BLA Question

[kwilson]

Recently I did a boundary survey of Lot 12 of an 1890 Subdivision in west San Jose in the foothills. A previous Record of Survey done in 1998 found various monuments and evidence which re-traced the lines of the original tract. Using data from that RS I established the original line between Lots 10 and 12 – shown as a straight line on the 1890 subdivision. There were some minor distance discrepancies – the greatest being one line at 211.74’ measured and 213.53’ record.

1979, the owner of Lot 10 and the owner of Lot 12 were in a dispute over the line between them. Instead of hiring a surveyor, they brought in attorneys and came up with a Boundary Line Agreement. The agreed line was shown on a hand drawn sketch and put a 27 degree angle point in the line. Subsequently, the owner of Lot 10 built a pool, wall and fence that extends well into Lot 12 as shown on the attached sketch.

I got a letter from an attorney representing the owner of Lot 10 stating that if I did not accept the agreed boundary there would be serious trouble for me.
I asked the attorney – had a surveyor been contacted or hired prior to the BLA? Answer no.

First point in the BLA doctrine – “an uncertainty as to the true boundary line”. What is meant by this? Who needs to be uncertain? Let’s take some examples.
1. A licensed land surveyor who does everything in his power to re-trace the property line but due to major errors in the deeds, maps, monuments, etc. just cannot definitely re-trace the property line. A second surveyor is brought in and he also cannot be certain. In this situation, the line could very well be considered as “uncertain”. However, another future surveyor could still come in and come up with a solution. So the first two surveyors better be sure that the line truly is uncertain before resorting to a BLA.
2. The property owners do not know where the line is so instead of hiring a surveyor they decide to agree on a line. They get an attorney to write up an agreement.
3. The children of the neighborhood are uncertain about the true boundary line.

Does anyone have any cases that deal with this question of “who needs to be uncertain?”

In this particular case, both the 1998 surveyor and myself are not uncertain about the original lot line. So I cannot in good conscience file a Record of Survey that accepts the agreed line because there is a question about whether or not there is “an uncertainty as to the true boundary line”. But I also cannot ignore the agreed line because it has created a cloud on the title. Since I am in contract to establish the property line between the two properties what is a surveyor to do? What should be shown on the Record of Survey? We can easily show both lines with notes for each line. But which one gets to be the HEAVY line?

This type of conduct comes across as two property owners and attorneys agreeing on a lot line adjustment. Thankfully, this situation is rare. Thank you for your comments.

[LS_8750]

Thanks for posting. Popping the corn now...

[bryanmundia]

I am sure someone on here can find some case law on this but in the mean time, I did a quick google search of "California Agreed Boundary Doctrine" and based on the articles I have read from a number of different attorney's websites, it seems like this is an invalid agreement. I am paraphrasing from a number of sites but basically it states "California Courts have repeatedly shot down the agreed boundary doctrine because a boundary is not uncertain if it can be determined by a survey. The courts do tend to give deference to the sanctity of true and accurate legal descriptions.

I guess the one case I can pull is Martin v. Van Bergen. Here is a link to the summary: https://scholar.google.com/scholar_case ... 20&scilh=0

You may also want to look at Bryant v. Blevins, here is a link to the summary: https://scholar.google.com/scholar_case ... s_sdt=2006

[bryanmundia]

In this particular case, both the 1998 surveyor and myself are not uncertain about the original lot line. So I cannot in good conscience file a Record of Survey that accepts the agreed line because there is a question about whether or not there is “an uncertainty as to the true boundary line”. But I also cannot ignore the agreed line because it has created a cloud on the title. Since I am in contract to establish the property line between the two properties what is a surveyor to do? What should be shown on the Record of Survey? We can easily show both lines with notes for each line. But which one gets to be the HEAVY line?.

So to answer your questions I think I would show the "Heavy" line as the correct line between Lots 10 and 12 and not the agreed upon boundary line. I would show the improvements on my Record of Survey as well as a summary describing what you have in this forum post and definitely have some sort of documentation as to why the BLA happened and your reasoning for why you are not accepting it as the true boundary line location.

As a side note, have you pulled a title report for either parcel? I am wondering what the legal description is on the title insurance policy that either homeowner has? Is it the BLA or is it the Lot 10/Lot 12 description?

[kwilson]

Bryan

Thank you for your replies on this. I will check those cases. Regarding the legal descriptions - Lot 12 acquired title via grant deed with descriptions as follows:

Parcel One
Lot 12, Subdivisions of XXX Tract No 1 and 2 per recorded map XXX

Parcel Two
An easement for ingress and egress etc.

Parcel 3
An easement for gas, water and sewerage lines over and across Lot 10 of map of the subdivision of XXX Tract No. 1 and 2 recorded XXX at Book XX at Page XX as described in that certain Real Estate Boundry and Utility Agreement recorded XXXX

In Parcel 3 description above, the recorded Agreement is referred to but as an easement.

For Lot 10, the owner being the same one who was a party to the Boundary Line Agreement, in 1993 conveyed title from husband and wife to their trust and used their original acquisition legal description as follows:

Lot 10 per tract XXXX

No reference was made to the Boundary Line Agreement.

I am working on getting a title report for my client.

[hellsangle]

Title POLICY is what you want. What did they "insure"?

A title report isn't worth the paper it's written on.

Crazy Phil - Surveyor to Recorder

[bryanmundia]

Title POLICY is what you want. What did they "insure"?

A title report isn't worth the paper it's written on.

Crazy Phil - Surveyor to Recorder

Fair enough Phil, I would have actually suggested a chain of title but I was trying to keep the cost down. Phil is correct, ask them for their "Title Insurance Policies".

[bryanmundia]

Bryan

Thank you for your replies on this. I will check those cases. Regarding the legal descriptions - Lot 12 acquired title via grant deed with descriptions as follows:

Parcel One
Lot 12, Subdivisions of XXX Tract No 1 and 2 per recorded map XXX

Parcel Two
An easement for ingress and egress etc.

Parcel 3
An easement for gas, water and sewerage lines over and across Lot 10 of map of the subdivision of XXX Tract No. 1 and 2 recorded XXX at Book XX at Page XX as described in that certain Real Estate Boundry and Utility Agreement recorded XXXX

In Parcel 3 description above, the recorded Agreement is referred to but as an easement.

For Lot 10, the owner being the same one who was a party to the Boundary Line Agreement, in 1993 conveyed title from husband and wife to their trust and used their original acquisition legal description as follows:

Lot 10 per tract XXXX

No reference was made to the Boundary Line Agreement.

I am working on getting a title report for my client.

So with knowing this I stand by my initial response. Heavy line is the dividing line between Lots 10 and 12. I would show the "easement" per the BLA as called for in the legal and I would show the improvements.

[steffan]

Neighbors entered into a written agreement as to the location of boundary. Is element 1 of the Agreed Boundary Doctrine satisfied?
Improvements were built by one party apparently in substantial agreement with the written BLA. Termini of improvement lines don't coincide with KWilson determination of where "true" boundary corners are located. Exist wood fence/steel wall are at located at a skew angle from the direction of the true line KWilson has determined. These deviations from record location and alignment appears to support the idea that the owners did not know where the original corners were or should be located. The courts have oscillated around whether or not the true location could have been ascertained as to the definition of uncertainty, with that decision often reliant on all of the ancillary and minutia details of the case. Many cases do not include the supporting evidence of a written agreement having been in place.
Consider also that the owners did not pursue the lot line adjustment process which had been enacted by statute two years prior to this BLA. The owners modified the original boundary by placing a large kink in it, which would seem to indicate a boundary adjustment more so than an agreement. However, because they chose to pursue a BLA instead of a LLA, it would seem that the element of uncertainty was present.
Was the title line perfected by the actions of the owners alone with this BLA? Does it also require adjudication or some type of additional effort? Did the BLA change the tax boundaries? Did the BLA enter into the chain of title? Can successive deeds be written based on this BLA alone without being in violation of the SMA or without additional actions?
Although the Doctrine of Agreed Boundary has many instances of successful adjudication in favor of its existence as a common law principle, I am only aware of one place in the CA SMA authorizing a BLA outside of the adjudication process. That enabling language is limited to agreements "to which the State Lands Commission or a local agency holding a trust grant of tide and submerged lands is a party" (Govt Code 66412 (e).
Consider title for prescriptive rights. In many situations there exists only the appearance of prescriptive right, as title is not perfected until that right is either adjudicated or an easement granted. Are all elements in place for perfected title with this BLA, or is there only the appearance of a boundary by agreement?
If there is only the appearance of an agreed boundary, but all of the necessary elements are present for a ripened title, consider what role the surveyor might have in advising and assisting the owners as to the benefits and avenues towards perfecting the title.

[David Kendall]

If there is only the appearance of an agreed boundary, but all of the necessary elements are present for a ripened title, consider what role the surveyor might have in advising and assisting the owners as to the benefits and avenues towards perfecting the title.

Mr Wilson I reckon you ought to sharpen up your sales pitch for a lot line adjustment. You might want to request support from your title officer going in. This sounds like a title predicament

[kwilson]

In reviewing the court cases provided by Bryan there have been "oscillations". And each case has its own peculiarities. I have decided to present my findings to the owners - which are -
1. The assessor continues to show the lot line as per the record map
2. The current vesting deeds use in their legal descriptions the original lots (no language about the BLA)
3. If taken to court the BLA may or may not be validated (and a ton of litigation could ensue)
4. A lot line adjustment processed the normal way will serve to solidify the title and allow the various title companies to have a strong basis for insuring it.

If a LLA can be accomplished first, then i can file the RS after the fact. And the "HEAVY' line of ownership will be to the adjusted line.
Thank you all for your assistance.

[LA Stevens]

Ken,

Karoly wrote a nice paper (attached) that covers the subject of a BLA and uncertainties along with with references.

I also attached an unpublished case Kliban v. Dixon that may be helpful that I worked on.

Surveyors need objective uncertainty to help with a boundary line agreement and neighbors only need subjective uncertainty.

I agree with Phil, Preliminary Title Reports are useless. However, an owner's title insurance policies are only issued at the purchase of the property. I would order a Condition of Title Guarantee to see if it is listed on the description or exceptions and exclusions, but they only provide a minimum of liability coverage.

Good luck,
Larry

[steffan]

A LLA is one avenue. However, if the BLA, uncertainty and tolling period satisfied the elements for establishment of boundary, then a LLA based on the record map and your retracement declaration of the "true" boundary would be a somewhat awkward option to try and get the owners to embrace. They already went through an effort, expenditure and long acquiescence for which they were advised was a valid boundary establishment procedure.

Some other options you might bring forward so that the neighbors can make a fully educated decision are:

Do nothing. Explain the ramifications regarding appearance of title versus perfected title, and the challenge it leaves you with how your portray your opinion of boundary condition in your ROS. Be clear that your ROS does not enter the chain of title, so it won't perfect the title, however it can be seen as a red flag for future title officers, lenders and potential purchasers depending on how you portray the boundary conditions.

Have the owners perfect the title through a quiet title action. If they both want to continue honoring the BLA, using this to perfect a still agreed on establishment may not as costly as a fully litigated action for a disputed boundary.

File quit-claim deed(s) to the BLA line. Advise the owners to run this idea through their attorney and through the agency surveyor and/or agency council so that the recorder or others won't interpret it as a violation of the SMA.

Your client had some expectation when they hired you to survey this boundary. What was their level of understanding of the boundary condition as it existed before they brought you on? Did they hire you to clear up what they felt was unclear, did they want you to assist in perfecting a known and agreed upon situation, or were they fully aware of the situation and want you to become front and center evidence in a dispute?

[Ric7308]

kwilson, I realize this might not answer your direct question about who defines uncertainty, but it does define what your role is as it relates to compliance with your licensing obligations...

I believe this is a very good example for why 8762(b)(3) exists in the PLS Act related to mandatory filing. During the course of conducting the survey, land surveyor has uncovered evidence that might result in materially alternate positions...

Provides a means for the land surveyor to document the existence and location of evidence (previous BLA information) relative to the survey while allowing the surveyor to properly, and legally, disclose that relationship.

Some parties may not be happy about this, and anything can trigger civil challenge, but it does provide a mandatory means for the land surveyor to protect themselves from a professional licensing perspective. Again, others may not be happy but you're following your professional licensing responsibilities. Difficult for them to argue when its a mandatory trigger.

Edit: I meant to add...that if this occurred in 1979, then wouldn't a LLA be the legally accepted vehicle for the land owners to have followed at this time? Just putting this out there in case state law at the time had provided some other appropriate means for situations like this to be resolved.

[kwilson]

Ric I will certainly file a Record of Survey. Either after an LLA or without an LLA.

Steffan
To answer your questions:
No grants were made by quitclaim or otherwise to the agreed line. The current descriptions in the record by both parties continues to be the original Lots per the original map.
The assessor map shows the original lot line location - not the agreed line.
I see no evidence of adjudication.

Today i used the hand drawn agreed boundary map to determine the agreed line. After laying the agreed line out in the field from the dimensions off the existing house, the lines of possession (wall and pool) still extend into the next property so that gives us three different lines to deal with - original lot line, agreed line and possession line. Nice!! We will next be meeting with the parties. Fun.

[DWoolley]

kwilson:

I like your analysis and solution, i.e. hold the original title line and show the BLA and improvements relative to the line, well done. Encourage the folks to do a lot line adjustment if they do not like the title lines.

DWoolley