Contract Exemptions to PLSA

[mpallamary]

Is anyone aware of any provisions of the Land Surveyors Act that permits a surveyor to avoid filing a Record of Survey map after he/she finds a problem. Here is the situation: A surveyor proposes to establish a property line and, upon completion, determines that the line runs through the middle of the house. He/she does not feel he/she has a duty to file a Record of Survey because the contract did not call for the filing of a survey and as such, he/she has no duty to disclose or file. In other words, is there any merit to the arguments that a surveyor can avoid and evade the duty to file because the contract did not contemplate this potential for problems.

Thanks all.

[Warren Smith]

Michael,

It is doubtful that a contract between private parties can nullify the effect of a statute codified for the express purpose of protecting the public. Otherwise, contract negotiation would become even more of an art form that it already is ...

[pls7809]

No, there is no exemption from filing due to contractual issues. PLS Act Section 8765 spells out the exemptions from filing:

1) Survey made by public officer and a map is filed with the county surveyor.
2) Survey by the BLM.
3) when a survey is in preparation for filing a subdivision map (ie, tentative map process), or has been recorded as a subdivision map,
4) when the survey has no material discrepancies, has sufficient monumentation to establish the lines shown and the lines shown are from a subdivision map, official map or record of survey.
5) Mobilehome park interior lot (with conditions).

[William Magee]

Are you asking the right question?
First, did the survey find any discrepancies with record? You weren't clear on if the survey boundaries were in harmony with the record, i.e. no material discrepancy. If no material discrepancy with the survey record, then the question becomes if a surveyor is obligated to file a R/S upon discovering a question of ownership. Some might consider an encroachment as triggering a R/S because of the ownership question triggering a "materially alternate position" (8762(b)(3)), but that tact is open to debate.
Also, if resolution through mediatory efforts such as a LLA, or through litigation, is pursued, then perhaps one might consider a R/S to be premature until after resolution is achieved.

[David Kendall]

I attended a PLS exam review course last spring. The surveyor leading the class recounted a story of a survey performed during a recent economic recession. Material discrepancies were encountered.

He says that a Record of Survey was not required because the company was not paid for services rendered (presumably due to financial hardship on the part of the client) and due to the circumstances the county surveyor absolved him of the filing requirement.

The occasion was not right for a lengthy discussion but generally I remain skeptical of the legality of this solution....

I do not believe that an encroachment is a material discrepancy with the record. If the monuments and measurements match the map dimensions then I'd say the survey is conforming regardless of errors in construction of recent improvements.

[LA Stevens]

When was the structure built?

[Peter Ehlert]

David Kendall: That was a curious position to take... I do not know how a CS could gain the authority to waive state law... yes he chose not to pursue the matter, but that is a personal choice.

William Magee: I agree. The presence of a structure is not a trigger requiring a RS. What encroachment? Perhaps it is not encroaching, it could be permissive use, but still not a trigger either way.

[mpallamary]

Thank you folks for the prompt and valued replies. Here are more facts. The house was built three months after the map recorded. There is an eight-foot discrepancy in the underlying map. There are a number of ways to move the map data around to arrive at a mathematical solution. One of these solutions, which honors most of the dimensions, produces a result that is in absolute harmony with all of the underlying improvements, i.e., walls, fences, setbacks, etc. There are six lots and two of them are improved with homes that were built within 6 months of the map recording.

The map recorded in 1913 and there have never been any boundary line conflicts. The gist of the question is, in essence, when a surveyor stumbles on this situation, and, as part of his work for his client, he prepares a plat map showing the lot line running eight feet inside his 100-year old home and sends him a plat map and the client then ends up in litigation, can the surveyor simply state that he does not have to file a Record of Survey to make any disclosures because his contract did not call for it. There are a significant number of material discrepancies in the map and his interpretation places a line inside of a 100-year old building. His agreement does not call for the ROS but the survey discloses serious problems. It would appear the surveyor has a duty when he discovers the problem and must follow the law, regardless of what the contract says.

Again, many thanks.

[LA Stevens]

Based upon the additional information, I believe the ROS is required pursuant to 8762(b)(1-4).

[Peter Ehlert]

I still have no problem with the spin on the occupation, but the underlying map error I would consider a material discrepancy... so the RoS would be required.
That surveyor could have "perhaps" discovered the map issues prior to contracting for any work and pulling the trigger... hindsight is great

[LA Stevens]

I consider a house over a boundary to be "evidence that, by reasonable analysis, might result in materially alternate positions of lines or points, shown on any subdivision map, official map, or ROS. That is the same reason that the title company excepts and excludes such conditions when a land title survey is performed.

[Jim Frame]

In my opinion, the contract has nothing to do with the statutory obligation to file. However, I'll echo William Magee: are you asking the right question? It is my belief that the §8762 ROS triggers become effective only when their existence is disclosed to a party not under the licensee's control (i.e. someone not in a subordinate capacity). If I go out on a Saturday and for fun and games measure between two property boundary monuments and find that the distance between them disagrees with the record by a material amount, I don't believe I have an obligation to file a ROS. Even if I take an employee along and say to him, "Wow -- talk about a material discrepancy! Those monuments measure short by ten feet!," I don't believe I have an obligation to file.

Further, if I'm under contract to perform a boundary survey and find a material discrepancy, I believe I can go to my client and say, "The cost of this survey is going to be higher than I anticipated. We either have to modify the contract to accommodate the additional cost, or I'll have to withdraw from the project" without being obligated to complete the work and file a ROS. As long as I don't inform my client, verbally or in writing, that one of the §8762 triggers was found, I don't believe there's any obligation to file.

[mpallamary]

Here are some more facts for consideration. The surveyor prepared a very detailed survey plat showing the location of the improvements to the nearest hundredth of a foot. An appraiser was called and he prepared a detailed valuation and appraisal of the area in conflict. The neighbor was contacted and he said he would sign a quitclaim deed for $400,000. A title claim was filed based upon the detailed survey plat that was prepared. The surveyor claims that he did not have to file a Record of Survey nor was he required to address the very obvious eight-foot map error because it was not in his contract. The error is obvious and now, we have five houses wherein the eight foot error runs through every house. The question, as best I can articulate it is, when a surveyor discovers a massive error in the underlying map that involves adverse claims, an appraisal and the issuance of a detailed survey plat, with no explanation as to how the line was established, does he/she have a duty to file a ROS map?

Again, many thanks to all.

[David Kendall]

Did he disclose the map discrepancy on his survey plat?

[Jim Frame]

The surveyor prepared a very detailed survey plat showing the location of the improvements to the nearest hundredth of a foot.

It appears that the surveyor's plat found its way into the hands of the neighbor, the appraiser and the title company. As soon as it came into view of any of these entities, the §8762 trigger(s) were pulled. If the boundary is at odds with the record as suggested by this thread, no way is he off the hook for a ROS. The contract terms are irrelevant in this regard.

[E_Page]

The statute where the conditions by which a record of survey is required (8762(b)) makes no mention of contract status, so contract status is irrelevant. The question is whether or not one of the conditions was encountered. In the case of an LLA, if new corner or line positions are based upon data from the field survey, and the survey was performed for that purpose, or the survey data later prepared by the surveyor for purposes of the LLA, then the condition (8762(b)(5)) is created by the LLA and in the course of the survey - preparation and disclosure of the data discovered in research and during the field survey are incidents of the survey, and therefore part of the survey process). Even if no other trigger was encountered, a RS would be required upon using the data to define boundary locations.

Given the facts you presented in subsequent posts, it seems that the improvements made shortly after the map are the best evidence of the locations of the original boundaries if there are no original monuments remaining on the line in question, and most especially because the other remaining physical evidence and the map leave the situation ambiguous. With one of the possible interpretations of the other physical evidence and mapped data being a location that is in harmony with the improvements made shortly after the original survey, that location is almost certainly the true location as established during the original survey. That falls under 8762(b)(1).

That there are ambiguities in the map, the results of any properly performed retracement will find measurements that are materially discrepant with some portion of map data. 8762(b)(2).

The mapping discrepancies open the door to the consideration of alternate positions (8762(b)(3)). Depending upon the physical evidence shown, if some combination of it is strong enough to overcome or rival the occupation evidence as described by some reasonable analysis, then that condition would exist.

If the record map leaves so much ambiguity that the positions of certain lines and points can't be determined with reasonable certainty such that there is 8' floating around, then a very good argument that the condition of 8762(b)(4) also exists.


I disagree with any who say that improvements aren't a trigger for an RS. The mere existence of improvements may not be, but you don't know that for certain unless you know something else about them. Who built them? When were they built? Why were they placed as they are and by what basis?

In a case where they were built prior to an original conveyance (or subdivision) creating nearby boundaries, if those improvements still exist many years later, that is very good evidence that the party or parties creating the boundaries intended the existing improvements to control boundary placement in some way.

Where improvements were made about the time the map recorded or shortly thereafter, they are often placed to have a specific spatial relationship to nearby boundaries. This is particularly true for small lot subdivisions. Fences are typically placed on boundaries, driveways, houses, garages, etc. are typically placed at minimum setback, or if there was not a minimum setback by ordinance at the time, at a standard setback typically used in that specific and/or similar subdivisions in the same time period. Any improvement built with reference to the original monuments of a boundary, once those monuments disappear, are better evidence of the original boundary location than other monuments of the original survey marking other lines or points.

Where the improvement can't be shown to have been made relative to the marked boundary, and neither the timing nor other circumstances give rise to a presumption that they were made with regard to the marked boundary, then they may not mean anything with regard to the original boundary location. It's just my opinion, but not a matter of law that if any such improvements are in a place that they may have a current or future effect on title, that they should be shown on a filed map.


As to the situation described in the OP, and in light of circumstances described in later posts, a RS is definitely required and the CS does not have the authority to waive that requirement. As to the question of whether a RS is required, the CS's opinion is no more authoritative than any other surveyor's opinion.

I also agree with Jim, that the RS triggers come into effect once the circumstances are disclosed in any manner to anyone other than the LS or those under his or her direction. Additionally, they come in to effect only after making a field survey in conformance with land surveying practice.

[Ric7308]

There is no correlation between the requirement to file a Record of Survey per 8762(b) and the requirement for when to use a contract including minimum provisions per 8759. Now there may be other provisions within the language of the contract that requires the licensee to abide by all laws that govern their practice while providing the contracted services which could conceivably trigger an indirect requirement but that would most likely be a legal (civil) discussion and not one reserved for the Board-related laws.

The requirement to comply with 8762(b) is SOLELY a responsibility of the licensed land surveyor regardless of the client relationship. Unless the land surveyor is operating under the discretionary use as authorized per 8762(a), there is nothing in the Board-related laws that supports that the client has any oversight or involvement of the record of survey process unless it is expressly stated in a contract.

The OP received several responses related to the specific details of his inquiry and even with the additional information, it is important to generally note that unless the land surveyor has evidence to support that the house represents an alternate position for a property line that differs from what is known in record, the house is simply that...a house...and one that crosses a property line. Generally speaking, it is contradictory to say that the property line is in another location simply due to the house being where it is if the same person is saying that the property line runs through the house.

There is absolutely no evidence in the laws to support that 8762(b)(3) is intended to be meant for situations where physical features are deemed to be wherever they are relative to the establishment or re-establishment of a property line. UNLESS the land surveyor uncovers evidence that raises the context of the house to a "monument" level where it is now serving as evidence to an alternate location for where the property line was previously established or some unwritten right has ripened. If this is the case, it is not simply a house any longer. From the subsequent posts from the OP, it appears that more information is coming to light relative to a mandatory filing requirement and the location of the house may have just been an indication or symptom of what is really going on. That is why a land surveyor is involved.

[E_Page]

If the record is ambiguous as to the location of the boundary, as Mike describes, then there isn't a definite "record" position of the boundary. If there remains no direct original monumentation of the boundary at question, and if the improvements were made at or very shortly after the time the map was recorded, they should be considered very closely. If there is evidence that other similar improvements of similar age within the subdivision were built with specific spatial relationships to their respective lot boundaries, then it would be very difficult for a reasonable surveyor to not treat those improvements as the best remaining evidence of the original location of the boundary.

If that location fits one possible interpretation as to how to resolve the ambiguity within the record, then it would be darn near impossible for a surveyor to not treat those improvements as a monument, unless that surveyor was practicing beyond his level of competence or had some agenda that requires him to overlook the obvious corroborating evidence.

[Dave Karoly, PLS]

Don't make me pull out Diehl v. Zanger.

100 year old houses.along with lines of possession that fit a pattern are highly persuasive in finding a boundary location. The task is to find the boundary where it is already established, it is not to establish it (unless that has never been done). What the original parties to a boundary actually did carries a lot of weight.

[mpallamary]

Thank you everyone. I appreciate your comments very much. I just returned from vacation and will digest all of this. Your comments have all been positive and greatly appreciated. I am honored each of you took the time to comments.

[dmi]

Is there a common grantor involved here?

[DWoolley]

There is a percentage of the land surveying community which suffers from willful ignorance - an endless rationalization of their less than law abiding practices.

In the instant example, a homeowner hires an engineer and surveyor to complete a checklist of items to a build a $1m+ home in an exclusive San Diego area. The surveyor doesn't think a boundary, based on monuments and evidence, is important to the project? Now we have hundreds and hundreds of hours spent by multiple experts i.e. land surveyors and attorneys trying to figure it out. All because a land surveyor was trying to save his client money? Or better, none of the record of survey triggers were tripped? Or best, it wasn't in the contract? Ridiculous on its face.

A few staples:

1. Boundary establishment is the exclusive domain of the professional land surveyor. The obligation cannot be put off on another professional i.e. the engineer, architect, contractor.

2. For the licensed surveyor there is no such thing as a "record boundary" in developing a site plan - essentially rotating a mathematical figure to two monuments - this is negligence (regardless of how many nonsensical notes are added to map).

3. Nobody can contract to break the law.

4. There is no obligation for a professional to accept a project, any project, ever.

5. As a community, as it relates to riding dirty and getting caught, we know the odds are in our favor. This only serves to reinforce the negligent behavior. If only I had a dime for every time the wayward professional pulled out his resume of 20+ years of doing this type of work...I have a file cabinet full of citations and license revocations that prove contrary argument - not to mention over $3 million paid in civil cases.

The law governing land surveying isn't exactly akin to splitting atoms. We have folks with their blinders fixed. I read somewhere recently a surveyor saying §8762 is hard to understand or the language is confusing, really? Leave this profession to the literate or simply leave.

“It is difficult to get a man to understand something, when his salary depends on his not understanding it.” Upton Sinclair

Those of us that take the time to reply to the fools are the greater fools.

I end where I began. Willful blindness.

D. Woolley

Attachments:

[mpallamary]

Good comments Dave, Thanks! As to dmi's question, there is a common grantor. The subdivider filed the map in 1913 and the homes in questions were built and assessment's started three months after the map recorded. Numerous homes were sold as soon as the map recorded and they were built shortly thereafter.

[mpallamary]

As an aside, back when I sold my previous business in the year 2000, the company I sold my business to had to file a number of Record of Survey Maps. They decided that they did not have to file anything because it was not in the contract. A complaint was filed and because I was the one who did the survey, it was my duty to file. The company did not cooperate and they would not turn over the survey data and I had to hire a lawyer to get the data.

Consequently, I had to file the surveys and I had to incur the expenses and work required. At the end of the day, it was done under my license and I could not evade that obligation. The Board properly stated that regardless of how the contract was structured, the surveys needed to be filed. It was painful but I did what the law required of me.

[dmi]

Have you examined building records? Sometimes building permits and other building department records can be useful to answer certains questions.
i