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Sly_Barker

Incompetent land surveyor

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Good evening,

 

I couldn't fine one of my rear property markers and my neighbor hit the marker on the other end of that line with his plow truck.  I wanted to hire someone to reset the one marker my neighbor hit and then mark the one I couldn't find in the woods on the line between my land and my neighbor's land.  Then I intended on building an arbor fence on the front corner and putting a fence post on the back corner just to mark my land. 

 

I found and hired a licensed land surveyor to reset the property marker and find the back corner in the woods.  We agreed what work was going to be done, and how much it would cost via e-mail.  He said it should take 1-2 visits to get the job done.  Since this agreement the survey company has been to my home 3 times and claims the stake they put in is wrong, but more money could fix this problem... 

 

My contact said he could do the job in a day since it's only one property line if he could find the markers, if he couldn't find the markers it would take two days.  I knew where 3 of 4 markers were so I showed him where those markers are.  He found where the rest of the marker that was hit by the plow truck in about 5 minutes, and then walked around in the woods looking for the other corner marker for about 2 hours, and then left for the day...  although he said he would research the deed and plot plan before coming out.

 

I was a little bumbed out because if he has to come back it would cost me another $300, but I saw that one coming, so I wasn't too upset about the two day thing.  They come back out, but this time it was two different guys.  They looked at the street markers, and then proceeded to walk around in the woods with their equipment this time, sort of like the other guys did.  Before this went on too long, I went out and showed them where the other rear marker was to help them out.  They told me "this makes sense mathematically"... and then were still unable to stake the corner they came out for.  Then they came out later that week and put a stake in the ground within about 20 minutes.  They showed me where the stake was as agreed, and then told me that it was incorrect and that I should not to use it or start building my fence.  This was the third visit. 

 

After that third visit I get an e-mail from my contact at this company, he says that "They're way over budget and any extra money I could throw their way would be appreciated".  Needless to say I was taken back, and I feel like they're basically trying to extort me by saying the stake is off 4.5 feet in the rear.  I asserted myself and said that we had an agreement and they need to honor it.  

 

My contact has been difficult to work with since he got that first deposit into his pocket.  He's tried to complicate the matter with technical jargin, said there is a discrepencey between the deed and the plot plan.  He said that the original survey was wrong and now "decisions have to be made" whatever that means.  We agreed that he would give me notice so that I could take the day off and be there when he puts the stake in so that I know where it is since my land is a dense New England forest.  He's given me short notice each time he comes back out, but my employer is flexible and let me have the days I needed on short notice. 

 

I feel like this guy is trying to rip me off and I don't trust him at this point.  The good thing is he put it all in writing, so it's all clearly documented.  I found one review online, the person who wrote the review had a similar experience with this company.  I started doing my homework on what a survey actually is and how it should be done and I feel that this guy is most likely pulling my chain and or incompetent.  I also found rules and a code of conduct for licensed surveyors in NH, which this company is, and none of them have been followed.   All I paid him is a little over $300 but I've taken three days off, bought lumber for an arbor fence that has since warped because it's been a month and a half so far since they started. 

 

I want to fire him, take him to small claims court to get my money back, get the now warped lumber paid for, and possibly get reimbursed for the paid time off I wasted dealing with this extortionist.  I've kept all the e-mails and communication between us. 

 

Do you guys think I have a small claims court case???

 

 

Thanks,

 

Frustrated guy in NH.

 

 

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Hi adjusterjack, the agreement is quoted below.  Thanks for responding, you helped me once before.

 

"Task – reset the from property corner between #3 & #5 with the granite bound (assuming this is good enough to set, meaning not broken or too short); set a 4’ wooden stake at the rear corner of the same property line.

 

Estimated cost: $650 -$950; $950 is a not to exceed as long as the scope of the work remains the same. The reason for the range in cost is described below in the work overview.

 

Work overview:

1 - Research at the Rockingham County registry of deeds – checking & obtaining deeds and plans of the subject parcel and abutting parcels.

2 - Recon. & Field Locations – a crew will go to the site in order to find as many existing boundary monuments as necessary in order to rotate their control onto the property. The amount of time involved in

this step is determined by the number, quality and accessibility of existing boundary markers. If they locate many monuments and they fit well mathematically then they can usually stake the property. This

could potentially be the completion of the task, but often there must be other steps.

3 - If the crew is able to locate some boundary markers but some are missing or the ones they locate do not fit well,  they will send the information into the office where calculations and rotations can be made.

 

"This should allow for the missing point to be calculated so that they can stake the missing points. This often completes the task.

4 – If calculations cannot be done quickly or there are apparent mathematical issues it is not practical for the crew to remain on site to wait for coordinates. A return trip to the site to stake/flag the lines will become necessary.

This is usually the worst case scenario.

                Hopefully that brief description helps you understand the process and also gives you an idea of why there is variation in the estimated cost. We will commit to do our best to maintain a high level of accuracy and do our best to keep the cost done toward the low end of the range. It is possible to come in under the low end of the range if we are able to find existing boundary markers and if this is the case we will charge accordingly; however,  I have offered what I believe to be a realistic price range based on experience with residential areas like similar o this one.

            If this is something that you would like us to schedule in please respond to this email. Also, we would ask for a retainer of $325 for this work. An invoice will be sent after the completion of the task.

            If you have any question feels free to contact me.

 

Thanks you the opportunity"

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This is relevant too: 

 

"  With the additional locations and locating the stone bound you found we still have around 4.5’ of error that we have to reconcile. So, the stakes that were set should not be used: the rear stake could move 4.5’ and the stake on line could move 2.0’ or so. We really will need to find another point to get things to work. I know that we are way over budget on this, but will do what we can to get it finished up. I have only seen a few boundaries that compare in difficulty since I have surveyed, which has been over 15 years now. Any additional money would be greatly appreciated. Once we have competed the work we can prepare an invoice that shows all of our time.

                We will have to get permission from your neighbor to look for and locate his rear corner if it is even in. " - The survey company
 
"
We agreed to $950 as a cap, what do you mean over budget?  I haven't agreed to pay any more than that.  Also you've been here 3 times already, this should be done by now. 
 
 
 
Thanks," - My Reply
 
 
If I understand what he's saying, although he knows where 3 of 4 of the existing markers are, since he can't find the one I'm paying him to stake, he needs to drag his feet and keep looking in the woods.  What's the point of all that expensive equipment if he can't just calculate where the stake is supposed to go?  This is why I don't trust this guy.  I feel like I'm paying him $950 to walk around in the woods and look for the markers.  I did that and found 3, I wasn't under the impression I was paying $950 for a team to locate existing boundaries.  I was under the impression that I was paying to have the missing point accurately calculated and staked. 
 

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This is the one online review I was able to find about this company:

 

"Poor quality of service and to many stories. They started a simple survey of less than a 1/4 acre of land in 2009 and still not complete. Classic situations of over billing, turned out they charged me for an other clients work, To many excuses ie. survey crew to busy, small job s  are hard to schedule, etc.  We ended our relationship today 8/2011  My account with UNNAMED BUSINESS was always paid as they had a large retainer of mine.  It is difficult to support a business that charges a lot of money and all you get are excuses, and lack of performance"   Dated 8/2011

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 I was under the impression that I was paying to have the missing point accurately calculated and staked. 

 

Well, that's not exactly what your contract says.

 

The contract is so vague and open-ended that there's no surprise that it's now in dispute.

 

You're claiming that the charges are escalating due to their incompetence and they are claiming that the charges are escalating due to the difficulty of finding markers in the woods.

 

Finding one 4 year old complaint about the company is not really much of an indication of anything. And that complaint isn't going to help any if you have to go to court.

 

You have the option of firing them and disputing the charges before you pay the balance.

 

Then hire another surveyor.

 

I think where you might have gone wrong was with looking for markers when it might have been better to have the property resurveyed from scratch and new stakes positioned where they could be easily seen.

 

Might have cost more but you would likely have gotten a flat rate for the job and it would have been done in one trip.

 

Hindsight is always 20/20.

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"I'm writing you to follow up after our conversation this afternoon.  I want to reset the marker by the street between my and my neighbor's land, and then have a stake put in the ground at the other corner of my land so that I know where the property line is.  I live at MY address and my neighbor lives at his address in Mytown, NH.  I attached a few photos I found of the land and where it is.  I'd like an estimate as to what it will cost to do this.  The granite marker between our land is still there it's just ripped out of the ground and needs to be reset.  " - My original request for an estimate

 

From: http://www.nh.gov/jtboard/lsrule.htm#lan500

PART Lan 501 CODE OF ETHICS

 

   (j) The licensee shall:

                        (1) Offer a written contract to the client; and

                        (2) When utilizing a written contract specify the following:

a.  The land upon which the work will be performed;  

b.  The nature and scope of the work to be performed; 

c.  The estimated time period within which the work is to be performed; and

d.  A cost estimate or fee schedule.          

                        (3) Not accept compensation or expenses from more than one employer, client for the same service, unless the parties involved are informed and consent;

                        (4) Not accept work on a contingent fee basis;

                        (5) Not solicit or accept gratuities, directly or indirectly, from contractors, their agents, or other parties dealing with the licensee's client in connection with the work for which the licensee is responsible;

                        (6) Recognize that the practice of land surveying by a person, firm, co-partnership, corporation or joint stock association construed to practice or offer to practice land surveying shall be under the direct charge and supervision of a land surveyor licensed by the State of New Hampshire; and

                        (7) Advise the client of the level of precision most appropriate to the purposes of the survey.

 

            (k) The licensee shall:

                        (1) At all times in the performance of services, abide by applicable federal, state and municipal laws and regulations;

                        (2) Unless the circumstances are fully disclosed to all parties, not solicit or accept a land surveying contract from a government body on which a principal or officer of the licensee's organization serves as a member;

                        (3) Not contract for the completion of another licensee's contracted work unless reasonable effort has been made to consult with the prior licensee;

                        (4) Cooperate with other licensed land surveyors with an interchange of information, in particular, where discrepancies are discovered, where such   interchange does not include confidential information; and

                        (5) Not perform any acts, allow omissions or make any assertions or representations which are fraudulent deceitful, or misleading, or which in any  manner tend to create misleading impression; and

 

The "Scope of the work" has remained the same and we never discussed additional charges.  He never offered a contract unless this message is considered a contract.  His "As long as the scope of the work remains the same" is a contingent.  He's in gross violation of his license code IMO. 

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   (j) The licensee shall:

                        (1) Offer a written contract to the client; and

 

These days emails and text messaging are routinely accepted by courts as written contracts. If you go up to Part 102 Definitions there is no definition of "written contract" so a written contract is whatever a court will accept as documentation of the agreement.

 

 

                        (2) When utilizing a written contract specify the following:

a.  The land upon which the work will be performed;  

b.  The nature and scope of the work to be performed; 

c.  The estimated time period within which the work is to be performed; and

d.  A cost estimate or fee schedule.          

                     

 

He did c and d. Trouble is, an estimate is just an estimate and not a flat rate or firm price. The actual price can potentially be higher or lower than the high and low parameters, especially if there are changes in the work required.

 

 

                        (4) Not accept work on a contingent fee basis;

    

    His "As long as the scope of the work remains the same" is a contingent              

 

That's not what a contingent fee means. With regard to surveyors it can best be explained by:

 

"As part of the process for obtaining a residential mortgage, a MLI (Mortgage Loan Inspection) of the property is often sought from surveyors. The MLI is used to remove the survey exception from the mortgagee’s title insurance policy. Consequently, an MLI is a necessary part of the loan process. In addition to the use by the lender, the MLI is also examined by the buyer or buyer’s agent to determine if potential defects are present that could affect the title to the property. In cases where the MLI reveals a problem, the buyer will often choose not to proceed with the purchase of the property. Consequently the buyer will not obtain a loan and become a borrower. In these cases, the lender, Realtor, or agent ordering the MLI has no opportunity to obtain the surveyor’s payment from the borrower. They are “stuck” with the surveyor’s bill. To avoid the cost of surveying services that can not be recouped from the buyer/borrower, certain lenders or lending agents have sought and reached agreement with some surveyors where the surveyor will forego payment for MLI services in the situation where the mortgage is not executed."

 

What your surveyor is charging is not a contingency fee.

 

 

                        (5) Not perform any acts, allow omissions or make any assertions or representations which are fraudulent deceitful, or misleading, or which in any  manner tend to create misleading impression; and

 

 

Well, that's your opinion but I don't see that he's done anything that rises to that level though you are free to file a complaint with the licensing board and see how far it goes.

 

 

 

The "Scope of the work" has remained the same

 

Again, your opinion, and obviously what the dispute is all about.

 

 

 

 He's in gross violation of his license code IMO. 

 

I don't see that either.

 

There's no question that there's an issue with what he's doing, how he's doing it and how much he's charging.

 

Accusing him of an ethics violation isn't going to get this resolved.

 

The guy you've been communicating with, is he one of the guys that's been out to the property? Have you and he actually met at the property to review what's been going on?

 

If no to both question I suggest you put a stop to the work and insist on meeting the guy at the property so you can go over the details and resolve the issues.

 

Otherwise you're just spinning your wheels and getting nowhere while the meter keeps running.

 

 

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I've insisted on being present every time they visit my land.  I've photo documented the time they spend on my land and recorded it on my calender too.  I'm pretty good at documentation so I hope I can make a small claims court case if he tries to screw me.  The bottom line is I've asked him what the problems are and he's contradicted himself on several occasions when trying to make excuses.  He hasn't done what he promised which isn't all that much considering all he needed to do is set one stake.  I think if I take him to small claims court he'll look like he's trying to hustle me.  I live in a town with high taxes and high property values, I think this is his reasoning for playing this game with us which sucks for me because I'm not wealthy, we're just here for the good schools.  . 

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Then I suggest at this point that you send him written notice that you are terminating his services due to incompetence and you won't pay him any more money until he resolves the problem and if he can't or won't resolve the problem by such and such a date to send you a refund because he hasn't done what you paid him to do.

 

Do that and see how it goes.

 

If he doesn't respond by the deadline date, you can sue him for your money back.

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Adjusterjack-- really great information in your responses!
 

Sly_Barker-- sorry for your situation, you may want to take an initial consultation with an attorney to help with your letter of termination and get advice on additional avenues of recovery. You can find a contracts attorney near you here.

 

Best of luck with everything!

 

-The FindLaw.com Team

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