Surveyors play an important role in Real Estate Litigation, but it's important to know what type of survey the surveyor performed. For more information on the types of surveys, check out our article on "Surveys and Surveyors... what's all the hoopla about?"
If you have a property line dispute, a surveyor can play and important role before litigation and an even more important role once a lawsuit has been filed. We commonly represent neighbors who dispute the property line and before, a lawsuit is filed a surveyor can review and explain different surveys to instruction the parties on the outcome of potential litigation. This is also helpful, when and if, parties want to reach an agreement before the lawsuit is filed. We've worked with clients, opposing attorneys, and surveyors in crafting a new property line that all parties could live with prior to filing a lawsuit.
But what happens if we can't reach an agreement?
If you can't reach an agreement on a property line with your neighbor, then the fun part starts. Although surveying appears to be "exact" or a "definitive" determination of the property line its not. Surveying is part art, science, and law, which makes it somewhat subjective.
- The art aspect could be said to apply to the judgments and decisions in the field related to where, and to what extent, to look for evidence, and how that information is all presented. For example, having a gut feeling on where to dig to try and find a stone marker set in 1840, or how to most effectively run a survey line from one location across a ravine and river and through the trees to another location.
- The science aspect is generally the science of measurement – using angle measuring devices (theodolites, total stations), distance measuring devices (electronic distance measuring instruments, steel tapes) and GPS (global positioning system which uses satellites).
- The law aspects relate to the interpretation and resolution of legal descriptions and boundaries. There are virtually no statutes or legislated laws that tell surveyors how to determine boundaries; the rules for that are from a body of common law derived from hundreds of years of court cases related to boundary disputes and legal descriptions. Surveyors cannot make proper boundary determinations without studying and understanding what the “weight of authority” has been in case law.
Why does any of this matter?
It matters because Surveyors are to perform their duties based on the industry standards. It's kind of similar to a medical diagnosis or surgery. There are different techniques that can be used, but each calls for either a specific situation or a judgment call. And since there's a judgment call it's open for interpretation and subject to scrutiny in a courtroom. So, when you do select a surveyor don't just pick someone who is the cheapest, be sure to pick someone who has a good reputation within the community and performs good work. Because they may need to come to court and prove/stand behind their position.
If you have a Property-line dispute and need advice give us a call. We're here to help.