Jr/Sr v pro rate

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TIB
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Jr/Sr v pro rate

Postby TIB » Tue Jun 18, 2019 6:54 am

This has likely been hit on before but I'll ask anyway.
Original builder/developer of old subdivision owns lots 1-4 of blk.x…..
lot dimensions on map are 25 x 150
shortly thereafter this is divided and sold into 3 new lots by deeds. I'll call them lots L, C, and R. (L=left/west C=ctr R=right/east) Deeds:

1. lot C 1911 easterly 50' of westerly 100' of lots 1-4
2. lot R 1912 easterly 50' of lots 1-4
3. lot L 1913 westerly 50' lots 1-4

survey finds meas dist = 150.9
I have been taught Senior deed rules, apply language used in deeds, pro rate is last resort, intent matters. All valid.
Possible solutions are:
1. lots L and C are 50' with lines parallel to west side, and lot R= 50.9. Hold westerly 100' call of senior deed C, lot R gets what's left.

2.lots L and C are 50' with lines parallel to west side, lot R is 50' wide with lines parallel to east, 0.9 gap between C and R is retained
and belongs to original common grantor. Apply Sr rights and give each lot exactly what is called for in deed.

3. All lots 50.3 wide. pro rate dist and brgs as if simultaneous. Ignore seniority of lot C deed. Intent was 3 equal lots. Avoid confusing gap.
Excess fairly distributed to all lots

I believe the correct and proper answer is ………….(my little secret)
Which one, if any, would you choose? Why?

TIB

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VANCE
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Re: Jr/Sr v pro rate

Postby VANCE » Tue Jun 18, 2019 7:00 am

Just looking at what you sent and based upon no lines of possession
I would say the senior lot gets it 50 feet the subsequent conveyance gets its 50 ft and the remainder gets what's left over.
But the contrary may be shown.

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Ian Wilson
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Re: Jr/Sr v pro rate

Postby Ian Wilson » Tue Jun 18, 2019 12:50 pm

Having trouble with the numbers. Can you provide a quick sketch of the original lot configuration, please?
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Peter Ehlert
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Re: Jr/Sr v pro rate

Postby Peter Ehlert » Tue Jun 18, 2019 4:35 pm

both 1 & 2 ;-) are correct
Vance is kinda correct, but there was no claim of title to the 0.9' in his deed.
the Gap exists. It was never conveyed.
Intent? We have to Guess on that, could have been knowingly reserved for a sewer pipe or something else. We are left with a guess to the true Intent. Shaky ground.

Ownership of the Gap would probably flow to R, but he does not have clear title over it. A judge and Jury could go either way, Probably 50.9'

I would map it as 50', 50', 50.9' with a dashed line on the 0.9'... and label it as "unclear title" or some such
Peter Ehlert

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Re: Jr/Sr v pro rate

Postby Peter Ehlert » Tue Jun 18, 2019 4:38 pm

Ian Wilson wrote:Having trouble with the numbers. Can you provide a quick sketch of the original lot configuration, please?

I think the 4 original lots were 25' N-S and 150' E-W stacked on top of each other...
so we start with 100' N-S and 150' E-W ...my head hurts
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dedkad
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Re: Jr/Sr v pro rate

Postby dedkad » Tue Jun 18, 2019 5:22 pm

Any lines of possession that might help with intent?

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TIB
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Re: Jr/Sr v pro rate

Postby TIB » Tue Jun 18, 2019 5:50 pm

Peter is correct about lot layout.
RE; Intent and solution C
? Are these 2 statements reasonable in support of pro-rate solution C?

1. The intent of Grantor was to convey 3 separate equal lots. ie cut into thirds.
.2.. The is no evidence from deeds that Grantor had intent to not convey entire lot and wished to retain a 0.9 gap

they sound reasonable to me

According to Brown (2nd Edition) top 3 order of importance when conflict:
1. unwritten conveyance/rights of possession
2. Senior right (in event of overlap)
3. Written intention of parties

Since there is gap instead of overlap this seems to say Sr deed may not be controlling over intent.
I understand the uncertainity of intent, but you would have a hard time convincing me that Grantors written intention was keep a 0.9 gap

I'm starting to like solution C. Can anyone tell me why solution C should not be used.
If you have Clark book. see pg #237 it appears to back up solution C
Can the contrary be shown?

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Re: Jr/Sr v pro rate

Postby TIB » Tue Jun 18, 2019 5:51 pm

dedkad no lines or any possession issues

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Elias French
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Re: Jr/Sr v pro rate

Postby Elias French » Tue Jun 18, 2019 8:33 pm

Off the top of my head I can see possible support for 1 or 3, and don’t have any references handy to explore further. Either way, I agree with the OP that the intent as ascertained from the record was to convey the entire parcel, so don’t support option 2 with the gap.

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Re: Jr/Sr v pro rate

Postby Rob Abrahamian » Tue Jun 18, 2019 9:08 pm

A possible problem with solution "3/C" is that it only looks at the grantor's intent.

The written intent of parties should be viewed separately for each deed, as presumably the grantees for Lots “L”, “C”, and “R” where not party to one another in these conveyances. The grantor may have wanted to sell even thirds, but that intent was not written into the first conveyance for Lot “C”, and as far as that grantee may have known the remaining portions of Lots 1-4 could later be conveyed in any number of ways.

I would agree there is no reason to believe the grantor intend to retain a 0.9 foot strip. What seems reasonable is the grantor and the grantees for Lots “L” and “R” believing that 50 feet remained on both sides of Lot “C”, executed deeds to express an intention to transact for what remained of Lots 1-4 after the creation of Lot “C”.

I would map it Lot C = 50’, Lot C = 50’, Lot R = 50.9’, given the information provided.

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Re: Jr/Sr v pro rate

Postby DWoolley » Wed Jun 19, 2019 11:55 am

The answers provided thus far, sans Peter Ehlert, are precisely why we see costly litigation and negligence claims against land surveyors.

It is not written anywhere that the junior conveyance gets the property in the gap in title (noting one decade old POB color article being the exception). The rule is the senior grant gets full measure when there is a shortage and the junior grant gets the balance. The rule does not apply when there is a gap due to excess property. Also, nearly one foot in a fifty foot lot is out of the realm of being de minimis.

Suppose the land surveyor's determination is the most junior lot is 50.9' and an architect designs a house 40.9' with five foot setbacks on each side. The neighbor disputes the location of the structure. The next land surveyor shows a 0.9' encroachment based on the title. Now the unsuspecting owners, each relying on their surveys, are off to the litigation races. The land surveyor really cannot defend the allocation of the 0.9' to the junior grant. The answer is not to have a land surveyor negligently create the hokey problem for the current owners.

There are several legitimate solutions. One favorable solution is deed reformation - writing an "except therefrom" description or alternatively, file a lot line adjustment creating new descriptions that write out the gap interest or file a parcel map with a waiver of the tentative or get a conveyance from the original grantor's heirs to anyone of the three parties interested in obtaining the 0.9'. Each of these solutions solve the problem relatively easily and prevent litigation - unless the original grantor's heirs show up to claim the 0.9' underlying the lot line adjustment, although unlikely or lastly, negligently, solve the problem by assigning the 0.9' to a person without record title interest and max your E&O policy limits in the name of an education.

DWoolley

PS TIB, you did a good job framing the question and offering the solutions. If none of the current owners are interested in "fixing" the problem properly, document it by way of mapping and leave it.
Last edited by DWoolley on Wed Jun 19, 2019 1:22 pm, edited 3 times in total.

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Olin Edmundson
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Re: Jr/Sr v pro rate

Postby Olin Edmundson » Wed Jun 19, 2019 1:12 pm

As I see it, the answer to this general question has to do with the magnitude of the gap. If there is just couple of tenths, maybe allow lot R to enjoy remainders rights and give them the extra space. If the area is enough that could be usable, as Peter mentioned, this is a different situation. It is not out of the realm of possibilities that the original grantor had a survey done, became aware that an extra foot existed and intentionally left this 1' foot wide strip.

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Elias French
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Re: Jr/Sr v pro rate

Postby Elias French » Wed Jun 19, 2019 2:07 pm

This question seems to get at the root of an issue that we as Land Surveyors continue to be divided on pretty evenly, and in a fairly entrenched fashion. Does the jr. grantee get the remainder only in the case of a shortage, but not in the case of an excess? I believe portions of Brown support this theory, which produces a gap.

On the other hand, I believe Clark supports the position that the jr. receives the remainder, be it longer or shorter than record.

If it is a question of the preponderance of the evidence and intent, extrinsic evidence considered, that would seem to support solution 1.

It is perceived to be ‘safer’ to create a gap, but how is this safer than not creating a gap? It seems that the risk of the Surveyor, and the chance of litigation in these cases is mostly due to the possibility of a disagreeing Survey being produced someone on the other side of this debate.

I am not aware of any Case Law speaking specifically to this issue, but it seems that it might go a long way toward resolving this debate. As an avid follower of this forum and a younger surveyor, I am interested in this issue which seems to pop up with such frequency, and on which such a variety of positions are encountered.

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Re: Jr/Sr v pro rate

Postby TIB » Wed Jun 19, 2019 10:00 pm

As Dave and Olin touched on, I did not consider that size and magnitude of excess could be a factor. So please God forgive me, I lied.
The meas excess was in fact 0.73. I picked 0.9 to make math and thirds more EZ.
When Brown and Woolley say the same thing, I sure as hell aint gonna argue it. So senior rights is out due to gap
.
Per Clark:
"deeds executed ….by the same vendor, each calling for the line of the other as a division line, and calling for land within, but on opposite
sides of the same survey, will be held to convey the entire tract, whether it be greater or less than distance estimated, and the excess must be divided between them in proportion to the quantity conveyed by each, in absence of facts showing that equity would require application of a different rule."
Good enough for me, I choose solution C.
Again and again we surveyors were told/taught that pro-rate "can't be used for sequential deeds, and can be used "as last resort only"
Perhaps if we use the terms "established by fairness method" instead of "established by pro-rate method" it might make the same result of equal thirds easier to swallow for some. I'm sure we all agree what Dave pointed out regarding problems that arise from poorly written
Legal Descriptions.
My Father (RIP) preached the following rule: DO NOT write legal descriptions that can be understood, DO write legal descriptions that
can not be mis-understood.
Thanks for the opinions/input.

TIB

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Olin Edmundson
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Re: Jr/Sr v pro rate

Postby Olin Edmundson » Wed Jun 19, 2019 11:14 pm

TIB- would you still prorate if there was 3 feet extra across the three lots?
Woolley- what would you do if there was .2' extra?

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Re: Jr/Sr v pro rate

Postby DWoolley » Thu Jun 20, 2019 7:55 am

TIB:

The solution you have proposed is common in the south. Understandably, because they cannot establish senior rights prior to 1865. During the Civil War, Sherman burned all of the courthouses - sometimes more than once. Absent senior rights the proportionate division is equitable.

In your instant case, before allocating 0.25' per lot, I would look at the property descriptions adjoining the three descriptions presented, particularly the east and west lines, to make sure they were not effected by the solution. I would also advise the client to develop the lot as though it was 50' wide i.e. a 5.25' setback on the one side. The underlying lot, being 50' each, I believe 0.75' is on the most outer limits for the proration of the conveyances - assuming it doesn't have an adverse effect the the adjoiners to the three lots.

Olin Edmundson - if it was 0.2' I would gap the property and tell my client to develop the lot at 50' and let the adjoiner "have" the 0.2' - as best described by Peter Ehlert above.

Lastly, there are circumstances, not presented here, that would change the answers. For example, are the measurements good within 0.2' or were they collected using a RTN system with a high rod? Were the descriptions monumented at or near the time of conveyance? What is the terrain like? In 1911 a land surveyor could measure 150' very accurately. It is odd to have 0.75' - why is it there? Any number of facts could change the solution. Most clients will not be willing to incur the time and cost to acquire the 0.2'. Another question, how does a land surveyor follow the proportion method described (5, 10, 20 years from now) when no lots were developed? Only one lot has been developed? Two lots? Therein rests the trouble.

Good discussion. Thank you for taking the time to write it up TIB. I am interested in other folk's perspectives.

DWoolley

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Olin Edmundson
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Re: Jr/Sr v pro rate

Postby Olin Edmundson » Thu Jun 20, 2019 9:01 am

I think that we're all taking TIB's presented situation at face value. He has provided legal descriptions, we assume that exterior is set up properly, he knows how to measure, and has looked for and is not finding any monuments at the interior corners. With these facts, the mountainous terrain is irrelevant, he's got the exterior set up properly and is finding an excess.

I would tend to agree with the approach that you have proposed, as it keeps both you and your client out of trouble. I do this kind of thing all of the time. But, I would consider this a preliminary, practical, working solution and not any kind of final boundary resolution. The reality, that so many surveyors can't seem to understand, identify, or acknowledge is that this is not a problem that we can solve alone. No one seems to want to step out and directly say this, we are all the "guy" that can solve the world's problem because we're surveyors.

I too would like to hear some other opinions, maybe from some of the heavy hitters here. Pallamary, you're intimately familiar with Brown's work, and are a leading expert across Ca, what say you?

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Re: Jr/Sr v pro rate

Postby DWoolley » Thu Jun 20, 2019 9:22 am

Olin Edmundson wrote:I think that we're all taking TIB's presented situation at face value. He has provided legal descriptions, we assume that exterior is set up properly, he knows how to measure, and has looked for and is not finding any monuments at the interior corners. With these facts, the mountainous terrain is irrelevant, he's got the exterior set up properly and is finding an excess.


Agreed. The point being, any number of factors in a similar situation would alter the solution presented.

Olin Edmundson wrote: The reality, that so many surveyors can't seem to understand, identify, or acknowledge is that this is not a problem that we can solve alone. No one seems to want to step out and directly say this, we are all the "guy" that can solve the world's problem because we're surveyors.


Exactly right. A land surveyor cannot fix this problem without the owners willingness to fix the title issue. Title is evidence of ownership, not ownership. However, if the parties agree, the land surveyor has the legal authority to prepare any number of solutions - as described in an earlier post. Once the parties become adverse the land surveyor is sidelined until the parties are ready to work on a solution.

A few years back, we were brought into litigation after a land surveyor had allocated rights over a gap. Ultimately, the case was settled. However, we were approached after the settlement by one of the law firms to help identify similar situations in title. They wanted to exploit gaps in title by acquiring the underlying rights or finding setback violations, etc. It was going to be their ADA niche. On the call they were asking us if we knew about any more these situations (we did but didn't offer details), the frequency occurrences and how best to identify them quickly in mass. It really wasn't our cup of tea so we explained how to find the situations and walked away.

DWoolley
Last edited by DWoolley on Thu Jun 20, 2019 9:40 am, edited 1 time in total.

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Re: Jr/Sr v pro rate

Postby Warren Smith » Thu Jun 20, 2019 9:38 am

Since Lot "L" was the last deed, it represented (on paper - consistent with dimensions previously stated) the remainder after the previous two grants. The burden would be to show the seller's intent to retain a 'spite strip'. Absent that, Lot "L" would be 50.73" in width.

Was there an issue with the nominal 150' dimension for depth? The same issue is at play. That is, without a showing that all property owned by the seller was not intended to be conveyed, retraced dimensions control with respect to adjoiners.

This is really a title issue, and location of sequential transactions is the survey issue.
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Ian Wilson
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Re: Jr/Sr v pro rate

Postby Ian Wilson » Thu Jun 20, 2019 9:51 am

OK. Thanks for the assist Peter Elhert. I finally got a few moments to wrap my head around this and decipher the lot arrangement.

Dave Woolley makes some great points in that the 0.9’ is based on a measurement the quality of which we know nothing. What a pity that we have not developed the habit of stating the measurement and adding a qualifier, as in “0.9’ ± 0.1’”

I am always reminded of the story of Churchill and Lady Astor, who were seated next to each other at a fund-raising dinner. During the conversation of donations to charity, Churchill asked Lady Astor if she would go to bed with him for £1 million. She replied that she would for that amount. It should be noted that Lady Astor and Churchill hated each other, making this a rather impressive reply (and rendering the story somewhat dubious). He then asked if she would do the same for just £1. She indignantly replied “What do you take me for, Winston? A common prostitute?” His response: “Madam, we have already established that fact. Now, we are discussing terms.”

So, first, we need to address the fact that there is a gap.

The descriptions are based on a re-subdivision of lots created by some earlier map. Even though the current descriptions are portioned pieces of a larger whole, the whole is defined as Lots 1 through 4 of the subdivision map. Since the lots on the map are dimensioned as being 25’ x 150’, we can conclude that this was the understanding of the parties involved.

Without meaning any disrespect to anyone, comes now a surveyor who claims to have measured the overall distance of the collective length of Lots 1 through 4 as 150.9’.

It is this extra 0.9’ that is causing the trouble. As Dave points out, we do not know how this measurement was derived. Perhaps an often-mended steel tape was used. Perhaps someone had fiddled with the ppm settings on the EDM. Perhaps the network RTK solution was a bit weak that day and the results were only reliable to ±0.5’. Who knows. But isn’t this reminiscent of Justice Cooley’s fear that measurements will cause wide-spread panic at the arrival of the surveyor on the street?

There are no gaps or overlaps on the ground. Well, except for this one in Belgium that was cleverly solved by a Belgian land surveyor who is also a master wood worker...

clothespeg.png


Those only exist in the mind. The owners are often ignorant of any of the issues with which we wrestle. They have dealt with the issues and know, for the most part, exactly where they mow their lawns to.

Unless there is a real reason to “solve” the issues, it would be a far better service to our clients and our profession to explain the haze to the parties involved, after informing our client of the situation, and documenting the reality rather than perpetuating the myth?

If there was a reason to solve the issues, i.e. – pending litigation, I would lean toward Solution #1 for the following reasons:

Although the actual conditions are a bit different, SAFWENBERG v. MARQUEZ [50 Cal.App.3d 301 (1975) 123 Cal. Rptr. 405] concludes that the descriptions are not ambiguous because they refer, in part, to a recorded map.

The subdivider who conveyed the property based on the portioned descriptions was, from the original post, the subdivider who caused the map to be recorded. Any notion that they secretly knew the lots were actually 0.9’ longer is a bit farfetched. Equally, the notion that the subdivider would seek to retain a 0.9’ wide strip without specifically addressing the issue is farfetched.

I would lean toward solution #1 but would never blanket drop the solution on the table without serious discussions with the client as to the ramifications of that solution.

It’s been awhile since I have searched for appellate cases based on “gaps” or “overlaps”. The only cases I have found even remotely on point deal with abandoned roadways. I’ll put that on the list of topics to spend a lunch hour hunting at the law library.

Great question, TIB! Great discussion.
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Olin Edmundson
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Re: Jr/Sr v pro rate

Postby Olin Edmundson » Thu Jun 20, 2019 12:29 pm

Gaps can certainly exist on the ground, imagine two fences a foot apart. As a prudent approach to running a business and protecting my livelihood, I would consider the burdon on proving certainty in intent to be on the current landowner who wants to claim the land. We surveyors too often want to cite court cases as if we're attorneys or something. Good attorneys will tell you that the only true answer to a particular question of law is what a particular judge will say on a particular day with a particular set of facts in front of them, and all while in a certain particular mood. Aside from this, you've got the problem of the other incompetent surveyor out there, taking stabs at solutions that should cause concern. I was just reading an article about incompetency, the point was made that a major problem with the incompetent is that they don't know they're incompetent. (this is not directed at anyone here) It's one thing to be right, but that doesn't prevent you from having to defend yourself in court. Kinda like the rule of driving that it's the other crazy drunk guy out there that you should be afraid of.

I'll play it conservative, protect my own property and assets, my wife and children's future and continue on to fight another battle.

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Re: Jr/Sr v pro rate

Postby DWoolley » Thu Jun 20, 2019 1:26 pm

On this point, I am with Olin Edmundson.

I have been involved in several court cases, more than 40, that mostly involve boundary situations either created by land surveyors or incorrectly, negligently, addressed by land surveyors. I would decline approximately 75% of the potential negligence engagements because the land surveyor made some reasonable stab at a solution. To date, the judgments, awards, settlements etc against the land surveyors is north of $3.5M with approximately $500k construction error related. Most construction cases settle before trial or through mandatory arbitration and the figure shown does not include all of those numbers because I am not always privy to the final dollar amounts in a settlement. One case, dating back several years, recently settled for a "significant amount of money" according to the attorney. For the curious, we found two fee parcels incorrectly shown as easements coupled with a 90 year old court case filed - archived at UCLA - on an adjoiner resolving the same issue.

The lawsuit I referenced in an earlier post had a building placed on the lot line, no setback, in the gap closed by the land surveyor. The land surveyor did a nice job (besides missing one significant old monument that shored up my solution) and the building was built precisely on the line established over the gap. It was a high dollar settlement. I was not told the final number.

In my experience, land surveyors that close gaps will get away with it 99.9% of the time. However, the one time it gets questioned legally it quickly becomes a turkey shoot.

For what it's worth,

DWoolley
Last edited by DWoolley on Thu Jun 20, 2019 1:39 pm, edited 2 times in total.

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Re: Jr/Sr v pro rate

Postby Olin Edmundson » Thu Jun 20, 2019 1:34 pm

One more thought....

The standard textbook answer, as I understand it, would be to apply seniority and allow Lot R the excess. But we have qualified, competent surveyors here in this discussion choosing proration. You're in conflict. Have fun in court. I rest my case.

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Re: Jr/Sr v pro rate

Postby DWoolley » Thu Jun 20, 2019 1:48 pm

One more thought, in the instant case, although not ideal, I would not have accepted the engagement over TIB's prorated solution. However, throwing the excess into the junior grant and making a lot 50.9' would have bought my kids a new pair of shoes.

Olin Edmundson wrote "I was just reading an article about incompetency, the point was made that a major problem with the incompetent is that they don't know they're incompetent. (this is not directed at anyone here)".

Actually, it is much worse than the fact they don't know they are incompetent. The incompetent believe they are particularly awesome at the endeavor. The phenomena is called the Dunning-Kruger effect.

DWoolley
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Re: Jr/Sr v pro rate

Postby Elias French » Thu Jun 20, 2019 2:59 pm

Although I would tend to agree with Solution 1 or 3, it seems the bigger issue is the fact we can’t agree. As long as there is another surveyor who will dispute your resolution, there is always the risk of litigation. We seem to be our own risk.

It is interesting that regardless of the number of cases litigated over precisely this issue, if there are any, none have apparently gone to the appellate level, and thus we have no perfect reference case for this question. For the time being, it seems the presumption is that the ‘gap’ surveyors are on solid ground liability-wise, while the ‘no-gap’ surveyors are not; notwithstanding the actual correctness of each position, or whether this presumption is even true, each is running the risk of being contradicted by the other.

I thought I heard somewhere that if you give two surveyors the same evidence, they should arrive at the same conclusion...


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