ALTA Survey: Fence Occupation, an Unrecorded Drive, and an Easement Encroachment
A 3.42-acre retail parcel in Meridian is under contract, and the buyer's lender orders an ALTA/NSPS Land Title Survey with a full Table A schedule. The title commitment shows a 20-ft-wide sewer easement along the rear of the parcel and a 10-ft-wide utility easement along the east line. Your fieldwork finds: a six-foot cedar fence running 2.3 ft inside the west deed line for 180 ft; a gravel drive that the neighboring auto shop has used to reach its service bay since 1997, crossing the southwest corner of the parcel for 45 ft; a dumpster enclosure and an 8-inch water line for which the city has no record; and the building's northeast corner projecting 1.8 ft into the recorded sewer easement. The seller's 2004 survey showed none of these. The buyer's attorney asks you to "note the fence as the true boundary" because "everybody has always treated it that way."
1. How do you show the fence, and how do you respond to the attorney's instruction?
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Show the fence as found: locate it, dimension it from the deed line (2.3 ft inside, 180 ft in length), and label it as a fence. Do not label it as the boundary.
The surveyor's product is evidence, not adjudication. Long-asserted occupation may support boundary by agreement, boundary by acquiescence, or adverse possession, but whether it does is a legal conclusion for the attorney and the court, and in Idaho adverse possession additionally requires payment of taxes on the claimed land, among other elements. Writing "true boundary" on the map would be an unqualified legal opinion embedded in a document the lender will rely on - precisely what the ALTA standards and the surveyor's certification are designed to prevent.
The correct response is a surveyor's note describing the occupation, its relationship to the record line, and any record conflict, plus a reference to the title commitment and a statement that the fence is not necessarily the boundary. Notify the title company in writing of the discrepancy, as the ALTA standards require. If the client insists on an alternate line, it can be depicted as a line of occupation or a claimed line, clearly labeled and distinguished from the record boundary, with the certification left intact. Explain in writing why you will not certify it as the boundary.
2. What do you do with the gravel drive used by the adjoining owner since 1997?
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Locate and report it fully; do not decide whether an easement exists.
Show: the drive's limits and centerline, its area within the subject parcel (45 ft of crossing), the physical condition and improvement, and the observed and reported extent of use. Interview the adjoining owner and the seller about when the use began, whether it has been continuous, whether permission was ever asked or granted, and who maintained the drive. A use that began in 1997 is now nearly three decades old, which puts it near or past the relevant limitations periods - that is exactly why it must be reported rather than ignored.
Present it as an unrecorded use by others, possible prescriptive or implied easement, and note that the existence of a prescriptive easement requires open, notorious, hostile, continuous use for the statutory period and, for adverse possession in Idaho, payment of taxes. Those are legal determinations. What the surveyor contributes is the physical extent, the dating evidence, and the observation that no recorded instrument accounts for the drive.
Also check whether the drive happens to fall inside the 10-ft utility easement or any other recorded instrument before calling it unrecorded - an apparent prescriptive claim that is already covered by a recorded easement changes the title picture substantially and saves the client money.
3. How do you handle the 1.8-ft building projection into the recorded sewer easement and the conflict with the seller's 2004 survey?
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Show the recorded easement from the title commitment, show the building corner as located, and dimension the 1.8-ft projection with a clear note. Also locate the sewer itself if it can be found by manhole, invert, or utility locate, because the distinction between the documented easement and the actual facility location matters to whoever resolves this - but the recorded easement is shown regardless of where the pipe lies.
State in a note that the building appears to encroach into the recorded easement and that the effect on title, insurability, and the utility's rights is a matter for the title company, the utility, and counsel. Resist the temptation to editorialize that the encroachment is "minor" or "not a violation"; 1.8 ft into a 20-ft sewer easement may or may not impair maintenance access, and that judgement belongs to the utility.
On the 2004 survey: your certification covers your own work. You are not required to explain a prior surveyor's map, but you must not ignore the discrepancy - if the 2004 map showed a different building corner or a different fence location, identify which monuments each survey held and whether one of them has since moved. The likely explanations are a different controlling corner set, an unrecorded monument, or a drafting error, and the file should record which one your evidence supports. Note the conflict and the basis for your determination.