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Rewriting Legal Descriptions

What’s up with rewriting legal descriptions? There seems to be a growing push from the title companies to have legal descriptions rewritten for little or no good reason. In my 38 years as a licensed surveyor I can remember but a few instances when rewriting a metes and bounds description was truly warranted and recommended, and never a reason to turn a lot and block description or a sectionalized aliquot part description into a metes and bounds. It makes me wonder what is driving this madness and worry about a surveying profession that so easily capitulates and even willingly participates in this foolish and nonsensical endeavor.

The worst reason for rewriting a metes and bounds description and the one that seems to be the most prevalent is when the measurements resulting from a recent survey do not match the bearings and distances in the record title documents. The fact is new measurements will never and can’t match what is in the deed because we do not operate in a vacuum. At some level there will always be a conflict between the measurements we make on the ground when retracing boundary lines and the description of the same property in the recorded deed. The first question that generally comes up in such a situation is: How close is close enough? However, this is a question that the courts generally do not ask because it is irrelevant.

When a boundary dispute goes to court the only relevant question to be asked and answered is: Where is the property line between the plaintiff landowner and the defendant landowner? Every court case has an “ultimate issue” and in a boundary dispute case this is the ultimate issue. The deeds and the legal descriptions of the respective properties are merely evidence to be considered in pursuit of the answer to the ultimate question. It is not the job of the legal description to answer that question all on its own. Rightly seen, the only role of the description of property is to point the way to where the property actually exists on the ground.

“It is not the office of a description to identify the premises, but to furnish the means by which they can be identified.”[1]

And a legal description is legally sufficient if a competent survey can find the property on the ground by way of that description.

“This court has ruled that any description by which the property might be identified by a competent surveyor with reasonable certainty, either with or without the aid of extrinsic evidence, is sufficient.”[2]

Too often surveyors devise their own solutions to the seeming dilemma between what the title documents say and the resulting survey measurements. One common solution is to drive new pins in the ground to match the deed measurements. Another solution is to ignore the differences because the surveyor deems the measurements to be “close enough.” My favorite example is what I refer to as a “fallings survey.” This is where the legal description is plotted to the letter and then placed on one found monument, everything else is then rotated to the deed bearing on one chosen line and every property corner ends up being a paper corner with “fallings” to found monuments near each one. All of these supposed solutions lead to one question. Is the legal description incompetent or is the surveyor?

The title attorneys are no better than the surveyors at dealing with this issue. The basic problem for the title attorneys is they do not understand the difference between title to property (a legal question) and the location of the property on the ground (a factual question). They want to turn the factual question into a legal issue. Here is an actual e-mail exchange between the attorneys working on a closing and the title/location dilemma.

“I assume that you’re going to want to take title via a limited warranty deed for the record legal and a quitclaim deed for the survey legal. [The surveyors] just need to go through the exercise of drafting a metes and bounds legal.”

They are talking about a survey that I performed where we correctly retraced the existing property boundary and showed the title dimensions of the property and our survey measurements along the same property lines. What is there it quitclaim if we surveyed the same property described in the deed?

“The mere matter of the locating the boundary of lands, however, does not involve the title. It relates only to the limit to which the land covered by the title extends.”[iii]

Precisely.

[1] Sengfelder v. Hill, 21 Wash. 371, 379; 58 P. 250, 253 (Wash. 1899).

[2] Sengfelder, at 380-381; 253-251.

[iii] Shaw v. State, 28 So. 390, 392 (Ala.1899).

Policing the Profession

In my last column we touched on the idea of “unchecked incompetent practice” and how that is a problem for the land surveying profession. This time around we are going to dive a little deeper with that idea. In a 1969 article entitle “The Professional Status of Land Surveyors,” Curtis Brown wrote, “professional liability is a privilege tending to prove the land surveyor’s professional standing.”[1] What Brown was saying is that the “privilege” of liability was a hallmark of true professional status, something the land surveying profession has struggled with for decades if not centuries. After all, it is the professional who will be sued not the technicians.

The two primary policing mechanisms for any profession are Board action (all regulated professions have some type of regulatory “Board”), and litigation where professional practice is tested, punished if necessary and ultimately refined. Litigation also tends to weed-out bad practitioners. Both of these processes require a standard for the professional practice to be judged against. Generally, Boards will pass rules and regulations specific to the profession governed. Litigation will test professional practice against what, in my estimation, has now become the universal standard of care for professional practice—the “reasonably prudent practitioner” standard.

In most professions these two policing mechanisms work fairly well for two primary reasons. The first is that most regulatory Boards define correct practice with rules and regulations that define a “standard of practice.” Black’s defines a “standard” as a “type, model or combination of elements acceptable as correct or perfect.” In other words, correct results matter. In the context of boundary retracement land surveying, a standard of professional practice would describe the acceptable elements of “correct” practice which ultimately leads to “true and correct” results. Correct results meaning the retracement surveyor has utilized correct retracement theory in locating the true and correct property boundaries of land being surveyed (i.e., land surveying).

This does not mean that the professional must be perfect in all instances or make correct boundary determinations every time. Nobody is perfect, everyone makes mistakes, and this is the reason for professional “errors and omissions” insurance. An error does not constitute negligence, and maybe you do not realize this, but negligence can be found even when the results are correct. Negligence is primarily a standard of care issue, which is often prompted by incorrect practice.

Second, litigation works well with other professions (at least the primary ones: clergy, doctors, lawyers, engineers, etc.) because there is insurance money to foot the litigation expenses. The doctor who amputates the wrong leg will be sued for negligence because the doctor’s insurance company will defend and the plaintiff’s lawyers will bring the lawsuit on a contingency basis. The lawyers for the plaintiff will work on contingency because they know they will eventually be paid either through a settlement with the insurance company or with an outright victory in court. Either way, insurance money allows the litigation to occur to test, punish and refine medical practice.

Neither of these two policing actions operate well or at all in the land surveying profession for the same two reasons they work for other professions. First, while they have standards that define correct practice to achieve correct results, we have so-called ‘standards of practice’ that are nothing more than technical standards, written by technicians for technicians. There is not one of these so-called standards that I have ever examined that described correct results of retracement surveying. Another problem that I can’t address at this time (but will later) is the horrendous definition of surveying promulgated by the NCEES that provides cover for aberrant land surveying practice. For now, I will simply say: “Without superior knowledge, we have an inferior profession.” (Brown)

Second, while they have litigation (or the threat of litigation) to force true standards of practice to be developed and disseminated to practitioners, to correct practices that have been proved ineffective against legal attack, to sharpen the skills of the practitioners and force practitioners to have superior knowledge, we do not. Even though a surveyor may have insurance (and many do not), there is still no money to launch a lawsuit and even if victorious there is generally little or no money to recover. These are not personal injury cases. The practical reality is that surveyors are immune to prosecution because nobody can afford to sue them. Don’t get me wrong, surveyors do get sued every now and then, but even the most egregious surveying results and the most incompetent surveyor may never see the inside of a courtroom because there is no money to litigate.

So how do we police the land surveying profession? Look in the mirror, it’s up to us!

Jeff Lucas

[1] Brown, Curtis M., “The Professional Status of Land Surveyors,” Surveying and Mapping, Vol. XXI, No. 1, 1969, at 63-71.

Incompetence v. Negligence

Do incompetence and negligence mean the same thing? If you check standard references on torts, it seems that while negligence is a stand-alone tort (a civil wrong), incompetence is not. Incompetence is sometimes referred to as an element of the tort of negligence and incompetents are sometimes put away for their own good and the good of society, but it’s not a civil wrong. Ignorance truly is bliss.

If we look at the definition of these two terms in Black’s Law Dictionary (Black’s), we find the following. Negligence is “the doing of some act which a person of ordinary prudence would not have done under similar circumstance or failure to do what a person of ordinary prudence would have done under similar circumstances.” (Black’s) In other words, negligence is a standard of care issue. The practitioner knows the right course of action but failed to take that action. Incompetence, on the other hand, is “lack of ability, knowledge, legal qualification or fitness to discharge the required duty or professional obligation.” (Black’s) In the context of retracement surveying (which is what we are talking about), that would be a practitioner who does not know or understand correct retracement theory.

In my mind, you can illustrate the difference with two simple questions. Can one be negligent and not incompetent? The obvious answer is yes. By definition, a competent retracement surveyor who understands the duties to be discharged and fails to do so (i.e., negligent). Now reverse the question, can an incompetent surveyor not be negligent. While it might not be quite as obvious, that answer is yes as well.

Since the standard of care is what the reasonably prudent practitioner would do under like or similar circumstances, often couched in terms of a community (e.g., a certain county or state, although there is evidence that the standard of care is becoming a national standard, more on that some other time), if all of the practitioners are similarly incompetent, there can be no negligence for practicing incompetently. This, of course, is one of the fundamental problems facing the land surveying profession—unchecked incompetent practice.

Most professions police incompetent practice through Board action or civil litigation. Neither of these are effective against incompetent retracement surveying. Most professions have standards of practice that define correct practice and require correct results. Not the land surveying profession. The proof is in the so-called standards of practice across the country and the definition of surveying promulgated by the NCEES. It is clear that the writers of these documents do not understand and cannot define correct retracement practice. The land surveying profession needs to wake up. GIS doesn’t mean “get it surveyed,” it means “good as a survey.”

Jeff Lucas

Open Questions

If anyone has any questions about any past editions, any of the questions on the examinations, or on any of our State Specific courses, such as standards of practice or ethics, post them here and I will do my best to answer them. If you have any other open questions that you would like to ask, post them here as well.

Best Regards

Jeff Lucas

The Unauthorized Practice of Surveying

First Published in P.O.B. Magazine October 2018

No doubt many of you have already heard about the recent article that appeared on Bloomberg.com entitled “Land Surveyors Are Paying the Price of Progress” (“Paying the Price”).[1] In case you missed it, “Vizaline” is a company founded in 2014 that, “uses public information to draw lines on a map showing property boundaries. They do this mostly for small banks who need to visualize the properties they are holding.”[2] That article goes on to say: “Since its founding, the company has grown to six employees in Mississippi. It operates in five southeastern states and provides its services to over 30 banks, mostly in Mississippi.”[3]

The Mississippi Board of Licensure for Professional Engineers and Surveyors filed a complaint against Vizaline for practicing surveying without a license, in violation of Mississippi law. Vizaline filed a counter-complaint, supported by an organization called the “Institute of Justice,” for violation of Vizaline’s First Amendment free speech rights. I do not have the details of these complaints as of this writing and the case will be litigated to some final resolution, but in the meantime this case highlights some problems for both Vizaline and the surveying profession.

What is a survey of property?

Conveniently, “Paying the Price” had a link to a typical Vizaline, “Viza-plat Property Report.” See the Viza-plat and Report, below. As reported, Vizaline is claiming that its “Report” isn’t a survey. It includes a disclaimer that, “It is not a Legal Survey, nor is it intended to be or replace a Legal Survey.” I’m not exactly sure what a “Legal Survey” is, unless this implies that the only ‘legal’ survey is a survey performed by a duly-licensed land surveyor and a tacit admission that Vizaline’s ‘survey’ is otherwise illegal. Although our licensing laws (all 50 states) are somewhat similar, there are differences in all of them, and whether Vizaline is in violation of any one of them will require a case-by-case examination.

I perform property boundary surveys, which, in the final analysis, are well-reasoned opinions on the location of property lines on the ground. I utilize the client’s deed and the deeds of adjoiners, the extrinsic and collateral evidence of the true location of the property boundaries (occupation, fences, oral evidence, even aerial photos, etc.), and render a ‘report’ of the property line locations in the form of a map or plat of survey that graphically depicts the property lines, and contains a description and pertinent surveyor’s notes. I see similarities between what I do and what Vizaline has done with its report.

Considering Vizaline’s report, the immediate issue that comes to my mind is: What is Vizaline doing that could not be accomplished by downloading the tax assessor’s map of the property? Unless it is this one thing: Vizaline knows what surveyors know about tax assessor’s maps, they are notoriously unreliable for property location purposes (some better than others) and are only intended to represent a parcel of land for taxing purposes. No one in their right mind would rely on it for anything else, especially property line location. I know that my own house in Jefferson County, Alabama, is physically depicted on my next-door neighbor’s lot when the aerial mapping layer of the county’s GIS is turned on, and the road in front of my house is going through the houses on the other side of the street. Further down the block they have lots overlapping, but they are tax maps.

The example Vizaline report is not utilizing tax map locations. It’s obvious that Vizaline is consciously deciding where property lines are located on the ground and depicting those locations on their map, disclaimers notwithstanding. And, of course, charging their client’s for performing these services. This is a distinguishing characteristic of professional services—charging for those services. I often use the legal profession to make this point. Anybody can be an attorney; an attorney is simply one who represents another. You can be your own attorney or with a power of attorney you can represent someone else. It’s when you are paid by someone else to represent them that you step into the role of lawyer requiring, by law, to be duly licensed. Go practice the law without a license and see what happens to your free speech rights.

Speaking of free speech, I know that not all speech is free. One cannot freely disparage or slander another without the possibility of legal reprisal, this includes the slander of someone’s good title. One aspect of title to property is the occupation of that property. Vizaline’s depiction of the property in its report could be slandering the title of an adjoiner or even the subject property owner. Without going into a full-blown discussion on slander of title, the slanderous accusation is complete when it is published, and it is published when communicated to someone other than the title holder—say when Vizaline turns the report over to its Banker client. These are just a couple of problems with the unqualified rendering opinions on the location of property lines. There are many more examples that space will not allow.

The protection of property rights

The only reason to license surveyors and regulate the practice is to protect the property interests of the landowning public. On this issue licensing boards agree with nearly identical language. “The Mississippi State Board of Licensure for Professional Engineers and Surveyors was created to ensure the safeguarding of life, health and property and to promote the public welfare.”[4] And the Mississippi Board, like other similar boards is authorized to achieve that goal.[5] Tangentially, surveyors play a role in safeguarding life and health, but it is the safeguarding of property and the associated rights (property rights; including the location of that property on the ground) that is the core issue. There is no other reason to regulate the profession.

In my estimation, this is where Vizaline steps over the regulatory boundary. At best, disclaimers aside, Vizaline is providing its clients (admittedly Bankers and not the landowners) with a visualization of the location of property lines on the ground. Bankers are not the only ones with property interests at stake. Surveyors also work for bankers and others who may not be the actual landowners, but the surveyor’s goal is to identify the true and correct location of the property lines on the ground, regardless of who is paying them.

Surveyors are in the business of protecting the location of the property rights, this does not appear to be the goal of Vizaline. At worst Vizaline may be perpetuating fraudulent misrepresentation[6] of those lines or even slander of title. If anything, experience has taught us that when an unsophisticated landowner gets their hands on such a map they will rely on it to their detriment. In many cases they think a tax map of their property is as good as a survey and those maps have disclaimers as well. When detrimental reliance takes place, the fraud is complete.

Regulatory overreach

This is where the surveying profession has a problem. “Paying the Price” referenced the Pennsylvania case of Southeastern Reprographic v. Bureau of Professional and Occupational Affairs, et al (the “Board”),[7] on the issue of regulatory overreach. Utilizing statutory language similar to Mississippi’s (and similar to many other jurisdictions), the Board concluded that an unlicensed firm performed “engineering surveys” in violation of the law when it collected spatial data on power company facilities “in an area that spanned six or seven counties, included over 100 square miles of land, and involved 3,200 miles of electrical lines and 100,000 point locations requiring inventory,” utilizing “mapping grade GPS/GIS technology,” locating “assets to sub-meter accuracy. … Based on this evidence, the Board found that [the company’s] field staff, unlicensed under the Law, used GPS/GIS equipment, mathematical calculations and other tools to search, identify and locate the x-y coordinates of [the power company’s] assets on the Earth’s surface.”[8] The Board determined that Southeastern was practicing surveying without a license; the court overturned the Board’s decision.

Mississippi’s definition of surveying is almost the same as Pennsylvania’s:

“The practice of ‘surveying,’ … shall mean providing professional services such as … mapping, assembling and interpreting reliable scientific measurement and information relative to the location, size, shape or physical features of the earth, improvements on
the earth, the space above the earth, or any part of the earth, utilization and
development of these facts and interpretation into an orderly [map], plan
or report….”

In this day-and-age, this language is too broad. According to this definition, Google, Esri, Garmin, Microsoft and others are surveying every day, without a license, and they are crossing jurisdictional boundaries doing it. Today, anybody with the right tools can be an expert measurer. If expert measuring ability is all the land surveying profession has, we have nothing. You can’t regulate the tools and you can’t regulate expert measurement ability, go ask the Pennsylvania Board.

This is what Vizaline is arguing, but they miss the point. The point is the property interest of the landowning public, not whether they can use a computer and a Google Earth image. The real question for Vizaline is, can they give an opinion on the location of property lines on a georeferenced map, which is the tech-savvy equivalent of the on-the-ground location? The real question for the land surveying profession is, are we in the property rights business or merely expert measurers? If we allow the one job we have (the location question) to get away, then we will be, as the article suggests: Paying the Price of Progress.

Endnotes:

[1] “Land Surveyors Are Paying the Price of Progress,” by Stephen L. Carter, Bloomberg.com, July 19, 2018. Two related articles appeared on the online version of the Mississippi Clarion Ledger. “Madison tech-biz says rights are being violated by state board trying to shut him down” (“Madison tech-biz”), by Jimmie E. Gates, July 13, 2018, and “Government overreach is killing this Mississippi tech startup” (“Government overreach”), by guest columnists Brent Melton and Scott Dow, July 24, 2018. Melton and Dow are apparently the co-founders of “Vizaline,” a tech startup that uses deed descriptions to draw property lines on Google satellite photos, to be used by banks and other lending institutions to “visualize” the property these institutions are lending money on.

[2] “Madison tech-biz.”

[3] Id.

[4] Rule 30-901-1.1, Mississippi Administrative Code.

[5] See, Rule 30-901-1.2, Miss. Admin. Code

[6] “Fraudulent misrepresentation. A false statement as to material fact, made with the intent that another rely thereon, which is believed by the other party and on which he relies and by which he is induced to act and does act to his injury.” Black’s Law Dictionary.

[7] Southeastern Reprographic v. Bureau of Professional and Occupational Affairs, the State Registration Board for Professional Engineers, Land Surveyors and Geologist, 139 A.3d 323 (Pa.Cmwlth, 2016). The court concluded: “Applying the above analysis, we [the court] conclude that the Board erred in concluding that [Southeastern] engaged in the practice of land surveying ….” Id. at 333.

[8] Id., at 326.

January Edition of The Lucas Letter

In the January Edition of The Lucas Letter, we are studying the case of Rivers v. Lozeau, Florida Court of Appeals, 1989. This infamous case is the genesis for the “First Surveyor Concept” or simply “First Surveyor,” the case that singlehandedly created the concept that there is a third role for the land surveyor; that of ‘first surveyor.’ The surveyor’s role as ‘original surveyor’ and ‘retracing surveyor’ are firmly established in American property law. In contrast, the First Surveyor concept, has one court opinion to hang its hat on, Rivers v. Lozeau. The concept basically states that the ‘first surveyor’ to attempt to subdivide a section within the Public Land Survey System (PLSS), or any subdivision for that matter, where the subdivision lines have been protracted on a plan of subdivision and not actually run on the ground, will be honored as an ‘original surveyor’ only if proper procedure was followed, or, in some instances, if the first surveyor’s results are deemed ‘close enough.’ If not, then the first surveyor’s survey results are always open to collateral attack. Is this a legitimate concept based on the correct law or is it just another instance of surveyor mythology, where surveyors just believe what they are doing is right without any supporting legal bedrock? We explore that question in this program.

December Edition of The Lucas Letter

The December Edition is our second ethics case of the year. We do an Ethics Edition in June and December. Some of you are writing me privately about this edition with some very interesting comments. I would love it if you would post your comments here so that others might have the benefit of your insights into the case.

Primarily, this case is a negligence case, but negligence often rubs up against ethical issues and this case does just that. The basic elements of negligence (as discussed in the case) are a duty owed by the tortfeasor, breach of the duty, causation and damages. All four elements have to be proven by a preponderance of the evidence. Of these four elements, really the only one that the practitioner can control is a breach of the duty owed. In other words, the duty owed by the practitioner is to exercise the same standard of care as any other reasonably prudent practitioner in like or similar circumstances. Whether a duty is owed to a given plaintiff is a question of law to be decided by the court, and if the surveying activity caused damages, then the only unanswered question will be if the practitioner’s actions fell below the standard of care.

Blog Post and Comments

Well, we’ve had some ups and downs with the Blog. Now, maybe, finally, we are on the upswing. The appearance isn’t exactly what I wanted. I wanted the comments to remain open for visitors to be able to read the comments to the Blog post without having to click on the little hotlink at the bottom. But, alas, the website theme we have will not support that type of format and without changing themes or performing open heart surgery on the website, we are going with what the theme allows.

So, if you hit on the blue link below the Blog post you can leave and comment and/or read the comments left by others. So, I invite your comments.

Have a great weekend!

 

October 2019 Edition of The Lucas Letter

In our October edition we studied the case of a retracement survey gone wrong. Wallace owns Lot 98 and his neighbor to the north, Griffin, own Lot 97 of the Bost Estates subdivision. The original monuments for the corners of the lots (“iron axles or stakes”) were set by Fisher in 1945. This included the corners for the common boundary between Lot 97 and Lot 98, the line in controversy and the subject of the case. Ritchie found the original monuments in 1973, but his survey was discounted because Ritchie was not a licensed surveyor. Craddock found the monuments in 1990 and again in 1999, and found trees marked along the line. Flowe found the same line in 2000 and for trial expert Harris confirmed that the “Wallace Line” (as it was called, the ‘blue’ line) was monumented, marked and the true boundary line for Lots 97 and 98.

Rushing, working for Griffin in 2000, by his own admission ignored the “old axle irons” at the corners and the markings in the trees along the line in question and “built his line” using distances from other lots and “established” the supposed true corners, because he was “hired to ‘re-establish’ the line between lots 97 and 98.” This new line was referred to as the “Griffin Line” (the ‘red’ line) and was some 50 feet south of the Wallace Line and projected through two of Wallace’s buildings.

Does anybody think Rushing performed a retracement survey, or was he obedient to measurement?

The fundamental principle of retracement surveying is to find where the boundary lines have become established on the ground, not to correct them, or suggest where they should have been. The retracement surveyor ‘establishes’ nothing, the lines are already established. This reveals a elementary problem with our definition of boundary surveying, which we have discussed on may occasions. The genesis of the problem is the definition that has been promulgated by the NCEES and adopted by most of the licensing Boards across the country. From the NCEES we find that surveying boundaries is: “Locating, relocating, establishing, reestablishing, or retracing property lines or boundaries of any tract of land ….” What do these terms mean? They seem to indicate that I have options, whether I’m an original surveyor or a retracing surveyor, to do any or all of the above with regard to any given boundary line. This is precisely what Rushing did. He “re-established” the boundary line some 50 feet to the south and through two existing buildings. This is fundamentally wrong but seem to be acceptable under the definition.

What’s the problem here, the surveyor or the definition?

 

 

The Blog is Finally Working

Hello friends. We finally have the blog working. To celebrate we are activating a new Coupon Code NEW1 that is good for 15% off of any of our Correspondence Courses. Pick the courses you want and apply the Coupon at checkout. NEW1 will expire Monday, November 11.

Have a great weekend.

Jeff Lucas