I have become increasingly involved in discussions about whether or not surveyors should be allowed to assist in the conflict resolution process. When a surveyor identifies a difference between titled property bounds and longstanding occupational uses, should they be allowed to help parties not only understand the difference, but also find ways to reconcile it.
The overarching idea – which ALTA/ACSM Chair Gary Kent indicated to the crowd of surveyors gathered last Friday in Tacoma for his presentation regarding this same topic – was that at the very least surveyors should pause before setting any corner or other monument which might serve to instigate a boundary dispute.
Identifying whether a surveyor may likely be identifying/creating a conflict is much easier to recognize when a fence divides the properties. Yet, this is much less clear in any situation where no fence exists.
As an aside, Gary Kent suggests that as a partial remedy, it would behove state legislatures to create statutory fence law for just this purpose. But, this still doesn’t address the bulk of the current problem … seeking for a court to remedy a land dispute is prohibitively expensive for the vast majority of US citizens.
So, policy makers in this area should consider how to effectively get people past the painful attempt to remedy land disputes by court action, and instead to work together to identify viable solutions.
[Assisting to forward toward this end, I have started a “Remedies Clinic” in this blog’s Basics of Quieting Title – i.e. Green – channel. For those interested in this, the remedy I have now in the que is “Revisionary Interests.” I intend to publish that post next week. Continuing … .]
I suggest to systemically redevelop a viable means of conflict resolution, surveyors ought to be able to take a step beyond merely identifying their professional opinion as to “WHERE” the recorded corners of real property actually lie on the ground, and also be allowed to assist in negotiating the peace when the neighbors disagree as to “WHAT” that means.
The former is a question squarely within the purview of surveyors, the later is squarely within the purview of attorneys. The important question to ask is this: Is it possible that there is some overlap between the practive of law and surveying?
Here in Washington state, Adverse Possession is considered a question of “mixed-fact and law.” So, I for one believe that there is. I also recognize that my opinion doesn’t generally conform with current practice of either survey and law. Thus, it is important to seek clarity as to the dimensions of this Venn Diagram style overlap.
Where and how may we start to do this? Well, the other day, I noticed a fire truck and it struck me that this question can be very aptly analogized to how the public and the medical community treats our First Responders.
While not happy when presented with a speeding ticket, we otherwise hold policemen, fireman, and EMTs up as heroes. Why? Because they are often the first on the scene and their job is to extract people who are in dangerous situations and oftentimes make arrangements to – if not personally – take them to the hospital where doctors can then provide follow-up treatment.
OK, now imagine a world in which first responders were precluded from assisting to save someone’s life at a location other than the hospital because doctors begrudgingly deemed that to be the practice of medicine.
Of course there are likely few doctors who are willing to squander their time sitting in traffic going out on emergency calls. Economically it is inefficient for them to do so. And politically for doctors to retain exclusive control of this area of their practice is unacceptable.
Well instead of being the person who identifies the conflict – and in doing so essentially lights its fuse – is it that far of a stretch of the imagination to consider surveyors potentially acting in a similar light?
True, these aren’t matters of life and death. But, surveyors are in a much better position to assist at the ground level because that is where they already are doing their work.
Economically, laws should reinforce the economics idea that MR/MC = MR/MC. Put more simply, people should not be dissuaded from performing work at their highest and best use and corellatively others who may otherwise (out)perform in the production of other related tasks should also not be precluded from doing so either.
While the trial bar may not have one good thing to say about the ideas I am espousing, at least the patina of all “guilds” – be their existence be for Medicine, Accounting, Surveying and yes … Lawyering – are charged with the well being of the general public.
But, even if there wasn’t an overarching public policy and political reason for considering properly delineating the roles between lawyers and surveyors, I submit for those attorneys who may be negatively pre-disposed to these ideas, that there will indeed be more business not only for surveyors, but so too for lawyers. How?
Well, whereas now perhaps 80 to 90% of the population – if not more – have no effective remedy other than self-help, if surveyors are allowed to be the “first responders” to conflict and assist to damp it down, I believe there will be more opportunities for surveyors to assist in outlining basic terms of resolution and then send this up to lawyers to finish the work. This finishing work will often include making certain any proper quit claims; indemnifications for being upon the land of another; mortgage and other title obligations; zoning concerns; future dispute resolution mechanics … you name it … be otherwise properly packed around the base peace agreements which surveyors are able to broker.
There certainly are those cases where at least one neighbor won’t ever be reasonable. Even worse are those cases in which both neighbors choose not to be reasonable and instead want to enter into the “fog of war litigation” … never to emerge the same.
Yet, here I really question whether these people – when also having the good [mis]fortune to have a full wallet of money to squander – are going to be persuaded by surveyors to be reasonable.
Botom line, I sincerley doubt the market for litigators in this arena will be negatively impacted … at all.
Instead, of hiding behind professional patinas, this is a greenfield opportunity for both surveyors and lawyers to better serve the public … and be appropriately compensated for their respective time, skill, and judgment accordingly. It appears to me at least to be the complete embodiment of Rotary’s 4-Way Test.
I’ve thought about this quite a bit so I hope not to sound too trite here, but in my humble opinion … it’s an absolute non-brainer. Cheers!