California Surveyors Forums

I wrote this tidbit few days ago as a starting point for a conversation - Let's hear some thoughts.
link to code: https://leginfo.legislature.ca.gov/face ... ionNum=841


MONUMENTING YOUR LAND
Pondering tidbits for homeowners, land owners, Lands Surveyors and other land professionals.

California Civil Code 841 (a) says:
"Adjoining landowners shall share equally in the responsibility for maintaining the boundaries and monuments between them."
This means that when you survey your land and decline to set the monuments, you are making a decision not just yourself, but all your neighbors too.

Let us discuss ramifications of decision to not set monuments when a survey is performed, and not advising property owners of this legal responsibility in Land Ownership.

Would this make a surveyor or other Land Professionals complicit in breaking this law?

Just as a reminder, part of the relative economic stability in our country is the fact that careful land and boundary determination and registration system makes it a very desirable investment. Destabilizing it's value can be costly. sometimes people are so tied to their parcel of land that they will go as far as risking loss of limb or life to protect it...

Don't avoid getting your land boundary properly determined (surveyed) and monumented.

"Adjoining landowners shall share equally in the responsibility for maintaining the boundaries and monuments between them."

Tell that to the fencing contractor.

CBarrett wrote: Mon Sep 25, 2023 8:42 am Let us discuss ramifications of decision to not set monuments when a survey is performed, and not advising property owners of this legal responsibility in Land Ownership.

Would this make a surveyor or other Land Professionals complicit in breaking this law?

Nope. Not performing to the highest possible standard? Probably, but there is only so much you can influence the goals of a client.

That law (and all laws relating to neighbors) are really just preaching to try and provide a conversation point, or starting point. If you need a law to make your neighbor help with the fence, they are bad neighbors. ( IE prescriptive laws vs descriptive laws debate)

Big picture consideration, its my experience that laws first work on bureaucracies and then later on the rest of the world. Is that the experience of others?

I ask because we are often debating the pros and cons of legislative changes, and if the primary response to a new law or revision is with bureaucracies and then 30 years later for practicing surveyors, it would help locate areas of the law that we could focus on and have actual change, as well as where to plant some seeds and see them flower in 30 years.

Mikey Mueller, PLS 9076
Sonoma County

Mike Mueller wrote: Mon Sep 25, 2023 10:40 am

CBarrett wrote: Mon Sep 25, 2023 8:42 am Let us discuss ramifications of decision to not set monuments when a survey is performed, and not advising property owners of this legal responsibility in Land Ownership.

Would this make a surveyor or other Land Professionals complicit in breaking this law?

Nope. Not performing to the highest possible standard? Probably, but there is only so much you can influence the goals of a client.

That law (and all laws relating to neighbors) are really just preaching to try and provide a conversation point, or starting point. If you need a law to make your neighbor help with the fence, they are bad neighbors. ( IE prescriptive laws vs descriptive laws debate)

Big picture consideration, its my experience that laws first work on bureaucracies and then later on the rest of the world. Is that the experience of others?

I ask because we are often debating the pros and cons of legislative changes, and if the primary response to a new law or revision is with bureaucracies and then 30 years later for practicing surveyors, it would help locate areas of the law that we could focus on and have actual change, as well as where to plant some seeds and see them flower in 30 years.

Mikey Mueller, PLS 9076
Sonoma County

We talk about legislative changes because it is the function of the legislative committee and it's members to do that. With several people who frequent this place being involved in this committee, the emphasis happens to be on legislation. It's a situational anomaly.

This particular law already exists. So my thinking went thus:
Let's say I have a land owner client, who is resisting paying for monuments, "they don't want to, they are trying to avoid the expense... the usual narratives".
Let's say I am a land surveyor who does small residential surveys. (I am not at the moment, but have been over the years).
How do I strongly encourage the land owner to bite the bullet and have the monuments set.
- I would point them to this law, explain to them that - to start with it is their legal obligation as the land owner to maintain their property monuments. Ok, so what then, he still doesn't want to...
- then you explain, they are not just your property corners but your neighbors. So you do a survey, and your neighbor finds out that you did not fulfil your responsibility as a land owner, and that you robbed your neighbor of a chance to share in the cost and fulfil their responsibility as land owners too. Property corners are shared, it is not a unilateral decision.
- Then your neighbor sues you for robbing him of that chance... and whatever else they decided to beef about, since survey is being done to start with, there are either issues or actions brewing under the surface.
- Explain to your client, that as a land surveyor you are OBLIGATED to consider their neighbors rights anyway, so... it may be best to talk to the neighbor and come to terms in, (potentially sharing the cost) and fulfilling both of their civil obligations.

Since surveyor sets the monumentation and is the only one who can, do we have responsibility (maybe not so much legal, but ethical) to inform the land owner of the law affecting what we do - set monumentation.

I hear surveyors say, well, the homeowner doesn't want to set corners - they have that right. Well, apparently they don't quote have that right. They actually have the responsibility to set and maintain their property corners - if I am reading this law correctly.

Right now, to compel the owners to maintain their boundary monuments, we are using the subdivision process, and trying to force more monumentation through creating a law for surveyors, placing the burden on surveyors. The burden needs to be on the land owners, and it looks like it already is. Maybe we need to be smarter at - using the existing law.

Part of my concern in, I find few surveyors who know this law even exists, much less understand it. I think we need to get to the bottom of it.

hellsangle wrote: Mon Sep 25, 2023 8:58 am

"Adjoining landowners shall share equally in the responsibility for maintaining the boundaries and monuments between them."

Tell that to the fencing contractor.

We probably need to point that out much more frequently. Including to the fencing contractors.

Most of my boundary work is in residential areas. I often bring it up to prospective clients that they should get their neighbor to contribute as the boundary is equally theirs. I have even quoted that law. Its only worked out a few times, I think primarily for the reasons you cite. Most surveys are being triggered by a situation that does not lead to easy cooperation. Half the time they decide to work together it ends up being a pain for me due to billing issues, and splitting the costs "fairly". Current SOP is to only have one signer of the contract and let them sort it out how to pay each other.

Would be an interesting speaking topic to find ways to engage neighbors on survey costs. For what its worth, I do not consider myself a great salesmen, so perhaps my experience above is more a comment on me than the public's willingness to share costs :)

Mikey Mueller, PLS 9076
Sonoma County

Mike Mueller wrote: Mon Sep 25, 2023 1:16 pm Most of my boundary work is in residential areas. I often bring it up to prospective clients that they should get their neighbor to contribute as the boundary is equally theirs. I have even quoted that law. Its only worked out a few times, I think primarily for the reasons you cite. Most surveys are being triggered by a situation that does not lead to easy cooperation. Half the time they decide to work together it ends up being a pain for me due to billing issues, and splitting the costs "fairly". Current SOP is to only have one signer of the contract and let them sort it out how to pay each other.

Would be an interesting speaking topic to find ways to engage neighbors on survey costs. For what its worth, I do not consider myself a great salesmen, so perhaps my experience above is more a comment on me than the public's willingness to share costs :)

Mikey Mueller, PLS 9076
Sonoma County

Part of me is coming from the Public Awareness Committee point of view. .....
Now to figure out if these thoughts lead to anything useful.
Maybe I need to add a section about this law into our boundary survey brochure - how to pick a surveyor etc... that we are revamping on this committee.

I recently learned that some states require that all adjoiners are notified, when a piece of land is being surveyed. I don't know the details of how this works and the why's yet.

Should a dispute arise . . .

I don't believe your client's attorney would be happy one is in contract with both the plaintiff & the defendant.

On the other hand . . . wouldn't that become an agreed boundary if both are in contract?

hellsangle wrote: Mon Sep 25, 2023 2:00 pm On the other hand . . . wouldn't that become an agreed boundary if both are in contract?

I just did this on a conflicted line and I described it on the record as an agreed boundary. My contract was with the first one that called but I listened to testimony/concerns and negotiated the outcome with both parties and the second party reimbursed the first party for half of the survey expenses related to the line.

I find this to be the most efficient way to settle a line for posterity: Talk to the neighbor, get them to agree to the location (or at least discuss any reasonable objections) and add both names to the record of survey

Oh and I set monuments

hellsangle wrote: Mon Sep 25, 2023 2:00 pm Should a dispute arise . . .

I don't believe your client's attorney would be happy one is in contract with both the plaintiff & the defendant.

On the other hand . . . wouldn't that become an agreed boundary if both are in contract?

We're always responsible for the land of plaintiff and the defendant, by law. A contract has no power to trump or distort that - remember, for a contract to be valid, it has to be legal. It has no power over statutes. Financial responsibility of one of more parties for a survey can not be used as a part of boundary evaluation evidence. If a surveyor does it, it is at the minimum misfeasance, and a surveyor should be, well investigated by professional practices committee(s).

As far as a boundary line agreement, It would become agreed boundary line only of it passes the test of what a boundary agreement is supposed to be and is properly documented as such. It is not the paying land owners who get to ignore other evidence and decide where their boundary lays. They only have the power to do that in absence of other evidence - regardless of the contractual relationship regarding payment.

Surveyor has to carry their duties with equal diligence, regardless of presence or absence of a dispute. We don't advocate for our clients, we are supposed to be impartial.

If one is worried that shared payment creates a conflict of interest or can bias a surveyor, by the same logic, a one sided payment is then likely to create and even greater imbalance and conflict, considering only one part is footing the bill. If I were an attorney and this actually bore any weight, in that situation I would relish advocating in favor of non-paying party. It would be a slam dunk. However, hundreds of years of non-shared costs for boundary surveys tells me this argument carries no weight IRL.

Like Gulliver, tied down by thousands of little strings, we lose our freedom one regulation at a time.

Back on point.
California Civil Code 841 (a):
"Adjoining landowners shall share equally in the responsibility for maintaining the boundaries and monuments between them."

I believe the correct meaning of that is Financial Responsibility. Not physical construction.
Otherwise it's akin to slavery, forced labor.

My smattering of law school was many years ago, perhaps I don't recall the entire thing in context

Actually the more I read about it the more I don't think that this code applies to survey monuments at all, only fences and fence lines.

CBarrett wrote: Mon Sep 25, 2023 5:46 pm Actually the more I read about it the more I don't think that this code applies to survey monuments at all, only fences and fence lines.

I think that in theory, if someone were to sue their neighbor for half the fence costs or for half of the boundary survey costs then they would probably win. My experience is that people are reluctant to sue their neighbors for petty things like this. Practically speaking, it would have to be a substantial cost in order to justify the legal expense.

I have asked several attorneys about this and they have all replied that they never heard of the law being used to compel the neighbor to pay half of the boundary survey or recording fees

David Kendall wrote: Mon Sep 25, 2023 8:20 pm

CBarrett wrote: Mon Sep 25, 2023 5:46 pm Actually the more I read about it the more I don't think that this code applies to survey monuments at all, only fences and fence lines.

I think that in theory, if someone were to sue their neighbor for half the fence costs or for half of the boundary survey costs then they would probably win. My experience is that people are reluctant to sue their neighbors for petty things like this. Practically speaking, it would have to be a substantial cost in order to justify the legal expense.

I have asked several attorneys about this and they have all replied that they never heard of the law being used to compel the neighbor to pay half of the boundary survey or recording fees

Ha, maybe we should propose to amend 841 to include survey monuments, not just fences ;) Department of Real-estate is probably likely to have a cow over it - I am guessing.

I have heard the law referenced as the "Good Neighbor Law". It is my understanding the law is used more often than folks indicate here. It was explained to me there is a 30 day notice requirement, a reasonableness of the costs and a hardship provision to get out of the costs. I have been contacted by several attorneys over the years to discuss the mechanics of this law.

I have said it many times, I will say it again, homeowners do not need a surveyor to build a fence. A ball of string and strong back is all that is required.

Kendall, when you established an agreed boundary line, did you put the solution into title? if so, how?

DWoolley

My impression from the context of this portion of the Civil Code is that, if one neighbor wishes to construct a pilaster and extensively ornate fence, the other neighbor is only obligated to contribute for the equivalent of a simple wood fence.

More to the point, it expresses a rebuttable presumption that each owner knows where the common boundary is located. That is, as an obligation of land ownership. If, in fact, they don't - it's time to hire a land surveyor.

Warren Smith wrote: Tue Sep 26, 2023 8:49 am More to the point, it expresses a rebuttable presumption that each owner knows where the common boundary is located. That is, as an obligation of land ownership. If, in fact, they don't - it's time to hire a land surveyor.

This is exactly what we need to capitalize on. Obligation of Land Ownership. Hire a surveyor, (have a surveyor) set monuments, share the cost with adjoiner if you must, or can.

Then the argument of "the owner does have a 4 million dollar house, but the owner dosen't want to pay extra $2500 to set 4 monuments and file paperwork" is not on the surveyor (as much). If the owner refuses, fine them $3000, and send it to the surveyor to set the monuments anyway. (I know it's not quite that simple, but the looming possibility may work on a percentage of people).

Speaking of which, many of these more affluent land owners are more likely to buy a $6000 dollar pair of shoes, instead of monumenting their land. Maybe we need to start charging Gucci prices and setting designer monuments for $15,000.

Like Gulliver, tied down by thousands of little strings, we lose our freedom one regulation at a time.

I agree with you Peter for the most part, but at some point laws are needed.

I am reminded of the example of bathrooms.

When you are in a rural area, you want government to set up a toilet at the park to help you go to bathroom.
When you are in the city, you want the government to keep the bums from using your porch as the bathroom.

As we get more people, we need some laws. Laws are like flood waters, held back by a dam. Letting some water past lowers the pressure and prevents a major breach. We will need to change the laws around surveying ourselves, or it will be done for us.

Mikey Mueller, PLS 9076
Sonoma County

PS Edited to switched out metaphor/example, silly me.

DWoolley wrote: Tue Sep 26, 2023 8:28 am Kendall, when you established an agreed boundary line, did you put the solution into title? if so, how?

I did not. I recommended quitclaim deeds to a described line but they didn't want to pay for the recording fees. I expressed that I found that mentality to be short sighted but I later relented as the agreed boundary was clarification of a line that was in question due to mapping blunders, essentially a lack of original subdivision monuments and several surveyors coming form different directions and meeting in the middle, accepting the previous blunder and compounding it by filing parcel maps on the adjoiners.

Fortunately the discrepancy resulted in a gap and not an overlap so both sides were both happy to gain their foot of yard and build new fences to memorialize the line

The legal descriptions are going to continue to be the lot numbers but the dividing line between the lots is now clarified by the survey establishment. Both parties are in agreement with the new location. I'm calling it an agreed boundary

I understand that there is a risk of someone changing their mind or selling and the conflict arises again but they are content to let it ride and I cannot make them sign the deeds or pay me to draft and file metes and bounds legal descriptions. There is also that other forum thread discussion to consider regarding title companies rejecting boundary line agreements.

I did suggest to my client that it would be a good idea to have an attorney iron this out but I don't believe anyone is interested in that