NEW OWNER ASKING FOR OLD TOPO

[sako]

I have prepared a topo map 2 years ago, now the new owner who cannot find the prior owner is asking me for copies of the topo. What should I do in this situation? He is planning to build a new house.

[Ian Wilson]

Any changes?

Have you, will you or do you plan to add value?

Are you certifying your survey to someone new?

If so charge appropriately.

If not, I'd just charge for time & costs to plot new prints.

.

[sako]

Ian,
The answer to the first 2 questions is No, but this is a new owner asking for the topo. I don't want to be unfair. I want to offer him a break on a bid for construction staking.

[bruce hall]

the map with a fee for my time to find the file, print it out and get it to him.
$40, $75, $100, $200, whatever I think my time is worth that particular day.

I have even sent stuff out like this no charge, but that may not be the best business practice. It might be, if I got more work from the non billable gesture. But that rarely, rarely happens.

[dmi]

What type of agreement do you have with the previous owner. If you use the standard CLSA agreement, then you can make whatever arrangement you want with the new owner. You own the copyright.

Everytime they come out with new music data, if I want to buy the Beatles' White album to play on the new device, I get charged full freight.... image the nerve of that....

[JasonCamit]

Does your topo show boundary lines? Also, if he is going to use this for future design or construction, what type of liability will you open yourself up to? A nice gesture could open liability.

[sako]

Dane,
I use my simple one page contract which complies with LS act.

JasonComit,
Yes, it shows the boundary and the intend is to use it for design of a new house.

[JasonCamit]

Most building inspectors require the monuments be present to establish the setback lines, unless it is a 20 acre parcel and the new house is in the middle of the parcel. Are the monuments present and is the boundary fully rectified? If you do not get the contruction staking, the new surveyor will be using your data to stake the new house. I would make sure your contract has verbage that will protect you from any future issues that could possibly happen due to the fact that your survey shows boundary. If the boundary is fully rectified it may be good to file a Corner Record and/or Record of Survey, which ever applies.

[dmi]

Alot of folks do that, and it makes very good sense for small one of jobs. 8-9 pages can be daunting for a potential client that just wants to build a fence.
The advantage of the longer contract is that it gives you and the client a chance to come to agreement on issues, such as WHO owns your work product. If memory serves, the contract requirements of the PLS act are designed to protect the public on most issues, but ownership of work product is not covered. Folks generally think that if they paid your services that they own the work produce and can do with it as THEY chose. Without specific terms you may be stuck charging a reasonable fee for copying and postage.

Musings of a non-attorney,non-spokesperson.

[sako]

Dane,
8-9 pages? I still have an old pad of CLSA contract. It has 3 pages and an extra page as "Exhibit A". Did the contract form change?

[dmi]

I have the old pad around here somewhere, but to be fair it is 2 columns of small type, front and back for several pages.... alot longer than a single sheet....

[Greg Ippolito]

I personally would put a note on the map stating if the site was or was not checked for changed conditions or if a current title report was reviewed. I have seen on more than one occasion where a client has said that “nothing changedâ€￾ and after a site visit finding new improvements, grading, easements etc.. A lot can happen in two years.

[E_Page]

I agree with those who say charge a reasonable fee to cover your time and make copies, or if you are likely to get subsequent work, consider providing it as a courtesy. I also agree that a note be added to the copy stating that the drawing was provided for the requester's reference and that you were not authorized to perform any additional work to verify the conditions depicted, and consequently, make no representation that current site conditions are as reflected on the map.

If an electronic version is requested, that ups the ante from providing reference material to providing something which has no other purpose than to provide a design base. When requested to provide electronic info, in addition to the foregoing, I insist that an electronic file release be signed. I would also strongly advise that an update be performed.

In most cases, I probably wouldn't refuse to provide the drawing - depends on the circumstances. And since, in this case, it wouldn't be surveying services being provided, but only work product based upon services provided at some point in the past, I don't see the need for the same contract as for services. But a signed agreement in which the person receiving the info acknowledges the limitations under which the info is provided would be a must.


A word on the CLSA contract. It is designed to cover most contingencies for a variety of project types that a surveyor may engage in. It covers a lot of legal boilerplate that many practitioners either would not consider, or upon considering, may not care about (until thy end up on the short end of an issue covered by one of those clauses). In its form from CLSA, it fills a legal size sheet, front and back of small print. On letter size sheets, it fills 3 pages.

I used the CLSA with a few modifications as my standard contract. I don't doubt that I lost some projects because a potential client looked at my contract and felt a little overwhelmed, and subsequently going with the guy whose contract looked something like this:

I, surveyor, will provide you, client, with a survey of a 5 acre parcel known as 123 Oak Knob Lane.

You, client, will pay me $800 upon completion of said survey.

Sign Here:________________



(of course, the "professional" using such an abbreviated contract, or none at all, is also likely to have beaten me substantially on price as well)


Realizing this, I still felt more comfortable having those boiler plate clauses in place. As has been pointed out, the provisions outlined in §8759 are for protection of the client. It is up to the professional to ensure that his/her interests are also protected. I'm sure that in most cases, a shorter form of contract could sufficiently cover the interests of both.

[dmi]

The common wisdom is, that if you have done the survey once, then it is not fair to get paid again for the work already done. I say(knowing that Iam in the minority) Au contair mon ami. I am not asking to be paid twice for the fact that I strugggled up and down some steep hillside through blackberry brambles under 106 degree temps. I suggest that the map created from that expenditure of physicsal labor IS intellectual property(work product). Intellectual property was value in and of itself. I do not sell me climbing up and down and taking topo shots. I sell intellectual property. There terms of
that sale is that I give the client the right to use that property for a specific purpose. I am not selling ownership of my work product. I retain ownership of the intellectual property. So, if someone other than the original owner wants to use the product, the question I have to consider is what is the value of the work product?

The Beatles were only in the studio for the sessions they needed to record the "White Album", yet every copy of the record sold, is sold without consideration for the labor needed to product that record in the first place. It is sold on the basis of the value of the content. Maps have value apart from the labor it took to create them.

[E_Page]

Dane,

I understand and certainly cannot argue with your logic, but was also thinking of the PR and potential for future work. I was also considering liability. If you were to charge a full professional fee for providing a copy of an old map, it may be perceived that you are implying, by your fee, that you are providing a document which may be relied upon.

The implication in this discussion, and what I suspect you would do for that fee, is to do enough work to properly update the map or to ensure that it still accurately reflects site conditions. In other words, no update authorized, no map provided. Am I understanding correctly?

[sako]

The common wisdom is, that if you have done the survey once, then it is not fair to get paid again for the work already done. I say(knowing that Iam in the minority) Au contair mon ami. I am not asking to be paid twice for the fact that I strugggled up and down some steep hillside through blackberry brambles under 106 degree temps. I suggest that the map created from that expenditure of physicsal labor IS intellectual property(work product). Intellectual property was value in and of itself. I do not sell me climbing up and down and taking topo shots. I sell intellectual property. There terms of
that sale is that I give the client the right to use that property for a specific purpose. I am not selling ownership of my work product. I retain ownership of the intellectual property. So, if someone other than the original owner wants to use the product, the question I have to consider is what is the value of the work product?

The Beatles were only in the studio for the sessions they needed to record the "White Album", yet every copy of the record sold, is sold without consideration for the labor needed to product that record in the first place. It is sold on the basis of the value of the content. Maps have value apart from the labor it took to create them.

Dane,
I agree with you. This is exactly what I think of my survey as a product. The ownership has changed. I have no contract with the new owner, why should I sell my topo for $50. I asked him to pay less than half of what previous owner paid 2 years ago, thanks to our present economy.
I know my topo will be used for design, which means new liability for me and should be appropriately compensated.

[Ian Wilson]

Evan:

Another point of view is that the liability I obtain from handing over a copy of the map is just as real and extensive as if I prepared a new survey.

I really can't see a judge looking at the recipient of a copy of a map and telling them that the award will be MUCH less because it's just a copy of a map.

.

[E_Page]

Ian,

That's why I would insist on an agreement of acceptance of the map, as I explained in one of my previous posts, wherein the recipient acknowledges the limitations of the map.

Courts have already held that the liability attached to our maps is not limited to the client due to privity of contract, but extends to anyone who could reasonably rely on the map. Successors in title are squarely in that group.

Those court cases have generally been based upon boundary maps, but could also be applied, to some extent, to topos. If the new landowner had obtained a copy of the topo from the previous owner, developer, or realtor, and the map no longer correctly represented the site, it's likely a court would have considered it prudent of the new owner to have sought an update.

If the new owner goes to the professional surveyor seeking a copy of the map, and the surveyor provides a copy without qualification, I fully agree with you. A court would likely rule that a reasonable person could view that as the PLS affirming the reliability of the map.

If the map has a note added warning that it is not based upon updated information and may no longer accurately depict current site conditions, and if the surveyor has an agreement acknowledging these limitations and signed by the recipient in his files, I can't see a court holding that a reasonable person could expect to assume the map to be fully reliable. I believe that the surveyor would have sufficiently limited his/her liability.

If the PLS is going to recertify the map by signing and redating, and without qualification, then he had better update the research and fieldwork. In such a case, a normal fee reflecting the full value of the service is in order. This, of course is the best way to go.

If the surveyor is not going to update the work, then he is not adding sufficient value to the map to ensure its reliability, and potentially providing a worthless document (at least in terms of basing design or other development activities upon it). I don't think that warrants a full professional fee. Nor do I think it proper to provide such a map without qualification.

IMO, providing the map, not updated but with qualification that it may no longer be accurate, and charging no more than what is necessary to locate the drawing within your files, copy it and send it, may be proper. Charging more without adding the value of updated info, again IMO, would not be proper.

[LS_8750]

except that the parcel is for sale and the current owner owes me money.

The call came from a real estate company (crooks pettling mountain parcels with cost prohibitive buildability) asking for maps we may have produced; this company sold the current owners the parcel as well.

In fact we did extensive topo work and engineering work for the current owners who later discovered they could not afford to build on the land because they would need to improve 3 miles of road in order for CDF to approve their permit application.

I advised them, as their consulting engineer, of the CDF ingress/egress requirements related to this scenario from the beginning, even before the beginning, but apparently they did not want to believe me.

I don't think the client disliked us or our services, they just got tired of paying us, being denied their permit application, and realizing they were not going to be able to build at all.

It is a sad tale, but I will withold all of our work until I get paid. Then we can discuss the use of our maps.

We own our work. Period. Fair is fair.

[E_Page]

Why not file a lien in that case?

[LS_8750]

Well Evan, that brings up another post which I will follow up with shortly.

[Anthony Maffia]

A trick for limiting the liability for topos, that I learned from someone else, is to state as my first note the date(s) of the field survey, and that "this survey represents the conditions of the site on that (those) date(s)." A similar note listing the title report and its effective date.

A future owner who asks us to change those dates, will require a site visit at minimum, and a new title report be provided.

====================

A topo in Petaluma showed trees along a boundary line, iirc size & locations at breast height. Ten years later, the property owner cut them down, but it turned out he didn't own them. :(

The neighbor sued, the owner sued the surveyor, E&O covered, then sued the surveyor for negligence.

The survey was 10 years old, and not for "development purposes."

Liability can live on forever. :(

[sako]

Anthony,
Would the surveyor in your case be not liable for the boundary location of the topo had he added this note?
"THIS IS A TOPOGRAPHIC MAP, NOT A BOUNDARY SURVEY. LINES SHOWN ARE
DERIVED FROM RECORD DATA AND MAY VARY SOMEWHAT FROM ABSOLUTE
BOUNDARY LOCATION".

[Anthony Maffia]

His boundary and topo were fine. IIRC, the problem was ownership of trees is determined at ground level, not at breast height.

As for that note, I've known surveyors to use it, and it may convey a message to client which may discourage them from litigating. However, I don't think it limits a surveyor's liability at all, and would not stand up in court.

[E_Page]

If the note is fairly prominent, I don't know why it would not serve to protect the surveyor from liability in keeping with the note.

I have made it a practice to place such notes on topos for many years if the surveying did not include a full boundary resolution. Although the signature date or drawing date is a de facto date of the survey, and it is commonly understood that the map does not purport to reflect any changes to conditions which may have occurred after that date, I will include a note of the dates of fieldwork in any certification or Surveyor's Statement that I place on the drawing if either 1) there is a likelihood that conditions may have changed between the date of fieldwork and date of signing the map (e.g. - active construction happening on or near the site), or 2) for some reason, there was a significant delay between the date of fieldwork and the signature date (e.g. - client considers changing scope, adding area, etc. or delays making agreed progress payments on the project).

I'm surprised how few surveyors use notes to explain any limitations of the work product or peculiarities about the site. So many show topo and a boundary, yet have no further notes other than perhaps a benchmark identifier and perhaps a statement that "This map was prepared by me or under my direction". I've seen many supposedly final products (topo map) that even lack a surveyors stamp and signature.



What was the topic of this thread again?