BLA question

[Cody Hustead]

So, the attached Boundary Line Agreement has shown up in the PTR for a parcel we are working on.
It was recorded in 2000 and is listed as an exception. There has never been any County review, acceptance or acknowledgment of this BLA, besides the fact that it was recorded in the Official Records. Although monuments were set on the agreed line, no survey was performed and no survey documents were filed. A surveyor was involved, but all they did was draw a cartoon exhibit for the last page.

Recent field work uncovered enough evidence to resolve the (pre-BLA) line in question with certainty and it is 130 feet from where the BLA wanted to put it.

Question:
Is it advisable to disregard this BLA since the line was never really uncertain to begin with, and it has not been blessed by the County?

My opinion:
If the current owners like this BLA line so much, they should go to the County and get a CoC and/or go through the LLA process to legitimize the agreed line. Also, it's my opinion that the landowners are not qualified to decide if their boundary is"uncertain", which appears to be the case with this BLA.

In the meantime, I'm going to consider their title clouded, since they have a half baked BLA listed in their title policy exceptions.

But enough about what I think. What do YOU think?

[William Magee]

I could put together an opinion on either side of the question. However I believe I would be more successful in arguing that the BLA stands.

Ernie v Trinity Luthern is still considered as governing law and is acknowledged as such in Bryant v Blevins. In Ernie v Trinity Luthern the justices cite the following as part of their decision:

It is not required that the true location be absolutely unascertainable (Price v. De Reyes, 161 Cal. 484, 489 [119 P. 893]); that an accurate survey from the calls in the deed is possible (Silva v. Azevedo, 178 Cal. 495, 498 [173 P. 929]),

[mpallamary]

We, as surveyors are not in the business of insuring or assuring title. I would contact a title company and engage them in whatever decisions you make. We find the land, wherever it may be, and they insure it. As a general rule in any BLA, it is good practice to get a Certificate of Compliance. As a matter of law, a city or county MUST issue a COC, either conditional or unconditional.

The perils of "uncertainty" are evident here; at a later date, someone can assert "certainty."

If this document is in the grantor/grantee index, it imparts constructive notice, and as such, cannot be neglected.

The most important question is whether or not the city/county recognizes these parcels or not. Remember a BLA does NOT require governmental approval, despite opinions to the contrary. "The Doctrine of Agreed Boundaries," as it is formally known, was specifically created to avoid government involvement and interference.

Here is a good outline: http://www.whiteandbright.com/articles/ ... agreement/

Get the title company on board so they incur liability as that is what they get paid for. Protect yourself first as no one else will.

It also looks like a law firm and land surveyor were involved. Have you contacted them? I would.

[David Kendall]

If I could find the monuments and they appeared to be in original locations then I would honor them and use my best effort to uncloud the title, not compound the uncertainty. The document appears to be a sound agreement between the two parties and I would argue that the new line is legitimate even if the two county governments involved don't appreciate it.

How does a California land surveyor pull off a move like this without being in violation of the LS act? Can we legally direct landowners to set their own monument lines and document them by deed?

[coast]

"Although monuments were set on the agreed line, no survey was performed and no survey documents were filed. "
This should definitely be reported to the Board.

From what you wrote, it appears that the PLA was prepared because the surveyor could not determine the boundary with certainty. Now, it seems that you can. Was the other surveyor performing a thorough monument search? Appears that they have created the cloud. Why did the other surveyor choose a PLA rather than an LLA?
This should also be reported to the Board so they can look at the whole picture.

[E_Page]

It seems that the parties wished to agree on the location that has been recognized for many years in order to avoid the circumstance where a surveyor would come along, find the line that is mathematically correct or an aliquot line determined by the methods from BLM Ch. 3, and upset the peaceful recognition that has long existed.

I suspect that the surveyor involved probably recognized the potential for the situation prior to conducting his survey, informed his client and the client's adjoiner before determining the "correct" line, and suggested that if they wanted to preserve the status quo, that a BLA was the way to do it.

If there was actual uncertainty between the parties and also a well established and recognized location for the line, then it doesn't much matter if a surveyor could determine the line. The BLA doesn't need a CoC or LLA to "legitimize" it.

Dave Karoly did extensive study earlier this year on the subject of how the CA courts view Agreed Boundary cases, and wrote an excellent paper on it. I can't find the link to it right now, but hopefully Dave will see this thread and chime in. What he found, Bryant v Blevins and Martin v VanBergen notwithstanding, is that objective uncertainty is not always required. Objective uncertainty meaning a surveyor is unable to locate it, and subjective uncertainty meaning that the landowners have no ready means of locating the line even if a surveyor may be able to.

Prior to a survey having been performed to find the "true" line, the requirements for an agreed boundary probably existed, and had the matter gone to court without a survey, the line would most likely have stood. The difference from Bryant v Blevins being that long maintained rows of walnut trees are a more permanent and established act of occupation than a recently installed septic field and wire fence.

However, add in a technically correct survey that ignores the circumstances of how the recognized line was established, the intent of the original parties and whether the intent of the present parties is the same as that of the original parties, and you begin setting up the circumstances for a mess like that of Martin v VanBergen.

The BLA was recorded in 2000, when the landowners were uncertain of the true boundary location but had apparently always assumed it was midway between the edge of their orchards. Now in 2016, a surveyor comes along and finds that there is sufficient evidence for a surveyor to determine the "true" line a significant distance from the agreed line.

It sounds like their was satisfaction with the location of the recognized line for some significant amount of time prior to 2000; the landowners had the good sense and mutual respect to decide that preserving the peace and good will between them was better than allowing the circumstances for bitter conflict to be found at some later date and destroy the good will that exists between them. The BLA has been in place and their has been continued peace regarding the line for 16 years since the agreement was recorded.

Had there been no previous recognition of a marked boundary between the parties and at least a tacit agreement that it was midway between the edges of their respective orchards, or if the location had been made by just one of the parties, it is likely that the "objective" standard would apply. Given that the agreed location had apparently been physically established and apparently agreed to, albeit not in written and recorded form, prior to the memory of each of the owners in 2000, the "subjective" standard would more likely apply.

IMO, a surveyor placing the BLA's validity in doubt at this time is a disservice to all involved. Additionally, with the agreement having been in the record and honored, officially for 16 years, it is highly unlikely to be undone. The only things that are near certain outcomes are that 1) the landowners will end up with a point of contention between them that they had previously and purposely tried to prevent; 2) even if they don't litigate, the landowners relationship will be forever altered for the worse; 3) the landowners and anyone else affected will blame the surveyor (you) for having created problems that didn't need to be created.

I think that the major failing of the surveyor in 2000 and, not knowing the rest of the circumstances at that time, perhaps his only failing is that once he set the monuments, measured or not, they are referred to in the agreement and so establish the location of a boundary, he was required to file a RS. That means that he was required at that point to make a field survey, determine the monument locations and file the map. If he is still around and still practicing, maybe he can be convinced to do that. If not, depending on who the surveyor is, a Board complaint would almost certainly result in a citation for failure to file, and possibly for failing to follow the standard of practice by conducting a full field survey to properly locate the monuments relative to other controlling corners.

However, depending upon which parcel you are performing a survey of, the agreement may or may not matter. The BLA is binding between only the parcels that were subject to it. If you are surveying one of those parcels, the BLA holds (IMO). If you are performing a survey of a nearby parcel (is this for Parks?), then the "true" location of the line you are referring to sounds like it might be an aliquot division line that somehow affects the boundaries of the parcel you are surveying. In that case, unless their is reliable evidence that the agreed line is based on the as-set location of original corner monuments (it's not unheard of for the GLO to have been off 130' or so between section corner and quarter corner - in fact, sounds like a possibility of an even 2 chain bust), use the text book derived location of the aliquot line to determine the boundaries of your parcel.

[William Magee]

I'll have to disagree with Ruel, The surveyor was asked to provide a diagram showing the location of owner-placed monuments. The surveyor was not hired to identify land boundaries nor to opine on the effect of the then proposed BLA. In fact, the owners specifically stipulated in the agreement that the surveyors work was limited in scope to that extent. They simply wanted an exhibit for their own use to help in memorializing their actions. Again, the surveyor was not providing a boundary survey. The exhibit prepared by the surveyor simply shows location of the owner-set monuments. It does not display boundary, property or title lines, nor any relationships thereto.

Of course, the devil is in the details of which we only have a small portion. I will offer however that if I was a retracing surveyor coming in, based only on the information provided so far, I would have a hard time disproving that the agreed boundary doctrine didn't establish the location of the boundary. We have few statutes that govern boundary establishment other than order of importance of calls. The use of boundary line agreements is shown as an exemption in the SMA but only for a very limited situation (66412(e)) and does not address the agreed boundary doctrine. Other than the manual of instructions for federal boundaries, much of our boundary establishment "laws" are found in case law or are not law at all but rather more of industry standards. When we have a situation such as the one before you, we have to decide and opine on what is the controlling element. In this particular instance you have a situation where the owners have taken a long established common law doctrine to establish their common boundary. In the cases I have cited above the CA Supreme Court has made clear that uncertainty is not limited to situations where a surveyor can properly ascertain the deed boundary, but rather that the owners were simply uncertain as to the actual location. It is clear from the evidence provided that the owners did not want to know where the true boundary was. They made effort to actually not know where the true boundary was by hiring a surveyor but then limiting that surveyor's scope of work so that it did not include any boundary determination effort. I can't foretell how a judge would view that purposeful avoidance. I can only provide opinion as to the boundary location based on current case law which does not differentiate between uncertainty by ignorance and willful uncertainty.
My last thought is on this is that in my practice I have made a point in recent years to avoid making claim of cloud of title. My job in a retracement survey is to show the boundary and in most every survey I have come across it is a matter more of which element controls. In this situation it is my opinion that the owners went to great length to establish that boundary using a valid doctrine of law.

[William Magee]

I am in agreement with Evan in that " The BLA doesn't need a CoC or LLA to "legitimize" it". Simply because this isn't a question (as for a CoC) as if the parcels are legal parcels. It is a question of where is the boundary. And as to a LLA, it could have been the route the owners took originally. However they didn't and as such the boundary has been established. A LLA now would be moot to move the boundary from where it has been established by a legitimate doctrine of law.

[William Magee]

Lastly, it would appear the owner's use of the agreed boundary doctrine was a purposeful method of avoiding the lot line adjustment process. Why might that be? Perhaps the particular agency has made the LLA process onerous. Or perhaps the lands are under the Williamson Act which is not easily dealt with by LLA. However, if and unless the use of the agreed boundary doctrine to avoid use of the LLA is challenged in court and heard at appellate level, it is currently a legitimate method surveyors should not discount. To discount its use and to proclaim existence of cloud of title could put the surveyor into his/her own civil litigation.

[Peter Ehlert]

Well said William. You were a good choice for your current position.

I also thank Evan for his input, very valuable. (where is Dave?) ... but the assumption that the Surveyor did more than perhaps some research and recon (not RoS triggers) and hack out a sketch is just that. An Assumption.

Yes, could be that a full survey was done but no map filed, but I doubt it.

I personally have done a bunch of little jobs just like that. I was just scratching the surface and informing the owners of the many options. Preliminary Research and Recon. It is the Owner's choice on how far to go and wether they want to hazard the chance of pulling a RoS trigger and incurring the Cost. It is our job to display the options and pitfalls.
We are here to serve, not dictate.

[Warren Smith]

The agreement was very specific about the owners' knowledge, belief, and intent. At this point, a retracement of the position of the concrete blocks and metal plates could be filed as records of survey to memorialize that location with respect to the exterior boundary in each County.

[William Magee]

Peter your assuming comment is misdirected. Unless of course you somehow happen to be aware of my recent promotion to operations chief of household plumbing.

[Peter Ehlert]

Bill (aka William): Housing and plumbing? My little birdie was correct. Bonus points!

Warren: yes, the task is now to formalize and define. Perhaps the political boundary will remain "by the numbers" and thereby create another tax lot. That is for them to decide, I don't think that would be a burden on the Owners to solve.

[LA Stevens]

Kliban v. Dixon was an unpublished court of appeals case that is related to subjective uncertainty.

http://www.leagle.com/decision/In%20CAC ... v.%20DIXON

[Ric7308]

Well said William. You were a good choice for your current position.

If you are continuing to imply that 'William McGee' is someone working at the Board or a Board Member for BPELSG, I know where my board members were during the times of these posts and can definitively state that it was not from anyone associated with BPELSG. Please just give it a rest and this thread the attention it deserves.

[William Magee]

....
I think that the major failing of the surveyor in 2000 and, not knowing the rest of the circumstances at that time, perhaps his only failing is that once he set the monuments, measured or not, they are referred to in the agreement and so establish the location of a boundary, he was required to file a RS. That means that he was required at that point to make a field survey, determine the monument locations and file the map. If he is still around and still practicing, maybe he can be convinced to do that. If not, depending on who the surveyor is, a Board complaint would almost certainly result in a citation for failure to file, and possibly for failing to follow the standard of practice by conducting a full field survey to properly locate the monuments relative to other controlling corners........

What appears to me is that the 2000 surveyor was hired to locate and show owner-set monuments on an aerial photo. It also appears that the surveyor was specifically hired to NOT do a boundary survey nor to provide opinion as to property boundary location. As to do so would have defeated the very savvy owner's desire to maintain uncertainty.

If an owner hires a surveyor to document the location of owner set monuments on an aerial photograph and the owner explicitly requests the surveyor to not perform any boundary research or analysis, then I'm unconvinced the surveyor is violating the LS Act nor aiding and abetting a SMA violation.

Considering that many, many local agencies do not recognize the usefulness of the LLA process to rectify conflicts between written title and occupation, I myself will seriously consider adding the BLA methodology to my toolbox. It will certainly spring to mind the next time po-dunk county's planning department tries to impose significant zoning and/or building obstacles on the next LLA to resolve boundary conflict I'm involved in.

[LS_8750]

I see a carefully orchestrated dance around the SMA by an attorney that knew the "uncertainty" deal and delivered effective results to his/her client(s), which undermined the intent of the SMA. Slick.

I bet the attorney fees were more than those to effectuate a LLA. Fed up with government maybe? Is this a good trend for the survey profession?

[William Magee]

My first impression is that one of the owners is an attorney. And your question is valid. Contrary to my dramatics I don't really agree that the BLA is necessarily a good thing when used as described. It is open far to much for abuse and misinterpretation Perhaps a solution would be to codify the BLA triggers. The question of the uncertainty element is confused, even by the courts themselves. In Martin v Van Bergen, the appellate level court mis-interprets in its citing of Bryant v Blevins. The justices in Martin cite BvB out of context when they stated "thus a boundary is not uncertain if it can be ascertained by an accurate survey". When in fact that is not what the Supreme Court said at all in BvB. The Martin justices cherry picked out where the CA Supreme Court in BvB stated "deference to the sanctity of the written instrument", whereas a complete reading of that portion of the BvB decision is clear that the justices were discussing that it is only implied agreement and implied uncertainty that are not enough to override the "sanctity of the written instruement" in deference to the litmus tests available in their prior work in Ernie v Trinity Luthern. The appellate judges incorrectly redefined the definition of uncertainty as re-stated in Ernie and as referenced in BvB. In reality Martin v VanBergen failed because the reliance on an old fence was only implied uncertainty and not actual knowledge that the original fence was known to be uncertain. Unfortunately the appellate court made incorrect statements that succeeding practicioners and courts will recognize that the principle of uncertainty is established by the stare decisis set by the Supremes.
Again, perhaps the solution would be for the survey profession to work towards codifying the elements of boundary by agreement to remove the confusion some have in interpreting the Supreme Court rulings. Perhaps too, the codifying of BLAs could accomplish where the LLA process fails in providing a clearly understood vehicle outside of the planning process for owners to rectify the appearance of cloud of title such as when the written instrument is in conflict with occupation.

[dmi]

BLA is a legal remedy for property owners without regard to the opinions of surveyors. Surveyors ought to be familiar with the elements necessary to implement a BLA, but ought never insert themselves in between the owners. If all the facts were known, then it may well be that this BLA would in fact be found invalid by a court of competent jurisdiction. This is not a proper realm of practice for land surveyors, that being the adjudication of the validity of a BLA. The surveyor's concerns relate to being able to recognized WHERE a boundary has been established. If the owners have entered into this agreement and title companies are issuing policies based upon said agreement a surveyor ought to take care not to slander the title of any of the parties..

[Olin Edmundson]

It seems to me that the attorneys should have known better than to advocate for or go along with this approach. If the existing legal description has not been deemed uncertain by a surveyor, then they are really performing a Lot Line Adjustment without City/County approval. On top of this, the attorneys are preparing a legal description, which they have no business doing.

[Cody Hustead]

Thank you all for the excellent commentary so far! I truly appreciate all the time taken to opine on my little conundrum. Much food for thought here which may take a little while to digest.

If nothing else, my reaction so far is that a disservice has been done to the land owners by this agreement. It does look like an orchestrated side step of the SMA. As evidenced by the comments above from many competent surveyors, this BLA has at least confused the issue of boundary location. Now, it may be the counties fault too for making the LLA/CoC process impossible. It could be also that the County Surveyor is resistant to an ROS which memorializes the BLA, but those are all assumptions. Regardless, there had to be a better way to help these poor land owners than what was done here.

I have no intention of upsetting their proverbial apple carts and I respect the advice that I should not be in the habit of determining title clouds. My employer, DWR, is doing an acquisition through both of these parcels so it's important that we get this specific boundary nailed down. Legals need to be written and just compensation needs to be dispersed based on acreage and a 130' discrepancy is not small in terms of $$.

My new opinions based on the above reading:

It's the Title Companies job to determine title clouds, not mine. I can inform them, but their insurance policy is the final word. Based on that, I should not discount this BLA so much.
I get that "objective certainty" is not a necessary prerequisite for BLA's, but gods help us if we start advocating that landowners start making their own boundaries without a qualified boundary locator involved. It may be against the common law du jour, but I will only advocate for certainty based on the opinion of a surveyor, not a layperson.

Perhaps the bureaucracy has forced folks to dance around the SMA with BLA's like this one. The details of BLA's absolutely ought to be codified to avoid this in the future, in particular, certainty needs to be defined clearly.

Thanks again,
Cody

[SPMPLS]

I will contact you to discuss.

SPMPLS

[Cody Hustead]

This just in...

The previous recorded document is an easement over the 130' adjusted area.
This easement will be extinguished when the BLA is implemented due to same easement and fee owner.

This caused me to re-read the agreement with the following conclusions.
This agreement is only intended to effect the boundary IF A SURVEY EVER HAPPENS (16 years later in this case).
It was not en-force until now. The easement has, however, been en-force since it recorded.
Now that a survey has happened, the BLA instructs the surveyor to implement the location as shown on the BLA.
This will extinguish said easement and cause the BLA to be memorialized on the ROS. INGENIOUS!

I feel like this is a trap set by some lawyers 16 years ago, and now an unsuspecting surveyor has triggered it and it's stuck on his leg.
They did not fully implement the BLA at the time of it's recording probably due to financial and time constraints, but it offered them the security to move forward with their operations and property sales, while sticking the future owners and surveyors with the problem of going through the actual government procedures to make it formal. These guys are smart!

The BLA is only to take effect upon a future survey. Until then, the easement recorded in the previous page is in effect.

As stated above, there was probably just enough professional pre-analysis to know the size of the problem area, and the surveying ceased at that point in favor of this easement and BLA.

Is it just me or does this particular scenario smell bad?

[SPMPLS]

Considering your role in this situation and who and what you are working for, you know the direction to take. A survey was done for a specific purpose, which was not to resolve this title issue. You can accomplish what you were tasked with without being saddled with fixing this.

Best of luck.

[Cody Hustead]

I'm not necessarily trying to fix it. I am, however, trying to understand it, for the benefit of myself and the contractors working on it (and anyone viewing this thread). I think it's an oddity which we can (and should) all learn from.

I've never seen a BLA which is to be triggered upon a future unknown survey.

I have been tasked with vetting the title, easement conflicts and quality of surveying before the State takes any vested interests. We certainly do not want to inherit problems. We much prefer for issues like this to be sorted out before we own it.