Marin County record maps

[E_Page]

Following Evans views it boils down to a longer contract with more "unforeseeable options" than 99% of the public understands, even with explanation.

Not unless your contract fits on the back of a business card or on a bar napkin. The standard CLSA contract has a clause titled "Payment of Costs" that would cover these additional research costs. Unforeseen is unforeseen, meaning that it would not be something either party would have been expected to account for in the agreement.

In the past I have presented proposals with options to cover the "unforeseeable" and the clients whether they be; engrs, archs or homeowners, could not accept that, they want a fixed fee to do XXXXXX.

If you are presenting the idea in your proposal, you are sending a signal that you expect something that you have failed to account for to rise up during the course of the project. That gives the impression that whatever is going to pop up is actually foreseeable, but that you haven't been thorough enough to figure out what it might be and to quantify it. Engineers especially can be expected to think this way because they are typically designing per some standards, and it is the development of the standards wherein previously unforeseen circumstances are now accounted for. Those design standards are followed so that each new engineer does not have to foresee all of the potential circumstances that were considered when developing the standards.

The search for, importance and use of evidence is a very different matter. Where engineering design is subject to the set laws of physics, boundary locations and property rights are subject to the laws of men and the changes that often occur in them.

If you are working in an area that you are aware has a prevalence of unfiled survey records, it probably would be wise to propose a contingency budget for such records. If you have no reason to suspect that unfiled surveys would be a factor in the project until you are into it and find evidence of unfiled surveys, then it is truly an unforeseen circumstance.

What percentage of the surveys you've performed in the past 10 years had unfiled surveys as an issue? For me, in the areas I've worked, I can probably count those instances on one hand. I'm sure that I wouldn't get over 10 such instances.

If the matter is truly one that a reasonably competent surveyor would not have been expected to anticipate, then it is unforeseen and the only thing keeping you from bringing it to the client is you. It is not your contract unless your contract expressly states that all incidental costs, whether or not enumerated in the project scope, are covered by your stated fee.

Some well written land survey laws could make it easier on both the public and our profession. There is no reason that we, as Land Surveyors, should be the only ones looking up from the outlet end of the sewer pipe.

Not sure just what laws you have in mind. Being diligent, recognizing your responsibility to keep your client informed, having a good sense of what a reasonable effort is, and exercising your professional judgment accordingly also makes it easier on the profession and the public.

From what has been written here the only way to do a property survey in Marin County and protect yourself is to add a minimum of $1000 for each holder of non recorded records above and beyond the fee for a RS.

You could do that if you like, and I'm sure that the archive owners would be happy to accept it, but that's a silly approach. If you work in an area with a prevalence of unfiled records, find out what the typical job subject to such records might require. Some of the archive holders would probably be happy to help you out here by giving you an estimate of what the average cost or fee is for those rare occasions that another surveyor comes looking for and leaves with such maps. Use that amount as a contingency amount of the contract to be used only if necessary.

One would normally, either by the evidence found in the field (marked monuments, perhaps type of monument), by references found in deeds or other records, by association to the locality, or by asking around, that would lead you to look for the records of particular surveyors. Find out where those surveyors' records are and that's where you go. No sense giving $ to Larry if Phil is the one with the records you need.

I can see where this situation is ripe for these holders of non recorded records to file a map after some other surveyors recently recorded survey showing alternate PL locations as a way to "teach the other professionals a lesson" for not paying $1000's for private record research.

Oh yeah, that's what I would do if I was sitting on this treasure trove of records. I would just peruse the new record maps at the County every month, and then with no actual client to pay me to do so, I would go perform a more diligent survey, spending more time, paying my employees for more hours, spending more in research for those records I did not have, digging more holes, searching more locations, etc., etc., etc. so that I could file a map of a better survey. Yeah! That'll show 'em!

And then I can go one better by suing that other surveyor, again without having an actual client with actual standing. I would again have to spend my own money on lawyers, filings, court costs, my employees creating exhibits, and spend gobs of my own time. And of course I couldn't collect any damages since I have no standing and no actual damages. But boy, I can reeeaallyy embarrass those other, imprudent surveyors. And that's what it's really all for isn't it?

But since I'm sitting on this treasure trove of dusty old records, I can afford to do this because as we all know, having these records ensures that you are the only one in the county who will get all of the work and you can charge anything you want.

Now, where is that sarcasm font?

For years lawyers have been trying to get surveyors to attest on ALTA's that even unrecorded info is shown on the ALTA and we have a nationally accepted certificate to save us from that. Why should an ALTA be different than a lot survey. If we are liable for unrecorded info in one case we should be liable in the other or not liable in both cases.

You are responsible to make a reasonable attempt to obtain any evidence of which you are aware that potentially has an affect on the proerty you are surveying. That responsibility is the same whether it is for an ALTA or any other boundary survey. An ALTA is simply a boundary survey that has additional measurement standards and may have additional reporting requirements.

The reason that you don't certify to having reviewed all relevant non-record documents is that you have no way of ever knowing if you have discovered all relevant non-record documents. That does not alleviate your responsibility of attempting to locate and obtain such documents if you uncover evidence that they may exist and be relevant.

[hellsangle]

CUTTIN' A FAT HOG, HUH?!

Attached is the income from my archives.

Archives were purchased for "preservation" and convenience. One archive was considered for the land fill. (How dumb of me to preserve "truth".)

Oh yeah, we're getting fat. Does anyone fault the under-employed to charge for their archives?! I gladly pay for archive research! Time and time again records research has, over the long haul, saved my client and myself $$$s and uncertainty.

I believe the Mount Diablo Historical Society has a list of who has archives in California (for those archive owners that responded). (Right, Keith?) Sonoma Chapter has an extensive list of who has what archive in Sonoma/Marin counties.

See attachment

Phil - Sonoma

[shaunb]

well, there's 2 sides to your spreadsheet Phil.

1) it represents probably one of the worst times in recent history for development and the simple fact is, nobody is getting any surveys done to begin with, much less, in the more difficult and expensive areas of Sonoma and Marin counties.

2) 21 projects, by 11 different surveyors in 5 years, and 1/3 of those by one surveyor. I have to wonder if there its simply a matter of not many know where to go to look for things?

I will say, from outward appearances, your charges seem reasonable for the potential of information possible.

[land butcher]

Evan

So you fill out and submit a CLSA contract in lieu of a proposal for every bid you give?

If you are presenting the idea in your proposal, you are sending a signal that you expect something that you have failed to account for to rise up during the course of the project. That gives the impression that whatever is going to pop up is actually foreseeable, but that you haven't been thorough enough to figure out what it might be and to quantify it

So you want to surprise your clients rather than give them a professional opinion of possible contingencies?

Reminds me of the surveyor that low bids a terraced R1 tract and then after the contract is signed and the grader asks for slope stakes inform them that slope stakes are an extra. After all not EVERY grader needs slope stakes so why address them.
Or the engr that charges per sheet and gives the client the price for a one sheet grading plan, by the time the plans are approved there is a title sheet, precise grading, utility, demo, runoff control plan. After all, sometimes only one sheet is required.

What percentage of the surveys you've performed in the past 10 years had unfiled surveys as an issue? For me, in the areas I've worked, I can probably count those instances on one hand. I'm sure that I wouldn't get over 10 such instances.

I can't remember when I did my last lot survey - too much liability for the acceptable fees clients will pay.

You keep using the terms "reasonable". What is reasonable in the eyes of the law. Could you find a definition for that or is it like "material discrepancy" somewhere between horseshoes and hand grenades.

The reason that you don't certify to having reviewed all relevant non-record documents is that you have no way of ever knowing if you have discovered all relevant non-record documents. That does not alleviate your responsibility of attempting to locate and obtain such documents if you uncover evidence that they may exist and be relevant.

Total contradiction.
Example, before this thread started I had no idea that private records existed and had I done a survey in Marin County I would not have known to research non-record records in a private vault owned by persons unknown to me. So where does that leave me under the due diligence clause?
What you are implying is the same as the judge saying "Ignorance of the law is no excuse", never mind the fact that CA and the Feds each pass ~1800 new laws every year.

I go back to the way we have allowed our rules (laws) to be written. We have unlimited liability. If records exist that we had no idea existed we again are liable under the due diligence rule. We have a national certification exempting that for ALTAs but not boundary surveys. Until "reasonable" is defined doing lot surveys are tantamount to putting a hand grenade in your mouth and pulling the pin, it's only a matter of time and percentages.

If laws are properly written we would not have to hide behind the corporate veil and would not be making insurance companies uber rich. We have allowed others to determine what laws we abide by and those "others" had the laws worded to protect themselves not us.
How many CA Surveyors actually get other corporations, that have their own contract for sub contractors to sign, get them to sign the CLSA contact only. I'm betting not many or none. Corps do not spend big bucks for a lawyer to write them a contract then sign ours. The cost for their lawyer to review the CLSA contract is wasted money to them. Even govt agencies will not sign it and some of them are not adhering to the latest verbiage as required by State Law. Which brings up another issue, if CA State agencies will not obey State Law, or only the laws they want to obey, why should anyone else?

[btaylor]

On a side note, I would say Marin County is the most difficult counties to survey in the Bay Area. The original maps can border on the useless. Some areas are deed subdivisions and you can not have an idea how wide the street is that is fronting your site if your parcel is across the street from some other set of deeded-out properties. This is why these records are so critical.

[Stephen Johnson]

Makes me glad I no longer work in Marin County. And haven't done so for nearly 22 years.

[btaylor]

I do not plan on working there anymore either, although it is a pleasant place to see.

[land butcher]

Posts 32 and 33 are exactly what the private record holders want.

Some years ago a fellow surveyor told me that the owner of his company in So Cal bought some property in N. CA (somewhere) and sent a crew up to survey it. They were having trouble finding a starting place and ran across some local surveyors so thought they would see if they could help. The response was a couple of shrugs and the deer in the headlights look. Later they found out that a local surveyor could be knowingly standing on the point you are looking for and would not tell you. Of course there were a couple of big companies down here that were just as bad.

[Stephen Johnson]

Posts 32 and 33 are exactly what the private record holders want.

Some years ago a fellow surveyor told me that the owner of his company in So Cal bought some property in N. CA (somewhere) and sent a crew up to survey it. They were having trouble finding a starting place and ran across some local surveyors so thought they would see if they could help. The response was a couple of shrugs and the deer in the headlights look. Later they found out that a local surveyor could be knowingly standing on the point you are looking for and would not tell you. Of course there were a couple of big companies down here that were just as bad.

I haven't been any closer to Marin County than Riverside County since 1992. Currently it is about 2,000 miles from here to there.

SJ

[btaylor]

I stay away from surveying in Riverside County. ;)

[hellsangle]

That is one of the reasons I purchased the archives. Having archives aids in knowledge in the geographical area in which one works. Within these files are also a much clearer picture of the survey, etc. (via correspondence, phone messages, field notes, etc.) than a lone plat.

Also, from a business point of view. The surveyor is deceased or no longer practicing, however, the surveyor's clients may obtain a copy of their survey from me . . . or order more work because of my relationship with the surveyor. Similar to having a surveyor client's list. (One of the survey archives, I worked briefly with the deceased surveyor and have personal knowledge of his methodology.)

I have over twenty five years of my own survey files, many of which have a recorded map. Some files contain thick folders (so thick one would think they belonged to a trial lawyer. Ha) - full of juicy supporting evidence or the intentions of the parties having record interest. Sometimes just the phone messages paint the picture.

Wonderful discussion . . .

Phil - Sonoma

[land butcher]

I understand that some surveyors have purchased non record data from retiring surveyors and in that respect they expect to be reimbursed by others needing that information.

But how does a out of area surveyor know this data exists if there is no mention of it on any maps he finds at govt agencies? In my previous post I mentioned how a So Cal person purchased No Cal property (could have been in Marin county, I don't remember) and had his crew go survey it.
EVERY surveyor knows that some map/data is available at local govt agencies, but is it his responsibility to contact EVERY surveyor in the County to see if he has unrecorded data that would affect his survey. Others here are referred to the unrecorded data as secret data, and to most surveyors and the public it is. Remember in CA a landowner can survey his own property and I have had potential clients show me their research and it was very through abet limited to the city and county of the property. If I read the previous posts correctly the holder of this data require a pre research deposit which I doubt is refundable if no records are found.

Dave and Evan state that it is the Surveyor's responsibility to do complete research, but they fail to explain how you find non recorded data unless it appears on a recorded document.

I think we are holding ourselves to some elite standard that is beyond accepted standards for many other professions, even professions that can harm the pubic more than us, and accepting the unlimited liability that goes along with it. As another example - a contractor does a lousy job of your remodeling, molding is pieced and cornered badly, the walls are not straight or plumb, doors may or may not shut right, some open or close on their own, the floors are not nailed down correctly, so you sue. The contractor says "I did the best I could" - that's as acceptable to the court as "I was in fear for my safety and the safety of my partner" is to cops. Why do we think we need to be so perfect as to have knowledge of private records.

[Jay Wright]

Kudos to the archivists for the public service. I am sure it is a pain to, and a drain on you.

But

If during the lawsuit against me for negligence for not hiring the archivist, I can call the archivist to the stand and he says the archive has been used 21 times in 5 years.... I Win. Bet the house.

Unless of course there have only been 21 (or 210) surveys done in that area during that period.

There are unrecorded surveys in probably every village, town, city, and county of every state.

In California, for a survey that establishes a boundary to be considered true and complete and done in compliance with the Land Surveyor's Act it would be recorded.
If it was not recorded it was not done in compliance with the minimal standards set by the Land Surveyor's Act. Res Ipsa Loquitor
(Sorry Dave, had to, you are only allowed to use Latin once per thread)
If the unrecording surveyor cannot understand the LS Act am I to believe he is competent at the art of boundary determination? Fugedaboutit

If I believe he understands the LS Act and is just being a cheater by not recording, how can I trust a cheaters work for anything?

Every year people who don't record get many thousands of dollars that they shouldn't because people who comply with minimal statutory standards can't compete with them on a level playing field.

Buy unrecorded surveys? HELL NO!!! (subject to change if I ever really need to)

[Stephen Johnson]

I stay away from surveying in Riverside County. ;)

So do I , since 1990.

[hellsangle]

Yeah, I had to drag him around . . . until I duct taped the responsible charge to a remote controlled Sedgway. Life was good. LOL

Jay, good points! If one is working out of their area, call the local Chapter of CLSA and someone will point you to who has what records. (Art G. Any possibility of posting your historical archives database?)

By the way TWO of these "did-not-record-their-surveys" (Marin Surveyors, too) were also CLSA presidents - professional leaders. Their "not filing" was in no way intended as "proprietary" business practices, rather professional practices of the times (well into the 1990s). (I would also imagine there are drawers full of Curt's plats. Who, in my mind, wrote the Surveying Bible.) When a law is not obeyed (by professionals and their leaders) - is it still law?

When it comes to when/when not to file a record of survey, look at the debates we have on this site. There are opposing camps. Which seems to reflect the fact that our LS Act may not be as well written a law as it could have been?

Phil - Sonoma

[land butcher]

[land butcher]

It's the old "Do as I say not as I do".

It's hard for those who follow the rules to compete against those that don't. And now others perpetuate their actions to increase personal profit.

[MFORD]

Phil,
The issue of private records has existed since the beginning of surveying, whenever that was. In Marin County access to those records and holding surveyors accountable for lack of due diligence began about five years ago, as you know. It was precipitated by some individuals filing maps with as many as 14 unfiled references on one ROS map. Those of us that work in Marin County are aware that there are many, many unfiled maps in every section of the county. We are also aware that, by and large, those surveys are worthless, with exceptions of course (i.e the San Anselmo Spring Lot as an example).

Gaining access to those records has turned into pitched battle for one reason. The private record holders have vehemently and tenaciously rejected current statute law, the CPRA, which makes those records public once discovered. The private record holders (yourself included) want to keep those records private so anyone surveying in Marin County has to come to them.

In the beginning the motives for salvaging, purchasing, storing and indexing those records may have been professionally pure. That is not the state of surveying in Marin County today as evidenced by the Marin Chapter CLSA voting in favor of keeping those private records out of the public’s view. As Dave Wolley pointed out, these past presidents and professional leaders you mentioned were either ignorant of the PLS Act of willfully violated it for their own purposes. My opinion is that they were aware of the law. One of those gentlemen has posted on this forum that his records are open to any one as long as they are a “trusted memberâ€￾ of the Marin Chapter of CLSA. What he means is that you have to agree to keep his records private or he won’t share the information. Tell me where professionalism factors into that statement? I should also mention that the Marin Chapter is the custodian of those records and screens anyone wanting access. There’s a conundrum for you.

In an earlier post you pointed out that the records you purchased have increased your business income/profits. The client’s of the departed surveyor would contact you for additional work because of your relationship to that surveyor. In your accounting for income derived from the records I noticed the income from the clients of the departed surveyor wasn’t listed. The inference is that the cost of maintaining those records was borne solely by the revenue from other surveyors. You and the other private record holders acquired those records to increase your market share in Marin County. Let's not pretend otherwise. You can’t have your cake and eat it too.

Mike Ford

[Lee Hixson]

What a deplorable situation. It embarrasses me. It's embarrassing to our profession.

[Jim Frame]

Here's the way I summarize the matter:

1. When privately-held records constituting essential evidence of boundary location are available only by permission of the records owner and upon payment of fee totals that are difficult to predict, the ability of surveyors who don't own the records to compete for clients is impeded. The records owner has a powerful advantage in estimating project costs because his research cost is limited to his time, whereas other surveyors have to incur the additional cost of records access fees, or make an estimate of those fees. Since most clients want as firm an estimate of costs as they can get before commissioning a boundary survey, the private records owner has a significant advantage in competing for clients. The net effect is that ownership of essential private records operates as a restraint on trade and is therefore contrary to the public interest.

2. Limitations placed on the publication of information contained in private records used in boundary establishment are contrary to the public interest.

3. There are substantial acquisition and maintenance costs associated with the ownership and effective use of private records. It seems likely that the magnitude of these costs is disproportionately high in comparison with the gross receipts from the boundary surveys that they support.

I don't see any easy solutions. The records owners don't want to part with them absent appropriate compensation, yet there's no entity currently organized to fund the acquisition and maintenance of the records in service of the public.

I'm sure there have been lots of ideas tossed around to improve the situation. At the risk of seeming naive, one route to doing so might be as follows:

1. Identify an entity to approach this as a project. This could be a subcommittee of one or more CLSA chapters, or perhaps a special-purpose advisory group or committee working under the auspices of the County Surveyor's office.

2. Convince the records owners to meet with the identified entity to explore the means of transferring their records to an appropriate organization in exchange for reasonable compensation.

3. Identify a method of establishing the value of the private record collections. This might be a particularly tricky aspect of the project, as its success would largely depend upon the willingness of the records owners to achieve the goal of public access to the records. However, assuming that the owners are interested in serving the profession rather than restricting competition, it should be relatively easy to quantify the sunk costs and cost of transfer.

4. Identify a funding source. It seems to me that the project would be appropriate for the use of monument preservation funds.

5. Identify an entity to host, maintain and distribute the records. Ideally this would be the County Surveyor, but given the constraints on public budgets these days, that might be a hard sell. The County Archivist might be another option, but the budget situation is probably the same. The appropriate CLSA chapter(s) would probably be my next choice, with a special-purpose entity last.

It seems like a tough nut to crack. I'm glad the private records thing isn't much of an issue in my home county!

.

[hellsangle]

Thanks for the acknowledgment, Dave!

Phil - Sonoma

[E_Page]

Jim,

Your summary seems right on. When the CLSA Legislative Committee looked at it, we pretty much identified the same list of varied concerns. We also considered similar courses of solutions as you, identifying the likely pitfalls of those courses, mostly having to do with funding for purchase, storage, people and resources to catalog, index, and file the records.

There's a few organizations that would need to be brought in and convinced of the public benefit before this would be likely to be resolved.

In the meantime, those who throw stones without considering all sides of the issue, as it exists today - arguing about how it got to where it is useless, at best - only make the situation worse by causing a rift and causing some who have preserved the works of those who have surveyed before of becoming concerned about the records and the effort to preserve them becoming a professional and personal liability.

The best short term solution is probably for the local chapters to identify collections to acquire, negotiate the purchase, and then, through the chapter, maintain the collection as quasi-public records until such time as the counties are both willing and able to take over the maintenance with the assurance that they will be maintained as permanent records in the Miscellaneous (or other legislatively defined) records.

One Chapter has already done this. And you know what they figured out? It costs $ to store and maintain those records and so they charge an access fee to offset that cost.

What is that fee, Sonoma guys? I forget, but as I recall, it wasn't a whole lot less than what the private collection owners charge.

[land butcher]

Here is how I see this.

A group of Surveyors were active in forcing legislation on all surveyors with no intention of following the same laws, like the govt does. They then proceeded to do surveys and set mons and not file any maps, illegal. Then upon retirement SOLD these non recorded maps to younger surveyors who have use of the maps and if anyone else wants to use them they have to pay a substantial fee, thereby making it impossible for other surveyors to give landowners competitive land survey fees. Wouldn't that fall under restraint of fair trade? Basically a group of now retired/deceased surveyors broke the law and sold the illegal maps and now others are profiting from the illegal activity.
Reminds me of the Capone family, he made so much money off illegal booze and laundered it into legitimate businesses that none of the Capone family will ever have to work again. But at least he did not call himself a professional, licensed to insure the public's welfare in the realm of land surveying.

[E_Page]

They were not/are not "illegal maps". They are not contraband. The failure to file the maps was a failure to follow the law. The surveyors who performed surveys for which maps were required to be filed are guilty of violating a license regulation statute, not the Penal Code.

The failure to file was not a problem limited to Marin County, or limited to those surveyors who initially formed CLSA or those who had anything to do with proposing the various laws we practice under. Several areas of the State have a substantial number of unfiled surveys affecting properties.

Restraint of trade refers to improper government action.

If you have been paying attention, you would see that the map collections are not a profit center for those who have them. If viewed as a business line, the only viable business decision would be to dispose of the records, as in take them to the dump, because the revenue brought in does not even cover storage and maintenance costs.

I'd be surprised if the Capone family is living large off Al's off the books business dealings. He was convicted of tax evasion and all of his assets, save the fabled hidden fortune, were seized.

The way I see this, is that many surveyors, for various reasons ranging from protecting home turf to plain old ignorance of the full content of the law, failed t file maps of their surveys. Those surveyors have since mostly retired or died. They, or their families have given or sold the records of the survey work of those old surveyors.

Some currently practicing surveyors have purchased or otherwise obtained these records. Some may have done so thinking that owning such records would ensure them exclusive or near exclusive domain over various areas where the retired or deceased surveyor worked. Most probably obtained the records knowing their importance as evidence to many boundary locations. Some have obtained records from family of the deceased surveyor on the verge of hauling all those "old papers" off to the dump.

Those surveyors who thought they were making a shrewd business investment are undoubtedly sorely disappointed on that score.

Any who have, and make thse old records available for inspection and or copying have done the public a service by preserving the records. It would be unrealistic and unjustly punitive to expect that those who have already spent their own money and time to preserve these records, now be required to provide copies without even being compensated for their time to pull records or provide access, much less a fee that helps offset the cost of storage and maintenance.

But, some of the self-proclaimed professionals who are castigating those who have dared to preserve these records and gain an "unfair advantage", make it pretty obvious that they don't really give the slightest damb about the welfare of the public, they only care that they do not have virtually free access to these records.

Until a public agency can be given the responsibility and the resources to obtain these records and make them fully public, I find this bickering and public sniping at those who have preserved old survey records of retired or deceased surveyors, and who do make them available to other surveyors, to be the deplorable part of the current situation.

It seems that the snipers, if they can't have all the copies they like for free (or darn close to it), would prefer that all these records be disposed of so that no one had access to them. Rather than be honest with their clients about the possible existence and potential costs, they would rather be able to justify low fees and level the playing field. That does not protect the public in any way.

[land butcher]

I'm not even going to read all that.
Justify it all you want, bottom line is they broke the law and others are perpetuating the crime for profit.