Right of Entry

[LS_8750]

I've always interpreted ROE to require some relation to boundaries. These boundaries may include unwritten rights, such as drainage courses or other similar circumstances, or they may include the limits of accidents, or landslides, or floods, etc.

I would not extend ROE to civil engineers. If so, why don't we just pack up and go home?

On the other hand, when one is performing working under FEMA, floodplain delineation surveys, etc., the Federal Government has a right of entry clause somewhere that is out of my reach currently.

[dmi]

from dictionary .com

conjunction


1.

(used to connect grammatically coordinate words, phrases, or clauses) along or together with; as well as; in addition to; besides; also; moreover:

If one reads the section in view of the definition of "AND", then it is likely that "and perform surveys" is meant to include activities "in addition to" the activities previously enumerated.

[LS_8750]

Black's Law Dictionary, 9th Ed.

Practicable:

(Of a thing) reasonably capable of being accomplished; feasible.


In truth, we don't know when we will need to enter the property of others than that of our client's. I'm sure that we can all agree that we generally follow the path of least resistance, cutting line sucks and it takes a lot of time. Enter ROE. "Oh, based on unforeseen circumstances it was necessary (easier) to enter the property of the neighbor to conduct the survey, and so prior notification was not "practicable".

Neighbors in screaming matches like that word "practicable". I don't.

[LS_8750]

Looky here.
Ten years later and here we are.....

I have always considered ROE to be rather sacred. Not one to barge onto folks' property to gather a few topo shots and have lunch on their porch.... AND TO PERFORM SURVEYS.

The subject came up recently, which brought me to reach out to a couple of our esteemed brethren and return to this thread and the LSACTS white paper.

In light of all the drone activity over the past several years the whole AND TO PERFORM SURVEYS component makes me feel a little more cozy.

Are there land surveyors out there abusing ROE? Are engineers or others abusing ROE?

Just wondering.....

[ekparian]

I had an issue a few years ago when the City of San Jose Police Officers told my clients neighbor that they could remove the property corner i set in their concrete. i came to this forum and expressed my frustration. Ric Moore replied to me and got involved. he spoke to the Chief of Police and an Internal Investigation was conducted. I was allowed to return to the property with Police supervision and the Police had to inform the neighbors that they were not to remove the monument the we re-set. This is not directly related to Rights of entry but on our pamphlet, it specifically addresses our right to trespass in the civil code (that is what the officer was talking about when he said it is up to a judge) but is also listed in the penal code which the office has to uphold.
i was given a couple of different handouts during all of this and am including links to download them from dropbox.

The first is is a training bulletin from the Novato Police Department:
https://www.dropbox.com/scl/fi/ya6zpepp ... ckvvz&dl=0

The second is from NSPS called Right of Entry Committee Report: https://www.dropbox.com/scl/fi/b64yb65u ... zi8em&dl=0

As far as accessing a neighboring property for Topo, i am not positive we have the right. i did access a neighbors property last year. he didnt answer the door but we left my partners card on his porch. he later came outside and demanded we get off his property. He had a very foul mouth and was belligerent was is my opinion he was drunk. we complied and got off his property. Thankfully in this case the properties were separated by a chain link fence so we finished our topographic survey using the non-prism function. We later heard from the board because he filed a complaint against my partners license. we had to explain ourselves to the Board and in this case, there were reports of water flowing from one property to the next causing damage. we explained that the County wanted a topographic map on both sides of the land to demonstrate water flow. The Board found that we did not violate any laws and the complaint was dropped.

[HomeOwner]

Hello and thank you for admitting me as a member. I am not a professional Surveyor or Engineer, rather I am a Home Owner and as such I'm here to offer that perspective on this one issue-- Right of Entry, and share my personal experience this past week. I'd like to pose a few questions to this community if I may, and seek feedback.

In researching this issue and gaining context from the point of view of the surveyors, I think I understand your position on "Right of Entry" and the necessity to provide professional surveyors a kind of waiver or exclusion from private property rights. I can imagine all kinds of scenarios where you might require access to private property in order to accomplish your tasks and duties to a client, and the difficulty in contacting and connecting with a property owner in order to obtain permission, in a timely manner. I get that.

I also imagine that many of you are likely homeowners like me. Can you imagine a scenario where a professional surveyor comes onto your property and sets up sticks, spray paints on your driveway without notice or consent? Does a surveyor's 'right of entry' supersede the rights of a property owner? I'm not naive. I run my own business and as a retired firefighter over the years I've built a dozen homes, utilizing the professional services of Engineers and Surveyors on each and every project.

I'm based in San Marcos, CA and the following is a personal account of an incident that occurred this past week.

[HomeOwner]

I came out of my residence on Thursday morning and noticed a gentleman wearing a fluorescent vest and hard hat out in the middle of the street, a private road, that is the only access to my home and my two neighbors up the hill from me. I strolled out to this individual and in a very cordial and friendly manner asked him what he was doing--

"Surveying."

"Yes, I can see that-- for what project?" -We have a twenty acre open field directly across from our homes and our neighborhood concern is a future development of that site....

The Surveyor pointed up the hill from my house and told me he was surveying for a project "up the street."

I know my two neighbors well and was not aware of any pending or planned projects, so I asked him- "Which neighbor? Which house?"

At this, he told me it was none of my business, and I replied that it kind of is, since he was on a private road, which I own (along with my two neighbors). He picked up his sticks and put them in the back of his truck and drove off. -Kind of sketchy- but since he left, that was the end of it.

I changed clothes to head to the gym and when I left, he was set up again at the bottom end of my street, so I rolled down the window of my truck and asked him if he had a business card. "No-- I don't have one."

"Who is it that you work for? -and out of an undeserved respect, I'll leave out the name of the company, operating out of Poway.

"And what's your name please?" He told me his name was Joe, and that if I had a problem, I should call his company. I drove off and that's exactly what I did.

[HomeOwner]

I called ***** Engineering and Surveyors out of Poway, and asked if they were surveying on my street, and if they had an employee named "Joe."

The gentleman I was speaking to on the phone asked-- "A big Santa Clause looking guy, with white hair and a beard?"

No-- this guy is short and squatty....

"Oh, that must be " ****** " -he's working on a project in the area a block away from you. --At this I was immediately annoyed. Not only would the surveyor not tell me what project he was working on (and lied about it) he had now also obviously given me a false name. The guy on the phone put me on hold and I returned to park behind "Joe's" truck, which had no company info, neither logo, nor name, nor license number-- no markings.

The guy I was on hold with over the phone had called this Surveyor and was on speaker, telling him to just pack up and get his centerlines elsewhere, to not have a confrontation. I spoke up and asked the person on speaker if I was speaking to "Joe" or " *****?"

The Surveyor hung up and came right up to me in a threatening manner and started aggressively asking what my problem was, and that he had "the right to survey on my street."

Not knowing the laws in this regard, I responded by saying-- "Not without permission or notice, you don't" --but he stuck his face into my space, only a few inches from my nose and with my forearm, I pushed him away and asked what his problem was. He then bum-rushed me and hit me in the face several times before I knew what was happening. I couldn't believe it, and while I struggled and tried to strike back, he kept pummeling me and knocked me to the ground, pushing my face into the asphalt as I tried to get up.

A neighbor came out as I called 911 while "Joe" who is not Joe, did the same. I was bleeding profusely and when the Sheriffs arrived, they insisted on calling the Paramedics and Fire Dept, to attend to my injuries. I have two black eyes, a broken nose, and multiple abrasions on my forehead and nose from being face-planted into the asphalt. I've now missed two days of work.

My questions------- ?

[HomeOwner]

How, and with what Board or Ethics Division, do I file a complaint about this person, this "professional Surveyor" and the company he was representing and employed by, while conducting his work?

How do I find out if he is licensed? (and not simply operating under the license of his employer, who was not in direct supervision of him).

I googled the company, which has been cited twice this year for violations while operating without a proper license.

I called the company directly and asked for the Owner/Manager to reach out to me and I sent them photos of my injuries at the hands of their employee, but no one has reached out.

-A neighbor of mine has since told me that they spoke with this same Surveyor earlier in the week, on Monday when their security cameras were triggered by this individual, who they then approached and asked what he was doing. He was at that time also evasive and unwilling to provide any information. When my neighbor pointed out that he was on a private road, he said he knew that, but that "it didn't matter."

Is this really how Surveyors conduct themselves?

The entire incident is captured on video and I will pursue in civil court (since the Sheriff did nothing) but my question is regarding the appropriate professional board or association to file a complaint against this company and to determine the license status of them and this individual in particular.

[PLS7393]

Good luck and the process is very easy to file a complaint with the Board.
See link.
https://connect.bpelsg.ca.gov/#/submitcomplaint

Surveyors like you describe, don't get public support and only make the good surveyors look bad.
The same goes for the public to cooperate with the land surveyor in the field, as I currently have a project being held up for a week now after leaving a standard right of entry door hanger & business card asking them to please contact me. I will have to make a special trip to the site in the evening in hopes to get someone at home, so I can explain the need and law, even though my survey and the monument is 1,000 feet away from my site. This is common for early 1900 surveys, and a then found and shown on a 1991 official survey. Maybe this will help you understand what the surveyor was attempting to accomplish, but his actions were not professional.

Good luck on your situation.

[Jim Frame]

but his actions were not professional

You think?

If what transpired is accurately described, the field surveyor is likely liable for, if not criminal, at least severe civil penalties (not sure why the sheriff hasn't referred this for criminal charges). His actions were not only reprehensible and unprofessional, but were profoundly at odds with his self-interest and that of his employer.

The field surveyor's reluctance to go into detail about his activities is understandable, at least to me. My initial response in such cases is usually to toss off a friendly but noncommittal answer to see if that satisfies the inquirer -- I have to respect client confidentiality, and often there's already legal action involved, so I'm constrained with regard to how much information I can legitimately disclose. Furthermore, chatty neighbors can soak up a lot of time that should be devoted to the task at hand, so brevity is important.

Sometimes that initial response is enough, but most often it isn't, at which point I'll be frank about the reasons I'm not able to go into detail. I *will* describe some of the mechanics of the job, i.e. why I need measurements to these monuments, even though they may be distant from my project location, but at some point I may have to say, "I'm afraid I can't go into more detail. Here's my contact information, if you need more details please leave me a voicemail or email me and I'll forward the request to my client for his review, but now I have to get back to work."

Sometimes -- fortunately not often -- the neighbor won't take no for an answer and insists on dogging my every step. When that happens I complete my task, get in my truck, bid them a good day, and drive off.

[HomeOwner]

Black's Law Dictionary, 9th Ed.

Practicable:

(Of a thing) reasonably capable of being accomplished; feasible.


In truth, we don't know when we will need to enter the property of others than that of our client's. I'm sure that we can all agree that we generally follow the path of least resistance, cutting line sucks and it takes a lot of time. Enter ROE. "Oh, based on unforeseen circumstances it was necessary (easier) to enter the property of the neighbor to conduct the survey, and so prior notification was not "practicable".

Neighbors in screaming matches like that word "practicable". I don't.

I appreciate the responses. Thank you for the conversation.

From my perspective and limited to my one and only very negative interaction with this particular professional surveyor-- I think that the "when practicable" clause has largely been ignored by the surveying community and likely misinterpreted. Even in this discussion forum, it seems that the premise and practice has become-- no consent or permission is required, when inconvenient.

The Surveyor's Right of Entry is now apparently assumed, rather than requested as a matter of practice. This is a gross error in my opinion. Please tell me where I'm getting it wrong.

Property rights have been long-standing and well established. Among those fundamental rights of property owners is an absolute right to privacy (on their private property) -- that the whole of the "Private" part of private property. Secondly, and hand in hand with a right to privacy comes the right to exclude others. The U.S. Supreme Court calls the right to exclude "one of the most essential sticks in the bundle of rights" and this right is considered the cornerstone of property law, allowing owners to deny entry to anyone without permission.

The Surveyors Right of Entry is a very narrow and very limited exception.

An exception to the rule of law, is not in and of itself, the rule. The burden is placed squarely upon the Licensed Surveyor to provide notice and obtain consent, when practicable. That does not exempt the Surveyor from making a good faith effort to obtain permission, because they don't feel like bothering to do so.

Thoughts?

[Jim Frame]

"Practicable" is in the eye of the beholder, and only a court can adjudicate its definition under the statute in particular matter. In my experience, it varies with every situation, as detailed conditions on the ground are usually not known to the surveyor prior to commencement of field work.

If I arrive on site and find that I need to look for monuments in a fenced yard, I'll knock on the door in an effort to alert the homeowner that I need to enter. Most of the time that doesn't produce a result, as most folks are away from home during working hours. At that point I have to make a risk assessment: is access to the yard urgent enough to risk angering the owner, or getting bit by a dog that may be lurking in there? (I've been bit twice in my career, and it's no fun.) Should I just leave a business card and hope that I get contacted so I can make arrangements? (The last time I did that, the owner didn't contact me for 2 weeks, but that survey has had so many delays that it didn't matter.) It's a judgment call every time.

In the case cited by Homeowner -- a shared driveway -- I probably wouldn't think twice about entering. In that situation I'd be much like someone delivering a package or canvassing for a political candidate, i.e. a visit by the occasional stranger is an expected occurrence. But if a confrontation were to ensue, I'd try to defuse the situation; failing that, I'd make arrangements to return with an officer of the law so I could get my work done without interference.

[Peter Ehlert]

In defense of the true Professional Land Surveyors... I'm betting the dude that Homeowner had the bad experience with is a field technician that is misguided. And his Boss isn't mentoring and monitoring him well.

Painting a driveway is a big no-no.
When brush is in the way I tie it back rather than cutting it.

Typically the occupant will not even know I was there. I leave a card and a Short note on the door saying what I did.

As a land owner I too am sensitive.
More than once I have been really POed about cutting on my land.

[pls5528]

When a topographic survey is performed, very rarely it is done without controlling it to some property/controlling markers? That being said the "right of entry laws" would be as applicable as any boundary survey.

[HomeOwner]

In defense of the true Professional Land Surveyors... I'm betting the dude that Homeowner had the bad experience with is a field technician that is misguided. And his Boss isn't mentoring and monitoring him well.

Painting a driveway is a big no-no.
When brush is in the way I tie it back rather than cutting it.

Typically the occupant will not even know I was there. I leave a card and a Short note on the door saying what I did.

As a land owner I too am sensitive.
More than once I have been really POed about cutting on my land.

I really have/had no problem with him surveying on our road-- I just wanted to know why he was there and what it was for. A "true professional land surveyor" shouldn't have had difficulty identifying himself and offering this basic information. No attempt was made to obtain permission or to provide notice.

Incidentally, after figuring out which project they were working on, I informed the owner of what had happened and after he contacted this engineering/surveying company to discuss-- he fired them on the spot. A new firm will be operating on our street tomorrow. I know this, because like "true professionals" --they notified me and asked permission.

[HomeOwner]

"Practicable" is in the eye of the beholder, and only a court can adjudicate its definition under the statute in particular matter. In my experience, it varies with every situation, as detailed conditions on the ground are usually not known to the surveyor prior to commencement of field work.

If I arrive on site and find that I need to look for monuments in a fenced yard, I'll knock on the door in an effort to alert the homeowner that I need to enter. Most of the time that doesn't produce a result, as most folks are away from home during working hours. At that point I have to make a risk assessment: is access to the yard urgent enough to risk angering the owner, or getting bit by a dog that may be lurking in there? (I've been bit twice in my career, and it's no fun.) Should I just leave a business card and hope that I get contacted so I can make arrangements? (The last time I did that, the owner didn't contact me for 2 weeks, but that survey has had so many delays that it didn't matter.) It's a judgment call every time.

In the case cited by Homeowner -- a shared driveway -- I probably wouldn't think twice about entering. In that situation I'd be much like someone delivering a package or canvassing for a political candidate, i.e. a visit by the occasional stranger is an expected occurrence. But if a confrontation were to ensue, I'd try to defuse the situation; failing that, I'd make arrangements to return with an officer of the law so I could get my work done without interference.

I understand your perspective, and I'm sure you would have handled the situation much differently-- but I will say that I find this attitude toward property owners to be rather flippant and even arrogant on the part of your profession. It just doesn't reflect well on any of you to approach private property owners with disdain and disrespect as if we are violating 'your space.'

[HomeOwner]

I want to thank you all again for permitting me to comment here to ask some questions and to share my point of view.

I greatly appreciate and respect the person who reached out to me privately.

With this, I bid you all adieu and challenge you to rethink your approach to the right of entry issue.

[Jim Frame]

It just doesn't reflect well on any of you to approach private property owners with disdain and disrespect as if we are violating 'your space.'

I rather think of it as showing respect for my client -- who is also a property owner -- by protecting confidential information and not whiling away the day chatting with passers-by when my client is paying for my time.

[E_Page]

I've heard of surveyors taking a very entitled attitude about ROE and being dismissive of landowners who question them about it. I've always thought of that as being very unprofessional.

I've never heard of a surveyor, or even the unlicensed staff of a surveyor getting abusive or physical with a landowner.

What Homeowner described, if accurate, is not merely unprofessional, it's criminal. That the deputy did not arrest fake "Joe" is unprofessional and irresponsible. Seems that law enforcement, like most other lines of work has been seriously infected with people too lazy to do their dang jobs.

Homeowner, in addition to pressing charges for aggravated assualt, and possibly suing the unnamed company for civil damages, most definitely file a complaint with the Board for Professional Engineers, Land Surveyors and Geologists (BPELSG). Their executive director reads and often posts to this forum.

In the context of a BPELSG complaint or licensee conduct in general, direct supervision does not necessarily mean that the licensee must be right there with an unlicensed employee. In fact, it is common practice for practically all survey companies with more than a few employees that the field crews are typically staffed with (allegedly) skilled but unlicensed staff. However, a key part of the exercise of responsible charge is ensuring that one's employees are adequately trained to perform the work. That includes appropriate ways to interact with landowners and other members of the public.

Having worked in surveying for 14 years, mostly in the field before obtaining my first license, I had lots of experience interacting with landowners and others before being the person in responsible charge. My parents raised me to be courteous, and that childhood training mostly stuck with me into adulthood. But my employers always reinforced the need to represent them well by treating everyone I interacted with on the job with respect. I just don't understand it when I hear of surveyors who treat others with undue rudeness in these types of situations.

I've heard plenty of stories in which it was the landowner who was aggressive. In nearly all of them, the surveyor or unlicensed employees either diffused the situation or left until the boss could smooth things over and arrange access or a law enforcement escort could be arranged. In nearly all of the situations where I was approached by a landowner initially bent on confrontation, I've been able to diffuse the situation by being very honest about who I am, what I'm doing and why I need access. The only time I needed an escort was when dealing with a person in the middle stages of Alzheimer's who wouldn't listen to reason until a badge was in his face.

When I was working in rural areas in CA, there were many times that I or my crew would need to go across properties that did not belong to our client to access one or more monuments, tie fences or other boundary evidence, or perhaps tie in some topo/plannimetric features needed for our project. If it wasn't near a home or other occupied buildings, there were no people apparently around on that part of the property and the property line wasn't posted with "no trespassing" signs, we would do what we needed to do and get out as quickly as reasonably possible.

Whenever it appeared that we would be in a space that I would view as an invasion of privacy if I were the landowner, or if we needed to spend more than a pretty short amount of time on a more distant part of the property, I would make the effort to stop by the house/office or otherwise locate an occupant to let them know who we are, what we're doing and how long we'd be doing it. Almost never had any problems and almost as rarely any resistance to access in operating this way.

As to taking the time to speak with landowners, while I understand Jim's take and approach, I'm generally a little more patient than what he described. Sometimes landowners have very useful information about the history of the land use and boundary establishment of the properties in the immediate vicinity of the project. When they ask about what I'm doing and who I'm doing it for, general answers lacking confidential details almost always are good enough to satisfy their curiosity. When I ask them questions, it often serves to make them feel as if they are helping and reassures them that I am being diligent to fully understand the local history and protect everyone's interests.

When the surveyor shows up, landowners often see some yahoo who is going to arbitrarily foist their idea of where boundaries should be. Taking a few minutes to find out what they know which may be relevant and impressing upon them that you are there to mark boundaries as they were originally established - that is, refresh what has always been and not move them 'cause the math says so - it tends to change the whole feel of the situation for the better.

Generally, I'll give the landowner my undivided attention for a few minutes, but once the conversation moves to them just being chatty or asking questions which don't serve the purpose of gaining or providing useful or non-confidential info, I'll either politely tell them I need to get to work and that I'll now let them get back to their day (implying I'll now stop wasting their time), or I'll simply get back to doing my work. Most often they take the hint.

The surveyor's right of entry does not extend to causing damage or defacing the property in any way. Stakes in yards, paint on driveways are good ways to tick off landowners and make future access to the same or nearby properties more difficult. My goal is and has always been to leave a property I need to access for someone else's survey looking as if I had never been there. If I have to access the property before I am able to provide actual notice to the landowner, the goal has always been to leave the property in a condition that the landowner would never know anyone was there unless I leave a note or door hanger at the house.

In the case of a monument on the centerline of a private road, if I might need to revisit the point, I might put a small spot or or circle of paint on it. but no such thing if it's in a driveway. Similarly, if I need to locate a corner that is in someone's yard, it is typically one of their corners. I might leave a lath. In such a case, the landowner might appreciate it. If not, they can pull and dispose of the stake. If I need to set a temporary control point that I might need to come back to, I let the landowner know what it is, it's purpose and, assuming I've already obtained access permission/acknowledgment, let them know how long I will need the point. letting them know it can be removed after that - sometimes offing to do so if access had been given reluctantly. I can't think of any other common situations where stakes might need to be set on property that is not the subject parcel of the survey.

I now work in Idaho where the law is that the surveyor must provide notice before entry. With proper planning, it's at most a minor inconvenience.