The Land Surveying Reformation

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Elizabeth Robinson
5 years ago
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1 The Land Surveying Reformation Reformation usually means "returning to a clean start," removing accumulated corruption and impurity. It is often used in reference to institutions, sets of practices, and people; those in favor of reformation usually believe that they are correcting errors and returning to a rightful course. 1 Surveying is rich in history and is a very honorable profession. As surveyors, we are regularly called upon to determine property boundaries. We are tested and licensed to ensure that we meet the minimum requirements to practice. This serves the greater purpose of protecting the public. Our laws are crafted with that designated purpose in mind. Events over the last few years, each unremarkable when considered separately, but, collectively have motivated me to move towards permanent and lasting change in our profession. I have oscillated between action and complete inaction. Every profession has those that choose to toe the line and others that blatantly operate outside of the law. We have all read about these people in the paper i.e Ken Lay of Enron, Boss Tweed of Tammany Hall, Jack Abramoff, et. al. Often times these surveyors operate undetected or undeterred for years. As we can all attest, land surveying in the state of California is no different. These few surveyors, when questioned, often respond with such authority and dead set certainty, it can be disarming. We gather socially and talk about those that operate outside of the accepted practice, in most communities, we have been aware of them for years. There are several causes for inaction; apathy, friendships and business relationships, former co-workers/employers and fear of our own work being held to the standard by which we are judging. How did we get here? The Professional Land Surveyor s Act (PLSA) was enacted in 1891; the act expanded the Board of Professional Engineers and Land Surveyors (BPELS) jurisdiction over licensure and regulation of survey practice. Until then, local governments had been interpreting the laws governing subdivision maps and recordation of parcel boundaries in widely differing ways for many years. Many land surveyors ignored basic legal requirements concerning subdivision maps and survey records. Legal disputes over property boundaries cost the state and the public millions of dollars. Regulation of land surveyors brought about uniform enforcement of survey law and in the best interest of the state and California consumers. 2 We have had a lack of enforcement largely due to unreported violations, lack of education, much less continuing education, those involved in the California Land 1 Wikipedia 2 BPELS Bulletin #31, Fall 2005

2 Surveyor s Association (CLSA) or ACSM can attest to the familiarity of the faces. New blood cycles through, but, the reliable perennials remain. What can a surveyor do? The reasonable person might think that these surveyors may have missed the news flash and are feeling fortunate to have you tell them about the PLSA. Not so much. In my recent experience, I have contacted surveyors and inquired about the status of their records of survey only to be told our interpretation of the law is different, they didn t set any monuments or the client wasn t willing to pay for a record of survey. I dutifully prepare a package consisting of Section 8762, a personal letter explaining that establishment of one or more points or lines not shown on any subdivision map, official map or record of survey or detail any other sections that apply. I will often include an enforcement case from BPELS that is similar in nature. The conclusion is to ask that they respond with any mitigating circumstance with which I may not be familiar or a copy of their preliminary record of survey for reference on my own survey. Another challenge is finding these surveyors. In normal practice, we may happen onto tags set with no reference map. In our particular business we handle property boundary litigation surveys/expert witness, so we happen into a few more fresh temporary corners than most. The adjacent owner will usually provide us with some paperwork; we try to secure a copy of their contract for services or an invoice. It is not uncommon for these surveyors to only provide the owner with a couple of 1 x2 stakes and an invoice. Owners are often very cooperative, especially if they think their neighbor is getting a better survey. The Reformation After careful consideration, deliberation, research and discussions with members of BPELS, various CLSA Professional Practices Committees (PPC), County Engineers Association of California (CEAC) and various county surveyors, it is reassuring to confirm a united stance in the interpretation of the law. So when I am told that our interpretation of the law is different it appears as though these are isolated professionals. It is BPELS and the Attorney General, order notwithstanding, which will have the final say. Currently, I am in the early stages of developing a process to obtain ALTA surveys. According to my discussions with Curt Sumner, Executive Director of ACSM, an ALTA survey is a boundary survey in the strictest sense of the word. This sentiment is further reinforced by Gary Kent s recent article titled ALTA/ACSM Land Title Survey Corner 3. So, in California, it would only be reasonable that The establishment of one or more points or lines not shown on any subdivision map, official map, or record of survey, the positions of which are not ascertainable from an inspection of the subdivision map, 3 ACSM Bulletin, dated April 2006, page 23

3 official map, or record of survey. 4 The same for The points or lines set during the performance of a field survey or any parcel described in any deed or other instrument of title recorded in the county recorder s office are not shown on any subdivision map, official map, or record of survey 5 Again, regardless of the fact monuments were not set. There are some privacy issues to work out, but the California Land Title Association addressed the Gramm-Leach-Bliley Act and California Financial Privacy Information Act which became effective on July 1, Although, I do not practice law, it reads to me that exemptions found in the new law: disclosure is to comply with federal, state or local laws, rules, and other applicable legal requirements. 6 Of course we will get a legal opinion from the appropriate parties. One cannot imagine they would want to be instrumental in facilitating or harboring the violators of California law. Once we have the ALTA surveys, it will be relatively rudimentary to check for recorded maps and to send out a standard letter confirming the same, prior to sending a package to BPELS. Our darkest days ahead. In the enforcement cases I have read, it is quite clear, there is no negotiating with BPELS. In a general sense, the typical land surveyor receives an Order of Abatement fine ranging from $250-$2000, the filing of the required map rectifying the violation, the license may be revoked and reinstated and occasionally a probationary period. One case that is of particular interest is Accusation 633A, effective May 11, It reads in part; Within the State of California, Durand performed land surveying, an ALTA/ACSM (American Congress on Surveying and Mapping) survey, in Sonora. He negligently located only two monuments when more were easily located, and failed to locate and show a private easement. He incompetently failed to locate and show a ten foot wide drainage easement called out in the title report. He failed to file a record of survey within 90 days after the establishment of points and lines which disclosed a material discrepancy with the record. In June of 1995, Durand purported to do an ALTA/ACSM land title survey in Tuolumne, which he subsequently stamped. He negligently failed to correctly record and describe the monuments he found or set. Although he did not accept the position of monuments set by the original survey, he failed to file a record of survey. He did not file a corner record. He was incompetent in his failure to recover all existing monuments on the property when they were in place and easily accessible. 7 Underlines were added by the author. In this particular case, the practitioner lost his license to survey and incurred $8800 in fines. It will be difficult for many of us to stomach these cases as it pertains to our fellow surveyors. The end justifies the means. The initial culling will be quickened in that many surveyors will not have the financial resources to file the many records of survey that may require additional field work, mapping, checking fee and filing fees. Being that 4 PLSA, Section 8762 (b) (4) 5 PLSA, Section 8762 (b) (5) 6 California Privacy Laws and Reports Relevant to Title Companies and Public Records. Abstracts of Judgment, Code of Civil Procedure The case can be viewed at

4 the laws discussed are not new, any violations can be retroactive. The ALTA survey didn t become commonplace until the mid 1980 s and many title companies have scant filing systems for these surveys. To gauge the volume, First American Title Company, Orange County, estimates that they review approximately 250 ALTA surveys per year, based on the last 2-3 years. The checking of the surveys for violations will be a simple efficient process in that the focus can be on Section 8762 (b) (1, 3, 4, 5), which are relatively easy to verify. It is of great importance that we understand these surveyors are not victims. Their clients, title companies, fellow surveyors and adjacent owner are the victims. Again, the idea of the license is not for our benefit, it is for those who require our services. This basic understanding will not make our task any more desirable, but, it should allow us to complete the job; believing in the greater good. An eye on the future Once we have put the darkest days behind us, it will be a much better survey world. When we are contracted to perform a boundary survey, whether it be for construction of a building with setbacks to the property line, encroachments verification, ALTA surveys, we will begin to find remnants of the previous surveys in the form of filed records of survey. We will see parity in our scope of work, no longer concerning ourselves with the surveyors that cut corners, by not filing maps, at the clients expense. Those of us that witness the affects of having to file surveys of yester year on their own dime should provide a heightened awareness of our own daily practices. A true upside is that we are in the one of the best survey times I have known, with record profits for most. Those profits will help facilitate the filing of the records of survey. A topic of concern in recent years is the fact that we have such a low pass rate on the Professional Land Surveyor s exam. The enforcement of the law will allow the survey technicians to become better trained in the surveying that applies directly to licensure. They will prepare more maps, perform research, resolve boundaries and work with their local county surveyors. The title companies will have boundaries that have been checked, reviewed and filed by a third party. The time line There is a lot of work to be done in the coming months. Namely, we will be collecting formal opinions from the title attorneys concerning the privacy issues, CEAC, PPC and county surveyors. Many have offered their support and informal opinions. Again, we are on a united front and we ll gather steam as we proceed. We will be setting up standard reporting forms as well as coordinating with BPELS on submission material for enforcement. We ll see if there is a role for CLSA, more particularly to the state Professional Practices Committee. Ideally, if we could have a system in place by late spring 2007, we will have received cooperation from the necessary entities.

5 Dave Woolley is scheduled to speak at the Fresno Conference in January. The topic of discussion will be the Reformation of Land Surveying. Your comments are welcomed and can be sent to: Dave Woolley D. Woolley & Associates 2832 Walnut Avenue, Suite A Tustin, California Phone: (714) dave@dwoolley.com Comments from the author: It has been with the encouragement of respected professionals and their respective organizations that has provided the drive to go forth. I will be writing a follow up article providing the status of our progress and hopefully have the systems in place to move forward. The survey community should start setting aside surveys that have been provided by owners, regardless of the date. One of our company procedures is to follow up with the owners that have chosen another survey company over our firm, particularly if cost was the deciding factor; we ask if we can get a copy of the final survey, and the contract, we are forth coming in our purpose of the request. The results are hit and miss. Generally, we have a title report and complete research in preparing a cost estimate, we know if a record of survey will be required. After 90 days, we should check with the county surveyor s office to see if a record of survey was filed, but, we haven t always followed up. In moving forward, we have checked every job file in our office, we turned up 2-3 surveys out of 450 that on second review, we decided to file a record of survey. We verified that the county surveyors have letters stating our surveys are at or over 90 days and our expected filing date. Even those of us that are vigilant can overlook a survey, the client decided not to go through with a future parcel map and now, we re on the hook.

6 Reference: 8762 Record of Survey (a) Except as provided in subdivision (b), after making a survey in conformity with the practice of land surveying, the licensed surveyor or licensed civil engineer may file with the county surveyor in the county in which the survey was made, a record of the survey. (b) Notwithstanding subdivision (a), after making a field survey in conformity with the practice of land surveying, the licensed land surveyor or licensed civil engineer shall file with the county surveyor in the county in which the filed surveyor was made a record of the survey relating to land boundaries or property lines, if the field survey discloses any of the following: (1) Material evidence or physical change, which in whole or in part does not appear on any subdivision map, official map, or record of survey previously recorded or properly filed in the office of the county recorder or county surveying department, or map or survey record maintained by the Bureau of Land Management of the United States. (2) A material discrepancy with the information contained in any subdivision map, official map, or record of survey previously recorded or properly filed in the office of the county recorder or county surveying department, or map or survey record maintained by the Bureau of Land Management of the United States. For purposes of this subdivision, a material discrepancy is limited to a material discrepancy in the position of points or lines, or in dimensions. (3) Evidence that, by reasonable analysis, might result in materially alternate positions or lines or points, shown on any subdivision map, official map, or record of survey previously recorded or properly filed in the office of the county recorder or county surveying department, or map or survey record maintained by the Bureau of Land Management of the United States. (4) The establishment of one or more points or lines not shown on any subdivision map, official map, or record of survey, the positions of which are not ascertainable from an inspection of the subdivision map, official map, or record of survey. (5) The points or lines set during the performance of a field survey or any parcel described in any deed or other instrument of title recorded in the county recorder s office are not shown on any subdivision map, official map, or record of survey. (c) The record of survey required to be filed pursuant to this section shall be filed within 90 days after setting of boundary monuments during the performance of a filed survey or within 90 days after completion of a field survey, whichever occurs first. (d) (1) and (2) Omitted to save space.

MAI Esq s on Appraiser Defense Appraisal Institute National Conference Nashville, TN Tuesday, July 31 st Afternoon Session

MAI Esq s on Appraiser Defense Appraisal Institute National Conference Nashville, TN Tuesday, July 31 st Afternoon Session Steven J. Geller, MAI, Esq. Law Office of Steven J. Geller 319 Diablo Road, Suite