SECTION 8 - PROBLEMATIC BOUNDARIES

8.1 Problematic Boundaries

Land Surveyors are said to exercise a quasi-judicial function. Although surveyors do not have the power to adjudicate boundary disputes, they must nonetheless exercise judgment in accordance with the law in resolving boundary differences. They must also exercise good sense in resolving personal differences.

Questionable Boundaries
Every reasonable effort should be made by a land surveyor to determine
the degree of conformity of the record evidence of adjoining property boundaries, and
the quantitative, i.e. measured, differences between record and ownership lines.
Upon discovery of any perceived irreconcilable difference(s), the surveyor should
immediately communicate the existence and the seriousness of the circumstance to the client,
identify the problem by name, describe the difference in numbers, and, if possible, provide an explanation for the difference,
relate to the client, to the extent it can be anticipated, any possible effect on the use and ownership of the property,
apprise the client of foreseeable options and of their likely consequences, and mention the advisability of legal counsel,
conclude the field work only after an understanding by the adjoiners that an acceptable location of the boundary has been reached, and
place explanatory notes and appropriate disclaimers on the survey plan.
Disputed Boundaries
When a surveyor is called upon after a dispute has arisen, the surveyor should
ascertain the stage to which the dispute has progressed, most notably whether legal counsel has been retained, litigation has been initiated, or the case has already been heard or decided,
attempt to determine the necessary scope of the surveying services, or the effective contribution of a survey, to the resolution of the dispute, and
decide about
his/her availability,
his/her desirability as an expert witness, and
the propriety of his/her involvement in the dispute.
When the surveyor has been retained in connection with a boundary dispute, the surveyor should
suggest, if litigation has not yet commenced, alternate dispute resolution, such as an amicable agreement, mediation or arbitration, or
coordinate, if litigation has commenced, his/her efforts with the attorney for the client and prepare to serve as an expert witness for the client.
Commentary:

8.1(a)(1) Reasonable effort means all necessary record research and field investigation, as well as the judicious application of the rules of law and the rules of construction, and at least an evaluation of the evidence according to the rules of evidence. Particular notice should be paid to the transfer of title by means other than recorded deeds and related documents, to physical occupation relative to record descriptions, to both extrinsic and intrinsic evidence, and to the hearsay nature of the evidence.

8.1(a)(2)(A) Prompt and accurate communication in this circumstance cannot be sufficiently stressed. Any hesitation or reservation only increases the risk to the surveyor and to the client.

8.1(a)(2)(B) Upon discovery of differences, the surveyor has effectively reached the limit of his/her expertise, and should defer to lawyers about matters of title and to real estate appraisers about matters of value.

8.1(a)(2)(c) Sometimes, the problem is only perceived or is of insufficient magnitude, or there is no burden of proof, and the best advice to the client is to do nothing.

8.1(b)(1)(A) Surveyors, on being asked the name of a good lawyer, should be impartial in their recommendation. If the case has already been heard but not decided, restraints on the admission of further evidence may have been placed on one or the other disputant, and a survey, though still desirable, may be of little value to the case.

8.1(b)(1)(C) The surveyor must be available, not just for the survey, but for depositions and court appearances, for which he/she may be subpoenaed. The surveyor cannot appear to be less than reliable and trustworthy, or to have a conflict of interest.

8.1(b)(2)(A) An agreement is a compact reached by the disputing parties themselves; mediation is an agreement reached with the help of a go-between that can only negotiate; arbitration is mediation by a court-appointed or contracted individual or panel that is binding. All three types of alternate resolution tend to avoid lengthy and costly litigation.

8.1(b)(2)(B) Once litigation has commenced, it is advisable that the surveyor be retained by the attorney for the disputant, for reasons of professional-client privilege. An expert witness differs from a lay witness in that he can testify not just to facts, but to his opinion, and may charge his usual professional fee for this service. A surveyor can be called as an expert witness by someone other than his client, notably the other disputant.