License to Use Real Property - Description - Land Surveying?

[Jim Frame]

I've been asked by a licensed landscape architect (with whom I've worked for many years) to review a proposed change to a land use license description. The original description was prepared by a land surveyor decades ago, now they want to change the extent of the license area and the landscape architect has prepared the revised description. He's not asking me to sign and seal, or even offering to pay for my review (it's a simple rectangular change).

My question: does the preparation of a land use license description fall under the practice of land surveying? My reading of the PLSA doesn't yield a clear answer. I don't want to aid and abet unlicensed practice, but I also don't want to alienate a good client over something that may not be a violation of the statute.

Thoughts?

[David Kendall]

My question: does the preparation of a land use license description fall under the practice of land surveying?

Yes I believe it does. A couple of years ago I drafted a subdivision map in a small town. There was an existing (very simple) strip access easement down one sideline for the benefit of an adjacent owner. The neighbor was giving my client (and the city hall) a royal headache because he wanted more rights and he tried everything he could do to derail the subdivision.

The client retained an attorney and at some point out of exasperation the client asked the attorney to draft a new easement in a compromise. He designed the new easement a bit wider and added an angle point at the end of the strip to widen the terminus. They sent me the document so I could show it on my map. It was recorded. The neighbor signed an acceptance agreement acknowledging the new easement.

His legal description was not retraceable. He also copied the preamble and the APN off of the lot across the street which the client also happened to own.

I was asked to review the document at some point and told them that they were making a mess. I drafted a new legal description and exhibit then sent it back to the attorney for filing. I informed the city surveyor (also the chair of the local PPC) of this situation and asked him to have a word with the attorney and tell him to knock it off.

I seriously considered filing a board complaint for unlicensed practice over this matter. I described the circumstances with Ric and Dallas at one of our chapter meetings where they were describing the new complaint portal. They encouraged me to follow through with the complaint. The city surveyor never said anything to the attorney about the legal description.

A couple days ago the attorney called me over another matter. I politely helped him then reminded him of the prior situation and told him gently that he shouldn't be doing that and that I almost filed a complaint. He said that he won't do it again....

The landscape architect may have gotten it right this time but that's not their bag. There is great potential for someone's property to be damaged by unlicensed practice of land surveying. It's probably not the first (or last) time they have done this.

I suggest that you speak gently with this person, since you have a relationship with them and presumably would like to continue working with them, to educate and inform that they should probably not be doing this. Eventually they will make a mistake and you might feel responsible if you don't say anything now.

No one wants to raise a stink in a small town but at the end of the day I feel like we have a duty to protect the public in this way. Even though it is 'only' a license agreement it still describes real property and it still conveys property rights.

Draw the line.

[mpallamary]

I believe it is improper if not illegal. Last week, I needed heart surgery so I went to an auto mechanic.

[Jim Frame]

I mentioned the landscape architecture license only because that's the license he holds. His actual position is director of real estate services for a large institution, and I believe he was innocently thinking he can just make some minor edits to modify the description. The fact that he wanted me to review it suggests that he's not super confident that he can do it right.

I let him know about the licensed practice questions, and he has since asked me for a proposal to do the work. Investigating further, I discovered that the existing description is referenced to an old coordinate system that's rotated about 13° off cardinal, so anyone trying to plot that description on current aerial imagery would be in for a big surprise. I've suggested that my work include rotating the revised description onto NAD83 to eliminate that element of confusion.

[DWoolley]

Jim:

How about a board opinion from 1989? Please see the attached. FWIW, I am in agreement with the opinion.

DWoolley

[Jim Frame]

The question is probably moot in my case now, but I'm still not sure about the applicability of §8726 to licenses.

Borrowing from https://www.boardmanclark.com/publicati ... r-easement (not California), a license is a temporary contractual right to use real property. A defaulting licensee can be dispossessed without eviction (unlike a lessee). That suggests that a license does not confer a title interest.

§8726(12) states "[d]etermines the information shown or to be shown within the description of any deed, trust deed, or other title document prepared for the purpose of describing the limit of real property." That would appear not to apply to licenses.

§8726(3) refers to "any property line or boundary of any parcel of land, right-of-way, easement, or alignment of those lines or boundaries." No mention of leases or licenses, though "boundary of any parcel of land" is big enough to drive a truck through. On the other hand, I get the impression that courts don't like to apply vague terms broadly.

The crux might lie in the practical application. If a licensee takes possession of a licensed parcel based upon a written description, invests time and money utilizing it, and then another licensee comes along and says, "Hey, your license area isn't here where you built all your stuff, it's way over there and you have to move because my license area is here," that's a public harm attributable to an incompetent description and argues in favor of regulating description writers. So, maybe.

[CBarrett]

Maybe the question we need to ask is, does land use agreement require a legal description.

This brings to mind a practice I have seen in recent years, where an easement agreement is drawn (let's say for surface drainage) with an engineering department sketch exhibit, and no legal description.

I am yet to investigate ins and outs of this approach.

[mpallamary]

If we are to protect the profession, we need to jealously guard it. Does the description of an open space area for trees require a surveyor? What of an open space or a view area or anything else?

If we are going to protect our dominion, we need to be unified.

Any description of land requires a surveyor.

[CBarrett]

Agreed, that definitely makes sense.

[dedkad]

If I'm going to pay you $50 per month to store my RV on your 1 acre parcel, do we need to hire a land surveyor to draw up the agreement? I think it depends on context.

[mpallamary]

Agreed

[mpallamary]

Of course an RV is not attached to the land.....

[mpallamary]

Nor is an RV "land."

[David Kendall]

If I'm going to pay you $50 per month to store my RV on your 1 acre parcel, do we need to hire a land surveyor to draw up the agreement?

If there is a necessity of a legal description then the answer is yes. Not to draw up the agreement but the description of the parking space.

Why are we speaking hypothetically? The unlicensed person modified an existing legal description and proposed to use it for a separate legal agreement from that which it was intended. There is no grey area here in this action. It is unlicensed practice of land surveying.

[steffan]

If push came to shove, the plain language of the enabling legislation is unambiguous.
A real property license is not a deed, trust deed or other title document.
In the rare case that substantial improvements are made and the license raises to the level of an irrevocable license, the adjudication will determine the area of irrevocable license to be bounded by the limits of the improvements, not the area encompassed in the description found in the license.
The enabling language of the LS Act is specifically limiting. Extrapolating beyond that is without basis.

[David Kendall]

If push came to shove, the plain language of the enabling legislation is unambiguous.
A real property license is not a deed, trust deed or other title document.
The enabling language of the LS Act is specifically limiting. Extrapolating beyond that is without basis.

Referring to 8726 L

https://codes.findlaw.com/ca/business-a ... -8726.html

You raise a good point but I remain skeptical. Easements would be excluded as well.

Does CalTrans have LS stamps on their easement legal descriptions or are the secretaries writing them? Why?

[steffan]

Easements are title documents. They are created by deed recordings. They enter the chain of title, and run with the land. Licenses do not. Licenses can generally be revoked by the licensor as opposed to easements which are held by the dominant tenement.
Easements are included in 8726(12)

[mpallamary]

One of the things I always look at is hypothecation secured by land.

DEFINITION OF LAND CIVIL CODE 659.

Land is the material of the earth, whatever may be the ingredients of which it is composed, whether soil, rock, or other substance, and includes free or occupied space for an indefinite distance upwards as well as downwards, subject to limitations upon the use of airspace imposed, and rights in the use of airspace granted, by law.

CIVIL CODE 1351
(f) A "condominium project" means a development consisting of condominiums. A condominium consists of an undivided interest in common in a portion of real property coupled with a separate interest in space called a unit, the boundaries of which are described on a recorded final map, parcel map, or condominium plan in sufficient detail to locate all boundaries thereof. The area within these boundaries may be filled with air, earth, or water, or any combination thereof, and need not be physically attached to land except by easements for access and, if necessary, support. The description of the unit may refer to (1) boundaries described in the recorded final map, parcel map, or condominium plan, (2) physical boundaries, either in existence, or to be constructed, such as walls, floors, and ceilings of a structure or any portion thereof, (3) an entire structure containing one or more units, or (4) any combination thereof. The portion or portions of the real property held in undivided interest may be all of the real property, except for the separate interests, or may include a particular three-dimensional portion thereof, the boundaries of which are described on a recorded final map, parcel map, or condominium plan. The area within these boundaries may be filled with air, earth, or water, or any combination thereof, and need not be physically attached to land except by easements for access and, if necessary, support. An individual condominium within a condominium project may include, in addition, a separate interest in other portions of the real property.

[DWoolley]

I had someone ask me if an exhibit/plat, no written legal description, would be acceptable practice to convey an easement. The document would refer to the plat under the caption of the conveyance document. I had never considered the question.

My considerations:

In my experience, I have seen many legal descriptions without plats.

I have seen a handful of "back alley plats" - not prepared by a land surveyor - without legal descriptions used to create various clarifications of rights/easements . These back alley plats can be found in CC&Rs, HOA documents, exchanges between neighbors prepared by DIY neighbors, etc. Typically, dicey at best.

I have also seen many well written legal descriptions with marginal, usually un-dimensioned, plats attached.

After several days of stewing on it I have formed an opinion and then, changed my opinion. I will gladly share the basis of for both of my opinions and where I eventually settled. I do not want to persuade or dissuade anyone with my opinion.

Having witnessed the murky depths of the practice and the uncanny ability for land surveyors to rationalize bad practice, it is not a question of can a land surveyor do it, but should a land surveyor do it? Why or why not?

The great thing about land surveying is getting a question after 30 years I had never considered.

DWoolley

[mpallamary]

As an aside, in the City of San Diego, a licensed land surveyor will prepare a legal description and a plat map, noted in the description, and MADE A PART HEREOF. After these wonderful plats and descriptions are prepared, they are sent over to the Real Estates Assets Department (READ). The city's real estate managers routinely remove the plats, even though they are specifically mentioned in the legal, asserting that plat maps are superfluous and of no value. Thus, they only record the legal, a description that refers to the plat. Needless to say, this policy has created a number of problems when trying to retrace things. Paul Cuomo, Roy Minnick, and I advocated including plats to eliminate any ambiguity.

[Ian Wilson]

David,

What an interesting concept. At first, I thought no! But, i thought of Lot & Parcel descriptions.

Isn't Lot 4 of PM 1234 really a "description" that relies on a plat?

I've also dealt with many blanket descriptions for utility equipment that have later been "perfected" by a plat showing the location of the lines and distribution hardware.

Great question...food for thought...

Michael,

After struggling with many poorly worded descriptions and being saved by attached plats, I am a firm believer in including plats on all descriptions.

We're a bit more militant about it here. We add a statement noting the plat by title and then state that the description without the plat is not valid.

Of course, it's common in the Bay Area to pull a deed and find the description, plat, AND closure calculations all recorded. Don't ask why on the later, but I have had one or two descriptions come together when I plot the closure calcs.

[SPMPLS]

Does CalTrans have LS stamps on their easement legal descriptions or are the secretaries writing them?

Yes, always.

[CBarrett]

Easements with a sketch only and no description end up as exceptions in the title report all the time - and according to title company, rights of the easement have passed regardless of whether there was a clear description or not. Of course, this is the risk management insurance opinion rather than a legal one.

One of the things that irks me are 'easement agreements' which ultimately become easements, and are formed in a manner which circumvents a proper description or a sketch, but thetween the civil engineering department and the property owners, they threw in a photocopy of a grading plan with a sharpie level delineation of a drainage agreement.
Then I get a post construction ALTA, and they all want to know where the line falls, and engineers are convincing me they know exactly, and I have to tell them, look at the document, it is a stick figure. Client didn't want to pay for vertical relief on this ALTA, so I can't even isolate high points and outline the watershed limits - of course, the document wasn't written with mention of a specific watershed area either. Just stick figures so they can get the grading plan approved and circumvent the 'no-cross drainage' requirement.

[mpallamary]

Ian, I love what you do. We, as surveyors should insist upon it! And people wonder why we are losing ground to unlicensed individuals. As Rodney Dangerfield said, "I don't get no respect." Respect is to be earned and too many of us are not trying very hard.

Here is my redacted exchange with the city of San Diego, Real Estate folks:

*****************************************************************************************************
My comments are below in red. (Pallamary note instead I underlined his response)

City of San Diego
Real Estate Assets Department 1200 Third Avenue

From: Michael Pallamary <MPallamary@pallamaryandassociates.com>
Sent: Wednesday, December 02, 2020 3:46 PM
Subject: [EXTERNAL] RE: Deed Inquiry
Thanks

Do you know who recorded the deed? I recorded it after the Court delivered the Order of Possession to the City. Do you agree the exhibit was not included? Exhibit A, the critical exhibit which stated the legal description of the take was included. Drawing 38XXX-B is the plat depiction of the take, which was not required, only the legal description was.

If the exhibit was not included, do you agree it should be attached? No. IF so, should it not be re-recorded or reformed?

[mpallamary]

Needless to say, the ROS I am preparing will be a necessary indictment of this pathetic policy.