orange-big.pngThe situation is this. You are about to hire a surveyor. You should anticipate the possibility that the surveyor will determine a boundary which is contrary to your understanding of the use and occupation on the ground. 

There are several reasons for seeeking this upfront clarity … and contingency planning when contracting with your surveyor. To assist analysis, let’s assume that there is an old fence between you and a neighbor at a location which might allow it to be considered the boundary line.  

Now, as noted in my past post “Is Adverse Possession Fundamentally Wrong?“, while it is possible that the fence will lie exactly along the property boundary, the reality is that it will likely lie on one side or the other. [In fact, this fence might at some point cross over the titled boundary line, a situation that I will not take up in this post.]

Unless terribly mistaken, even if there are not explicit rules, there is at least an industry convention suggesting your surveyor should document the fence if it is relatively close to the titled line. [Here, I would love a Washington PLS (Professional Licensed Surveyor) to jump in to confirm or correct as appropriate with a comment below what might be construed as “relatively close”.]

OK, asuming that the fence is not so close and that there is no need to place it on a survey map of your boundary, should you have your surveyor still identify its location? 

If the fence is beyond the titled boundary line and upon your neighbor’s property, you will not only want to have had this information collected, but you will want depict the fence’s location any survey map that you have created. You should also have your surveyor provide you an alternative legal description for you to use to assert a claim of adverse possession.

Alternatively, if the fence is on your side of the boundary line. It may or may not be to your advantage to have this information. In some cases the strategic upside is more than outweighed by any small savings gleaned by not having this work done. How so?

Well, first let’s suppose that upon finding out that the fence is on your side of the titled line, you decide to simply knock it down. What would happen if a judge should later determines you need to replace the fence? I venture it is more probable than not that you are going to be the one losing ground. So if this might occur, it is going to be in your best interest to have retained that information.

Now let’s instead assume that you intend to take a legal approach to this instead of knocking down the fence. The question is will you be disadvantaged if you have paid for this information and your surveyor’s field notes are subject to a discovery request for production.

Could you be disadvantaged if your surveyor’s field notes confirms a fenceline identified by your neighbor’s surveyor? Well, perhaps, but that possibility is not very great.

In such a case it isn’t so much where the fenceline is located (unless the two surveyors come up with different results creating the potential for dueling surveys) as it is how long has the fence been in place and what was the use by your neighbor up to it. As your neighbor will be claiming adverse possession or a related doctrine, your neighbor has this burden of proof as to use.

And let’s think it through, what would be your course then. Wouldn’t you call your surveyor up with a new job to get back out to the site to have this work performed. That’s going to be much more costly. So overall, it seems that collecting information about the fenceline is just fine.

The thing that you will want to avoid if the fence is on your side is representing the fenceline on your survey map. That’s a task which if not performed will require your neighbor to hire their own surveyor further increasing the cost for them of gaining the strip of land. [Notably, it is my understanding that unless you allow it, your surveyor may not perform the last step for your neighbor – which may be advantageous. But, the reasons for this will be left for another day.]

What does all this mean, in most case, its probably appropriate to go ahead and have your surveyor collect the fenceline information. If after all that you are still on the fence as to best proceed due to the nature of your paticular situation, simply be in touch with a knowledgeable, real estate attorney to review your particular