I was reading Brown's Evidence and Procedures 5th edition Chapter 11 “Procedures for locating boundaries described in writings and on maps†pg 312 and came across this:
“Encroachment is a legal term an not a surveying term, and as such surveyors should not use it on maps or in reports. The terms encroachment and trespass have no place in a surveyor’s vocabulary, because if a boundary line is in dispute, until the correct location of the boundary is determined, it may be discovered that the use across the line was lawful, and as such there was no trespass or encroachment.â€
The 2nd edition of the same book Chapter 12 “Guarantees of Title and Location†pg 318 says:
“The professional surveyor certifies to land location and status of encroachments; he does not issue a policy of location guarantee, but he is liable for failure to exercise due care.â€
Section (i) of the 2005 ALTA standards says:
“Without expressing a legal opinion, physical evidence of all encroaching structural appurtenances and projections, such as fire escapes, bay windows, windows and doors that open out, flue pipes, stoops, eaves, cornices, areaways, steps, trim, etc., by or on adjoining property or on abutting streets, on any easement or over setback lines shown by Record Documents shall be indicated with the extent of such encroachment or projection.â€
Does anyone put a disclaimer on their ALTAs, Maps, ROS, etc stating “ENCROACHMENTS SHOWN HEREON DO NOT CONSTITUTE A LEGAL OPINION�
I want to see what your thoughts are before I give my opinion (It’s called cheating!).
Ben
Encroachment, a legal term?
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Ben Lund
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I don’t see a difference between showing a note explicitly saying the fence is “encroaching” on the PIQ, or whether you show the boundary and the fence relationship with a dimension.
This might be an academic argument, but if you the surveyor are locating the boundary and all improvements within 5’ of the boundary, and one of these improvements is within the boundary of the PIQ, this by definition is an encroachment in the opinion of the surveyor.
Ben
This might be an academic argument, but if you the surveyor are locating the boundary and all improvements within 5’ of the boundary, and one of these improvements is within the boundary of the PIQ, this by definition is an encroachment in the opinion of the surveyor.
Ben
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Ian Wilson
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- Location: Bay Area
Bingo, Mr. Shambeck! We have a winner!
The item may well extend across the line. Whether it is an encraochment depends upon who put it there, why they put it there and the circumstances surrounding the item's construction. That's WAAAAYYYY to much for me to surmise. I'll just show the item and it's distance from the property line. Others can decide if it's an enroachment or not.
The item may well extend across the line. Whether it is an encraochment depends upon who put it there, why they put it there and the circumstances surrounding the item's construction. That's WAAAAYYYY to much for me to surmise. I'll just show the item and it's distance from the property line. Others can decide if it's an enroachment or not.
Ian Wilson, P.L.S. (CA / NV / CO)
Alameda County Surveyor
Alameda County Surveyor
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Ben Lund
- Posts: 371
- Joined: Thu Aug 30, 2007 3:07 pm
In some cases (if not most) the owners know who erected and paid for the fence. In the case where the neighbor erected and paid for the fence and built the fence on the other's property, this is an encroachment. By showing the fence's location, as the LS you are stating your opinion that the fence encroaches. I don't see anyway around this.
In other words, if one of the neighbors disagrees with your opinion, they can take it to court and let the courts decide. Until then, what you show, is what it is.
Now, if no one knows the history of the fence, or you receive hearsay, or even conflicting information, the only thing you can do is show the fence and its relationship to the boundary.
Ben
In other words, if one of the neighbors disagrees with your opinion, they can take it to court and let the courts decide. Until then, what you show, is what it is.
Now, if no one knows the history of the fence, or you receive hearsay, or even conflicting information, the only thing you can do is show the fence and its relationship to the boundary.
Ben