About Amerisurv| Contact    
Magazine | Newsletter    
Flickr Photos | Advertise    
HomeNewsNewsletterAmerisurv DirectoryJobsStoreAuthorsHistoryArchivesBlogVideosEvents

Sponsored By

Software Reviews
Continuing Series
An RTN expert provides everything you need to know about network-corrected real-time GNSS observations.
Click Here to begin the series,
or view the Article PDF's Here
76-PageFlip Compilation
of the entire series
Test Yourself

Got Answers?
Test your knowledge with NCEES-level questions.
  Start HERE
Meet the Authors
Check out our fine lineup of writers. Each an expert in his or her field.
Wow Factor
Sponsored By

Product Reviews
Partner Sites







Spatial Media LLC properties




Home arrow Archives   The American Surveyor     

Surveyors & Law: The Owner of the Property Is? Print E-mail
Written by James J. Demma, PS, Esq.   
Sunday, 13 April 2014

A 413Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

One aspect of my law practice has always fascinated me, and that is: The process which one must go through in order to determine the true owner of a parcel of land. It may sound easy--but it is not. What has brought me to write this particular article is an inquiry from one of my favorite clients who raised a concern with me as to whether it is proper for her, or her "guys" in the field, to tell someone who may or may not have an ownership interest in a certain parcel of land.

Often times one sees surveyor's certifications on plats and surveys with language that purports to identify the owner of the land which has been surveyed, without any credible qualifying language with respect to the source of that information. Telling or writing that someone owns a parcel of land, when in fact he does not, can have severe consequences.

Over many years there has developed in the law the action of "slander of title," which is defined as a false and malicious statement, oral or written, made in disparagement of a person's title to real property, causing pecuniary loss. The purpose of this article is not to get into the minutia of how one would need to prove a slander of title case, but only to make the reader aware of the liability of giving an opinion on the ownership of a certain tract of land, without knowing all of the facts and law which would actually determine the true owner.

It has been written many times that the surveyor must be careful to avoid offering a legal opinion; the surveyor is a collector of fact, not a judge or jury, and his duty is only to apprise his client of the presence of such facts as may be revealed by his survey-- sorry for mainly using only masculine pronouns in this article. Based upon these said principals, the surveyor should never render an opinion as to who may own a certain parcel of land, either as it is shown by the latest recorded deed, or by alleged adverse possession.

It is a given that the average person (including land surveyors) believe that in order to determine the person, or entity, which may "own" a parcel of land, all that needs to be done is to look at the name of the grantee as written in the current deed, or the tax information on a website. If that were true there would be little reason to examine the public records for an established period of time in order to determine the true owner of the parcel, and to learn what encumbrances may affect the parcel. The length of time for that examination is set by statute in some jurisdictions, and in others there is an established "rule of thumb" by custom, with a sixty year period being commonplace. Therefore, to give any opinion on the ownership of a parcel of land, within some reasonable degree of certainty, each document pertaining to the parcel in the chain of title, during the prescribed period of time must be examined-- ignoring for the moment what "unwritten rights" may exist, with those documents being found not only in the land records (the easiest source to first review), but in the equity (including domestic relations), law, judgment, wills, plat, patent, criminal, trust, miscellaneous petitions, and tax records, among others, that make-up the vast body which are collectively referred to as the "public records." It may be fair to state that most land surveyors have not been adequately trained, or have been given the time, to examine all of these "public records," and then conclude who may "own" a certain tract of land.

In an Indiana case, the court award damages to a landowner for slander of title for comments made by his neighbor, who admitted to making statements that he, rather than the landowner, owned a disputed area of land. In a Maryland case a landowner filed a claim seeking compensatory and punitive damages for malicious interference with contracts and damages for slander of title because his neighbor claimed ownership of a parcel of land in dispute by virtue of the title deeds, and also by virtue of adverse possession for the statutory period. In an Illinois case it was decided that the wrongful filing of a document which casted a cloud upon another's title was held to be such an act of publication as to give rise to an action for slander of title; and in another similar case the defendant was sued for slander of title when he had recorded a quitclaim deed, knowing it to be frivolous, in order to cast a cloud on the title.

As stated so often in many well-respected treatises on title boundaries, a land surveyor cannot decide who owns a tract of land--the surveyor's responsibility is only to locate the land in accordance with written descriptions, and to possibly delineate such apparent unwritten and possible rights that someone other than the record owner may have in the land.

A recorded deed may be "good evidence" of the ownership of a parcel of land, but the true test of "ownership" is determined by who has the better "title" to the land, which is not always that easy to determine, and certainly it cannot be determined by the land surveyor. Just because some deed or tax record may list a certain person as the "owner" of a parcel of land, that does not necessarily mean that that person has the "title" to the parcel, and thus may not be the "true owner"! Surveyors can never think that "title" is synonymous with a particular deed, or some other form of a written instrument. By common definition of the term, when referring to real estate, "title" generally means that a person has the right to the ownership, or the right to the possession of the land--as often written it is "the union of all the elements which constitutes ownership."

Often times surveyors are lead astray by making the assumption, in drafting a "surveyor's certification" or an "owner's dedication," that the only manner in which the legal title, and thus ownership, passes to a person is by the execution and recordation of a deed. Today, with the magic of the internet and its many websites, anyone with a keyboard can be lead to believe that he can determine who "owns" a parcel of land--ignoring, of course, the many errors that often times can exist on these websites, and in flawed documents that are found in the public records. But such internet research does not necessarily give one the correct answer.

Title can often pass by the concept known as "operation of law," without the requirement for a recorded deed. Some examples of title passing, or the title being altered, without the benefit of a recorded deed are: (i) joint tenancy--upon the death of a joint tenant, the surviving joint tenant become the full owner; (ii) tenants by the entirety--once an absolute divorce is decreed between parties owning real estate as such tenants, the parties thereafter own the real estate as tenants in common; (iii) life estates--when the life tenant dies, the title is vested in the remaindermen--whoever they may be; (iv) estates--depending on state law, title to a decedent's real property may pass directly to the heirs - whoever they may be, or the devisees upon decedent's death, without going through probate, and with the personal representative (the executor) never having an interest in the reality; (v) adverse possession--an adverse possessor acquires the fee simple title to a property at the moment of time when all of the elements of this common law action have been met, without any court action ever having taken place; (vi) easement--the title to the area of an easement which has been abandoned will vest in the owner of the servient estate, free of the easement; (vii) possibility of reverter--the failure of a special limitation in a deed which results automatically in the reversion of an estate to the original grantor in fee simple absolute, without the need for an entry upon the land by the grantor; (viii) failure of a condition subsequent--when an event gives rises to a right of entry, and in that case the grantor does not obtain a fee simple absolute until he actually enters and retakes the land, as for example, when property is described in an ancient deed with a provision that simply states that the property can "only be used for school house purposes"; and (ix) escheat--upon the intestate death of the owner of land, and without any legal heirs, the land directly passes to the state.

Land surveyors should never give an opinion (written or oral) as to who "owns" a tract of land, as that is beyond the scope of the surveyor's licensing laws. Any statement made by a surveyor giving the name of the "owner" of such land must always be done with great caution, and that statement must be clearly shown with a caveat that it is completely dependent upon information as expressed in a creditable source, like a court order, a title insurance policy based upon a reliable and full title examination, or such other similar document, and not be just the surveyor's determination.
Jim Demma is a Maryland licensed professional land surveyor and has practiced law in both the State of Maryland and the District of Columbia for more than 30 years. His extensive practice has included land use & development, real estate contracts and titles, condominiums, easements, land patents, boundary disputes, and all matters that touch and concern the land.

A 413Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

< Prev

 American Surveyor Recent Articles
Thought Leader: Land is Too Important to Be Left to Land Specialists
A while back I was searching the Internet for an old treatise on land titles. A Google query yielded a book published in 1914. The author was Charles Claudius Kagey and the book was titled "Land Survey and Land Titles, a book for boys and girls, a reference volume for property owners, a text ....
Read the Article
Jason E. Foose, PS 
Decided Guidance: Wacker vs. Price - Irony in Sevenfold
This month's case takes us to Phoenix, Arizona in 1950. The Arizona Supreme Court went all guns-a-blazin' in Wacker vs. Price (216 P.2d 707 (Ariz. 1950)). Maybe it's just me, but I'm sensing plenty of irony and have taken license to point it out along the way. I like what the Court did with this case ....
Read the Article
Allen E. Cheves 
Around the Bend - A Visit to Carlson Software
The Ohio River is one of America's greatest, running near 1,000 miles between Pittsburgh and the Mighty Mississippi. Much of the coal and other products that fueled our nation's industrial expansion flowed between the shores of this maritime ....
Read the Article
Lee Lovell, PS 
Surveying & Mapping Economics Part 3 - Customers & Services
This article continues an inquiry into the economic conditions of the Surveying and Mapping industry (NAICS 541370) using data from the U.S. Census Bureau. This time we will look at customers and services. The data comes from the Economic Census conducted every 5 years on American ....
Read the Article
Jerry Penry, PS 
True Elevation: Black Elk Peak
Black Elk Peak, located in the Black Hills region of South Dakota, is the state's highest natural point. It is frequently referred to as the highest summit in the United States east of the Rocky Mountains. Two other peaks, Guadalupe Peak in Texas and ....
Read the Article
Larry Trojak 
Bringing The Goods - Mobile Scanning an Integral Component
When Jim Smith, Jerrad Burns and Charlie Patton left the Memphis division of a major construction company in 2015, they took with them the knowledge of how to get even the most complex jobs done and what equipment could best serve them in making that happen. So when they joined West ....
Read the Article
Lee Lovell, PS 
Test Yourself 41: Integers, Integers, and Integers
ABF is a 5:12:13 triangle, ACF is a 48:55:73 triangle, ADF is a 3:4:5 triangle, and AEF is a 7:24:25 triangle, all with integer sides and inscribed in a semi-circle. What are the lengths of BC, CD, and DE? ....
Read the Article
Wendy Lathrop, PS, CFM 
Vantage Point: Sunset or Sunrise?
While we often think of legislated government programs as static, they do change over time. Such evolution and opportunity for transformation are part of the dialogue in reauthorizing these programs. Every so many years there is a sunset on each government program, and this September is the ....
Read the Article


Amerisurv Exclusive Online-only Article ticker
Featured Amerisurv Events
List Your Event Here
contact Amerisurv


JAVAD Intros
Spoofer Buster

press [at] amerisurv.com
Online Internet Content


News Feeds

Subscribe to Amerisurv news & updates via RSS or get our Feedburn
xml feed

Need Help? See this RSS Tutorial

Historic Maps

post a job
Reach our audience of Professional land surveyors and Geo-Technology professionals with your GeoJobs career ad. Feel free to contact us if you need additional information.


Social Bookmarks

Amerisurv on Facebook 

Amerisurv LinkedIn Group 

Amerisurv Flickr Photos 

Amerisurv videos on YouTube 



The American Surveyor © All rights reserved / Privacy Statement
Spatial Media LLC
905 W 7th St #331
Frederick MD 21701
301-695-1538 - fax