I own a small but very expensive piece of waterfront property, which took most of my life savings to buy - I planned to build a modest retirement home on this lot. In the NW, getting a permit to build on waterfront is very difficult, time-consuming & costly. I finally got my permit in 7/09, but was soon informed by the City that an unidentified person had provided documentation that my 2007 land survey (on which everything related to the permit was based) was inaccurate. My surveyor had failed to state the Ordinary High Water mark correctly, meaning that virtually all the permit work & reviews & house design must be redone & paid for a second time. The City contends that it is not at fault, as it operates on an assumption of competence regarding surveys submitted by licensed professionals, & thus had no reason to suspect inaccuracy until someone complained. My extra costs for redoing the permit work, design & hiring an architect to try to expedite resolution with the City amount to $45,000, excluding the cost of the survey itself (which the surveyor re-did at no charge in 11/09.)
I signed a contract in 2007 with the surveyor (whose company is an LLC) which states that his liability in case of negligence is limited to the cost of the survey ($5200.) The survey was somewhat unusual in that there is an existing old wooden deck projecting out over the shoreline. To correctly locate the OHW marks, the surveyor needed to look under this deck, instead of just relying on the OHW marks of the 2 neighboring properties. I knew nothing of surveying & relied on my licensed, experienced surveyor to do the job right the first time!
The surveyor is not interested in settling this matter for anything close to my damages. I have consulted with 2 local attorneys: a real estate specialist who felt I could possibly override the liability limit if the survey was not done to reasonable performance standards; & an attorney who specializes in insurance - he felt that the matter did not constitute gross negligence & that the liability limit could not be challenged successfully. At some point I will be filing a complaint with the State surveyor licensing board, but they do not help recover damages.
Will the surveyor most likely be able to defend his survey performance as reasonable by contending that he originally handled the survey in the typical way & was thus not grossly negligent? Or will I most likely be able to overcome the contractual liability limit, since the survey was ultimately inaccurate & unacceptable to the City? What type of lawyer should I consult? (I was told to see a tort attorney by one of the lawyers noted above.) I am retired, on a fixed income & do not have ANY extra money to waste on a legal case doomed to be unsuccessful. Whether I will be to afford to actually build on my lot (assuming I eventually get a valid permit) is debatable, given the unexpected extra costs & lengthy delays!
I signed a contract in 2007 with the surveyor (whose company is an LLC) which states that his liability in case of negligence is limited to the cost of the survey ($5200.) The survey was somewhat unusual in that there is an existing old wooden deck projecting out over the shoreline. To correctly locate the OHW marks, the surveyor needed to look under this deck, instead of just relying on the OHW marks of the 2 neighboring properties. I knew nothing of surveying & relied on my licensed, experienced surveyor to do the job right the first time!
The surveyor is not interested in settling this matter for anything close to my damages. I have consulted with 2 local attorneys: a real estate specialist who felt I could possibly override the liability limit if the survey was not done to reasonable performance standards; & an attorney who specializes in insurance - he felt that the matter did not constitute gross negligence & that the liability limit could not be challenged successfully. At some point I will be filing a complaint with the State surveyor licensing board, but they do not help recover damages.
Will the surveyor most likely be able to defend his survey performance as reasonable by contending that he originally handled the survey in the typical way & was thus not grossly negligent? Or will I most likely be able to overcome the contractual liability limit, since the survey was ultimately inaccurate & unacceptable to the City? What type of lawyer should I consult? (I was told to see a tort attorney by one of the lawyers noted above.) I am retired, on a fixed income & do not have ANY extra money to waste on a legal case doomed to be unsuccessful. Whether I will be to afford to actually build on my lot (assuming I eventually get a valid permit) is debatable, given the unexpected extra costs & lengthy delays!
