Ask Simon Bloom

Q: I am a real estate developer and purchased land with the intent of building a restaurant. A neighboring property owner approached me and complained that the site of my proposed parking lot exceeds his property

boundary. A fence is located where my survey shows the property line. My neighbor’s legal description is based on a 20-year old survey. My business partner says that the oldest survey always wins. Is this true?

A: Not necessarily; in fact, the ages of the respective surveys are largely irrelevant. Instead, determining which survey is more accurate is key. To determine accuracy, one must look at the methods used by the surveyors to inform the legal descriptions. Specifically, the monuments (or landmarks) used by the surveyors to identify property boundaries and make out the calls will be the primary consideration. Generally speaking, measurements based on natural monuments (rivers, creeks, trees, etc.) trump artificial monuments (such as the fence, iron pins, stakes, streets), and artificial monuments trump courses and distances descriptions. Finally, courts have determined that references to total acreage in a legal description are least persuasive.

Thus, the accuracy of the surveys depends on whether the two surveys utilized natural or artificial monuments, courses and distances, or relied exclusively on acreage sums. This can become tricky if both surveys were based on a combination of natural and artificial monuments. In cases where the surveyors who created the conflicting surveys are available, they may be able to determine and help resolve the conflict, and save the parties from litigating the dispute in a quiet title action.

What’s on your mind? Please send your “Ask Simon” questions to kmurphy@hbag.org.Founding partner at his own Atlanta firm, Bloom Sugarman, Simon has extensive experience handling legal challenges involving eminent domain, zoning and land use, building codes, sewer and water run-off issues, contract disputes, partnership disputes, and construction litigation. He also understands the nuances involved when dealing with multiple levels of government, associations, and the sometimes tenuous relationships with sub-contractors and suppliers.

The information contained in this column: (1) is not provided in the course of and does not create or constitute an attorney-client relationship, (2) is not intended as a solicitation, (3) is not intended to convey or constitute legal advice, and (4) is not a substitute for obtaining legal advice from a qualified attorney. Readers of this newsletter should contact their attorney to obtain advice with respect to any particular or specific legal matter. No reader of this newsletter should act or refrain from acting on the basis of information contained herein without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney, with full and complete knowledge of the relevant facts, can provide assurances that the information contained herein -and your interpretation of it -is applicable to your particular situation.