Association
Policy Statements
It is Council's
directive that all members strictly adhere to
Association policy. Should there be an occasion
when a policy statement does not provide a member
with clear guidance then that member should
contact Council for clarification.
This section has been included to assist
anyone seeking general knowledge about the rules
governing the Association of Newfoundland Land
Surveyors. More information is available in the Association
By-Laws, Association
Regulations, and Association
Act.
Table of Contents
1. Branch Offices
2. Copyright
3. Upon Discovery of Errors &
Omissions
4. Expenses of Councilors
5. Deceased/Retired Members Files
6. The Survey Reference or Tie-In
7. Updating Previously Prepared Survey Documents
8. Limitations Act
9. ANLS Policy Statement on Budget Preparation
10. Mandatory Use of Special Survey Markers
1. Branch Offices
It has come to the recent attention of Council
that some members have attached a distorted
interpretation to bylaw 13.1.5 which states:
A Newfoundland Land Surveyor shall assist in
preventing the unauthorized practice of this
profession by not establishing branch offices
unless these offices are under the direction and
management of a resident Newfoundland Land
Surveyor.
The Council of management interprets this
bylaw as meaning all branch offices (main
branches or otherwise) are to be under the
direction and management of a Newfoundland Land
Surveyor that resides or operates primarily from
that office on a daily or regular basis and that
the term regular basis provides for the adequate
guidance, direction and supervision as to ensure
that the quality and standard of work leaving
that office concurs with the current act, bylaws
and regulations.
The Council of management hereby notifies and
forewarns it's members that disciplinary action
can be taken against any Newfoundland Land
Surveyor or group of Newfoundland Land Surveyors
currently maintaining one or more branch offices
under the same name and is found to be in
contravention of this bylaw as interpreted by the
Council of management.
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2. Copyright
The author of the survey plan (surveyor) is
the owner of the plan which means the client does
not have unlimited use of the survey plan in
subsequent dealings and also means the client
does not have the right to reuse the plan for
some other purpose than was originally intended.
No other person other than the surveyor has the
right to alter the plan and a third party does
not have the right to use the plan bearing in
mind that the plan was not prepared for his use.
Where the author of a survey plan was, at the
time of preparation, an employee of another
person under contract of service or
apprenticeship and the work was done in the
course of employment. Then unless the parties
agree to the contrary, the first owner of the
copyright is the employer.
The Canadian Copyright Act provides copyright
protection to "literary works" which in
section 2 of the said Act includes among other
works: maps, charts, plans and reports, tables
and compilations. It is under the category of
"literary works" that maps and plans
and reports relating to surveys are protected by
the Copyright Act. Section 5 of the said act
states the term for which copyright shall subsist
shall. except as otherwise expressly provided by
this Act be "the life of the author and a
period of fifty years after his death".
Section 12 of the Copyright Act defines the
author of a work subject to copyright, as being
the first owner of the copyright in such work.
Section 12(4) of the Copyright Act states
"the owner of the copyright in any work may
assign the right, either wholly or partially, but
no such assignment or grant is valid unless it is
in writing signed by the owner of the right in
respect of which the assignment or grant is made,
or by his duly authorized agent."
Copyright protection in Canada is
automatically acquired upon creation of an
original work. It is only necessary to include
the universal copyright symbol on works where
international protection, in accordance with the
provisions of the Berne convention, is desired.
Although it is not necessary to include the
universal copyright symbol on plans and reports
that are intended for use in Canada, the use of
this symbol and a cautionary statement provides
indisputable notice to those unsuspecting persons
who have a tendency to copy or alter someone
else's work.
Section 17 (1) of the Copyright Act defines
infringement "copyright in a work shall be
deemed to be infringed by any person who, without
the consent of the owner of the copyright, does
anything that, by this act, only the owner of the
copyright has the right to do." However,
Section 17(2) says that any "fair
dealing" with a copyrighted work for the
purpose of "private study, research,
criticism, review or newspaper summary"
does not constitute an infringement of copyright.
Therefore, under fair use, a surveyor has the
right to use the information from a plan in the
preparation of another plan, a lawyer has the
right to use a copy of a plan in order to do
title research and to obtain the necessary
consents as required in a conveyance of title, a
professional Association has the right to
critique a surveyor's plan and a client has the
right to use the plan for his own private use in
accordance with the purpose of the plan without
infringing copyright.
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3. Upon Discovery of Errors and
Omissions
From time to times in the performance of their
duties, surveyors discover errors and/or
omissions in the work of other surveyors and
sometimes in prior work of their own. With regard
to the errors and/or omissions discovered in
their own prior work, it is imperative that these
be rectified immediately.
With regard to the errors and/or omissions
discovered in the work of other surveyors, it is
crucial tthat these too be rectified. However, it
would be unfair of Council to expect the member
discovering the deficiency to devote any more
time and effort to the situation other than to
properly identify it to the surveyor responsible
for the problem.
These errors and/or omissions may be minor or
major in nature, but nevertheless, in
contravention of the act, By-Laws and/or
regulations in effect at the time of their
occurrence. In determining the severity of these
errors and/or omissions the Council of management
hereby calls upon the membership to forward all
deficiencies, upon discovery or as soon
thereafter as feasible, along with all evidence
supporting the alleged deficiency, to the
Secretary-\Treasurer.
What any one surveyor may deem to be minor in
nature is inconsequential. Scrutiny by the
Council of management, a group elected by their
peers to, among other things, uphold and enforce
the Act, By-Laws and regulations regarding the
practice of land surveying in this province, and
their decision on what direction the matter
should take, considered to be fair and just.
Failure to disclose an error and/or omission
is not in the best interest of the public of the
profession in general.
If a pattern is developing, which may
jeopardize the best interest of the public and/or
the profession in general, it is essential that
the Council of management for the Association of
Newfoundland Land Surveyors be aware of it.
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4. Expenses of Councilors
Keeping in mind that Councilors of the
Association of Newfoundland Land Surveyors
volunteer their time to carry out the affairs or
the Association, they should not be expected to
use any of their own funds while carrying out
their duties. To this end the following is a
breakdown of rates and expenses
Councilors should attempt to take advantage of
seat sales when flying. If a Councilor has a
choice of flying or driving and chooses to drive,
the least cost of air fare or mileage should be
charged. When a Councilor flies, he is entitled
to rent a car for the least amount of time the
car would be needed in order for the Councilor to
attend the meeting.
Mileage is to be charged at $0.40 / km.
Meals may be charged at amount paid by
receipts or $12.00 / meal.
Out of town Councilors staying overnight may
choose hotel or private lodgings. Attempts should
be made to be frugal in spending Association
funds (e.g. two Councilors sharing room, not
using most expensive hotel, etc.). Councilors
using private lodgings may charge room and board
as paid by them or $30.00 / night.
Long distance calls made on Association
business are to be charged to the Association
number.
Any other reasonable expense may be paid
provided a receipt is attached.
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5. Deceased/Retired members
files
The files of retired or deceased members of
the Association of Newfoundland Land Surveyors
which have been presented to the Association are
to be used for information purposes by members of
this Association only. A copy of any such file
can be obtained at the Association office upon
agreeing in writing that the Association is in no
way responsible for the information contained
within the file and cannot be held liable for any
damages caused by the use of the information.
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6. The Survey Reference or
Tie-In
It has come to the recent attention of Council
that apparently some members have not been
reading their bylaws with respect to what is
considered to be an acceptable tie in. Whereas it
may be totally satisfactory by the standards
governing the surveying of crown lands to
reference your survey to the previously surveyed
adjoining property, that has not, nor has for
some time, if ever, been an acceptable tie-in
according to the act, bylaws and regulations
governing this Association. Read the by-law
pertaining to this matter.
Members are hereby notified that the survey
reference or tie-in is to be to the standards
defined in the act, bylaws and/or regulations in
effect at the time the survey was prepared,
stamped and signed by the authoring surveyor. Any
surveys prepared contrary to this practice and
coming to the attention of the Association. will
be acted upon forthwith. The authoring surveyor
will be required to immediately amend the
deficient work, to distribute revised copies of
the work wherever necessary and may be subject to
disciplinary action depending upon the frequency
and circumstances involved.
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7. Updating Previously Prepared
Survey Documents
Prelude
The law society liaison committee have
expressed their willingness to respect our
copyright by recommending to their members to
seek current survey documentation with each and
every transaction of land especially where third
parties are at risk, provided existing survey
documentation can be updated at a reasonable
expense to their clients.
Council realizes that some firms already make
a practice of doing this. However, the purpose of
this policy statement is to make sure all are
aware of this option when quoting fees.
Policy
Newfoundland Land Surveyors, upon request, are
hereby permitted and encouraged to update
boundary surveys and real property reports
prepared by them.
Remuneration should be based on the time and
effort devoted to update the price documents
using our suggested hourly rates as opposed to
our suggested fees for the specific services of
boundary surveys and surveyor's real property
reports.
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8. Limitations Act
Prior to the Limitations Act, land surveyors were held
liable for their surveys for an indefinite period. Survey plans
and descriptions produced by land surveyors were used and reused in property
transactions, with the surveyors being liable for every transaction.
The Limitations Act assented to December 21, 1995 limits the time period allowed
to take legal action, with periods of two years, six years, ten years, and no limit
depending on the action. Professional negligence is considered in Section 5, 13, and 14
of this act.Section 5B sets a limitation period of two years to bring action
with respect to negligent representation and professional negligence.
Section 13 (ii) sets the commencementof the limitations to begin the date the damage
first occurs. Section 14 allows for a postponement of running of time. Running of time is
the time at which the limitation period begins. If a person claiming damages
can prove that he/she could not have known there was a cause for action at the time
the negligent act first occured, the beginning of the limitation period can be set
to when the claimant ought to have known there was cause for action. The maximum
period allowed would be 10 years after the date the negligent act occured. The burden
of proof for the postponement of running of time is on the claimant.
Council therefore feels that the majority of liabilities created by errors
or omissions would have a limitation period of two years, with a
maximum of ten years.
The Association has a duty to the public, as well as to the membership, and should
therefore make it known htat our members can not be helf liable for surveys older than
the limitation period. We feel it would be in the best interest of the public to have surveys
updated for any transactions outside of this limitation period. Council recommends
that members inform their clients of consequences of the Limitations Act with
regard to the use of old surveys in current property transaction.
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9. ANLS Policy Statement on Budget Preparation
The following Policy Statement regarding Budget preparation was put forward:
On an annual basis, prior to the preparation of the draft budget for the coming
council year, the President, Vice-Presiedent and Past President must prepare a recommendation
to assist the Secretary-Treasurer in the preparation of the draft budget. This recommendation
will include:
1. The budget line item for the "President's Travel"
2. A list of meetings planned for attendance by the President and the expected dates thereof.
This recommendation must be provided to the Secretary-Treasurer no later than January 31st.
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10. Mandatory Use of Special Survey Markers
By-Law 19 requires that special markers must be placed at each corner of a survey or
re-stake where an iron pin can be placed. Complaints have been received that survey
markers are not always being placed as required for a variety of reasons.
Written contracts should be used for all survey work. This is for the protection of NLS
members, for the protection of the general public, and to ensure compliance with ANLS By-laws.
This is also recommended by the Canadian Council of Land Surveyors. Their Professional
Liability Insurance Committee has produced a “Loss Prevention and Practice Management
Guide for Canadian Land Surveyors” which details why written contracts should be used and
provides templates and samples of contracts. Please go to www.ccls-ccag.ca for more
information on this.
Specifically relating to this issue, a written contract should clearly detail
when markers will be placed if they cannot be placed at the time of the survey.
This could be a specific date or date range or a time period such as within 30 days.
It could also be tied to another event such as, once final grading of a site has been done.
Contract, if required, should also state that once original markers are placed, it would be
the land owner’s responsibility for the cost of
replacing any markers subsequently removed or disturbed such as during
subdivision construction.
By having a written contract, you are protecting yourself against potential liabilities
and complaints. If a complaint is received and no such contract is in place, then the
original surveyor may be held responsible for the replacement of, or the costs to replace,
any such markers. If there is no written contract and markers are not found to be in place
as required, you may have to prove they were placed.
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