Been having an interesting conversation lately about when the 90-day clock according to ARS 33-105 should kick in. Here is the statute:
33-105. Recording of certain land surveys; contentsA. A land surveyor shall file a record of a land survey not later than ninety days after its completion with the county recorder of the county where the land is located if such survey establishes points or lines relating to land boundaries or property lines disclosing:
1. A material discrepancy based on the accuracy requirements of the current survey which, in whole or in part, does not appear on any map or record previously recorded or filed with the county recorder, county engineer, highway division of the department of transportation or the United States bureau of land management.
2. Evidence that, by reasonable analysis, might result in alternate positions of lines or points.
B. The record of survey shall be a reproducible map, legibly drawn, printed or reproduced by a process assuring a permanent record as required by section 11-481.
C. The record of survey map shall show:
1. All monuments found, set, removed, reset or replaced, the kind, size and location of such monuments and all other data relating to such monuments.
2. Bearing and basis of bearings and length of lines to the nearest one one-hundredth of a foot and ties to witness monuments. Other record data may be shown in chains, varas or other units of measurement as implemented by older surveys.
3. Dates of survey, scale of map and north arrow or other means of orientation.
4. Name or designation of tract or grant in which the survey is located, ties to adjoining tracts or grants and section or sections, township, range and political subdivision of this state.
5. Any other data necessary for the intelligent interpretation of the various items and locations of the points, lines and areas shown.
D. The record of survey shall be securely fastened by the county recorder into a separate book provided for that purpose. The county recorder shall keep proper indices of such record of survey by the name of grant, tract, subdivision or cadastral subdivisions by United States bureau of land management or general land office.
I believe the 90-day clock starts when either you set a monument or find a monument that is not of record. So to expand that; here is my thought. I believe that when a Land Surveyor sets monuments the final boundary determination is made. Therefore the clock should start then. What happens to projects for government agencies, subdivisions, and minor land splits; they should be subject to the 90-days because of the agency review they are subject to.
Why should clock start at monumentation? Simple, that is when the notice is given to the adjoining property owners and the subject property. However there is some debate about when a project is considered complete. When the plat is signed and sealed? When the final bill is paid? When it is returned and approved an agency? To these I say no. The boundary survey is complete when the boundary determination is made and monumented. The plat is only a representation of how we derived our conclusion. The monuments are the conclusion; therefore they should rule the day. Consider this; the landowners immediately impacted by the survey will rely on the physical monument either to live by or in some cases steal by. It has been my experience that the only people who routinely place any value on a Record of Survey are Surveyors, Title Companies, and Lenders. Nobody else really cares. In fact if you (the practicing surveyor) were to call a client from a year ago and ask if they knew where a copy of their Record of Survey, you did for them was, they would tell probably say I don't know. But if you drove up and said "show me the monument I set for you last year" they would probably walk you right over to it. Now you could argue that same scenario as a reason to avoid recordation at all. Yes but then you'd forget the reason for recordation in the first place. It is so we can stop reinventing the wheel everytime someone needs a survey. Recording surveys benefits title companies, other surveyors, lenders, and anyone else interested in spatial data. Yet as far as the Record of Survey is concerned the person it benefits most, the land owner, is the one who cares least.
Today one of our own has been laid to rest. Dave Preisch of Tucson. Via Con Dios.
When should the time start?
ReplyDeleteTitle 33, Chapter 1, Article 1, with the possible exception of §33-101, has nothing to do with the public or individual members of the public.
In one form or another, we have all come across the old business proverb "The job is not finished until the paper work is done." It is the model that the BLM follows with their surveys. The BLM will tell you that the survey is not done and the monuments are not to be relied upon until the plat is approved. I believe that the legislature was envisioning this model when §33-105 was written. In as much as the final review of most private surveys is done by the surveyor the best indication that the survey is done would be when the surveyor submits the final invoice.
The notion that the 90 day clock should start just because the boundary monuments have been found or set is wrong. Boundary surveys often involve more than just locating the boundary. There may be no doubt as to the location of the boundary it may even be fully monument before the current survey even starts. When does the time start? 90 days after the existent monuments are flag and the title report is 100 days out?
Black's Law defines over a dozen kinds of notice. What kind of notice does setting a monument give? What makes it sacrosanct? It is presumptuous to assume that setting a monument gives the adjoining property owner any kind of notice before the survey is recorded unless he is contacted directly. If the client and the adjoiners are contacted directly, there is little chance that the newly set monuments will be misused.
First and foremost I believe we are giving Constructive Notice when we monument a Land Boundary Survey; therefore that is precisely when the 90 day clock should start because that is when the reliance on the monumentation starts. Secondly it does not matter about the title report. I know it is a popular notion to relie on a title report. That may work in the sanitized areas of Metro Arizona but I wouldn't hang your hat on it any place else. The title reports I have seen in the last 10 years leave a lot to be desired. Plus there is nothing in our rules that obsolves us of responsibiliity of doing our own research. Finally the BLM is the ultimate authority in cadastral surveying matters on government land. COMPLETELY different scenario. We don't work under their authority so we don't have the flexibility of playing by their administrative rules. You are correct that you should not use a BLM/GLO monument that does not have notes or a plat associated with it. However that is not part of this conversation. Lastly we have an abundance of monumentation that is not supported by a Record of Survey in the public records. I believe those should be treated the same as new monuments. the 90-day clock starts when you put you tag on it.
ReplyDeleteThese are my opinions. We may disagree. My life would be easier if I didn't live by these self imposed rules. It would be easy to be a Land Surveyor if I thought the 90-day clock should on every survey signed on February 31st. Or on the day the alleged title report is complete. Or when the Branch Chief, Cadastral Survey signs my plat. However the boundary survey is considered complete when the monuments are set/accepted. There might be revisions, however the boundary determination is made when the monuments are set/accepted. We the private surveyor work for and should protect the public. Even if it gets uncomfortable. If a government agency gets in the way then all bets are off.
My thoughts.
Dan
DeleteBlack's Law 8th edition defines notice: notice,n.1. Legal notification required by law or agreement, or imparted by operation of law as a result of some fact (such as the recording of an instrument); definite legal cognizance, actual or constructive, of an existing right or title . • A person has notice of a fact or condition if that person (1) has actual knowledge of it; (2) has received information about it; (3) has reason to know about it; (4) knows about a related fact; or (5) is considered as having been able to ascertain it by checking an official filing or recording.
Black's Law also defines constructive notice. Notice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of, such as a registered deed or a pending lawsuit; notice presumed by law to have been acquired by a person and thus imputed to that person. — Also termed legal notice.
Garner's Dictionary of Legal Usage 3rd Edition states that, notice, vb. (= to give legal notice to or of ), is a LEGALISM that is likely to strike nonlawyers as quite odd… and further states "Notice should be reserved for the giving of legal notice. Avoid using it for providing other types of notice-"
What pending or preexisting legal acts or actions does setting a monument give notice of? I can think of nothing in the statutes or administrative code that equate setting a monument with giving notice in the legal sense. It is my opinion that the only notice given by a newly set or tagged monument, is notice of a recent survey.
Reliance. Is It your argument that a boundary survey should record within 90 days of setting or tagging a monument because someone is going to rely on it as soon as it is set or tagged? Good survey practice dictates that the surveyor at the very least make an effort to contact adjoiners when performing a boundary survey. Therefore the people most likely to rely on the monuments are already aware of the situation. I believe that the reasonable person test would apply to any third party relying on a tagged monument described in a yet to be recorded survey. We tag monuments so that the surveyor who set it can be identified and contacted which is what a reasonable person should do. No one should rely on any monument that doesn't have notes, plats or some other provenance.
Acquiring and reviewing a title report and other documents is part of the surveyor's due diligence. A title report may very well be of little use, but if one was ordered, I am not recording my survey until it is reviewed. The BLM is the ultimate authority on any aliquot break down, public or private and a good example of "the survey is not complete until the paper work is done" proverb.
Most boundary surveys are performed by a companies or an individuals for a fee and are reviewed in house. The best gauge of when the work is done is the submittal of the final invoice. This is also when the survey should be recorded, but the law gives them 90 days. The survey needs to be recorded within those 90 days whether or not the final bill is paid.
Your self imposed rules are base on your assertion that the survey is complete when the boundary is determined and monumented. This fine for you and meet the requirement of the law but is not consistent with the opinions of your peers (or at least this one). I also disagree with your statement that private surveyors work for and should protect the public. The Board of Technical Registration is charge with protecting the public. They do this by making sure that the people who practice the various professions are qualified to do so. We as practicing professionals have a duty to our clients and any other members of the public impacted by our work.
Larry
Larry -
ReplyDeleteFirst, the monuments define the survey not the "paper-work". I reasoning here is simple. Its the monuments that control everything. If the monuments and the Record of Survey disagree in principal the monument holds. Of course this is not in every case but let us keep this in the general sense. If the monument controls then the recordation standard should start when the monument is placed. Not when the paperwork is complete, besides the paper work should be complete or at least 99% before the monumentation stage anyway. Also, reliance on a title report is risky. Plus it does not reduce the responsibility we have to do our research. But again that should be done before the monumentation stage. Unless of course you are relying on information that the crew gives you and seeing it for yourself.
Second, as far as the BLM is concerned. They have no more jurisdiction on land that has been patented than you do. If fact they have less. They only have jurisdiction over federally control land. Once land has been patented they are out. Proceeduraly the BLM can advise on how to execute a dependent resurvey, however unless there is a federal land interest then they have no authority.
As far as the BTR is concerned I would rather MY peers govern the practice of surveying. I have seen the BTR in action and they leave much to be desired.
Finally, I guess I am not understanding this hesitancy to record a survey. There is a bit of pride involved when I do a survey. When I set/find a monument I take pride in the fact that I either restored or recovered somebodies property corner. Then I am proud to record the plat to let other know I had been there. I see this as a means of sharing information so there is little chance for error in the future. However I get the sense from your arguement that there is some sort of secret that can't be shared or shame that shouldn't be revealed. This may be wrong on my part but that is the impression I get.
We may have to just agree to disagree. As always Larry it is fun debating with you.
Dan
ReplyDeleteEvery survey should recorded. From the start this discussion has been about when the 90 day clock specified in §33-105 starts. I say when the final invoice is delivered to the client. You favor when the boundary is monumented. I find you choice rather nebulous and mine more in keeping with common business practices. So we disagree. It would be nice to have some opinions from other practioners.
Larry
There are a couple of things I find refreshing about this conversation. First, we had it without it turning into a fight. Second, it never got personal. Third, although we disagree on when the clock starts we do agree on recordation.
ReplyDeleteI also agree it is a shame others didn't jump in. maybe nobody visits anymore.