California Surveyors Forums

Anyone ever done one?

A neighbor started building a new fence along what he thought was my client's south P/L. He started at the right point on the west end but went to the wrong monument at the east end, being too far north by 9 feet. Length of the partially constructed, new fence? 1,305 feet.

The neighbor has sunk many thousands of dollars into the new fence and does not want to move it. (By the way, this involves the survey in my other post, the one with the conflicting section corner markers.) My client's engineer told me yesterday that he has brokered a deal between the two parties such that our client wants to grant the neighbor an easement for the mis-located fence as a way to avoid future claims of adverse possession.

Both parties are participating in the Boundary Line Agreement and will be exchanging quitclaim deeds to recognize the section line as I am showing it on my Record of Survey, namely, not the phantom line where the new fence is.

So they've agreed to this very weird compromise.

First of all, would said easement accomplish what they think it will accomplish? What are the merits and demerits of doing this?

I strongly suggested that our client run this by an attorney but the engineer told me they are not going to take that advice. I'm willing to provide the legal description, but I'm reluctant to draft the preamble spelling out the purpose of the easement, along with any relevant conditions and/or limitations.

I'm considering giving them just a stamped/signed legal description of the triangular area only--a bare "Exhibit A." No preamble. A cover letter would be included that would pointedly recommend that an attorney be consulted for the preamble.

Am I being too cautious?

"Am I being too cautious?"

Not in my book. Drafting language for a contract to which you're not a party and that entails terms not strictly within the purview of land surveying smells like excessive liability to me. It could even be construed as practicing law.

In situations like this I limit my involvement to the descriptions only, and let the principals, title companies and attorneys deal with the rest of it.

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I think a lot line adjustment would be a far better solution.

The problem I see with a yard, fence or other type of easement is the property that is granted the easement will be in reality using that land as if it was in fee simple. While the grantor will in reality be denied the use of that land. Which is not what the intent of an easement is.

I can envision many legal issues arising in the future over this easement.

surveysays wrote:I think a lot line adjustment would be a far better solution.

The problem I see with a yard, fence or other type of easement is the property that is granted the easement will be in reality using that land as if it was in fee simple. While the grantor will in reality be denied the use of that land. Which is not what the intent of an easement is.

I can envision many legal issues arising in the future over this easement.

Not if it is limited to the life of the fence. Fence comes down, it must be rebuilt properly. easement no longer exists.

I would recommend a "license" for the life (or whatever time is agreed upon) of the fence, not an easement.

Thanks, everyone. And I agree that a license would be the better way to go. Unfortunately, when I just called to suggest it to our client he said he said to hold off as he seriously considering just taking him to court over it.

Alas.....

I agree that it is prudent for the parties to get competent legal advice before executing the agreement. If the engineer brokering the deal is representing the landowner gaining the benefit, and legal counsel is not being sought by your client on the engineer's (the adjoiner's consultant) advice, then your client (the one proposed to grant the easement) is being foolish, and the engineer is treading on very thin ice should your client at some point come to the conclusion that he is not being dealt with honestly and fairly, and decide to file a Board complaint or a lawsuit.

It's one thing to assist the parties in arriving at their own agreement, depending on the issues, the level of assistance, and one's level of competence. It's quite another to negotiate the agreement, prepare the agreement, and most especially, advise one or both parties to forego competent legal review. IMO, a competent and scupulous consultant (surveyor or ce) would encourage the parties to have their attorneys review the agreement prior to execution.

I also agree that whether easement or license (I'm not fully up to speed on the differences/limitations of each), that it be granted only for the time of the useful life of the fence or until it is otherwise replaced, whichever comes first.

As to your role, if you are asked to provide a description of the triangular portion defined by the agreed to PL on one side and a line sufficient to include the new fence on the other, I don't see a problem with providing the description. Don't refer to it as an easement in your description, but maybe something like this:

"A parcel of land bounded on the East side by the agreed boundary as described in the boundary line agreement recorded as Document No......, and on the West side by a line which is 1' West of and parallel to a newly constructed fence..... [remainder of normal preamble: S, T, R, MDM, County, CA], more particularly described as follows:

[M & B with proper monument/point/line calls]"


That way you are not stating the purpose of the description. That's left up to whoever prepares the Easement Deed or License Agreement, the terms of which will define the purpose and use of the parcel. It is up to the parties as to what they ultimately do with the description.

In your cover letter to your client, clearly but professionally advise that he/she have the documents reviewed by a competent attorney before execution, and dispassionately explain why you offer that advice.

Expressing reservations about executing the agreement without benefit of legal counsel is appropriate, but I cringe a little when one says they intend to do so "pointedly" or in a strongly worded letter. What that means depends upon whose saying it. To one person that is a respectful letter which still clearly expresses one's misgivings, while to another, it means they are going to rant about the perceived unprofessional conduct and questionable character of the CE in question. Not suggesting that's what you would do, Lee, just stating to ends of a spectrum of possible meaning.

IMO, it is OK to say something like "I would have serious reservations about executing this agreement without benefit of counsel", but perhaps unwise to say something like "I think that [the engineer] is giving you bad advice. He represents his client's interests and not yours and I'm afraid that he and his client may be taking advantage of your trusting nature."

While all of that second statement may be true, it is unnecessarily inflammatory and potentially libelous. A carefully crafted letter reviewed by someone not involved, who you trust who is both articulate and levelheaded would probably be a good idea.

If the client asks you for recommendations, it would be good if you had a couple of different attorneys in mind.

Lee Hixson wrote:Thanks, everyone. And I agree that a license would be the better way to go. Unfortunately, when I just called to suggest it to our client he said he said to hold off as he seriously considering just taking him to court over it.

Alas.....

Uh oh. Did I just hear ice cracking under the CE's feet?

Good points, Evan. And by "pointedly" I only meant that I'm going to repeat myself to the client, stating, unequivocally, that I recommend they involve an attorney. I've already told them this, but it bears repeating. And I'll do the same with the engineer, who, like you've guessed, is venturing too closely to the rightful turf of attorneys.

Woodcutter wrote:I'm not so sure that's true. It is my understanding that there is no automatic extinquishment of easements in California.

See 887.050 et seq of the Civil Code along with 811.


I concur with Frank's recommendation, sounds like great advice to me.

Anything can be limited by contract. An easement is a contract. However, since this is CA, it may well be that a license agreement is better.