The public is misinformed as to what it purchases when seeking to have “boundary surveys.” Surveyors identify LINES OF RECORD TITLE.
This is where the theoretical line of ownership as identified by a legal description is opined by the surveyor to meet the ground.
Yet, while lines of record title may coincide with the boundary lines, it is entirely possible – due to exclusive use – that the boundary line has shifted to another location which no longer corresponds with the lines of record title.
When a survey reveals a line of record title which is not coincident with what otherwise seems to be the line of record title, unless you have a good relationship with your neighbors and can work it out, there is likely at least one huge problem.
That one huge problem is that there is now knowledge of a CLOUD ON TITLE … the possibility that the boundary line(s) and lines of record title no longer match up.
If there is a cloud on title, at the very least this information will need to be disclosed for any purchaser at the time of sale. That is unless the sellers are willing to subject themselves to contract revisions and allegations of fraud.
Assuming this isn’t the case though, the seller may be able to work around the problem by having a much more extensive “As Built” (or ALTA) survey performed which the Title Insurance Company may take and use to except out that portion of land which is disputed. That’s not a sure thing though.
So is it appropriate to go straight to litigation with the neighbors? While litigators will likely seek not to disabuse you from this notion, this is because it is in their best interest … not the home owners’.
This is because the costs of going to court are tremendous and in the overwhelming majority of cases in excess of the benefits which a “nominal victory” affords.
But what about what is in the best interest of surveyors?
While many seem perfectly fine with “slapping down the math” and allowing their clients to think that by doing so they have determined the boundaries instead of explaining that they are opining as to the location of Lines of Record Title, an ECON 101 analysis is all that it takes to show that this is a misguided approach for surveyors as well. Here’s why.
To the best of my knowledge there is no successful business model designed solely to identify problems. Certainly there are consultancies for businesses of all types to identify problems … but then they offer solutions to solve them.
Contrastingly, residential surveyors uncover problems and often times instead of seeking to resolve these problems, they send the matter over to a litigator to solve it.
That simply is not ideal!
Instead of keeping the fiction alive that surveyors are determining boundary lines, when the boundary line and line of record title appears not to be coincident surveyors should stop their work and do some more research and seek to reconcile the difference in a manner which will not create enmity between the neighbors.
If this were the standard course in the survey profession, then there would be additional opportunity for surveyors to gain by providing solutions. Solutions very few attorneys provide and as such solutions which would be of significantly greater benefit to clients.