I regularly receive calls from landowners that have a conflict (or potential conflict) with a neighbor over the boundaries between their properties. For waterfront property, this may involve the location of a pier. For the homes in planned and platted communities, this may involve the location of a paper road or community land. For everyone it might involve a question of where exactly is the shared line between two properties. These locations may be obscured by installed fences or sheds, by a history of maintenance in one area or lost to history. It is very common that the potential client, and perhaps their opposing neighbor, do not know where the location is that is called for in the deed or plat.
Usually one of my first questions is whether the property has been properly surveyed. If so, this will narrow the field of dispute a great deal. Oftentimes the property owner does not have a survey or if they do only has the Location Drawing that they received at purchase or perhaps just the neighborhood plat. The plat is an important legal document which is relevant (and may establish) the legal boundaries, but it is not the same as being able to locate actual boundaries in the field. In Maryland, there are several kinds of surveys identified in the regulations, each of which serves a different purpose. Any qualified surveyor should be able to perform them – a very good surveyor will also be able to testify as needed. Oftentimes there will be multiple categories on a single plat, but it is good to know what you are looking at, and what you should be able to expect from your surveyor. Here are some thoughts on each type of survey.
1. Location Drawings. A location drawing is the depiction of the property you receive when you purchase a house. Although it looks like a survey, it hardly qualifies. To start with, although you may not remember, if you received one you had to sign a piece of paper that says: A LOCATION DRAWING IS NOT A BOUNDARY SURVEY AND CANNOT BE RELIED ON BY ANYONE TO SHOW WHERE THE PROPERTY’S BOUNDARIES ARE. The purpose of a boundary survey is to “locate, describe and represent the positions of buildings or other visible improvements affecting the subject property.” For a location drawing, the surveyor is offering the insurance company and mortgage company an assurance that any improvements to the property are within the boundaries — but that is it. There are no true assurances to the owner of the size or location of the property, whether there are easements across it, or any of the other items that are likely to cause disputes.
2. Boundary Surveys. A boundary survey “is a means of marking boundaries for sufficient definition and identification to uniquely locate each lot, parcel or tract” and to “establish, reestablish or describe … the physical position and extent of the boundaries of real property.” If you have a dispute with a neighbor about where the property line is, this is the type of survey that you need. The surveyor should mark the corners of the property with survey stakes and provide a plat of the area. To create it, the surveyor will do field work including locating any existing boundaries and markers and review the chain of title to determine what is called for in the deeds. The surveyor is to accept and review private and public records, and note conflicting boundary line locations. Field work is to include measurement of locations to an accuracy of 20 millimeters and take account of visible encroachments and visible indications of rights including those asserted by adverse possession or prescription.
3. As built, Constructed or Record Surveys: This is the type of survey that is done where there is a question about whether something that has been constructed (say a fence, building or pier) is in the correct location in relation to the boundaries. They are required to have sufficient accuracy to “permit the determination of whether the position of visible constructed improvements encroach upon adjoining properties” in rights of way or in easements. In the case of a pier, this will mean that a determination must be made, typically by asking the County zoning officials, of where the riparian line is to be drawn.
4. Field Run Topographic Survey: this is the correct survey if the contours of the property are needed, including the location of the mean high water line for waterfront properties.
5. Field Run Planimetric Survey: This is similar to a location drawing, except that it is done as a full survey in order to “locate, describe, map or all of these, the horizontal positions of the physical features and characteristics of the earth and other features.”
6. Metes and Bounds Description: Instead of a depiction of the property on a plat, this is “a written legal description of the subject tract of land that provides information necessary to propertly locate the property on the ground and distinctly set it apart from all other properties.”
7. Right of Way/Easement Surveys: An easement or right of way is a legal right of one person to access property owned by another. It might be a narrow walking path to reach a beach or other feature, or it might be a complete right of use (such as a community park) that prevents the deeded owner from developing the property in any way. An easement survey “is a means of obtaining, reporting, or displaying … the necessary data to establish or reestablish the location of sufficient property lines of the affected tract of land to assure the accurate location of the strip or parcel of land being described for the use and benefit of others. Markers need not be set, but the survey is otherwise required to meet the same standards as a boundary survey.
8. Special Purpose Surveys: This is essentially a catch-all category that covers anything aside from the first seven types noted above, but it is not to be used to lower the required standards described in the regulations.
Dirk Schwenk is a graduate, cum laude, from the University of Maryland School of Law. He practices in real estate, waterfront and riparian law and Maryland boating issues. Baylaw, LLC is located in Annapolis, Maryland.