Encroachments - A Legal Term
When conducting a survey, many owners, title companies, and attorneys will ask for all encroachments to be shown on a survey. This is a difficult order to fulfill.
According to Black’s Law Dictionary, Sixth Edition, an encroachment is “an illegal intrusion…”. To put it in simpler terms, an encroachment occurs when a man-made object (improvement) crosses a property line or easement line AND the owner of the easement or adjoining parcel does not allow the improvement to be there. From the surveyor’s perspective, how are we to know what is allowed or not allowed?
I contend that is not the surveyor’s charge to decide what is allowed or not allowed. It is the surveyor’s responsibility to report what he or she finds at the time of the survey and simply report the facts.
This becomes a little more complicated when it comes to fences. In the field, it is hard to determine the ownership of a fence (who paid for it) without looking at a receipt. Therefore it is next to impossible to determine if there is an encroachment or not. However, it is possible to show the position of the fence relative to the property line without regard to the ownership. Most boundary and title surveys will show all improvements within five (5) feet of the property lines. This will give a clear idea of what may or may not cross the line.
When everything is said and done, the word “encroachment” is a legal term. A surveyor can, and should, should show intrusions or protrusions of improvements across a line and let the lawyers decide whether or not it should be there.
By: Miguel A. Escobar, L.S.L.S., R.P.L.S.
Right-of-Entry Issues when Surveying Property
One of the most important items that the client must provide before a surveyor can get started on a survey is the “Right-of-Entry” to the property. If surveyors cannot enter onto the subject land, then they cannot perform the survey.
Boundary surveys complicate the need for permission to enter because surveyors need to gain access to the adjoining lands to find and measure the adjoining land’s property corners. Limited surveying of adjoining properties ensures that there are no overlaps, gaps, or other issues with the common boundary lines.
In Texas, surveyors do not have a right-of-entry statute like some other states. Therefore, surveyors must gain permission in other ways. One of the easiest ways is for the client to notify their neighbors and ask permission for the surveyors to enter onto the neighbors land. The surveyors can also try to contact the neighboring land owners when they arrive on site. Another way is for the surveyor to send out “right-of-entry letters”. This letter informs the land owner the need for a survey and asks for permission for the surveyors to have access to the land. The letters also have a space for any special requests that the surveyors must adhere to when on the owners land.
Notifying the land owners prior to arriving on site helps in two ways: safety and timing. First and foremost is the safety issue for the field crew. Many land owners are protective of their lands and rightfully so. We would not want to alarm the property owner and cause them to pull a firearm on the field crew or worse fire upon the field crew. Another safety concern is the actual access to the land. It is much safer for the field crew to walk through a gate opened by the land owner, as opposed to jumping over the fence. I know of one instance when the land owner turned on an electrified fence when the survey crew member was halfway over. It did not end favorably for both the land owner or the crew member. Dogs and other protective animals are also a concern. If a property owner knows the survey crew is coming, they can contain the animal(s). Second is the timing issue. When the surveyor waits until the field crew is on site to notify the land owner, the surveyor must assume the land owner is there to give the permission. If the land owner is not on the property and the surveyor deems it necessary to go on the owner’s land, then the safety issues stated above arise.
In all instances, the coordination of the right-of-entry takes time. When the surveyor sends out the right-of-entry letters, they must spend time researching the names and addresses of each of the adjoining land owners and individually addressing and mailing the letters. Once the letters are sent, the surveyor must spend time to keep a log of which letters have returned, the status of the authorization (access granted, access denied, or conditional access), and which letters must be followed up on.
During the course of the project, the surveyor and survey crew must be keenly aware of the status of the authorization of each of the tracts of land. The surveyor must keep track of whose land they can or cannot enter upon, the gate access codes or keys, and any special conditions they must adhere to. Some of the possible conditions are keeping gates closed and locked, no smoking and leaving the property in the same condition they found it.
If a land owner does not grant right-of-entry, the surveyor has few options. One option is to seek a court order authorizing the surveyor to cross the land. The surveyor may apply for an order under Section 1071.358 or Section 1071.3585 of the Professional Land Surveying Practices Act from the District Court in the county in which the land is located. The court shall grant the order on proof that the person is a registered professional land surveyor and that the issuance of a court order authorizing the person to cross the land is in the public’s best interest.
Another option is if there has been a condemnation suit filed for the land in question. In Texas, Surveyors have right to enter property for preliminary surveys when condemnation suits are filed. The condemnation suits are a result of eminent domain, which is the right of the sovereigns (or governments) over citizens to take property for public use in exchange for just compensation. Eminent domain is derived from the 5th Amendment to the Constitution of the United States. The right to enter upon the condemned land has been upheld by court decisions but is not found in civil statues. Some key court cases are as follows:
Lewis v. Texas Power & Light Co., (276 SW2d 950)
Puryear v. The Red River Authority of Texas (383 SW2d 818)
Hicks v. Texas Municipal Power Agency (548 SW2d 949)
Hailey v. Texas - New Mexico Power Co. (757 SW2d 833)
Coastal Marine Services of Texas, Inc v. City of Port Neches (11 SW2d 509)
Caution is taken by the surveyor when doing these types of surveys. Surveyors are liable for damages performed before the compensation is paid. Surveyors have been fined for damages because they cut trees for traverse lines, to create the ability to sight various points for the survey, when other methods of surveying can be made.
In conclusion, right-of-entry to the land to be surveyed may seem like a simple issue but without it the survey cannot be performed.
By: Miguel A. Escobar, L.S.L.S., R.P.L.S.