Civil Engineering Reference
In-Depth Information
If the parties are successful in reaching an agreement to locate the disputed
boundary it will be necessary to create a written agreement signed by all of the
parties having an interest in the land. It will then be necessary to place the agree-
ment on record in the recorder's office. This agreement should be drafted by an
attorney. Prior to drafting such an agreement the surveyor should set sufficient per-
manent markers on the lines which have been agreed to so that the abutters and
future grantees will have no misunderstanding about the property line locations.
After all, the present lack of permanent markers is probably why the parties are
now being required to go through the trouble and expense of a boundary agree-
ment. Consideration should also be given to using GPS (Global Positioning) to
tie the boundaries into the state plane coordinate system as additional assurance
that the boundary locations can be reproduced in the future. As already noted,
some states have statutes which provide that use of state plane coordinates for the
description of a boundary point is legally considered a full and adequate descrip-
tion of the location.
The surveyor should prepare a plan suitable for recording showing the line of
agreement, the monuments set on the line and any other information which the
surveyor believes would be helpful in reestablishing the line at some future time.
This plan should be recorded along with the agreement. The agreement should call
for the plan and give the topic and page where the plan is recorded. The plan will
thereby be incorporated into the agreement.
In some jurisdictions an agreement between abutters which is interpreted as
agreeing to the true boundary may be overturned if it is later determined that the
line established by the agreement is not in fact the true boundary. Where the par-
ties agree to a line, mistakenly believing it to be the true line, the parties are not
prevented from later claiming to the true line. To prevent such an occurrence it
may be good practice to put words of conveyance in the agreement, whereby each
party conveys to the other party any and all land lying on the other side of the line
agreed to.
In some jurisdictions an agreement between abutters which is interpreted as
agreeing to the true boundary may be overturned if it is later determined that
the line established by the agreement is not in fact the true boundary.
If one or more of the parties has a mortgage on the land which will be the sub-
ject of the agreement, it will be necessary to contact the mortgage holder and
obtain the mortgage holder's assent to the agreement. Mortgages often have “due
on sale clauses” which make the note due and payable in full upon any transfer
of the mortgaged property. If an agreement were recorded without the mortgage
holder's consent and the agreement were later construed as a transfer, the land
owner would probably be very upset to receive a demand for payment in full of the
amount of the loan.
