A new Record of Survey to be considered

[mpallamary]

As most of you know, a Record of Survey does not impart constructive notice. Thus, the most important document we prepare is not a matter of record or notice.

In Massachusetts, they have what is known as a Land Court Survey. In essence, it is a Record of Survey that fixes boundary lines in perpetuity. Think sloppy metes and bounds.

I am not advocating that but instead am advocating that we create a new survey called an OFFICIAL RECORD OF SURVEY. This would be prepared like an ALTA to demanding standards as is done like Massachusetts and it would be recognized as a matter of record and be introduced into the chain of title.

I think it is time that the work of the profession be elevated and our work product be legally recognized.

See:
http://www.mass.gov/courts/courtsandjud ... tion06.pdf

I offer a poll for consideration.

[Dhanrion]

I have not voted yet. I see both yeah and nay for this need.

I guess part of me asks "Why legislate this?", while another part of me agrees that we need to be included in land transaction processes to protect the public.

Realtors and title companies get their "freebies" every time land exchanges hands, and most advise land buyers that they do not need a survey.

Let the daggers fly!

[E_Page]

I haven't read the MA manual yet. Does performing a land court registered survey require an additional certification through the state? Does the surveyor have to somehow demonstrate a higher than basic minimum competence standard for this type of survey?

If so, I can't see much support from within the profession, the CLSA, or BPELSG. Just look at landbutcher's uninformed comments in the CFedS thread. You can bet that you will see many similar from hin=m in this one once he comes across it. I can see resistance from the recorders. I'm not sure how the title companies would react. they might like the additional stability to reduce their risk, but that might be outweighed by the additional responsibility they would have to search additional records that they don't need to search now.

Title companies, real estate agents, and lenders might see this as a step toward mandatory surveys at sale and oppose it as something that would add costs to a land transaction and thereby having a depressing effect on real estate sales.

I'm with Dan. I can see some long term benefits to the public, but can see potential problems if implemented poorly and lots of resistance to just proposing the idea. I'd have to think it through some before I say whether or not I'd support such an idea.

[Jim Frame]

If the idea is to copy the MA system, I believe it's DOA in California. What makes the MA system work (to the extent that it does work; I have no experience with it) isn't so much rigorous surveying requirements, but rather the Land Court itself. Even if a Land Court were the greatest thing since sliced bread, implementing a major new public administrative body in California ain't gonna happen in the foreseeable future given the dearth of public funding and the general distrust of government.

Without the authority of a Land Court to back it up, I don't see any advantage to the creation of a more strictly-specified Record of Survey. We've all seen the volume of tripe that regularly passes for ALTA surveys -- not to mention plain old Records of Survey -- so there's no reason to think that those licensees willing to take liberties with "requirements" would respond any differently to the implementation of an Official Record of Survey.

My pessimistic 2 cents.

.

[LS_8750]

The "Super Record of Survey". Hmm. I'm not against it. I am interested.

History suggests that 8762 was interpreted rather loosely by the old timers. In following the footsteps of my predecessors, I tend to believe that we should not have to file a RoS every time we step foot in the field. The letter of the law says I should file when I go out and find a tag-less pipe when I was looking for a tag on that pipe.. By that definition I am into the (potential) client (or actually myself) somewhere around $500-$800 (depending on the County) just for investigating the potential of a job. Wrong!!!!!!!!!

I am interested in amending 8762 if there is a reasonable distinction Between 8762 and this idea of a Super RoS.

[LS_8750]

Jim is right, yet pessimistic. What about the positives if crafted correctly?

[dmi]

We used to have a torrens system, which is now in the dust bin of history. I see no way to implement and OFFICIAL RECORD OF SURVEY without consent of the owners. Our current Record of Survey is not conclusive on the owners and righfully does not provide constructive notice.

I applaud the thought, but it would take more than surveyors deciding that the Record of Survey ought to provide constructive notice.

[mpallamary]

Let me clarify my suggestion. I am not advocating the land court system. That will never fly in these times. I am using it as an example as to the surveying standards applied to it. Sort of like ALTA standards. There seems to be a never ending litany of complaints about survey procedures and standards and when something should be filed. If the super survey standards were adhered to, can we elevate the status of the ROS?

If you read the standards, this should make sense. It is an enhanced boundary survey. Again, I cite the land court survey standards and not the system.

A Record of Survey does not impart constructive notice and for that matter, neither does a Corner Record. Other than a subdivision or parcel map, nothing the surveyor does imparts constructive notice.

I will post the applicable case.

It is an idea - a start perhaps. If the profession is going to survive, we need to start thinking about these things.

Did you hear the one about the GIS map?????????

[Lee Hixson]

I floated a similar idea in 2005. Got a tepid response. I'm on your side, but feel that it would die a slow death under scrutiny.

[btaylor]

I like the idea, but am ambivalent in the way it is being presented. I think something more in line with an ROS on a disputed line that both owners sign as being representative of a boundary to adhere to is more what I am thinking.

I am resolving a line now in an area that has a lack of agreement among surveyors, and it seems like we have to take some steps that would be nicer to resolve with a "Super ROS" map that has a line that is mapped and can be referenced on future transfers. As of now there are competing ROS maps and we are dealing with quitclaims and the like. The attorneys want to do a "lot line adjustment" since by default that is, in their minds, their version of a "Super ROS".

[dmi]

Thanks for posting this thread, the land court pdf is terrific

[land butcher]

Did not read the MA thing.

Not sure about this.
Will it become another CFeDS thing (Evan care to elaborate on you statement about me)
Time. ALTAs are ALWAYS time sensitive and if it is a ROS then some govt super surveyor will have to approve the RS and how long does that take, 3mos, 6 mos. Most escrows are 90 days or less.
Cost. Born by the buyer or seller. Sellers just got hit with a 3.8% tax on the sale of houses over the $250k/$500k exemption. As it is now sellers pay ~10% of the sales price in taxes/fees.

[E_Page]

LB,

I think that Mr. Tatman pointed out your misinformed statements effectively in the CFedS thread.

It's merely a certification for the surveying of Federal lands. It has nothing to do with state licensing or surveying under the authority of the state license.

LSITs will not be able to claim certification. Even if they pass the CFedS training with flying colors, they don't get the certification until they also earn their license.

The training was put together to address the widespread problem of surveyors being hired to survey federal indian trust lands by poorly trained surveyors hired by the BIA. These surveyors passed themselves off as knowledgeable abour surveying in the PLSS, but really screwed things up through their ignorance.

Most of the complaints were coming from other private sector surveyors who came later to survey lands adjacent to federal indian trust lands.

So like I said, your comments in the CFedS thread are simply uninformed.

[land butcher]

Still boils down to the govt not doing it's job and now a outrageously expensive piece of paper is required for Licensed Surveyors to bid that work.

Rule #1 - follow the money.

[Jay Wright]

1. If the goal is to impart constructive notice, can't we just amend the required particlulars of the ROS/CR to include notifying neighbors within a specified radius of the site with copies of the ROS/CR?
Done by whom and when are negotiable.


2. Can't be the real Massachusetts Land Court manual, doesn't say anything about the Sox. {Good resource, Thank you}

[mpallamary]

You cannot retroactively reclassify old Record of Survey Maps and Corner Records. My intent is intended to cover situations where the surveyor uncovers evidence that elevates the importance of the survey in that he or she determines that it could affect title or ownership. Those standards would be set by procedures and rules like the Land Court. If certain things are found, you have the second option. Anyone interested in constructive notice, please consider reviewing the attached cases.

Once again, no matter how valuable you think the results of your survey are, the filing of an ROS does not impart constructive notice.

[pls7809]

What about recording an affidavit with the RS attached? There was a speaker, Knud Hermanson, or something like that, at one of the CLSA conferences. He works back east in some states that don't have mandatory recording. He would do his survey and then record an affidavit and attach the survey report and map to the affidavit. The affidavit would name the owners name and the APN and the recording info of the parcel being surveyed, which then the document would be picked up in a title search. I'm not sure that counts as constructive notice though.

[mpallamary]

One thing that seems to surface in this stream but not adequately considered is the Doctrine of Agreed Boundaries. That exists and can be used whenever it arises and that does not involve government approval or action.

Dave Woolley and others have well pointed out the potential problems in not showing enough information on a ROS map. He is correct. I have added more information when I am trying to document an adverse claim that might rise to adverse possession or a prescriptive right.

The trick is to make sure the results are treated as constructive notice under California law. Check out the cases as they are instructive.

Time permitting, I will expound on these. My first objective was to generate dialogue.

[bruce hall]

now, the vote is 5 for and 6 against. that seems like more than an adequate sample ;) .

[dmi]

"I think it is time that the work of the profession be elevated and our work product be legally recognized."

Hey I am a big fan. Now here it comes BUT...

I am for elevating the work of the profession. Our work product is legally recognized,already, and sometimes with unfortunate outcomes.

This is a big bite to bite off and chew. I think it would be great if Records of surveys imparted constructive notice.

Implementation is the problem. I am not convinced that codifying a minimum standard of care does much of anything to either elevate the profession or place records in the official record.

We could propose changes in legislation to address agreed boundaries with some type of survey product, probably some provision under the subdivision map act, as in a special parcel map or final map.

[RAM]

my take is 66467 does not apply. This is a provision to allow filing a FM for those situations under 66428. It the case above, there is no subdivision.

[E_Page]

RAM, There is nothing in the law that I'm aware of preventing a 1-lot subdivision, as long as the local agency is willing to accept that a parcel can be divided by 1, and does not need to be divided into 2 or more parcels.


In El Dorado County, the subdivision resulting in 1 parcel has been accepted several times. That accomplishes getting the survey into a record that constitutes constructive notice, but unlike the MA Land Court survey, does not make the exterior boundary conclulsive on the owner and all adjoiners.

After 5 years, it probably would satisfy the "open and notorious" element of the repose statutes, whether or not the opposing landowner claims to not have had actual notice. I gotta think about and research that one though.

Filing it as a 1 parcel PM would also ensure that it shows up in future title reports. The downside is that in some local jurisdictions, it might open up what is just a boundary survey to all the reviews and potential conditions a local govt might place on an actual division of land.

Also in El Dorado County, surveyors (and others who are in favor of private property rights) have been fortunate that Jack Sweeney (Dallas' dad) has been on the County BOS for many years and has had a positive inflluence on the planning/bldg svcs department. That influence has helped to rein in some (not all) of the unreasonable conditions, fees and reviews that might have otherwise been imposed.


Off on a tangent! Where was I?

Most of the discussion of CA's recording laws/requirements that I've found in law articles and discussion has been in reference to conveyance documents. That is why subdivision maps constitute constructive notice - they provide the basis for descriptions in deeds and so are the basis for conveyance. In CA, the lots are considered to have been created at the instant the map is filed, thus changing the nature of the title (subdivider owns many parcels where the instant before, he owned one, or perhaps just differently defined ones if map represents a resubdivision).

A RS does not in itself change the nature of the title of its subject parcels. It is not a device used to create parcels. A RS only gets to sometimes piggyback on a deed for constructive notice when it is specifically called for in the deed (and thereby made a part of the deed as if printed on the face of the deed itself). This is true whether used to reflect a LLA, in which portions of parcels are conveyed, or in examples where the RS was historically used in place of a PM (or for similar purpose before the PM was created in CA as a map form). In those cases, the map is a reference and it is the deeds that refer to the map that actually create or reform (as in a LLA) the parcels.

A RS cannot settle a disputed boundary. A BLA or a judgment referring to a RS can settle a boundary, making the survey a physical establishment of the true boundary and the RS a reflection of it. But it is the deed or ruling that is the document of primary constructive notice. again, the RS is just along for the ride, being carried by the other document.

Because of the potential effect on title that a document imparting constructive notice has, I don't see a workable constructive notice RS without a Land Court system, and I don't see that happening in CA during any of our lifetimes.

[Dave Karoly, PLS]

Simply instituting a super Record of Survey will not impart constructive notice without the property owners being involved.

Record of Surveys don't impart constructive notice unless they get into the chain of title and the only way to do that is to get the property owners to somehow sign/notarize.

[Dave Karoly, PLS]

I talked to a property owner this week. I needed a quarter section corner which is on his side of the fence and he let me get it from his side which was certainly more convenient for me. I know we have the Right of Entry but it's a lot easier if the property owners simply cooperate without having to hammer them with legalese.

Aside-it is difficult to explain to someone that they just happen to have a corner on their property line which just happens to control boundaries for at least a mile around.

He said to me, "I don't like Surveyors and Surveys!"

Don't get me wrong, he is a friendly person just telling it like it is and I can take it.

"Oh really, why is that?"

"Everyone out here is just living their life and then some surveyor comes along and says the boundary is through a garage or the fences are off."

He didn't say anything about our positional tolerances.

We are a people profession mostly populated with introverted, technically oriented professionals.

[E_Page]

I think that part of what Michael was suggesting is that an RS for constructive notice also have a statutorily elevated standard of practice associated with it that ensures that the surveyor's opinion reflected in it adheres closely to practices and principles which have been defined or endorsed by the courts.

As it is now, there are a significant number of surveyors that don't establish boundaries according to principles that would hold up at the appellate level. A more specific codified standard might eliminate some of that incorrect practice.

I don't really see that effectively happening without oversight from a body like a Land Court. Just look at the ALTA/ACSM standards and some of the maps & surveys that are passed off as having met that standard.