LAWS OF NEW YORK, 2005
AN ACT to amend the education law, in relation to establishing penalties for the damaging of monuments and/or boundary markers. This became a law October 11, 2005, with the approval of Governor George Pataki. Passed by a majority vote, three-fifths being present.
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Section 7209 of the education law is amended by adding a new subdivision 9 to read as follows:9. a. Any person who knowingly damages, destroys, disturbs, removes, resets, or replaces any boundary marker placed on any tract of land by a licensed land surveyor, or by any person at the direction of a licensed land surveyor, for the purpose of designating any point, course or line in the boundary of such tract of land in which he or she has no legal interest, shall be punished by a civil fine of not more than five hundred dollars and shall be liable for the cost of reestablishment of said boundary marker.b. Notwithstanding the provisions of paragraph a of this subdivision, a licensed land surveyor licensed under section seventy-two hundred three of this article or a person acting at the direction of any such licensed land surveyor, may remove an existing marker if substandard in nature in order to place an upgraded marker in the same location and shall note the same on the map of survey.
The new law requires a surveyor, authorized agents or employees to make reasonable efforts to notify the landowner that they may be entering upon their land. This could be accomplished by a phone call, letter or in person. This notice provision does not require that the landowner actually receive notice only that the surveyor make a reasonable attempt to provide notice. Only reasonable efforts need to be put forth to notify the landowner. Again, while this law offers protection against a trespass violation, it does not give the surveyor an absolute right to enter the land. If the landowner becomes confrontational common sense should prevail.
The new law further mandates that the surveyor operates during reasonable hours and within a reasonable distance from the property line of the land being surveyed. At all times the surveyor and/or employee must carry, and upon request, show proper identification as to registration or employment. Currently, NYSAPLS is working on a form for member ID cards that will comply with the law and will be presented in the near future.
While the new law protects surveyors from trespass violations, civil liability remains. The right of entry law does not provide comprehensive civil or criminal liability protection for all acts on property. Surveyors will be liable for damage to personal property. In other words, kicking an aggressive neighbor’s dog or trimming a bush to enable the instrument person to see the prism could impose civil liability. The surveyor will be responsible for any damage done to the land or personal property such as fences and landscaping. Reasonable care should be maintained to ensure that the property of the landowner is not damaged. While it is reasonable that during the survey work the land may be disturbed, the surveyor should repair the land as close to original condition as possible.
The new law will provide surveyors with the ability to enter properties for surveying purposes, assuring the surveyor legal protection not otherwise available, while offering the landowner safety and privacy.
Following is the amended general obligations law § 9-105.
§ 9-105 Right of entry for professional land surveyor performing surveying services.
1. When performing surveying services as a professional land surveyor licensed under article one hundred forty-five of the education law, the land surveyor and authorized agents or employees of any such land surveyor may enter upon or cross any lands necessary to perform surveying services provided that the surveyor and authorized agents or employees of such land surveyor:
a. makes reasonable efforts to notify the landowner or, in the case of a lease, the lessee thereof of his or her intention to enter upon the owner’s or lessee’s land to make a land survey;
b. operates upon such lands during reasonable hours;
c. operates within a reasonable distance from the property line of the land being surveyed; and
d. carries proper identification as to their registration or employment and displays such identification to anyone requesting identification.
2. Nothing in this section shall be construed to:
a. remove civil liability for damage to land, chattels, crops or personal property; or
b. authorized any professional land surveyor, authorized agent or employee to enter any building or structure used as a residence or for storage.