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Is surveyor's map final authority for dispute?
Q: The new owners of the home next door have had the property surveyed. They say an area I've been maintaining all these years because I thought it was mine is actually theirs. What do you suggest I do?
A: Jerry Broadus, an attorney and licensed surveyor who owns Geometrix Surveying in Puyallup, says situations like yours frequently arise when property changes hands and a new set of eyes is cast on a boundary line.
His general advice in these situations is: "Talk to an attorney, because no matter what any surveyor says, a surveyor doesn't settle a property line (dispute).
"What a surveyor does is map out a description of a client's property. But surveyors don't normally guarantee a person owns the property. There could be all sorts of issues that could come into play about who owns what." Indeed, Broadus says if a prior survey exists, you could have an issue of overlapping surveys.
Or you could have maintained the neighbor's turf long enough that adverse possession has made it yours. And these are just two of the possibilities.
"An attorney will understand that there are many, many different issues that can affect ownership beyond what the neighbor's surveyor says." Broadus suggests you consult a lawyer who specializes in residential real-estate issues, who may then hire another survey. "It's going to cost some money, but the simple fact is, any time a surveyor surveys a line that's in a different place than they thought it was, you have a question that will be resolved either by the neighbors getting together and agreeing on something or by a judicial action. So you need legal advice."
Q: I inquired about a house that had a big real-estate company's for-sale sign up and was told it had already been sold. Now, two weeks later, the sign is still up and the on-line listing also says it's for sale, and again I've been told it's sold. What's the story? Isn't there a rule about advertising houses that aren't for sale anymore?
A: The Northwest Multiple Listing Service, which compiles and disseminates for-sale property information to its member real-estate firms (who can then put it on their Web sites), does have rules about this, says Jack Johnson, its president and CEO. "The first rule is that agents are supposed to maintain the status of the listing in the database, and there's a 24-hour time limit for changing the status." That's after all the I's have been dotted and the T's crossed on the deal — and that's where the confusion can come in.
Johnson says that having a mutually accepted offer signed by the buyer and seller usually isn't enough, because most buyers make their offer contingent upon an acceptable inspection (and secure financing). This can take several days to complete. Meanwhile, "There's a lot of pressure on the part of sellers not to change the status because the 'subject to inspection' is tenuous at best," says Johnson.
"They want to continue to market their property because there is a chance there will be a breakdown and the buyer will walk."
Once the contingencies have been removed and any further negotiations have been completed, then the 24-hour clock starts ticking down.
While he doesn't know the particulars of your situation, Johnson thinks it would be stretching it for contingencies to last two weeks. If, in fact, the deal is completed and the sign is still up, the multiple-listing service would like to hear about it.
"We'd make (the agent) change the listing, and we may even bring a discipline procedure against them. The position of the MLS is, of course, we want our database to be as accurate and timely as possible because everyone benefits from that. Otherwise all the other agents will still be looking at that property and thinking it's available, and they can end up spinning their wheels on it." So it's not just buyers who are frustrated by situations like this; agents are, too.
Q: My homeowners association has put about 44 liens on owners who've failed to pay their dues or assessments. The board says these owners can't vote in the annual homeowners meeting but can be considered part of the quorum to determine whether an annual homeowners meeting can take place. The board also says such a meeting can continue even if some of those present for the quorum leave after they learn they can't vote. I think this violates the law (RCW 64.38.040), but the board maintains it's legal. Where can I get a ruling on who's right?
A: "Ultimately, if you don't agree with what the association is doing and you think it's contrary to the law, the entity that can determine that is the court system," says attorney Samuel Jacobs of Mosler Schermer Walstrom Jacobs & Sieler.
Yes, that means a lawsuit, where the court would consider the law, any pertinent previous court decisions, plus the wording of your association's governing documents. Short of that, here's Jacobs' reading on your situation: First, much depends on what your documents say about voting rights, quorum requirements and who can vote at meetings. Sometimes documents address all these issues clearly, sometimes they don't.
Jacobs says, "It's not uncommon, but far from uniform that (governing documents) suspend voting rights for members who are in arrears. I believe those kinds of restrictions are probably legal and enforceable." As for whether liened owners can be part of the quorum, if your documents "specify those members are counted as part of quorum even though they're not entitled to vote, then I believe that kind of provision would be valid and enforceable."
As to whether the meeting can continue if non-voting members leave, Jacobs suspects the answer is yes, as long as your documents don't state otherwise. There is law that addresses this, and the general reasoning behind it is that individuals unhappy with an upcoming vote shouldn't be able to sabotage it by walking out.
