Monuments and Monument bond

[goodgps]

We have a client who has abandon his subdivision project.
Our Final map has been recorded with a statement that all monuments shall be of the character and in the positions shown hereon, on or before September 2008. We have sent notice by certified mail (several times) tyo our client, that we must comply with the law, Section 66495-66497, and we will set all corners and invoice him.

We recieved a letter from him, stating that he will not pay for the monuments and we should not set them.

I asked the county surveyor how I can get out of setting these monuments at this time. He stated that there is no way, however, i can take my chances that I wont get caught. . . or, I can petition the public agency to be paid from the bond.
We set the monuments as per law.

NOW, it has been brought to my attention, that the subdivider may not have paid a bond and/or the public agency did not collect it. The public agency is not responding to our inquiries.

Am I stuck with this ? maybe file a lien ?

Any Ideas ?

[the county processes the map], [the city processes the subdivision and paperwork] in this case.

[Ian Wilson]

"Maybe you could file a Reversion to Acreage Map, which is described in the SMA. Not sure if your local process would be lengthy /costly, but it could be cheaper than setting the monuments. "

Huh? That map would require that the owner of record sign the map consenting to the reversion. Since Good doesn't own the land, a reversion map would not be possible.


His options are:

1) get money from the bond…and attorney may be needed.
2) Do the work, lien the property and take the owner to court.
3) Set the monuments and chalk the cost up to experience.
4) Don’t set the monuments and run the risk of Board action.

[Ian Wilson]

Goods client sure as heck should have when the subdivision project was going.

[E_Page]

Whoever owns the land now has a recorded subdivision on it, which adds an awful lot of value over raw land. It's highly unlikely that the owner of recored, whoever that may be, would be willing to sign for a reversion.

[subman]

You don't necessarily need the owners consent for the County or City to revert the subdivision back to acreage if the subdivider defaulted on the subdivision multiple agreement and is abandoning the project.


Article 1. Reversion to Acreage

66499.11. Authority

Subdivided real property may be reverted to acreage pursuant to the provisions of this article.

66499.12. Initiation of proceedings

Proceedings for reversion to acreage may be initiated by the legislative body on its own motion or by petition of all of the owners of record of the real property within the subdivision.

66499.16. Findings

Subdivided real property may be reverted to acreage only if the legislative body finds that:

(a) Dedications or offers of dedication to be vacated or abandoned by the reversion to acreage are unnecessary for present or prospective public purposes; and

(b) Either:

(1) All owners of an interest in the real property within the subdivision have consented to reversion; or

(2) None of the improvements required to be made have been made within two years from the date the final or parcel map was filed for record, or within the time allowed by agreement for completion of the improvements, whichever is the later; or

(3) No lots shown on the final or parcel map have been sold within five years from the date such map was filed for record.

[Ian Wilson]

If the lots have no street improvements, sewer, water or utilities, where is the value?

In not having to foot the expense or waste the time to go through another subdivision process. Let's see, in Riverside County, on a Parcel Map, that could be as much as $60K. Sound like a chunk of added value to me!

[Ian Wilson]

PELS:

I didn't say they were worth full market value. I will say that they are worth more than the value of the original parcel. The subdivision added value. That cannot be denied.

[E_Page]

If someone were to pick up this subdivision project, buy the land with the recorded map in place, and since Good said he had to set the mons, it must be recorded, there is great value.

If the map is recorded, it's likely that a good deal of the improvements are in.

Even if the new owner had to complete improvements, the whole entitlement process is out of the way and it's just a matter of meeting the conditions.

How can you not see value in that?

[Dave Karoly, PLS]

I set monuments for another Surveyor on a Subdivision project where the sleazy developer sold the houses (improvements in, houses built, no monuments), the developer sold the Lots, pocketed the money and left town.

For some stupid reason the City blew it and released the monument bond. When the Surveyor pointed out the monuments had not been set and the client could not be found to the City. So the City acknowledged their mistake and agreed to pay for the monuments.

[E_Page]

So, PELS, your contention is that the surveying and the completed entitlements add no value?

Forget what possible liens might do to the bottom line. If liens bring the ultimate value down, the surveying, entitlements, and whatever improvements are in place that those liens are based upon bring it back up. If you're going to argue the negative value of one, you must also argue the positive value of the other. And it is the smaller question of the positive value of one of those items that is the basis of this discussion rather than the larger question of the overall value of the property and project.

Hypothetically answering your questions: Will the contractor file liens? Most likely yes. While that takes away from the overall value of the property and project, it does not negate the value of services provided by the surveyor.

If there are no paved streets, will the county/city want cl mons set in dirt? I'd say not, but the surveyor would have presumably discussed this with the County Surveyor or City Engineer. So if he's setting the mons, presumably streets are paved.

Will monuments need to be set twice? The surveyor may submit in writing to the County Surveyor or City Engineer reasons why the monuments will not be set within the statutory period and the CS or CE may accept that and extend the time if they feel it is warranted. If the municipality was considering reversion to acreage, presumably they would have granted the surveyor that extra time while that option was considered. So, again, presumably the majority of improvements, including streets are in.

Do you think anyone is likely to step in soon and finish the project? Not unless they are currently sitting well financially, are able to get the property at a price reflective of the current RE market, and are able to obtain the property and project in a way that they do not also take on the full amount of liabilities that may attach in the form of liens and other debts. If the current developer is walking away, it is quite likely that they will also declare bankruptcy, leaving the lending institution with the liabilities to the liens. Unless the bank has strong reserves, it will want to cut it's losses as soon as possible, so a short sale or loan to someone able to complete the project is not out of the question. The current state of the real estate market is not a permanent condition. A person or company in a position to make investments now will score big when the market strength returns in a couple of years.

If the required time frame elapses and no monuments are set, what then? See the opening post. The monuments have been set. The question is moot.

Will Liens be filed? Will bonds be called? Almost certainly - see previous answers.

Will reversion to acreage occur? Not likely if a significant amount of the improvements are in place.

Will the city sue the developer/surveyor to complete the project? If the surveyor is merely a consultant and not in control of the construction or management of the project, there is no basis to sue him for anything beyond completing the map and the fieldwork associated with it. They may sue the developer. They should have collected a bond up front. Had they done so, the bonding company needs to step in and ensure completion of the project. That's what the bond is for.

There are not too many variables to determine if the survey and the entitlements have added value. There is no question that they have. Whether or not the value of the property as a whole is greater or lesser than the original investments is a completely different question of which the indisputable value of the surveying and entitlements is but one (two, actually) variable.

[goodgps]

OK,

thanks so far.

The developer had begun improvements by installing retaining walls around the project.

With the rear of the lots having been graded, we set rear corners and marked lath with cuts for fg on the pads. We were scheduled to set r/g stakes for the fromt of the lot pads and the street cut, when the developer stopped the project to take a leave out of the country.

We gave ourselves two and a half years to set the corners, by statement on the map. AS time got closer, we began to contact the developer to no avail. these contacts became certified mailings, emails, drive by's carrier pigeon you name it.

It was a response to one of our emails that the client told us not to do anything on the project. In order to satisfy gov code, I ordered my crew to set the monumnets one-foot below plan finished grade. We have complied.

Tuesday I intend to take a copy of the clients email letter to the city agency as an exhibit of the clients non-intent to pay. I hope this begins the ball rolling towards payment. Naturally since the dang corners have to be set so deep (4 feet in some cases) I will go over the budget amount, but what the heck, its better than hearing from the board.

For all other staking which has not been paid for, i will file a lien. Heck yeah, this project has mucho value compared to a bare lot !!!

I dont want to go with a reversion of acreage at this time, especially If I end up with the little subdivision myself.

Thanks for all of your suggestions this really helped. I will let you know how it goes come wednesday or so.

"Good" (riddence to bad clients)

[goodgps]

Oh yes absolutely.

We know that this subdivision qualifies for the one-year extension, but truely that won't be enough.
This particular public agency, waits ten years before initiating a reversion to acreage. They usually hire the original surveyor to prepare that map. It does not have to be signed by the owner. (this agency)

A value could be a legitimate developer who buys the pkg and completes the development rather than begin all over again. That would definately be a good purchase over just raw land. I see the points form both angles.

I just dont want to "eat" a weks worht of field crew time simply for obeying the law. No good deed goes un punished i s'pose.

[LA Stevens]

What about a COC to explain the circumstances that the mons were set at grade because the finish grade was never achieved?

Or

Is it possible to add to the COC that the final mons were not completed because the bond or site work was not completed. If they can't sell a lot, why do mons have to be in?


Good Luck,

[Peter Ehlert]

you hit the nail on the head Larry...
most any City/County Engineer/Surveyor should not have a problem with a CoC simply stating that the project has been halted and certain monuments were not set

[goodgps]

Shucks ! Why didnt I think of that in the first place, We've already set all but four of the pipes. We have to auger the last four because they are so deep.

[LA Stevens]

It may not be worth it. But send a letter to County Surveyor for extension and let your best field crew work on it during winter when it is slower.

[goodgps]

THANKS LARRY,

I will try that tuesday. Its hot and my guys are dying out there.

I just wish I had something else to send them on.

[goodgps]

Today, I recieved an opinion from the City engineer regarding their collection of a monument bond. The opinion states that "the City collects a bond for the estimated amount for placement and construction of all monuments shown to be within the City right-of-way for all streets shown on the subject final map". "All interior lot corners shall be considered private and become the responsibility of the Land Owner/Developer for payment and Surveyor to place properly, in accordance with the code.

I totally disagree with this opinion. Pursuant to section 66495, (and wording required by the City itself) a note was placed upon the map stating a certain date for the placement of all monuments shown hereon.

In this case, The city is makins a statement that the bond does not cover the interior monuments but only the centerline monuments (of which there are only two)

Any other thoughts on this ? I am preparing a package to go to City attorney. Are these guys correct ?


"good" and gloomy

[E_Page]

Does this City have a Subdivision Ordinance. If so, what does it say about monumentation? Many cities require that all lot corners be monumented. If that's the case here, their policy is codified and they can't contradict that with a letter stating the policy is something else.

[Ric7308]

This is a real good topic and discussion. I am interested in how this works out.

[goodgps]

I am sending a package of the law and codes mentioned. I will also send a copy of the certificate as it appears on the final map.

This will go to the city engineer and I will request it be forwarded to the city attorney.

I will throw another reply to this thread as I hear of their decision.

It appears that this is not virgin territory for public agencies to get confused on the Monument bond issue.

We simply must prevail in this circumstance or revise the law to state that the Surveyor recieves the monument placement fee in advance.

Thanks

[subman]

In my County, we collect the monument security for all monuments to be set, not just those in the public RW and we do not accept surety bonds due to the difficult process to collect on them. We want something with more liquidity. However, we do allow surety bonds to guarantee infrastructure improvements.

[Gary O]

Your situation is exactly why we require a letter from the surveyor stating 'the monuments have been set and I've been paid' or a monument bond as part of the improvement agreement BEFORE the map is filed.

Do you know whether an agreement was recorded? Check at the Recorders Office and it should be very close to the time of the filing of the map. Go through it and see if there was a monument bond. Shame on the jurisdiction if they let it go without one.

If there is a bond do not hesitate to make a claim. The jurisdiction should help you with this...we do. It may take a while but you should get paid.

As recommended, ask the Co Surveyor for an extension. If no lots have been sold I can't see why they wouldn't allow it.

Lastly, if your jurisdiction's ordinance doesn't require monuments at every corner, do a Cert of Correction stating that those corners weren't set and use adjoining corners as witnesses.

[goodgps]

We sent information to the city (in question) Attorney.

Two city officials called me today to inform me that action was taking place to collect the monument money from the owner or the Bond. Also, the bond amount should've covered all mounments set in the subdivision including lots and centerlines etc.

Setting the monuments faithfully may work out in the long run.

Thanks !

"good"

[LA Stevens]

Good job hanging in. Hope it continues to work out.

Larry