California Surveyors Forums

I'm wondering if anyone knows of a property owner being able to seek redress in Small Claims Court over a defective survey?

You get a call from a client who recently purchased a lot from a 36-year old tract map and they ask you to confirm the locations of their corners. They are suspicious because, at one corner, there is a new iron pipe sitting well inside their parcel, some 8' away--diagonally--from an old fence corner. Turns out that last year the new pipe was set by a CE who did a 2-lot split on the neighbors lot and, failing to find the old original monuments along the back line, overlaid a record boundary onto monuments along the frontage road and proceeded to set a new pipe inside your client's parcel.

You call the CE and inform him that you found the old, original corner marked with an old t-bar post less than a foot from a very old fence corner. He acknowledges the error and says he will file an Amended Parcel Map to correct his defective map.

The obvious problem here is that, had the CE not done that, my fee to the client would have been a third of what it is now. Two thirds of my fee was the direct result of an expanded field survey to verify the mistake and crank out a RofS map to document it. Without his map no RofS would have been triggered. Not even a Corner Record would have been necessary as all the old corners fit very well.

The CE was asked if he would cover the extra cost. He has not responded. Question: can my client take the CE to Small Claims Court to recover my fee for the extra work plus the county's fee to check and file a RofS?

But can my client do that as they are a third party, so to speak? They didn't contract with the CE.

Your client may have standing if he suffered monetary damages as a direct result (proximate cause) of the defective survey - that is, your additional costs. That is more of a tort cause of action, especially if the small claims threshold is exceeded. I believe that small claims need to be based upon a contractual obligation, and this would be a back door effort - perhaps with you as a named co-plaintiff for recovery. And don't forget the aggrieved neighbor.

As always, consult with a licensed professional.

Lee,

The Amended Map or Certificate of Correction should not be used since it effects a fee title interest. In addition it is also based upon a new survey the CE is required to perform.

Im doing a similar thing but doing a lot line adjustment and using a quit claim from the non-owner to straighten out title. I dont think the LLA is necessary but we need to do it for 2 other parcels regardless.

Lee,

The Amended Map or Certificate of Correction should not be used since it effects a fee title interest. In addition it is also based upon a new survey the CE is required to perform.

Im doing a similar thing but doing a lot line adjustment and using a quit claim from the non-owner to straighten out title. I dont think the LLA is necessary but we need to do it for 2 other parcels regardless.

I will look into using a LLA and/or quit claim to rectify the situation.

But, I don't understand your second sentence. What is "it" referring to: "In addition it is also based upon a new survey the CE is required to perform."

I have been to small claims dozens of times. You would be surprised at the matters they will accept and rule on. As long as you make a demand of the other party first, and prepare yourself, your luck could be very good.

One thing is certain - you will never know unless you try!

Good luck.

My experience with the courts is they will force you into superior court
for any boundary, title or third party e&o type claims. But small claims is
the peoples court and you might get a judge to play along.

Lee,

Sorry, I was using my phone and did not read what I had wrote (couldn't see it). The amended map or COC is to be used to correct or clarify oversights on the map. In the instance at hand the CE has to conduct a new survey to see where the boundary should have been placed relative to the lines he created. The proper retracement of the back line would require him to file a Record of Survey at a minimum and it might be best if only one owner is involved to file a new parcel map and use letters as the parcel designation, if the prior PM had numbers. That would lessen the confusion in the future. It would be appropriate to file a COC and only refer to the new PM or ROS for the appropriate boundary and square footage.

As I'm sure you saw 66469(f) precludes a COC or Amended Map if it imposes additional burden on present fee owners or alters any right title or interest in the real property reflected on the recorded map. "As used in this section, "error" does not include changes in courses or distances from which an error is not ascertainable from the data shown on the final or parcel map."

If the parcels have been sold by the original subdivider, the CE would probably be liable to them for the loss of square footage. I have seen that occur in the past.

I haven't spent any time in small claims, but it certainly seems like a reasonable approach if it would cover the majority of your fees. He is admitting he made a mistake and we do have an obligation to our client and the neighbor that our survey meets the standard of care. I recall a case that I read sometime ago that the neighbor has right to rely on the survey and received damages when he had to remove an improvement that ended up over the line when a proper survey was conducted.

Good luck!

Your client should probably file a complaint with the Board. If the CE didn't look diligently (or at all) for the back corners, that would seem a pretty clear case of negligence. If the result of the Board complaint comes back with a finding of negligence prior to the court date (whether small claims or civil), your client will have a very strong basis for their claim. Might even get the CE to pay what was asked without the need to go to court, or possibly the full fee if it does go to court on the basis that had the CE been diligent, your client would have had no need to commission a survey at all.

Check out the attached and see if it generates any thoughts.

Thanks for all the advice. According to county counsel and the title company the problems caused by the map next door will be rectified by my Record of Survey and the Amended Parcel Map that's supposed to be forthcoming from the CE firm.

This is a classic example of what can happen when red flags are not recognized (much less acted upon). The iron pipe at my client's SW corner ("SNF" on the CE's map) was set 36 years ago in the lonesome, rolling foothills of the Sierra Nevada Mountains. Back then there was virtually no development, no fences, and T-bar posts were widely used to mark the new property corners in a long series of 20-acre lot tract maps.

When working in this area I don't bother to pre-calc any search points. Ed Hall (LS 3972) was the surveyor who did excellent work in these parts and I've never had any trouble finding his points. I've done at least 40 separate 2-lot splits on his tract parcels, my respect for his work increasing each time. Following his footsteps is a breeze. He's left his mark--proudly--in CA.

After walking up to the SW corner, and while contemplating the shiny new pipe sitting far away from the barbed wire fence intersection, I noticed an old T-bar post sitting close to the intersection, close to the fence but not part of the fence. Sure enough, the old pipe was being guarded by this lone T-bar post. Long ago, conscientious first time buyers carefully built their fences without disturbing the pipe or the guard post.

I've always said that it takes 8 years to learn how to do the work, and another 8 years to learn how not to mess it up. (Perhaps an understatement?)

Lee Hixson: please take Evan's advice. This issue is much bigger than $

E_Page wrote:Your client should probably file a complaint with the Board. If the CE didn't look diligently (or at all) for the back corners, that would seem a pretty clear case of negligence. If the result of the Board complaint comes back with a finding of negligence prior to the court date (whether small claims or civil), your client will have a very strong basis for their claim. Might even get the CE to pay what was asked without the need to go to court, or possibly the full fee if it does go to court on the basis that had the CE been diligent, your client would have had no need to commission a survey at all.

This is being contemplated.