincident with the line described in the deed of acquisition, the holder does not possess a marketable title until a new document is created to describe it and is properly executed between the parties concerned.” …”The courts have said that a fence of itself does not a line of title make… a fence is made to keep animals and people in or out of a certain area.”…”Bringing this right home to our profession, no one has the legal right nor vested authority to change any line of a recorded title without a new and proper document in the recorder’s office to support it.”

I think in plain english, a boundary line agreement is a good way to go when a boundary line is "lost" and the adjacent owners absolutely agree on a position. I saw another point, Make sure that there are no ramifications regarding lein holders and lending institutions. A boundary line adjustment or quitclaim deed is a good way to go, also as said.
Make sure the "Bennies" are informed and sign off.

And as pointed out, are there any health department violations such as leach lines wells etc, that result from this Boundary line agreement.

"Good"