The term “illegal” is defined as “against or not authorized by law.”[1] Based on this definition, Florida’s surveying standards are illegal.



Florida is not alone in this situation. Many of the surveying standards[2] that I have had an opportunity to review, though they may be authorized by law, are against what the law actually says, especially on the subject of boundaries. I’m only picking on Florida because, from my personal knowledge and experience, their Minimum Technical Standards (MTS) are the most blatantly illegal (against what the law says) standards that I know of. When we step back and realize that these--and all other standards--are promulgated by men and women (surveyors) who have little or no formal education on the law of boundaries, then this is not surprising. Ah, but you say, “Our standards were reviewed by staff attorneys from the attorney general’s office before we approved them.” Those attorneys likely don't understand boundary law, either.

Perhaps the time has come to eliminate the various surveying standards that have been written and rewritten for the past 30 to 40 years. Many of these standards were first created in a time when surveyors were all over the map, literally, on the subject of what constitutes a survey. Another driving force was to derive a minimum “accuracy” standard. Both of these issues have now come full circle. Today, no one can agree on what constitutes a survey and we confuse “precision” for “accuracy.”[3] The only reason we continue with the charade is because regulatory boards use these standards to “grade” surveys and surveyors use them as an excuse for why they didn’t do their job.

Why We Need Standards

In reality, the only reason we need any kind of a standard is to protect the public’s property and associated rights. Most states articulate that responsibility this way:

In order to safeguard the life, health, property and welfare of the public and the state of Ohio, to maintain integrity and high standards of skills and practice in the professions of engineering and surveying, the following rules of professional conduct, promulgated in accordance with Chapter 4733 of the Revised Code, shall be binding upon every person holding a certificate of registration as a professional engineer or as a surveyor. Ohio Admin. Code, Sec. 4733-35-01. [Emphasis added.]

The services of the land surveyor primarily affect the property (real property) of the citizens of the state, although life, health and welfare are also affected when the job isn’t done right. Landowners have shot their neighbors over boundary line disputes. If you are the one being shot at, your life, health and welfare (not to mention your property) are all in play. This fact alone should be enough to emphasize the point that we deal with more than just an abstract idea of where boundary lines ought to be vis-à-vis a deed; we deal with where they actually are vis-à-vis the law.

Florida’s standards are based on the directive of Florida Statutes, Chapter 472.027, which articulates the reasoning behind the standards as such:

The board shall adopt rules relating to the practice of surveying and mapping which establish minimum technical standards to ensure the achievement of no less than minimum degrees of accuracy, completeness, and quality in order to assure adequate and defensible real property boundary locations and other pertinent information provided by surveyors and mappers under the authority of ss. 472.001-472.037.

Disregarding the obvious flaw in the use of the term “accuracy,” as discussed last month, this code section would seem to convey the same message as the Ohio code section. After all, the objective is to achieve “defensible real property boundary locations,” isn’t it? The problem is that defensible boundary locations do not mean they are accurate boundaries, true boundaries or even valid boundaries. A boundary location can be defensible even if it’s based on a description written on a barroom napkin purporting to sell the Brooklyn Bridge. This is not how the law has been interpreted by the courts in the state of Florida:

The purpose of the surveys in this boundary dispute is to locate accurately the boundary between the plaintiff’s and defendants’ property. To do this, the survey must begin with an accurate description of what land the parties own.[4]

To locate accurately the boundary between Andrews and Barton does not require precise measurements. It requires an understanding of property law as it relates to boundaries--including an examination of the deeds of not only the subject property but also the adjoiners, the proper interpretation of the written documents, the recovery of origin monuments or their former location, the recovery of collaborative evidence of monuments, the recovery of relevant collateral evidence, interviews of locals (if necessary) with relevant information concerning the boundaries in question, the evaluation of all of the above and, finally, a well-reasoned opinion on the property boundaries in question. It requires finding the true corners and lines that represent the existing property boundaries between Andrews and Barton. In so doing, the survey will be 100-percent accurate regardless of precision.

Taking the cue from the Florida Legislature, not from what Florida law says on the subject of boundaries, Florida’s technical standards address none of these issues. A fair interpretation of the standards can lead one to the conclusion that staking a description taken from any source is perfectly acceptable as long as it is in some way “defensible.”

Why We Don’t Need Standards

If we go back to the idea that we need standards to get surveyors on the same page with regard to what constitutes a boundary survey, surveying standards have failed miserably. In many cases, the standards have actually added to the confusion. Instead of defining a boundary survey for what it really is, as described above (and below by the Florida Supreme Court), a boundary survey can consist of a survey of any description of property from any source, a deed stakeout (regardless of whether the deed is any more valid than a barroom napkin), a “mortgage survey” or “inspection” (which, in many cases, has nothing to do with surveying), a retracement survey (which, depending on your interpretation, does or does not establish or reestablish anything), a resurvey (which often only purports to follow a previous survey--good, bad or ugly) or an actual boundary survey intended to accurately reflect the property boundaries between the coterminous landowners.

I’m confused, land surveyors are confused, and landowners are confused. How is it that all of this lessens the confusion for the general public? The Florida Supreme Court, however, isn’t confused:

In making a resurvey, the question is not where an entirely accurate survey would locate the lines, but where did the original survey locate such lines. … The object of a resurvey is to furnish proof of the location of the lost lines or monuments, not to dispute the correctness of or to control the original survey. The original survey in all cases must, whenever possible, be retraced, since it cannot be disregarded or needlessly altered after property rights have been acquired in reliance upon it. It is generally held, therefore, that a resurvey that changes lines and distances and purports to correct inaccuracies or mistakes in an old plat is not competent evidence of the true line fixed by the original plat.[5]

Standards are now routinely utilized by regulatory boards and others to grade the surveyor’s work. There are only two possible reasons for needing a set of standards to grade surveyor’s work.

First, it is easier for regulatory boards to test for competency by using a kindergarten checklist than by tackling the real work of determining whether a particular surveyor is competent based on ability and conduct. If the board members are just as confused about our duties and responsibilities as the average surveyor (and all licensed board members came from the same pool as the average land surveyor), then how can they possibly pass judgment on the ability or conduct of a particular surveyor? They simply can’t, at least not without an understanding of what the law requires. Therefore, a kindergarten checklist is needed to pass judgment on the performance of surveyors. However, this practice entirely misses the point.

The second reason is for the protection of the public and the property rights land surveyors routinely come in contact with. This could be handled in one or maybe two paragraphs if it needs to be written down at all. I gave you my one-paragraph description above, and the Florida Supreme Court gave you theirs. You are either doing what the laws requires with regard to boundaries or you are not. Anything less is not boundary surveying.

Surveying standards are also utilized by land surveyors to circumvent the rendering of a well-reasoned opinion on property boundaries. The excuses for doing so are legion: “The client didn’t want to pay for a full-blown survey, so I did what he could afford”; “The minimum technical standards don’t require me to pull the neighbor’s deed” (an actual quote from a deposition I attended in Florida); “I owe no duty to anyone but my client” (an actual quote from untold cases); “The block was short so I prorated the difference” (don’t get me started); “The center of the section is at the intersection of straight lines drawn through the opposing 1/4 section corners”; “You can’t have a bend in a section line because I say so”; and, my all-time favorite, “All my client wanted me to do was stake his deed.”

Why Do We Survey Property?

We no longer survey property for people. We prepare surveys for regulatory boards, possible court exhibits and to cover our backsides. Generally speaking, landowners do not know how to read our survey maps. The only thing they really understand are the monuments we leave behind as a result of our survey. Even then, they don’t have a true understanding of what the monuments mean because we have qualified them on our survey maps that they can’t read. Collectively, we have already begun to eliminate the need for setting monuments at all. Many “types” of surveys that deal with property ownership and, consequently, property rights and property boundaries (whether we are willing to admit it or not) do not require the setting of monuments or even the recovery of existing monuments. We have decided in our infinite wisdom that 4,000 years of reliance on monuments can be cast aside for expediency.

In the final analysis, the only real reason we need written standards is for the protection of real property boundaries. This, of course, begs the question: Why would our standards address any other issues? If the standards we have now are not up to the task, they should be discarded as useless. They only add confusion to the chaos and give surveyors an excuse to do something less than what the public needs from the land surveying profession.

As far as I know, we are the only profession that has created a checklist to grade our work. The other professions that I am familiar with utilize a code of conduct, and either the professional lives up to that code or doesn’t. But, of course, this would require expecting professional behavior out of all licensees and treating licensees as professionals instead of as technicians. This is way too much to ask or expect.


References

1. Black’s Law Dictionary.

2. These standards are referred to by such names as Minimum Technical Standards, Standards of Practice, Accuracy Standards and the like.

3. See “Traversing the Law,” POB, May 2009.

4. Andrews v. Barton, 474 So.2d 1144, 1147 (Fla.App. 2008).

5. Akin v. Godwin, 49 So. 604, 605 (Fla. 1951).




Jeff Lucas is in private practice in Birmingham, Ala. He is president of Lucas & Co. LLC, publisher of “The Lucas Letter,” a legal newsletter for the surveying and engineering community. He can be contacted through
www.jnlucaspls.com.

For a more in-depth study of the legal principles that affect our everyday practice, subscribe to “The Lucas Letter” at
www.jnlucaspls.com/TheLucasLetter.html.



Neither the author nor POB intend 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.

This column is a forum for analysis and discussion of closed court cases. Facts and information cited are limited to what is contained in the published legal documents. It is not POB nor the author’s intent to re-try cases that have already been resolved and closed by the court system.