California Surveyors Forums

I am trying to gain access to the property of a very difficult person to conduct a boundary survey. I now have been granted access, but the homeowner read the rules and will only grant me permission, being that my chainman is not licensed. Does anyone know if there is a statute that allows for a representative of a surveyor to access a property? I cannot imagine that the statute is written to allow only 1 licensed person to enter a property, especially since back then surveying took at least 2 or 3 people.

Worst case, I will ask all of my licensed friends to join me on this wonderful occasion, and the homeowner will be soooo excited to have several licensed surveyors gaining access to the property. However, it would be better to just use the same guy I have worked with for several years.

R. Post

I was checking out the language and it does specifically state "the right of entry...is a right of persons legally authorized to practice land surveying..."

I would call the Board and see what their interpretation is and if they have seen an extreme enforcement of that wording. It would make sense that the surveyor in responsible charge be there and then any members of his crew. Perhaps be prepared to have another LS with you that day, just in case.

I have had a similar experience in Oklahoma, where the right of entry law is similar to California's law. The land owner required that I personally be on site when my field party was on his land.

However he did not insist that only I was allowed on his land.

I would not push this, show up on site and present your BPELSG id card. Remember what you are asking, even the cops cannot go on private property without a warrant or probable cause.

These holdups are frustrating and do cost $.

Bri

This is an interesting subject for me. My client wants to play nice with the neighbor, but the neighbor is not being very accommodating. They want me to survey only on Sundays between 3pm and 7pm, and won't let my staff on the property. I certainly could have another LS assist me, but it seems to me, although I would not be surprised by the State's inability to effectively legislate, that there would be something in the code to account for the crew of the licensed individual. It is also, fortunately, not costing me money. Any request that I work on Sunday at 3pm costs substantially more than Monday at 8am.

Unfortunately, by letter of the law, your unlicensed field personnel don't have a right of entry, even if accompanied by a LS. If the landowner wants to hold the line on only allowing access to licensed surveyors, he can do that. Your workarounds would be to either use equipment that can be operated by one person, or hire another LS for the time you need to be on that parcel.

I've rarely had a problem with access, and have never had a landowner look up the law and deny access to unlicensed crew members working with or for me. What led up to this? Did you, somewhere along the way say something to the effect that state law gives you the right of access? Depending on how that came out and was received, it could easily have been taken as a threat or challenge rather than merely informative.

When I have dealt with someone hesitant to allow my and/or my crew on their land, I will take the time to find out what their specific concerns are, make whatever adjustments to standard procedure that I reasonably can to accommodate their concerns, and promise to leave everything as I found it when I'm done.

I've asked a deputy to speak with a landowner only once. Even then, I hadn't called for the deputy. The landowner was an older guy with just enough dementia going on to be really obnoxious to his neighbors and anyone doing work for any of his neighbors. The deputy had shown up to talk to the old guy about some obnoxious thing he had done to tick off another neighbor. I asked the deputy "while your at it..." to let the guy know that he could avoid another visit from the deputy that day as long as he let me onto the lot to locate a couple monuments and to not harass me while I did it. Even then, I told the old guy that he was welcome to follow me around if he was concerned that I'd damage something and to ensure that I left everything as I found it.

Prior to the deputy showing up, the old guy had been hollering at me and my chainman that we were measuring from the wrong points (centerline mons in a subdivision), using the wrong map (he had the APM, being the "right" map; I had a copy of the filed subd map, being the "wrong" map), and that we didn't know what we were doing. While I was on his lot, he followed me around and jabbered about several different things the whole time. By the time I was done, his demeanor had changed to almost friendly.

By being respectful and understanding, the only time I've had any problems have been when the landowner or tenant I was dealing with wasn't playing with a full deck.

E_Page wrote:Unfortunately, by letter of the law, your unlicensed field personnel don't have a right of entry, even if accompanied by a LS. If the landowner wants to hold the line on only allowing access to licensed surveyors, he can do that. Your workarounds would be to either use equipment that can be operated by one person, or hire another LS for the time you need to be on that parcel.

I've rarely had a problem with access, and have never had a landowner look up the law and deny access to unlicensed crew members working with or for me. What led up to this? Did you, somewhere along the way say something to the effect that state law gives you the right of access? Depending on how that came out and was received, it could easily have been taken as a threat or challenge rather than merely informative.

When I have dealt with someone hesitant to allow my and/or my crew on their land, I will take the time to find out what their specific concerns are, make whatever adjustments to standard procedure that I reasonably can to accommodate their concerns, and promise to leave everything as I found it when I'm done.

I've asked a deputy to speak with a landowner only once. Even then, I hadn't called for the deputy. The landowner was an older guy with just enough dementia going on to be really obnoxious to his neighbors and anyone doing work for any of his neighbors. The deputy had shown up to talk to the old guy about some obnoxious thing he had done to tick off another neighbor. I asked the deputy "while your at it..." to let the guy know that he could avoid another visit from the deputy that day as long as he let me onto the lot to locate a couple monuments and to not harass me while I did it. Even then, I told the old guy that he was welcome to follow me around if he was concerned that I'd damage something and to ensure that I left everything as I found it.

Prior to the deputy showing up, the old guy had been hollering at me and my chainman that we were measuring from the wrong points (centerline mons in a subdivision), using the wrong map (he had the APM, being the "right" map; I had a copy of the filed subd map, being the "wrong" map), and that we didn't know what we were doing. While I was on his lot, he followed me around and jabbered about several different things the whole time. By the time I was done, his demeanor had changed to almost friendly.

By being respectful and understanding, the only time I've had any problems have been when the landowner or tenant I was dealing with wasn't playing with a full deck.

I would respectfully like to disagree and cite the following. 8705. By my interpretation Mr. Post has a subordinate, legally surveying as his agent, he is informed and aware of the on goings, they can do everything he can aside from, sign and seal the map, and administer an oath, the subordinates work is all being done under his ultimate direction, legally, with the qualifier that he is aware and in responsible charge, perhaps some contractual tasks they are excluded from.

Sorry to recap, I'm I bit tired, as surveyors I know how littoral we are and have to be. I don't see where in right of entry it says licensed to practice surveying, it says "legally authorized", your field crew is legally authorized.

According to 8730 (b) (2), subordinates are essentially exempt from licensure and able to practice land surveying (under a licensee's charge). Thereby they can be considered as being practicing land surveyors themselves:

8730
The following persons are not required to be licensed under this chapter:
(a) ........
(b) Insofar as he or she acts in the following capacity:
(1) ............
(2) Any subordinate to a land surveyor or civil engineer licensed or registered as required by the laws of this state insofar as he or she acts as a subordinate.

Like Durkee used to say “why dance on the head of a pin” just because you think the statute will be interoperated in a certain way? The smart move would to make a copy of the penal code for Right-of-Entry for the cop, play it safe and only use licensed individuals on site. Remember you may be ok per the board but your ass is hanging out there for some sort of tort or civil law suit.

I have been through this and it can end with a restraining order and watching an old man handcuffed while an iron pipe is set in his vegetable garden, not fun.

What has worked for me was persistence and being very nice, as said before the job has now become a looser but that’s part of life.

Bri

And then there is the time I was sued for $2M for surveying a piece of property and was accused of trespass and "masquerading" as a contractor.

http://www.sandiegoreader.com/weblogs/n ... by-david-/

Mr. Magee, were there any problems with a trespass claim in the Belle Terre Ranch case?

http://www.inversecondemnation.com/files/a137217.pdf

I'd like to agree with you. I belive that it is entirely reasonable to read the law to allow a licensed surveyor with his or her unlicensed assistants the right of entry. However, every interpretation I'verified ever heard, including from Board members and Board staff, has been that it applies only to licensed surveyors and pre-82 CEs, and does not extend to unlicensed employees of those licensees.

The reasoning is that other sections that refer to those "authorized to practice land surveying" refer specifically to licensees. And technically, the unlicensed employees are neither practicing nor authorized to do so. They are conducting sub-professional or para-professional work under the responsible charge of some one who is authorized by license to perform land surveys.

I'd lIke to see the ROE extended to unlicensed assistants, and if someone were to challenge the more commonly held interpretation based on the sections you cited, I wish them success.

But until then, I'm quite sure that the more authoritative interpretation doesn't include unlicensed assistants.

One of the best publications and efforts that CLSA ever produced. All members (and in reality all licensed land surveyors and subordinates in California) should be intimately familiar with this.

We also created a companion flyer that is inforational for law enforcement and land owners. I'll post it when I get on my computer.

mpallamary wrote:Mr. Magee, were there any problems with a trespass claim in the Belle Terre Ranch case?

http://www.inversecondemnation.com/files/a137217.pdf

Mr. Pallamary,

I'm unclear as to the relevance you feel the Belle Terre case somehow has with the present subject of land surveyors right of entry.

Evan,
Per the B&P sections and the Civil Code sections pertaining to right of entry, I believe the language is consistent with that of 8730 regarding subordinates being "authorized to perform land surveying".

Unfortunately the Penal Code section regarding trespass has somewhat different language exempting "persons licensed" from the crime of trespass.
I offer that it would appear the Penal Code is in conflict with the Civil and B&P Code sections in regards to rights of entry vs trespass.

Remember that the Right of Entry card is open for interpretation.
I had four Santa Clara Co.Sheriffs visit me last year while surveying in the foothills thanks to a disgruntled neighbor.

Sheriffs asked if I was on their property and I said "I do not know as that is what I am collecting information to determine".
They asked if I was on their side of the 4' ranch fence, and I had to say "Yes". I didn't want to get into the difference between property lines and fence lines with four sheriffs (pick your battle). All four read the Right of Entry card, but the lead officer interpreted as I was trespassing, and was ready to take me in since I did not attempt to contact the neighbor. So be careful when trying to simply say you have a right of entry.

Just my .02
Keith Nofield, PLS

See the attached.

PLS7393 wrote:All four read the Right of Entry card, but the lead officer interpreted as I was trespassing, and was ready to take me in since I did not attempt to contact the neighbor. So be careful when trying to simply say you have a right of entry.

I always read it that you were required by law (not to mention common decency, consideration and respect of privacy) to attempt to contact the property owner for permission to enter first, then if that failed you were allowed to enter. I was recently reminded by a candidate that I was requesting permission to enter his property (as opposed to my more assertive style of informing him that I was entering). I've found his suggestion to be very helpful in subsequent approaches.

For clarification to Evan, I was not rude to the neighbor. I have never spoken with her. My client had a preexisting issue with her and has been the sloe party responsible for the coordination with the neighbor.

I am going to send over the subordinate information and see if that helps.

Ric, I really do like the ROE Guide, however, it appears to be silent on my issue.

RPost: That's similar to the initial situation at the job I described above. Client was supposed to talk to neighbors, but the old coot had enough dementia going on that he was at odds with everyone else on the cul de sac, but little enough to get in the way and do his best to disrupt anything his neighbors tried to get done. I doubt it would have worked out as smooth as it did at the end if the Deputy hadn't come along.


Magee & 9196: Here are the issues that I and others who have considered the ROE at length have come up against:
1. When reading laws that cover the same subject matter, they must be interpreted so as to agree. So while the "legally authorized" language of B&P 8764 and CC 846.5 arguably leaves enough room for interpretation that unlicensed assistants of licensed surveyors (or pre-82 CEs) might be included, particularly when seeing that "subordinates" to an LS or pre-82 CE are exempt from licensing. However, PC 602.8 also covers the same subject matter, and it is very clear that the trespass exception applies only to persons licensed under B&P 8700 et seq.

2. When interpreting law, just skimming the sections and interpreting by grabbing the main ideas out of different statutes is a good way to misinterpret and get oneself in trouble.

The exception in 8730(b)(2) reads: "Any subordinate to a land surveyor or civil engineer licensed or registered as required by the laws of this state insofar as he or she acts as a subordinate."

It also requires that the person they are subordinate to is properly licensed to practice land surveying. B&P 8764 and CC 846.5 apply to those not just "legally authorized to survey", but to those "legally authorized to practice land surveying". The LS or CE who the field crew is subordinate to is "practicing" surveying. The subordinates are not. The subordinates are performing technical surveying tasks at the direction of the licensee. If they are making the professional determinations required for any of the activities described in 8726, then they are no longer acting as a subordinate and therefore move out of the licensing exemption of 8730.

You also need to be cognizant of the definition of "Practicing Land Surveying" given in B&P 8704: Any person practices land surveying when he professes to be a land surveyor or is in responsible charge of land surveying work.

And the definition of "Subordinate" in B&P 8705: A subordinate is any person directly supervised by a licensed land surveyor or registered civil engineer and who assists a licensed land surveyor or registered civil engineer in the practice of land surveying without assuming responsible charge of work.

B&P 8708 limits the use of the term "land surveyor" only to licensees, and does not extend the use of that title to unlicensed subordinates.

B&P 8725 requires anyone practicing surveying to be able to submit "evidence that he or she is qualified to practice and shall be licensed under this chapter." A subordinate has no certificate or official card, or other documentation to offer that would constitute such evidence.

8725 goes on to say: It is unlawful for any person to practice, offer to practice, or represent himself or herself, as a land surveyor in this state, or to set, reset, replace or remove any survey monument on land in which he or she has no legal interest, unless he or she has been licensed or specifically exempted from licensing under this chapter. The exemption for subordinates in 8730 has a very clear restriction, meaning that to comply with this section, the subordinate has to also identify that they are working under the direction of a licensee.

So again, it is the licensee who practices, who is authorized to practice land surveying. The subordinate merely assists the licensee and is not himself practicing nor authorized to do so. If not authorized to practice, then even B&P 8734 and CC 846.5, when read in context with the code sections above, don't cover unlicensed subordinates.

Perhaps the Legislative Committee could take up a proposal to include unlicensed assistants when accompanied by a licensee. Seems to me that some time back we started on a proposal to make the ROE inclusive of unlicensed employees, without the "accompanied by a licensee" qualifier and it was DOA, meaning no one in the legislature would even sponsor it.

This bulletin was passed on to me and i wanted to pass it on. Lots of good information for Police.

Drexyl

That is a fantastic bulletin!