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“Preferred Land Surveyor”

By Pean Cheneying, PLS

This story is fictional and any resemblance to actual events is purely coincidence. 

A repeat client contacted me about a possible purchase of a small commercial site in the center of a suburban city. This client typically purchased commercial properties and then reconditioned them into a profitable businesses. He would then either sell them or retain them depending on the revenue stream and capital gain. We had been able to save him from making bad decisions previously on real property transactions so we were the first he called.

We negotiated a price and contract and once the contract was executed we went to work. The subject tract did not appear to be much of a challenge. It was a couple of Lots in a recorded subdivision from the 1940s. It was odd couple of Lots however. The two Lots formed a Block that took the shape of a right triangle according to the recorded subdivision map. The Block was bounded by streets on all sides, two of which were major traffic arteries.

View Lot

We made a brief search of the Public records to prepare ourselves for the first field visit to the site. An interesting set of circumstances began to arise from this initial research. The Digital Tax Map showed the site as being configured differently than a right triangle. The configuration shown on the Digital Tax Map increased the area of the site by more than two fold and looked something like Jimmy Durante’s nose. An Affidavit of Ownership and Possession (AOP) was found in the Public Records filed in 1982 by the current owner of the site with a description attached which appeared to be very similar to the configuration the Digital Tax Map was showing. The vesting Deed executed in 1978 into the current owner was only for the two Lots. A partial chain of title was assembled to search for possible abandonments of the street areas the Digital Tax Map and AOP description appeared to encompass but nothing else was found other than the description for the two Lots.

We made an first visit to the site armed with this information but little evidence was found as far as monuments on the ground. All the improvements were located and the data was brought back to the office to be analyzed.

In the meantime the Title Commitment for the site was forwarded to us from our client and we were surprised when we found that it listed the description of the site from the AOP filed in 1982. There was no mention in the Title Commitment of a possible street abandonment by the City or even the vesting Deed. We hired a professional Abstractor who searched the Public Records but found no instrument abandoning any part of the streets. The recorded subdivision map showed the southerly adjoining street width at 250 feet wide in the area where the AOP description encroached the most into it. It encroached as much as 45 feet into that street right of way in some cases. The AOP description also encroached a couple of feet into the northern adjoining street which had recorded width of 100 feet. The AOP description did not encroach on the easterly adjoining street but instead clipped the street intersections (cutback) from the recorded subdivision map description. No evidence of this additional street dedication was found in the public records other than in the AOP.

From the field data it became apparent that the description filed in the AOP fit an area all the way to the edge of the curb on the new large streets that had been built. These streets had been rebuilt around 1980. The southerly adjoining street once has been laid out boulevard style and had a large park in the middle of the street right-of-way where a trolly had ran. It had one way streets on either side right up against the edge of the street right-of-way. When it was rebuilt around 1980 they placed the new streets much closer to the center of the right-of-way and the trolly had long ago ceased running. All the old street paving had been removed with the exception of a section of pavement directly adjoining the site to the south. It appeared as if the owner of the site had been using the old street pavement as a parking lot, even going as far as to paint parking spaces on it.

We prepared for our second visit to the site. The configuration of the existing buildings on the site suggested they would exactly fit the vesting Deed which described only two Lots. A projection was computed, based on the building locations on the site, to other Block corners within the subdivision to see if we could find some supporting monuments for the vesting Deed description and recorded subdivision map.

When visited the site and a number of physical monuments were found in the adjoining Blocks closely agreeing with the theory that the limits of the existing buildings on the site were the boundary of the two Lots. The corners on the site where then staked and a survey was issued to our client along with a Surveyor’s Report explaining what we had found.

Shortly thereafter we began receiving phone calls from people at the Title Insurance Company insisting the survey we produced was incorrect. We also received a phone call from the current owner of the site who also expressed the opinion that the survey we produced was wrong. We explained what we had found to each person who called. However this seemed to do little toward changing their opinions of our work. Next our client called and then dropped by the office where we showed him copies of the documents and research we had obtained in the course of performing the survey of the site. We warned the client that if they purchased the site they would only be purchasing what our survey had on it, not what was on the Digital Tax Map or in the Title Commitment. The client left saying he was going to pass on purchasing the site.

Several months went by and we received a phone call from a local Lawyer who was calling on behalf of his client. The Lawyer was interested in getting a survey performed on the same site mentioned above. He was also interested in a possible Affidavit of Merit depending on the results of the survey so that he could include another Land Surveyor who had surveyed the site in a lawsuit he was preparing for his client. I informed the Lawyer that I had previously surveyed the site and that I was compelled to contact my previous client and seek their permission before I could release any material on it. Further I told the Lawyer I could not speak with him about this particular site until I had spoken with my previous client about it.

Later that day we received written permission from our previous client to engage with the Lawyer. I called the Lawyer back and gave him a brief rundown of what we knew about the site. He stated that his client has purchased the site and was now suing the Title Insurance Company, the Land Surveyor and the seller involved in the transaction. The Lawyer’s client had attempted to get a building permit from the City to develop the “parking lot” adjoining the south side of the site and was informed he did not own it. I negotiated and executed a contract with the Lawyer, then sent him a package of the existing material we had on the site.

A couple of days went by and I received a package from the Lawyer. The package contained a copy of a survey performed after the survey we had performed by another Land Surveyor that showed a boundary that matched the Title Commitment description, Digital Tax Map configuration and the AOP description. There were also documents to the effect that the Title Insurance Company had hired this other Land Surveyor to do the survey for the transaction on the site. The “contract” between the Title Insurance Company and the Land Surveyor was nothing more than a work order with the express conditions that the survey would be “paid at closing”, would be “performed within 3 days” and would be “paid only if approved by the Title Insurance Company.” They were the “Preferred Land Surveyor” of this Title Insurance Company.

An Affidavit of Merit was prepared and delivered to the Lawyer. We talked to the Lawyer several times over the next couple of weeks advising him on various matters relating to his client’s legal action. Several months went by and we got a phone call from the Lawyer saying he was calling us on behalf of his client. The Lawyer said his client wished to thank us for all of our help and that his client was very pleased with our service. The Lawyer also stated that he would not have been able to resolve this situation favorably for his client if it had not been for our help.

Since then we have taken several orders from both the Lawyer and his client on various other properties they needed Land Surveys on.

Land Surveying is much more than a business, it is a profession. Unlike many professions and unlike many of the entities involved in the real estate industry Land Surveyors are trusted with operating in a manner that protects the public. If getting more business or making more money means abusing that public trust then you should no longer call yourself a Land Surveyor.

The presumption that a Land Surveyor is a disinterested third party evaporates in the case where a Land Surveying fee is payed only if the property being surveyed is purchased.

Conducting a Land Survey of a property where payment of your fee is contingent upon if the results agree with your client’s opinions or not is antithesis to the profession of Land Surveying.

A Land Surveyor should never enter into an agreement where impossible time frames are imposed which preclude conducting a proper survey that meets minimum standards.
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