BLA question

[Chiara]

Been watching this thread with some interest. I was fired by a client several years ago for refusing to work with an attorney who wanted to record a BLA when an LLA was the appropriate course. The circumstances weren't the same, but the discussion made me think back to my own...

I think your line of thinking is on the right path, but in terms of your responsibility to fix the issue at hand - this is merely my opinion - I think the burden rests with your client. Paragraph 3.0 of the BLA is interesting:

If either party shall hereafter order a survey of its property, the surveyor shall be directed (presumably by said party) to provide for the location upon the Record of Survey, Subdivision Map or similar document filed pursuant to the Subdivision Map Act of the boundary between the Wallace property and the Madsen property..

I think the above places the responsibility on your client to direct you to use the appropriate method, in your professional judgment - process an LLA - to place the boundary at the agreed location, which should have been an up front request, not an afterthought (though it's understandable that your client may not fully understand the terms of the document, especially given the fact that sixteen years have passed). I think there's an argument to be made that the above statement serves to acknowledge that the legal requirements to place the boundary in the agreed location were not accomplished. They kicked the can down the road, and now that they want to have the one of the properties surveyed an LLA has been triggered, per the terms of the BLA.

[SPMPLS]

The key lies in this part of that statement:

If either party shall hereafter order a survey of its property

If neither ordered the recent survey, the provision has not been triggered.

[Cody Hustead]

Great point! However, Part 5 states that the agreement runs with the land and is binding on future owners. The local flood agency has purchased a portion of the parcel and ordered the survey. To me, that has triggered the agreement.

I'm going to mention it to the contractor in case the deal is not final yet. Perhaps this is the vital loophole if they technically don't own it yet.

File the ROS before owning it so BLA is not triggered, then record the new vesting documents.

[Peter Ehlert]

BLA has been completed, long ago.
The survey is only to define the location of the monuments on the line.

[William Magee]

I'm leaning toward Peter's interpretation in that the elements of the agreed boundary are already in place and the stipulations regarding any future survey are therefor not so much a trigger but instead are more notice of necessary adherence. My reading is that the owner's/attorneys are being very careful to claim uncertainty exists due to lack of a survey and that any future survey by either of the owners will need to acknowledge that the boundary has been created by said agreement. If, assuming the agreement didn't become effective until if or when a future survey is performed by the owners, then theoretically the surveyor would need to locate the boundary where the deed line is being as there would not have been a boundary by agreement in place. We know that is not the case by reading the BLA as a whole and recognizing that the elements of boundary by agreement were in place at the time of execution of the document.

[dmi]

I vaguely recall case law to the effect that a BLA was in place and latter upended by the true boundary being discovered. I am not sure a BLA can bind the actions of future surveyors and/or future owners. Again this is a vague recollection but I seem to recall that a BLA is not binding if entered into based upon fraud or the ignorance of one party as to the true location of the line. But this is all for lawyers to haggle over. It seems that the boundary is established by the BLA.

[Cody Hustead]

Let's assume the BLA was complete at the time of execution and the survey is simply triggering the mapping of such.
What was the point of the farming easement over the exact same strip of property (recorded on the preceding page) to the benefit of the encroacher?
Did they not realize it would be instantly extinguished with the following page by shifting the boundary across the easement (combining easement & fee owner)?

Also, why do the BLA in the first place. It seems the farming easement would have done the trick.

[E_Page]

For several years following the Bryant v Blevins case, there was a good deal of confusion or question as to whether the SCOCA had ruled that there must be objective uncertainty for a BLA to be effective, which would have been a sharp turn away from previous precedent. Perhaps they were covering the bases in case a future court declared their agreement invalid.

However, it does raise the question as to whether they knew the true location of the boundary. How does the easement description read? Does it indicate that the parties knew that the boundary location is where you have determined that it should have been, or is it more general such that it would exist between the agreed line and the "true" boundary, if it is found to exist at a location other than the agreed line at some point in the future?

If it indicates knowledge that the described line is at the location that agrees with your determination, that would be evidence that the parties may have been intentionally using the BLA process to circumvent the LLA process. But then again, if they had just learned of that discrepancy at or about the time of making the agreement, and the recognized location on the ground had existed at a consistent location for many years prior to that discovery, the BLA is probably still valid in that it was to memorialize and make permanent that which had long been mutually believed to be the true boundary.

How long have the orchards or some other form of use that has a definite edge been there to indicate the agreed location? If that use and occupation only began about the time of the BLA, then there wasn't a long-standing location to recognize and the boundary should have been moved by a LLA. If the occupation significantly predates the BLA, then it's valid and the easement is an unnecessary contingency to protect intended use.

Either way, the parties wanted to protect the status quo to the best extent possible.

[Warren Smith]

It looks like section 3.0 of the agreement covers this aspect:

" ... Each of the parties agrees that all of the legal requirements for an agreed property line exist, i.e., a state of uncertainty in regard to the exact location of the line and an agreement by the parties exists after a dispute although that dispute and issue arose many years ago and the resolution of that dispute is set forth by the terms of this Agreement and by the installation of the concrete blocks ..."

[Cody Hustead]

BLA's have always been a curious and interesting thing to me so I appreciate everyone who has indulged me with your comments on this particular one.

I like your theory, Page. The easement specified "...140.00 feet wide, lying southerly of and adjacent to the South line of the following described parcel..."

Then it goes on to describe the northerly parcel.

So the easement assumes the correct boundary is 140' from the concrete blocks (BLA). The new survey identifies a 116'-165' difference (not parallel).

I think you are correct. They weren't exactly sure where the boundary was, but they knew there was a 140+/- problem. They were also aware of the potential "certainty" issue, so they conveyed an easement too, in case the BLA was found invalid.

Regardless, the current owners and surveyor have a little extra work to do if they want their parcels surveyed at this point. I'm going to recommend the surveyor get the current owners on board then talk with the County Surveyor and planning department to hold the BLA.

[E_Page]

Notwithstanding the language of Section 1.2, the rest of the agreement seems pretty clear that the agreement is made upon execution. I don't think that they intended that the agreement only become effective "if a survey is done by either party". It makes no sense that the agreed line be contingent upon the possibility of something being done at some unspecified point in the future at the behest of an unspecified party.

I believe that the intent of that section is to ensure that the line be located by the surveyor regardless of where it would otherwise be located had there been no agreement, nothing more.