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By: Brian Goldberg
There are fewer more important preliminary inquiries in a premises liability case than determining who owns the underlying land where a plaintiff was injured. Most of the time this is a simple inquiry. But sometimes disagreements may occur concerning who the true owner of the land where the plaintiff was injured. For example, what result when a plaintiff is injured on or close to a boundary line? What should counsel do to determine ownership interests when questions such as these arise?
First, a full or limited title examination is a good start. It is an easy method to determine ownership interests in real estate. Be aware that your title examination is only as good as the title abstractor performing the examination. Thus, you could perform the search yourself, or hire an expert you trust. Get references from real estate attorneys and request a quote upfront from the abstractor. It is good practice to let the title abstractor know exactly why you are getting title exam and to look for any relevant documents or instruments that may affect the outcome of your case. You may be surprised to learn that the title examiner reveals that the location where the plaintiff fell is not actually owned by the defendant. The title examiner may also uncover various relevant documents such as easements (with maintenance obligations), covenants and restrictions for homeowner’s associations, or rights of way and sidewalks that have been dedicated to government bodies. Such agreements sometimes (not always) contain risk-shifting provisions and indemnification agreements. It’s almost always worth it to run a title exam—even if just for peace of mind.
Second, while a title examination may aid counsel determine ownership, a boundary-line survey can assist accurately determine the location of the injury in relation to a boundary line. This type of survey is remarkably helpful when you have a metes-and-bounds legal description without reference to a plat. Usually, the best type of survey to obtain is an “as-built survey” which shows the location of buildings, roadways, and other structures on the land in relation to the boundary lines. Surveys can also reveal all types of other hidden information that is scattered across many different locations and documents. For example, locations of underground power lines, utilities, water pipes, etc. If relevant, you can also request topography and vegetation or bodies of water be included in the survey. To be sure, inform the surveyor what you are trying to accomplish and ask for suggestions on how to achieve this. The surveyor may be aware of various types of information that you are not aware of. Provide as much detail as possible. Pictures of the location of the injury are especially helpful for this.
Once you’ve provided the information to the surveyor, they can use highly precise and sophisticated modern equipment to identify key locations on a boundary map that shows ownership interests down to the millimeter. Be aware of cost though, as the more information you request on a survey, the more expensive it will get. Only obtain as much detail on the survey as you need to accomplish your goal. Also, not every case needs a survey, but when you do need one (or think you need one) get several quotes and opt for a surveyor that is closest to the property.
These suggestions should help you pinpoint the location of an injury and determine legal rights and liabilities of parties if questions arise as to ownership. If you need more information or assistance with a premises liability matter, please contact Brian Goldberg at [email protected].