There seems to be an ongoing debate in the surveying community over the amount and extent of the land surveyor's obligations related to title search. There are those who advocate that the surveyor is obligated to search title back to original patents to discover all possible junior/senior rights issues and to resolve those issues on each and every survey. This group of surveyors is clearly interested in performing property surveys, as opposed to boundary surveys. There is a difference between the two. The other school of thought is that the surveyor's responsibility is to put the deed description on the ground and then show all resulting gaps, overlaps, encroachments and apparent adverse claims, leaving the resolution of those matters to others. These are the surveyors who purport to survey boundaries, as opposed to properties.

We Don't Operate in a Vacuum

While the surveying community continues to struggle over these and related issues, the rest of the world is concerned with other things. Most people who employ the services of a land surveyor want to know the extent of their property lines. They are not simply interested in knowing how a particular legal description will look when placed on the ground. During my 28 years in the business, I have never had anyone hand me a legal description and request that I perform a survey out of idle curiosity as to how it will look once laid out. On the contrary, they are keenly interested in knowing the extent of their property as defined by the deed.

Certainly, there is much work that must be done to properly interpret a deed and determine the limits of the property boundaries described therein. And the simplest deed may be chock-full of ambiguities as the surveyor attempts to survey the property on the ground. Depending on the individual surveyor's training, education, experience and understanding of the rules under which land surveyors operate, the results can be dramatically different from one surveyor to the next. This is perplexing to landowners and has not gone unnoticed by others interested in the resolution of property title issues. Courts, legislative bodies, title companies, attorneys and others have taken notice of the harm that ensues from uncertainty in the chain of title. Adverse possession, for example, which was first a common law doctrine to quiet title, has now been codified in every state in the Union.[1] Similarly, a relatively new legislative attempt to remedy uncertainty in the chain of title is making its way through the halls of state legislative bodies across the country: the Marketable Record Title Act or MRTA.

Marketable Record Title Act (MRTA)

MRTA is based on the Model Marketable Title Act. Currently, there are about 20 states that have enacted some form of the Model Marketable Title Act to create their own versions of MRTA, and others are or soon will be considering similar legislation. Although not yet enacted in a majority of the states, many states are interested in similar legislation because of public policy that favors certainty in land titles and the reduction in litigation over title issues.

Massachusetts was poised in January [2000] to join the 20 or more states that have enacted so-called Marketable Record Title Statutes. The purpose of such legislation has been to render marketable those real estate interests which are evidenced by a chain of title for a specified period of time, by terminating or limiting the enforcement of rights, interests and claims respecting real property that are based on old records, instruments or events predating the statutory time period"¦ At some point in the bill's evolution, it came to be known as the Landowner's Title Protection Act, perhaps one of the most felicitous titles ever given to a piece of legislation.[2]

It seems that Florida possibly has the oldest MRTA legislation on the books. Enacted in 1963, Florida's MRTA, found in Chapter 712 of the Florida Statutes, sets out the purpose of the legislation in 712.02:

Any person having the legal capacity to own land in this state, who, alone or together with her or his predecessors in title, has been vested with any estate in land of record for 30 years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in s. 712.03.

There are exceptions to the claims that are barred; one particular exception that deals with adverse possession could be very significant to land surveyors. But outside of the few exceptions enumerated in the act, title under the act is free of all claims. That would and does include claims that might be brought either directly or indirectly as a result of land surveying activity. In other words, a claim on the title of one property owner by his neighbor based on a survey showing a mistake as to location of the boundary lines would be barred under the act.

Let me try to make this a little clearer by way of an example. Let's suppose a surveyor is given a deed and asked to prepare a boundary survey based on that deed. The surveyor does his usual research at the courthouse ("usual research" can range from no research at all to a complete title search back to the original patent). For our purposes, let's say that this surveyor pulls a copy of his client's deed and the last deed of record for all adjoiners. A review of the deeds does not reveal any apparent conflicts and all of the deeds are at least 30 years old. The surveyor goes to the field to gather field data; this step can range from the minimum of simply surveying the immediate property to the maximum of surveying the immediate property, all adjoiners and beyond. For this example, let's assume that our guy retraced the steps outlined in the deed description and surveyed enough of the adjoiners' to feel comfortable that their deeds match what they appear to occupy. So far so good.

Now, because our surveyor recently attended a BLM retracement camp, he goes back to the section corner to dig around a little more. Now he finds the original section corner and all four bearing trees (via the tap roots) called for in the original GLO notes. This section corner was called for in the deed as the point of commencement. The problem is, this section corner is 75 feet away from a locally accepted corner that's been used for the last 50 years by every surveyor in the county. After retracing the deed back to the subject property, our surveyor finds buried ancient monuments that completely coincide with the writings in the deed. However, these old monuments do not agree with current occupation or monumention. The surveyor holds the ancient monuments and the original section corner, prepares his map and shows the results to his client. Although the client loses some land on one side, he gains a considerable amount on the other, and he gains access to a lake due to the shift in his boundary lines. He now has a claim to the land of another owner due to a mistake in location of his boundary lines. At the very least, he's put a cloud on his neighbor's title.

Barred by MRTA

If the surveyor is in an MRTA state, this claim is completely barred if the neighbor has been enjoying his title and occupation for the statutory period of time, including time put in by his predecessors in title. Under Florida legislation, this is 30 years. In Florida, the act has been strictly enforced against any and all claims on a 30-year-old title, except those very few specific exceptions enumerated in the act itself.

Section 712.02 of MRTA expressly provides that any person vested with any estate in land of record for thirty years or more shall have a marketable record title free and clear of all claims [emphasis provided] of an interest in land except those preserved by section 712.03.i.[3]

Of the exceptions listed in 712.03, adverse possession (712.03(3)) is the only exception that has an effect on the surveyor's responsibilities in making property boundary determinations. People who are in actual possession of land are presumed to have given notice of their claim as required under the act. A claim on the title of another based on mistake as to location is not listed in the exceptions and, although this issue has not been directly litigated (at least as far as I have been able to tell), it is clear from the ruling in H&F Land (noted above), that all claims are barred unless listed in section 712.03.

Based upon the unambiguous language in MRTA referring to "all claims" and the clear policy underlying MRTA, both of which clearly mandate that "any claim or interest" in property be publicly asserted and recorded, we find that MRTA indeed encompasses all claims to an interest in property"¦ unless such claim is expressly excepted from MRTA's provisions...[4]

A Statute of Limitation

As with adverse possession, MRTA is a statue of limitation. It not only bars claims that may arise as the result of a survey of the property, but also claims against one's title that are not brought up and made prior to the running of the statutory time period. And as with adverse possession statutes, the underlying purpose is to allow people to enjoy their land in peace and be free from adverse claims after a certain point in time. Finally, however, as with adverse possession, acts and claims barred by MRTA must be asserted in court to have effect. In other words, a perfectly good adverse possession claim or a claim that a certain trespass on one's title is barred by MRTA must be asserted by the party looking for protection under the statute. If not, the court will not bring this claim up of its own accord, and it is very doubtful that the opposing party will bring it up either.

Let's go back to the example survey mentioned earlier. If the neighbor who lost land and had a cloud put upon his title due to the recovery of the ancient monuments does not assert that the claim is barred under MRTA, or possibly by virtue of adverse possession, the result could be quite different. The ancient monuments might just win the day in court. This, of course, puts the surveyor in a bit of a predicament. On the one hand, the surveyor who attempts to rightly interpret the law may find himself exposed if the rightful claims of the affected landowners are not made. On the other hand, the surveyor who ignores the effects of MRTA and adverse possession statutes-and holds the ancient monuments in defiance of the law-may find himself equally exposed. Nevertheless, the land surveyor has an obligation to interpret and apply all laws that affect his or her practice, regardless of the actions of others.

Bringing Certainty to Land Titles

I do not believe that this article will decide the debate over the land surveyor's responsibilities relative to research and property boundary determinations. I imagine everyone reading this article, whether in the boundary survey camp or the property survey camp, is still in his or her respective camp. However, it is clear that society wants certainty in land titles and wants to quietly enjoy that title without fear of future litigation. Legislation such as MRTA and adverse possession statutes are created to bring certainty to land titles. By and large, our research efforts need to go further than the statute of limitations imposed by law.

The history that our work entails is very appealing to most land surveyors. There is no thrill greater than finding an ancient monument that others have overlooked for 100 years. The satisfaction derived from solving a complicated title mystery dating back 70 years can be exhilarating. But if the result is going to be contrary to the law and promote litigation, it's greater than useless-it's dangerous. The laws governing title in land must be understood by the land surveyor and correctly applied to a given situation in order to return good results that can withstand scrutiny in court. To do otherwise in some misguided attempt to satisfy idle curiosity or to advance some arbitrary rule of surveying can only result in pain and heartache. Further, it results in unnecessary litigation for our clients who are depending on us for a determination of their property boundaries, not a discovery of ancient claims that they can never win.

It is abundantly clear that legislation such as MRTA and our state adverse possession statutes is directed at a real problem that we as land surveyors have a great deal of responsibility for and control over. We should take that responsibility seriously and apply sound judgment in making property boundary decisions. In this way, we will win respect from the general public and fellow professionals.

Neither the author nor POB intends this column to be a source of legal advice for surveyors or their clients. The law changes and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.