survey of lease area

[MikeTurnrose]

I got a request from a potential client for a quote to survey a lease area for fencing purposes. The lease was recorded at the County. The doc. refers to an exhibit map that has specific dimensions (bearings and distances). The doc. does not contain a legal description of the area. Would surveying this and doing an ROS based upon the doc. with the exhibit be legal? Apparently, the owner(s) don't want to do a LLA or an easement. Thanks.

[land butcher]

Interesting, but since lease lines are not really property lines I don't see where surveying it would require filing a RS or CR.

[MikeTurnrose]

The exhibit map ties the lease area to existing property lines, so I think an ROS would be required.

[RAM]

just for discussion what about SMA 66424. Does it apply? Why or Why not?

[Ian Wilson]

Is the fencing for agricultural or commercial reasons?

See SMA §66412(l) for the former and §66412.1(a) & (b) for the later.

[MikeTurnrose]

I'll take a look at those code sections. The lease was part of a lawsuit settlement between the adjacent property owner and the previous owner. The lease area is for commercial use for the adjacent property owner.

[pls7809]

PLS Act 8762 (b)(5) The points or lines set during the performance of a field survey of any parcel described in any deed or other instrument of title recorded in the county recorder’s office are not shown on any subdivision map, official map, or record of survey.

Would not a lease be an "other instrument of title recorded..."?

I agree an RS will be required, unless the SMA requires a map be filed.

[MikeTurnrose]

Ryan, that's pretty much what I was thinking. However, I was concerned that the doc. did not contain a metes and bounds description, but since there is an exhibit that is referred to, I think it's legal.

[pls7809]

Mike,

My post was towards those that don't think lease surveys require RS's. I'm not sure if BPELSG would share that opinion or not, since there is a letter from the Board that easements don't require RS's.

That's where I lean though.

[E_Page]

If the lease refers to the exhibit drawing for the configuration of the lease, the exhibit drawing is the description. Just as a conveyance may refer to "Lot XX of Easy Acres Estates, as filed in Book YY of Maps at Page ZZ" is a word reference to the map for the particulars of the configuration and location of Lot XX. A description does not need to include dimensions to be a description. Nor does it need to be complete as to all details within the words of the description. It can refer to one or several other documents or maps, thereby fully incorporating all of the details described or shown in those documents or on those maps.

You are correct, Mike that the requirements of §8762 are not limited to those surveys of lines & points relative to a fee conveyance. They apply to any "field survey [made] in conformity with the practice of land surveying".

§8726(c) defines (in part) the practice of surveying as: "Locates, relocates, establishes, reestablishes, or retraces any property line or boundary of any parcel of land, right-of-way, easement, or alignment of those lines or boundaries."

If a lease parcel is a parcel of land (as opposed to airspace, water space, interior building space, etc.), then it falls within the practice of land surveying per §8726(c), and a survey of it is therefore subject to the provisions of §8762.

[Jim Frame]

I tend to believe the survey of a lease is very much like the survey of an easement, in that the current stance is along the lines of the opinion Mr. Duke provided the Board dated 1/16/98. In other words, interests in property are not equivalent to ownership lines in regards to mandatory filing requirements.

This is consistent with a statement provided to me by Howard Brunner in the mid-90s.

.

[E_Page]

Evan,

I tend to think you're cherry picking in trying to make a point, but in doing so omitted some very important items:

I didn't intend to cherry pick at all, and don't see that I did in the way you suggest.

As you point out, the identical language "after making a field survey in conformity with the practice of land surveying" is present in both 8762(a) and 8762(b). Whether a RS is required or permissive then depends upon whether or not one or more of the triggers enumerated under 8762(b) is encountered.

I understand Mr. Duke's assertion regarding the sequence and timing of the amendments to 8726 and lack of any corresponding amendment to 8762. I freely acknowledge that I am not an attorney and that Mr. Duke has a greater knowledge of legal practice than I do, but that does not mean that I can't recognize flaws in the logic of arguments, legal or otherwise.

The flaw in Mr. Duke's opinion is that he presumes that the legislature overlooked making a corresponding exemption from the requirements of mandatory filing under 8762(b) and has continued that oversight for 72 years. He presumes that had they fully considered other affected sections when they amended 8726 back in 1941, that they would have exempted easements (and apparently leases as well) as being among those parcels of land referred to in 8726. And yet he also states that the permissive filing under 8762(a) is applicable to easements.

Well, gee, I can't find the difference in the language of 8762(a) that is inclusive of easements (and leases) from that of 8762(b) which is supposedly exclusive of easements (and leases). If the argument that the reference in 8762(b) to a field survey in conformity with the practice of surveying is insufficient to include all those things that are included in the definition of the practice of surveying under 8726, then logical consistency demands that the same language be interpreted the same way in 8762(a). That would mean that not only are you not required to file a RS for a survey encountering one of the 5 triggers under 8762(b), but you are not even permitted to file a RS after a field survey if that survey is of an easement (or lease) parcel.

You are free to correct me if I have a flaw in my logic, but the rules for interpreting statutes are the same ones used for interpreting other written instruments. Evidence Code §1858 states "In the construction of a statute or instrument, the office of the judge is simply to ascertain and declare what is in the terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there is several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all."

If a judge is restricted from inserting what has been omitted, or omitting what has been inserted, then Mr. Duke presumably would not have the freedom to do so. But that is exactly what he has done. Although both provisions refer to "the practice of surveying", which is defined by 8726, Gary seeks to omit easements (and leases) from the general reference contained in 8762(b) while not omitting it from 8762(a).

Some of the basic rules of construction are given in the first sections of the Evidence Code. §6 says this "Whenever any reference is made to any portion of this code or of any other statute, such reference shall apply to all amendments and additions heretofore or hereafter made."

If you look to Deering's Annotated Codes on the subject, you will find several cases about statute incorporating other statute by reference. At first it might appear confusing and that the courts are all over tha map on this subject - it includes reference including subsequent amendments - it includes only provisions of the statute as it existed when the referencing statute was first enacted - flip a coin!

If you look closer, you see that the courts have actually been quite consistent. If the statute makes reference to a very specific section, then the reference is considered to be to the statute section as it existed when the reference was made because it is presumed that the legislature intended the very specific provisions included by reference to be pertinent. If the reference is more general, then it is deemed to be inclusive of all subsequent amendments because the legislature would have presumed that a body of law will be amended from time to time.

The court in People v Hernandez, 30 Cal 4th 602 (2003), quoting the court in Palermo v Stockton Theatres, 32 C 2d 53 (1948), said this: '[W]here a reference to another law is specific, the reference is to that law as it then existed and not as subsequently modified, but where the reference is general... 'the reference is to the law as it may be changed from time to time.'"

So if the reference in 8762 read something like "... after a field survey of any property line or boundary of a parcel of land...", using identical language to that of 8726 as it existed in 1940, or "... after a field survey in conformity with the practice of surveying as provided in §8726(c) [or whatever the specific subsection was prior to 1941]...", then 8762 would be interpreted as referring to 8726(c) as it existed when 8762 was enacted.

But since the reference is more generally to "... a field survey in conformity with the practice of surveying...", the intent of the legislature would be interpreted with respect to 8762 that it update along with the definition of what constitutes the practice of surveying as that practice is legislatively updated from time to time.

Consistent. Simple.

I understand that BPELSG holds the view provided by the DCA's in-house counsel. But I also recognize that they have to make some logical twists that don't fit neatly within law to explain the application they are choosing to hold to. In short, I think Mr. Duke has it wrong and that BPELSG is following errant advice on the matter.

There are arguments to be made on either side of the matter of whether easements and lease parcels should be subject to 8762. But the Board should not come to or hold interpretations of law based upon what they want the correct interpretation to be, but do so according to interpretations made by the rules that the legislature has set (and the courts have consistently applied).

If BPELSG, or some other interested party or parties wish for the requirement portion of 8762 to not apply to specific surveys made in conformity with the practice of surveying, but for the permissive portion to still apply, the solution is obvious. Propose legislation to add an enumerated exemption to the RS requirements under 8765 and find an assemblyman or senator to sponsor the bill. That would clear legislative intent right up.

[E_Page]

Further, on title interests, ownership, etc.

When a person holds a fee title interest in land, in common parlance we might typically say that person owns the land described. But that's not actually the case.

What the person owns is an exclusive possessory interest in the land, a title interest. Granted, a greater title interest than a title interest that is for an easement right or a leasehold, but still merely another form of title right or interest.

If the easement right or leasehold interest is over a locatable portion of ground, it is still a parcel of land. The only difference is the level of title right or interest associated with the particular parcel.

If you are going to say that "A parcel associated with this type of title interest is really a parcel, but a parcel associated with that type of title interest in not really a parcel", at what level of title interest are you going to draw the line? What criteria are you going to use?

What about a mining claim? Many include fee to the surface along with the minerals beneath, but many do not, giving title right to mineral extraction only to a plane of certain thickness intersecting the ground surface at a certain location and at a certain vertical angle. Looking at the plan view, many valid mineral claims will appear to overlap. Is a mineral claim parcel actually a parcel?

You might answer that since the owner owns the fee, especially if that includes the surface fee and no one else owns the underlying fee, then it's a parcel.

OK, then what about a life estate, or an estate for years? After the death of the life estate holder, or after the term of the estate for years, the fee reverts back to the party that had title prior to the grant of the estate. But for the term of the conveyance (life or set number of years), the person holding that title has a fee interest, yes? But if the fee reverts, is it a "true" fee interest and is it really a parcel?

If a shopping center exists as one fee parcel, and Home Depot leases the north end, Safeway leases the south end, and Barnes & Noble leases the middle, and each lease remains intact (either periodically renewed or originally long term) and unchanged for 40 years (nevermind that B&N might fold in the next couple of years - insert some other business that is likely to be around long term), don't those parcels enjoy similar stability as fee parcels? If each leaseholder has control over the buildings and grounds immediately surrounding and of the parking area within the lease parcel, don't they exercise similar control of the lease parcel as a fee holder does of his/her fee parcel? Can't the leaseholder or the underlying fee holder request that the boundaries of the lease parcels be monumented? In what respect are these parcels not parcels?

Aren't the monuments set for the lease parcel boundaries of similar value to the public as are the monuments of individual lots within a subdivision of fee parcels? What is much of the monumentation of the fee perimeter is destroyed by construction activities of the surrounding streets? Might the record locations of the lease parcel monuments be of value in restoring the locations of the perimeter monuments? If they are of similar value as would be the monuments of parcels in a subdivision of fee parcels, why wouldn't the same public interest apply to lease parcel monumentation and information?

Doesn't the SMA, acknowledging the exceptions described in §66412 apply to subdivisions creating parcels for sale or lease?

If the legislature equates the importance of records for surveys by which lease parcels are created to records for surveys by which fee parcels are created in the SMA, and they specifically included lease parcels in the same subsection defining the practice of surveying in the PLSA, what line of logic supports the notion that they believe lease parcels to be of lesser importance in one of two nearly identical subsections of another section of the PLSA?

Similarly, if the locating easements is considered to be part of the practice of land surveying according to the very same subsection that defines locating property lines as being part of the practice of land surveying, what line of logic supports the idea that the legislature intended the locating of easements to not be part of the practice of surveying referred to in 8762? Lacking a specific expressed intent by the legislature to that effect, I fail to follow that logic.


The legislature hasn't defined the point at which a parcel ceases to really be a parcel. Lacking any clear delineation from the legislature on that particular point, we can only look to what they have provided for in the law they did create.

[Jim Frame]

Evan's points are -- to the extent that I read them closely enough to absorb them -- well taken. However, my license is regulated by BPELSG; if BPELSG says I don't hafta, then I'm of the opinion that I don't hafta.

.

[JBStahl]

Primarily in response to Evan's 1:02 am post, "Further, on title interests, ownership, etc." and in general response to the overall discussion...

We need to be very careful to clarify our understanding of the difference in "Rights, Title, and Interests in property. I believe a fundamental (correct) understanding is vital to the discussion of what a "parcel," "easement," or "lease" is and whether any (all) surveys depicting their location are necessary for filing in a public repository. Too often in land surveyor discussions the terms rights, title and interest are bandied about as if they are synonymous, when if fact they represent entirely different concepts with entirely different rules of law governing them.

As surveyors, we want to distinguish the difference between a tract, a parcel, or a lot which helps us to understand how the subject property was created (by PLSS, by sequential conveyance, or by plat). This information is critical for us to know which boundary laws apply when we survey the "property." The discussion is irrelevant when discussion the role of the surveyor and requirements for R/S or C/R.

Overall the "property" we are surveying is part of the client's estate. We focus on the "real" property rather than the "personal" property, but both are included in the estate. The "ownership" of the real property is defined as the "fee" title.

"Fee" title ownership has three elements before being considered as "perfect" fee title: 1) the legal right to the property (constitutional right or right given by congress); 2) a valid conveyance of the property (written title document); and 3) possession (actual or constructive). These three elements in concert are what separates the estate of one fee ownership from the neighboring fee ownership. That limit of separation between two adjoining fee title real property estates is the "boundary."

As professional land surveyors, one of our primary roles in society is determining the location of the boundary between two contiguous estates and depicting them on a "survey" which may or may not be recorded as required by statute and the individual circumstance.

"Interests" in real property involve third parties through a regulatory process. Your local municipality (the public) has an "interest" in regulating your use of the property. Your HOA has an "interest" in regulating your use (and behavior). Your lender has an "interest" in controlling what you can and cannot do to affect their potential "fee title" to the property in the event they might foreclose. Limits such as zoning setbacks, height restrictions, wetland delineations, and flood zones are common examples of real property "interests". Regulatory limits do not rise to the level of "boundaries" which separate fee title estates, therefore they don't rise to the level of a "field survey" under the recording statutes. I don't think you'll find many surveyors arguing that you need to set permanent monuments marking the setback lines and file a R/S or C/R.

"Rights" in regard to real property are a property right which is associated with the real property estate. Property rights are severable from the fee title estate, but will always remain associated with the fee title. These rights include such things as mineral rights, timber rights, agricultural rights, grazing rights, even rights such as access rights, the right to occupy, or the right of freedom and enjoyment or protection from search and seizure. These are property "rights." They may be contracted through leases, licenses, or in the form of easements. Because they affect the quality of the the title held by the owner, the statute of frauds requires them to be entered in writing (when they affect an interest which for more than two years). Written documents "should" be recorded to take advantage of the "constructive notice" statutes.

Property rights are transient. They may be severed for a time (sometimes with the appearance of permanency) but they remain associated with the property from which they originated and are temporarily made appurtenant (attached) to another fee title property. I grant my neighbor an easement (right of use) to cross my property which now becomes part of my neighbor's estate and is appurtenant to his fee title property. If my neighbor "releases" the easement right, the easement right dissolves and my fee title estate is "automagically" unencumbered. No "conveyance" is necessary.

When I grant a permanent timber lease to the NW40 to a timber company, grant a 10-year crop lease to NE40 to a farmer down the road, and lease a five-year occupancy of the homestead cabin to a renter. Have I conveyed fee title to any of them? No. I have contracted with a second party the benefit of my property rights. No title is conveyed and no boundaries are created. The limits described in the lease contract are the result of a contractual negotiation between private parties. They may or may not require the services of a surveyor to delineate the limits of the property right in the contract or on the ground. That's a matter for their personal agreement.

A "survey" of a lease limit may or may not require that I first determine the location of an exterior "boundary" of the fee title owed by the client. If the leasehold limit coincides with an exterior boundary of the property, then I must first perform a boundary survey which falls under the statutory requirements for a R/S or C/R. Once the fee title boundary location is known, I can then complete the task of locating the limits of the lease, which is not a "boundary" survey. It's a survey of a private property right associated only with the contractual agreement between the parties. There is no "boundary" of a lease that is surveyed.

In the example set forth in this thread, the request is from a "potential client for a quote to survey a lease area for fencing purposes." If the leasehold area is entirely within the property, then no "boundary" is surveyed and the "lease area" does not represent a fee title ownership or anything relating to "ownership" or "title" to the property. The lease has no "boundaries" in the legal sense of "title" - it only has "limits." If the lease limit coincides with an exterior "boundary" of the fee title property, then a boundary survey is required before the lease limits can be defined, surveyed, or fenced.

JBS

[MikeTurnrose]

Thanks for all your input. As I stated above, the lease area is tied to the property line, so the property line must be surveyed, and one of the relevant property lines is not shown on a recorded map, so therein answers my question.
Good discussion.