New Owner Next Door Says My Surveyor Isn't Correct, His New One Is

[chittychittybangbang]

My question involves real estate located in the State of: Texas

I have lived and owned my property since 1996. Paid cash at closing and have title insurance from that time.. bought a mobile home and as Texas law then required an acre be pledged. I use what is called a land in leiu ( put up 1 acre for down payment) lender required a survey....which was set out of the nearly 4 acres that I purchased. My son in law 8 yyrs later buys 11 acres beside me and was a bank loan. over a coarse of 4 yrs he refianced it twice and was surveyed each time. He has since lost the property and bank finally has sold the property.. the new owner has had it surveyed and now claims my markers (with survry caps and was used as markers for set back's for septic codes and set back for well as per county codes). My survey also has been cert. in 1996 and was filed in county court volume with deed. My question is after 16 years of using present stakes (smooth 1/2 in iron rod with plastic marker surveryors ) can his new survey take presidence or mine just because he says his surveyor told him mine is wrong... ?

[Newtons_Apple]

If I'm reading this correctly, you cut a 1 acre parcel out of a 4 acre parcel and placed a home there. In general (and this is not always the case, but typically can be the way it works), a parcel cut out of a parent, (or remainder parcel) is considered senior, while the parent parcel is considered to be junior. Also, the iron stakes you mentioned appear to be original monuments used to create the 1 acre parcel. An original physical monument is considered to contain no error - in other words the monument shows the exact position of the corner, whether or not measurements taken to it match the deed calls.

The new surveyor may have found that the measurements in the deed differ from what he found in the field. Actually, I know for a fact that he found differences. Measurements are never perfect; which is the core reason why monuments almost always hold over measurements.

First and foremost, call up the new surveyor and demand an explanation as to why your survey is wrong. Ask him if he contacted your surveyor (if he is still around), to discuss the discrepancy. Did he not hold your corners (which appear to be "original") and why?

If I find what I believe to be an error of any kind in another's work, I will always contact them to give them a chance to comment, own up, etc., before I release a plan to the public.

Let us know how things turn out - hopefully the new surveyor will be able to explain his reasons to your satisfaction.

[LandSurveyor]

I'm happy to completely agree with Newton here.

I'll even go further and suggest that you give the surveyor in disagreement a specific reasonable time frame to get back to you. A week should be enough for even a busy surveyor. Tell him that if you do not hear from him in a reasonable time frame or do not understand his response you will be contacting these folks for help in understanding your situation:

http://www.txls.state.tx.us/01_home/contact_us.html

As Newton has pointed out, the new surveyor has, without any explanation, upset an established boundary.

It should not be up to a member of the public, who has paid for a survey and relied upon it in good faith to be left sort out the disagreement. And if there are any other facts relating to this which have not been posted up yet, this would be a good time.

[chittychittybangbang]

the new owner next door had three different surveyors in 2 weeks time. He (yesterday before the rain came in was driving wood stakes and painting cornora for a pipe and cable fence, of which is all on what I beleved to be on my property for last 17 yrs, and used same for code set backs.. He said >>>"I have a survey.. paid for state that this is my property... ". well I am 68 yrs old on SS and don't have the funds to gor to court... be probably knows that. also... the engress and egress road is pvt road not county maintained actually is part of each owners property and an easement of 60 ft wide was placed originally by original owner/delveloper... this new owner of the property has placed and electric Iron gate across the rd and has canged flow of runoff. His gate has now forced trucks garbage, his delivery vehicles (when he not around) to back up to my drive way and turn around... why should I suffer the impact on the part of the road that's my deeded property..that easement.. ruts, mail boxes all for a year now... sure am frustrated

[BenT]

I can certainly understand your frustration. With regards to the runoff, trucks, ruts - I would take pictures and date them. It's evidence which could be very important down the road especially in the light of the neighbor causing issues which result in delivery/garbage trespass of your property.

[chittychittybangbang]

thank you... but when your nearly 70.. and just had a 3 in rain and a truck leaves 10-12 in ruts in the edge of your drive way yard.. and just drive off.. you can't shoot them.. but you sure think about it..and I own the road that they back down, but I can't do nothing about it.. would love to put no back up spikes like the old drive in movies used to have at their exit gates...hehe

[eapls2708]

If I were you, I'd see a local attorney just to get an idea of your rights, your likelihood of prevailing if you took it to court, and what the laws are in TX pertaining to recovery of costs for the winning party in a lawsuit. Also find out what time periods are mentioned in any laws of repose pertaining to the boundaries and occupation of real property. They may play a part as well.

As I understand it, the 1 acre with the iron rods/plastic caps that you've been relying on is a cut out of a 4 acre parcel, and the disupute is between these stakes and those of a survey for an 11 acre parcel lying next to the 4 acre parcel. In that case, your 1 acre parcel may not enjoy a senior relationship to the 11 acre parcel, and so the monuments (iron rods) marking your 1 acre parcel may not represent the limits of a senior right to that 11 acre parcel. They do to the remainder of the 4 acre parcel automatically as explained by Ben T and LandSurveyor, but may not as to the 11 acre parcel. That's where the statute(s) of repose might become important.

If for instance, the time period mentioned in applicable statute is 15 years, your stakes and occupation of your parcel according to them may then override an otherwise senior title right of the 11 acre parcel (if it is indeed senior - it may not be, but that's not automatic as between the 1 acre and remainder of the 4 acre parcels). If the time period in the statute(s) of repose is 20 years, or something greater than the 17 years you've been relying on that survey, a senior title right of a neighboring parcel may not be overcome. Each state has its own laws with respect to repose of boundaries and/or prescriptive title. Time period range from as little as 5 years up to 25 (there may be a couple of states with greater time periods, but not many).

Something I wonder about is what the previous surveys of the 11 acre parcel showed. Do they agree with the most recent one or not? Was the latest survey for another real estate transaction or did the current owners commission it because they were hoping for different results than shown on the previous maps?

Lastly, I'm curious as to the actual title or type of survey in each case. Were they all reported to be boundary surveys or were some of them titled as Mortgage Inspection Reports (sometimes referred to as Mortgage Inspection, Mortgage Survey, or Location Report or Location Survey). The important part of that question resides in the "fine print" notes on the maps. What you would look for on the maps is a note somewhere, probably in the Certification but sometimes in separate note that contains a statement that the information shown does not constitute a Boundary Survey and/or that no statement of accuracy is made with respect to the boundary locations shown.

The plain English translation of such a note is: "Although I show property lines on this map, I really don't know if they are accurate. They represent my best guess as to their location based upon the very limited field survey that I performed to help ascertain their locations. This survey is not a property survey."

Confused? So are most people when this is first explained to them. Upon casual inspection, it looks like a real survey map and it's signed/stamped by a licensed surveyor. But appearances can be deceiving. The purpose of these documents is not to tell the homeowner where the property lines are or to show them where major improvements are relative to the lines. It is to give lenders and title insurers some minimal assurance that the improvements thought to be on a particular parcel are indeed on that parcel. lenders and insurers deal in calculated risk, not absolute assurance. From their viewpoint, they can afford to lose a certain percentage of cases or settle those cases more economically than what it would cost to have more complete assurance for every parcel they insure or lend on. A document that represents a fraction of the effort required to accurately determine a boundary meets their needs.

More often than not any differences between a boundary shown on a MIR is relatively minimal from one determined properly (most mortgages are on homes in residential subdivisions where survey monumentation is relatively easy to find - leaving little room for error). Most homeowners either will never become aware of any error between that shown on their MIR and what would be found by a complete and diligently performed survey. Most homeowners also will not consider the value of land represented by minor differences to be worth the potential legal costs and hassle of litigation.

I'm also not clear on the 60' easement. Is this an easement that both you and the neighbor have rights to? What about other property owners? Does this 60' easement straddle the line between your parcel and the 11 acre parcel or is it all on one side of the line? If it is a shared easement straddling the line, your neighbor probably does not have the right to fence off or otherwise deny access to any part of it from you. Depends upon where it is, which parcels it is appurtenant to (who has rights to it), and the specific terms of the easement deed.


So, if you haven't already done so and if they are available to you, get copies of all the surveys involved. Check each for the type of survey performed. Compare, to the best of your ability, where the maps agree or disagree. If it is beyond your ability to fully understand how the maps would fit together, to determine agreement or disagreement, consider hiring a surveyor to analyze that for you. That doesn't necessarily need to involve a new survey because you are not asking the surveyor to determine where your boundaries are at this point, but only to indicate points of agreement or disagreement between the maps to the extent that they show sufficient information for a surveyor to determine it. Choose a surveyor with a lot of experience analyzing conflicting boundaries (the surveyor should consider law as applied to the facts shown - pass on using any surveyor that speaks only about the dimensions recited in the deeds - that's likely what started your problems in the first place).

Take all this information you've been able to collect and spend the money to speak with a local attorney for an hour or two who has a good deal of experience handling boundary dispute cases. In this narrow area of specialty law, "local" might mean driving to the next sizable city an hour or two away if you live in a small outlying community.

At a minimum, I would expect that you find that you have the right to keep the neighbor and his delivery trucks from damaging your driveway and yard and are able to get good advice with regard to having the neighbor repair damage that has already happened and ways to prevent future damage.

Also collect information that shows the difference between your property conditions before he installed his fence and other improvements that diverted stormwater, and conditions after those changes were made. You need to be able to show that his actions are the cause or contributed significantly to any damage you are currently experiencing. The issues on that front may also be able to be addressed through your local building department or planning board. Again, advice from local profesionals will guide you in the best direction to seek remedy to those particular problems. Each local jurisdiction can be a little different as to which agency might have authority in the matter. In some jurisdictions, the judicial (court) system is the only avenue for relief.

I hope that you're able to maintain enough patience to follow through to finding a solution to your mess. Good luck.

[chittychittybangbang]

thank you... for being concerned to give a lenghty reccomendation and suggestions.