A 74Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE
In the first two installments of this series, we looked at the background of the problem that boundary surveyors face and, more often than not, propagate. That misfortune is this: the irony of surveyors (1) ostensibly doing their job by retracing record descriptions and yet, in the process, (2) leaving clients and their adjoiners–if not entire neighborhoods–in confusion and despair, if not litigation.
Interestingly, the way out of this conundrum is the same whether surveyors arrive at their boundary solutions by the unfortunate practice of "fence line" surveying, by the equally egregious practice of mathematical "deed-staking," or by properly applying the applicable boundary law principles based on a thorough analysis of the facts and evidence.
Of course, we always hope and trust that surveyors resolve boundaries in consideration of proper training and experience, the local standard of care exercised by the prudent surveyor in the same circumstance, and any written standards that the jurisdiction has adopted, but the solution works regardless of the means that the surveyor employed.
The answer ties directly into the fact that only the two affected owners can resolve a boundary or title problem. And they have two choices: agreement or litigation. Hopefully, no one would suggest that litigation is the more desirable of the two, although if one or both of the affected landowners cannot, or will not, compromise, they will likely be destined for court.
Of course, sometimes the surveyor has been drawn into a situation by an owner or attorney long after the dye to a dispute has been cast, in which case, it is likely too late to foster an agreement (although there is nothing to prevent that discussion with the attorney and owner). Also, if the boundary is part of an ALTA/ACSM Land Title Survey, there will be a title company and normally several attorneys who merely need the surveyor to clearly present the facts so they can determine the means they deem most appropriate to get the transaction closed.
Otherwise, when the surveyor is "first on the scene" why provoke owners by setting corners and drawing plats/maps/plans that show lines and corners contrary to what appear to be long-standing and/or accepted boundaries? By stopping short of setting the corners, the chances for a successful agreement will be tremendously increased.
One might ask though, "What about my state standards which require setting of corners?" Remember, if there is a boundary or title conflict (and corners set contrary to established lines of possession certainly carry with them the beginnings of a contentious title problem or boundary dispute) the only people who can resolve it are the two owners. Setting a corner when it conflicts with possession will take the hidden, make it blatantly obvious, and sow the seeds of a dispute.
So, rather than merely set the corners and figuratively walk away, the surveyor should recognize the desirability of engaging the two affected owners in a conversation about the situation on the ground, what the records say, and the fact that only they can resolve the issue. The conversation should include the possibilities–agreement or litigation–and the potentialities. In order to have a chance at successfully leading owners to agreement rather than litigation, surveyors need a number of tools.
The first is a contract that spells out what the surveyor will do: retrace the boundary to a final resolution unless a title or boundary problem is revealed, in which case, the contract is fulfilled, pending resolution of the problem. The surveyor could then use a second contract under which he or she would work with the affected parties to try to help them come to agreement. If agreement is reached, the third step would be to undertake an engagement to write the descriptions and prepare the necessary plats, maps or plans to bring that agreement to fruition.
Of course, different jurisdictions have different requirements, of which the surveyor must be fully informed. Some will allow the simple exchange of deeds, while others may require a survey, lot line adjustment, administrative plat or resubdivision, etc. Also, surveyors must make it very clear that they cannot offer legal advice and that, at some point, it will likely be desirable, if not necessary, to bring the owner’s attorneys to the table to address the legal necessities (i.e., mortgages, title insurance, taxes, judgments, exchange of consideration, and preparation of any legal documents if the owners are unable or unwilling).
The second tool surveyors will require is twofold: (1) an interest in, and the ability to, engage with the owners on this sort of level, and (2) the training to facilitate an effective agreement. The former is contrary to the nature of most surveyors and will therefore take some practice to overcome. The latter can be gained through attending a course on alternative dispute resolution (there are many sources of such training), and anyone interested in becoming, for example, a mediator, should also review their state’s related rules and laws.
Lastly, surveyors need to be very wellversed in the legal aspects of boundaries and unwritten rights. While they cannot give legal advice, they should understand the requirements of each type of unwritten right for their state (e.g., adverse possession, [recognition and] acquiescence, parol agreements, estoppel, and, in some states, common grantor doctrine and practical location, etc.). This knowledge will greatly assist them as they try to guide the owners to an agreement.
To summarize, we are not talking about surveyors retracing boundaries based on unwritten rights (which they do not have the authority to do), forcing owners into ill-advised agreements, or hiding the facts from them. What we are talking about is surveyors recognizing conflicts or potential conflicts early on, not unnecessarily and prematurely finalizing surveys and setting points that exacerbate those problems, and encouraging surveyors to work with the only people that can actually solve the problems–the affected owners.
Let’s be the facilitator to solutions to the problems we find. As has been said many times, if all we find are problems, and if we offer no solutions, perhaps we are the problem!
Gary Kent is Director, Integrated Services at The Schneider Corporation in Indianapolis. He is past-president of ACSM and chairs the ALTA/ACSM Committee for NSPS and the Liaison Committee for ALTA. He is on the Indiana Board of Registration and lectures both locally and nationally.
A 74Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE