California Surveyors Forums

Looking for some feedback to help settle a debate.

Scenario - you've been directed to file a ROS on a piece of property currently undergoing redevelopment. If filed, the map will show lines dividing title interests that do not appear on any maps, nor in any deed or lease agreement. You do not have permission from the property owner or any agent of theirs to enter the property to set corners, or to file a map affecting the property. The party directing you to perform the survey has no right, title or interest in the property and never has.

Do you file the map?

To the County Surveyors, would you sign a map that had been submitted to you that was requested by someone who has no connection to the property?

I think your only problem is "lines dividing title interests that do not appear on any maps, nor in any deed or lease agreement."
On my very first RoS for an in-process LLA (hired by and being paid by the future owner) I had that very problem. The CS suggested I show as a dimensioned dashed line, with some non committal label. It was recorded that way.

you've been directed to file a ROS on a piece of property currently undergoing redevelopment

Directed by whom? I don't understand the reason the ROS needs to be filed before the title lines get adjusted.

I agree with Jim? Why invite exposure? At a minimum, I would require a hold harmless agreement and an indemnification. I would also require a formal letter of request as well as an explanation as to why this is being asked for. Be advised that you can become the subject of a lawsuit for what is known as "slander of title" if you were to file such a survey and it was deemed adverse to the owner's interests. I am familiar with a couple of situations wherein a surveyor was sued. It was not pretty. It was though expensive.

See:

https://www.canlii.org/en/#search/all=S ... of%20title

I agree with Mike.
I had a guy call me once, he backed up to a abandoned canal. Told me his lawyer told him all he needed to take possession of that land was to have a land surveyor survey his lot, including the canal and file a map and the land would be his.
I told him to find a better lawyer.

This is an interesting topic for me. I poised a question on the forum a year or two ago regarding the requesting name in our RS certification. I understand this could be an indicator of a potential bias in the survey or in a case where a tenant or contractor is the requestor and the survey consists only of one or two common lines this name could tell you nothing. I still don't completely understand the value of this feature though I tend to study it more closely these days.

The point is, we are called to render an objective and prudent opinion to the best of our ability. While I can see the potential for great liability if one of us were to disclose an encroachment on an adjoining tract or a defect in title that creates a cloud or torpedoes the viability of a development project, I suppose if that is the hand we are dealt then we have to play it. To limit or conceal information in an attempt at damage control is blatantly dishonest.

On the other hand I am called to deliver a service and advocate for my client to the extent that is ethical.

While I don't understand the entirety of the situation described in the OP I have contemplated the viability of surveying a parcel other than my client's for the following reasons:

1. The parcel adjoins the client parcel. If there is an encroachment or material discrepancy on a common line we will obviously show it on a Record of Survey. What if this conflict is a mile down the road and across the street and we found it by accident and it's going to destroy the value of someone's land (or simply cause them a minor financial or bureaucratic headache). Would you show it? If so would you tell them first?

2. The client's parcel falls in the middle of a parent parcel that you are making an attempt to show the relationship to adjoining parcels/tracts or determine junior/senior rights. The discrepancy does not affect your boundary directly but it is incidental and egregious and has potential to do great harm. Same question as No. 1

3. You are performing a survey for a public service of monument preservation. While a similar circumstance could arise while tying out any monument for a construction or demolition project, it really comes up during the wildfires. The whole neighborhood burns down and you are the first one on the ground and everything is wide open and you can see 12 blocks from one setup. My inclination was to run around and tie everything in sight and show it on a corner record before the cleanup excavation crews and the utility contractors and fence builders came in and destroyed what little occupational and boundary evidence remained (which is exactly what happened). I was technically measuring a bunch of OPP (Parcels) that had no idea I was doing it and I mapped a few innocent bystanders. Is this the right thing to do? If I incidentally found evidence of unmapped lines then would I be creating liability for myself or others? What if I decide to start rehabilitating or establishing corners while I am at it?

Side Note: It was mildly amusing when the surveyors who came behind me declared that they found no discrepancy and filed nothing on the lots where I had already shown pipes found out of position and occupation conflicts (they probably never saw my plat due to overlap in processing time). Everything on the ground is perfect after a wildfire.... I guess I discovered who i can trust

At the end of the day I feel that I am called to render a reasoned and defensible opinion on the evidence I disclosed in the course of my survey. While I don't want to sound as naive and immature as I sometimes am, this is exactly what I intend to do. I do not have unlimited budgets on my surveys so resources are limited but I do the best I can to hit the high points. Generally speaking, collateral damage does not enter into my thought process when deciding what to put on a map. To allow that would be unethical in my professional opinion. I welcome other perspectives on this topic...

mpallamary wrote:Be advised that you can become the subject of a lawsuit for what is known as "slander of title" if you were to file such a survey and it was deemed adverse to the owner's interests. I am familiar with a couple of situations wherein a surveyor was sued. It was not pretty

Is it slander of title if it is true? I don't understand how you can avoid reporting the results of your survey because you fear potential litigation. Please elaborate

" If filed, the map will show lines dividing title interests that do not appear on any maps, nor in any deed or lease agreement."

Just wondering how I file a RS on a line that doesn't exist yet? Ive never done that.

bruce

Scot,

See PM reply.

Hi David. Whether it constitutes slander of title or not, the filing of a survey on another person's property that might result in a liability or an adverse title disclosure is inadvisable. The courts and associated litigation will decide whether it is slander of title or not. Of the cases I have been involved in, the surveyor was sued for slander of title and he had to defend himself from the lawsuit. In these cases, the lawsuits were settled after costing both surveyors around $150,000.

It is akin to playing catch with razor blades and blowtorches. If one is a good juggler, go for it. If not, why create the exposure? What is the upside versus the down?

https://www.calrealestatelawyersblog.co ... -of-title/


https://www.justia.com/trials-litigatio ... 1700/1730/

The party directing you to perform the survey has no right, title or interest in the property and never has.

This is what I would do:

I've had similar situations where the "buyer" is the client. I get a signed agreement from the buyer, with 100% of estimate for a deposit (because I wouldn't have lien-rights); I also REQUIRE that the OWNER(s) also sign a similar agreement, saving and excepting any financial responsibilty . . . then if the buyer doesn't like what they see and the escrow doesn't close . . . I can still file the map (although paid for by the buyer).

There are times when I haven't made come to an opinion . . . but my suspicions it may be adverse to my client . . . I have the client send me a written request to stop all work and cancel the survey.

Have a good week, all . . .

Crazy Phil - Sonoma

Surveyor to Recorder!

"If filed, the map will show lines dividing title interests that do not appear on any maps, nor in any deed or lease agreement." The OP has meandered a bit, although great information, based on the information know/provided, this map CANNOT be filed.

mpallamary wrote: Whether it constitutes slander of title or not, the filing of a survey on another person's property that might result in a liability or an adverse title disclosure is inadvisable. The courts and associated litigation will decide whether it is slander of title or not. Of the cases I have been involved in, the surveyor was sued for slander of title and he had to defend himself from the lawsuit. In these cases, the lawsuits were settled after costing both surveyors around $150,000.

Arguably, nearly every time a record of survey is filed, by necessity, it requires showing/establishing/monumenting another person's property without permission and occasionally, under objection and/or protest. I do not believe permission is a requisite. I have had clients demand that a record of survey not be filed. However, I was required by statute to file and did so.

To answer the original question, a record of survey cannot be used to create line or subdivide privately held property. However, property held by a public entity can be subdivided by a legal description in a deed, no subdivision map required, and a record of survey filed on the lines. This deed and record of survey can be filed concurrently so as to reflect the recording and filing information on the documents.

Notwithstanding the preceding paragraphs, slander of title is a real cause of action. I have been sued for slander of title - which also included me being named as an individual. Fortunately, the survey and subsequent record of survey was without defect.

The attorney gave the opposing side a five second headstart by allowing them to drop the claim under their own volition and simply sign a release, no dice. The attorney then proceeded to beat them about the head and shoulders with an anti-SLAPP motion filed on my behalf. Last I heard, the person that decided to sue me, even after a fair warning, was crying (literally) in court and saying to the court he could not afford to pay the tens of thousands of dollars in attorney's fees awarded in a judgment against him. Although not true, it will certainly hurt to write the check. I predict it too will be tear stained.

Bottom line, Pallamary is right and I find his estimates to be on point. However, a solid survey that can withstand judicial scrutiny, fear not. On the contrary, a negligently prepared survey - lacking or ignoring evidence or foundation - it is best to immediately start the paperwork for a second on the house.

When Pallamary says "...costing both surveyors around $150,000." Based on my experience, I believe he meant each surveyor paid $150,000.

Truth.

DWoolley

DWoolley wrote:Arguably, nearly every time a record of survey is filed, by necessity, it requires showing/establishing/monumenting another person's property without permission and occasionally, under objection and/or protest. I do not believe permission is a requisite. I have had clients demand that a record of survey not be filed. However, I was required by statute to file and did so.

Notwithstanding the preceding paragraph, slander of title is a real cause of action. I have been sued for slander of title - which also included me being named as an individual. Fortunately, the survey and subsequent record of survey was without defect.

The attorney gave the opposing side a five second headstart by allowing them to drop the claim under their own volition, no dice. The attorney then proceeded to beat them about the head and shoulders with a anti-SLAPP motion on my behalf. Last I heard, the person that decided to sue me, even after a fair warning, was crying (literally) in court and saying to the court he could not afford to pay the tens of thousands of dollars in attorney's fees awarded in a judgment against him.

Bottom line, Pallamary is right and I find his estimates to be on point. However, a solid survey that can withstand judicial scrutiny, fear not. On the contrary, a negligently prepared survey - lacking or ignoring evidence or foundation - it is best to immediately start the paperwork for a second on the house.

When Pallamary says "...costing both surveyors around $150,000." Based on my experience, I believe he meant each surveyor paid $150,000.

To answer the original question, a record of survey cannot be used to create line or subdivide privately held property. However, property held by a public entity can be subdivided by a legal description in a deed, no subdivision map required, and a record of survey filed on the lines. This deed and record of survey can be filed concurrently so as to reflect the recording and filing information on the documents.

Truth.

DWoolley

Thank you for clarifying this. My sense was that things go down as you explained the case but I could not follow all of Pallamary's thought process since it was mostly a bunch of random links to case law and legal definitions.

The distinction is important that if your survey and mapping are fundamentally strong then you should have nothing to fear. If you are in the habit of cutting corners then you may encounter a slander of title situation on any project.

The answer to my question above is:

No, if the assertion you make is true then it is not considered slander of title.

I appreciate you sharing your experience as it certainly appears to be an arduous process to prove righteousness and I suppose we should all be wary of this possibility and keep our ducks in order

Mr. Woolley is correct! These guys paid out of their pocket or through their insurance company (which makes it reportable to the board). One guy lost his house. Dave is correct,

A thorough survey goes a long way as a defense. A good attorney, that understands the issues, is very important if you are being sued.

Keep in mind, anyone can make a legal allegation, true or not, and you are required to respond.

DWoolley

Also I added those links if someone wanted to research the cases. I have been too busy to go deep on this topic.

Be careful out there!

Chafer wrote:
Do you file the map?

To the County Surveyors, would you sign a map that had been submitted to you that was requested by someone who has no connection to the property?

Of course, the map must be filed. As the licensed professional you have the statutory obligation.

As to the County Surveyors signing the map, oftentimes working through an agent for the owner the County Surveyor has no way of knowing if there is a connection to the property. I have found myself in a land surveying mess outside of the client's property. Finding a material discrepancy, quiet by accident, I have filed several surveys that technically had no client. In a couple of those cases I used my own name "at the request of..." in the statement.

Another mistake I encounter is land surveyors that survey to a budget. Properly resolving a boundary has nothing to do with the land surveyor's contract or budget. Simply stated, you cannot contract to break the law (think record boundary in connection with a field survey). As often as not, land surveyors charged with negligence offer their contract and/or budget limitations as an affirmative defense. This makes for light work prosecuting a negligence claim. Bottom line, the land surveyor contractually committed to resolving a boundary. The fact a client wasn't willing to pay for a proper job means nothing as to the professional duty. The land surveyor is under no obligation to accept the work. However, upon acceptance she is committed to performing the same job as though there was an unlimited budget. Truth.

DWoolley

However, upon acceptance she is committed to performing the same job as though there was an unlimited budget. Truth.

Partial truth, in my opinion. I contend, for example, that the 8762 material discrepancy trigger isn't pulled upon discovery but rather upon disclosure to a party not under the control of the licensee conducting the survey. Thus a contract can include a provision that unanticipated complications will require renegotiation of the fee or cancellation of the contract, at the option of the client. The client needn't be apprised of the nature of the complications, so disclosure of material discrepancy needn't occur.

I applaud Dave for filling Records of Survey whenever he stumbles upon a material discrepancy, but I've filed enough of them on my own nickel due to naive proposals that I don't care to do so again.

Jim Frame wrote:I contend, for example, that the 8762 material discrepancy trigger isn't pulled upon discovery but rather upon disclosure to a party not under the control of the licensee conducting the survey. Thus a contract can include a provision that unanticipated complications will require renegotiation of the fee or cancellation of the contract, at the option of the client. The client needn't be apprised of the nature of the complications, so disclosure of material discrepancy needn't occur.

Technically, there is no client in the example I provided.

Two questions:

1. Is there citation for the record of survey trigger being "upon disclosure to a party not under control of the licensee..."?

I read Business and Professions Code 8762 (b) et seq. as being exclusive of the conditional triggers for a statutorily required record of survey.

2. In reference to "...contract can include a provision that unanticipated complications will require renegotiation of the fee or cancellation of the contract, at the option of the client."

In the event the client refuses to renegotiate or refuses to pay for the services the discovered material discrepancy remains.

Will you please provide more perspective and/or a citation as to the land surveyor being released from the burden of filing a record of survey?

DWoolley

Will you please provide more perspective and/or a citation as to the land surveyor being released from the burden of filing a record of survey?

Under the scenario I described, the land surveyor never incurred the burden. The premise of §8762(b) is that the requirement to file a ROS is imposed only "after making a field survey in conformity with the practice of land surveying." When is a survey "made"? In my view, it is made when a professional product -- a thing upon which the public has a right to rely upon -- is delivered to a party outside the surveyor's control (i.e. an employee of the surveyor doesn't count). It doesn't have to be a fully-fledged signed-and-sealed map; it could be a phone call in which the surveyor says, "The depth of your lot isn't 100 feet as your deed describes, I found that it's only 98.4 feet." But until that delivery occurs, any material discrepancies encountered during the field work remain latent, known only to the surveyor and his staff, and thus are not sufficiently ripe to trigger a Record of Survey.

IMO, it is not necessary for an owner, or their agent, to be involved at all in a Record of Survey. There is nothing in the law that prevents it.

I was contracted by a jurisdiction to perform a Record of Survey on a citizen's parcel. The jurisdiction and the citizen were already in court over a partial Condemnation on the parcel for street improvements. Due to erstwhile surveys' mistakes (or actually mis-staking, or maybe mis-drafting), there was major disagreement as to the location of the existing right-of-way on the ground.

Although the owner had nothing to do with the RoS, I did take an oath from an agent of the owner who had run out of the house to confront me while doing the field work and placed it on my map.