Is it OK resell my Survey?

[S/V Illusion]

Originally Posted by MarinerJo

I am so glad we don't have to do a survey on motor vehicles. Can you guys imagine
how much fun THAT would be?
After reading seventy three posts, I am still no closer to understanding the answer. You think my shopping list for the market are copyrighted too?

Did you really expect a different result? Intuitive legal advice is never a good thing.

Parenthetically, there is such a thing as automobile survey commonly referred to as a PPI (pre-purchase inspection) typically done when purchasing a valuable older car. And usually far more thorough and reliable than boat surveys

[CJsails]

Wow!

I hardly know what to say, so much has been said already. Talk about the proverbial "can of worms". I can see them vividly, and some of them are escaping! Time to put a lid on it? Far be it for me to say, so here goes nothin'.

I'm not going to repeat the surveyor's response verbatim, but to paraphrase:

I was thanked for passing along the request and told the surveyor received the same request from the broker on the same day it was sent to me.

The response from the surveyor to the broker stated that they do not "authorize" any kind of transfer of a "Pre-Purchase" survey. Reason being that it is "just a summary" of all that transpired between the surveyor and the client over the coarse of the "day long survey." There for it is not something anyone not present on the day of the survey should rely on. The broker was asked to have his client contact the surveyor "directly".

That was it. Short, and not so sweet, but not unexpected. Still I feel like I am getting the short end of the stick and a deal to sell it and split the money is what should have been suggested.

What will I do? That is now, in light of this not so satisfactory answer, the $64,000,000.00 question. Do I think it's mine to do with as I please, because I bought and paid for it? Yes, but I also agreed not to pass it along for compensation or otherwise per the "exclusive use" clause. Oh no, here we go again!

Whether you call this thread silly or serious, for me it has been interesting, fun, and informative. I will be taking extra care in the future to better understand the meaning of a "contract", and especially to understand it's relevance to possible future actions, while not forgetting that negotiating changes to the wording is also a possibility. Get it clear up front if possible is the best I can get out of it all.

Fair winds! But don't let 'em blow away the paper trail;-)

[bstreep]

I'm going to quickly jump in. I'm a real estate appraiser. That survey is protect AUTOMATICALLY by US copyright law. It is owned by the surveyor. If you resell it or give it to another party, you are liable. For the full amount, not what you get paid for it. Plus legal expenses. Period. And I have this in writing directly from the Chief Counsel of the largest liability insurance company in the US. Seriously, you are playing with fire.


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[valhalla360]

Originally Posted by CJsails

Wow!

I hardly know what to say, so much has been said already. Talk about the proverbial "can of worms". I can see them vividly, and some of them are escaping! Time to put a lid on it? Far be it for me to say, so here goes nothin'.

I'm not going to repeat the surveyor's response verbatim, but to paraphrase:

I was thanked for passing along the request and told the surveyor received the same request from the broker on the same day it was sent to me.

The response from the surveyor to the broker stated that they do not "authorize" any kind of transfer of a "Pre-Purchase" survey. Reason being that it is "just a summary" of all that transpired between the surveyor and the client over the coarse of the "day long survey." There for it is not something anyone not present on the day of the survey should rely on. The broker was asked to have his client contact the surveyor "directly".

That was it. Short, and not so sweet, but not unexpected. Still I feel like I am getting the short end of the stick and a deal to sell it and split the money is what should have been suggested.

What will I do? That is now, in light of this not so satisfactory answer, the $64,000,000.00 question. Do I think it's mine to do with as I please, because I bought and paid for it? Yes, but I also agreed not to pass it along for compensation or otherwise per the "exclusive use" clause. Oh no, here we go again!

Whether you call this thread silly or serious, for me it has been interesting, fun, and informative. I will be taking extra care in the future to better understand the meaning of a "contract", and especially to understand it's relevance to possible future actions, while not forgetting that negotiating changes to the wording is also a possibility. Get it clear up front if possible is the best I can get out of it all.

Fair winds! But don't let 'em blow away the paper trail;-)

By asking the question in the way you did, you directed him to give you the obvious answer but not the correct answer. Of course, he's going to tell you the next guy has to pay him the full rate for him to regurgitate the information you already paid for.

Definetly agree, that an up front written contract stating the ownership and resale options would have avoided the whole debate.

[valhalla360]

Originally Posted by bstreep

I'm going to quickly jump in. I'm a real estate appraiser. That survey is protect AUTOMATICALLY by US copyright law. It is owned by the surveyor. If you resell it or give it to another party, you are liable. For the full amount, not what you get paid for it. Plus legal expenses. Period. And I have this in writing directly from the Chief Counsel of the largest liability insurance company in the US. Seriously, you are playing with fire.


Sent from my iPad using Cruisers Sailing Forum

Individual lawyers (even chief counsels at major corporations) often get it wrong and often it's intentional for reasons that have nothing to do with the law. That's why you see lawyers on both sides when there is a court case. In fact, it's common practice for lawyers to add completely unenforceable language in an effort to intimidate unsuspecting people to give up thier legal rights. Given his potentially biased position, I would would take his statements with a huge grain of salt.

As far as playing with fire...regardless of what the law states, it's simply not practical to sue someone for a few hundred dollars. You will pay that just to sit down and discuss your case with a lawyer.

[Delancey]

Originally Posted by CJsails

I will be taking extra care in the future to better understand the meaning of a "contract", and especially to understand it's relevance to possible future actions, while not forgetting that negotiating changes to the wording is also a possibility. Get it clear up front if possible is the best I can get out of it all.

Surveyor sounds like a knob. Can you clarify, did you sign an actual contract PRIOR to the survey that included the "exclusive use" language? Or do you just "feel" like you have some kind of contract or obligation?

Sorry to hear that you feel like you got the short end of the stick. Leaves me imagining you would never recommend this particular surveyor to anybody.

[David_Old_Jersey]

The work around is......a photocopier and cash! (From broker).....and not leaving a paper / email trail detailing how the broker came to have a copy of the survey.

Not unreasonable for a buyer to simply share the survey with 3rd parties as part of the purchase negotiations.



Sent from my NEXUS 5 whilst sitting in my armchair tied to the dock.

[PamlicoTraveler]

To me it's amazing that this thread has become so complex. The bottom line is everyone has a different risk tolerance, but the risk of being intimidated by some intentionally vague threat from a surveyor or a lawyer is very small compared to the everyday risks and judgement required for sailing and cruising.

If you really have to "dot every i and cross every t" before you make a move, you are going be really confused when it's time to anchor in a crowded anchorage or enter into any circumstance where legal liabilities exist.

[CJsails]

There is only one document involved, which is the survey itself, and that is where the "exclusive use" language appears. There is no separate contract, but to the best of my knowledge about contract law from one college coarse the survey qualifies as a contract.

[Delancey]

Originally Posted by CJsails

There is only one document involved, which is the survey itself, and that is where the "exclusive use" language appears. There is no separate contract, but to the best of my knowledge about contract law from one college coarse the survey qualifies as a contract.

A contract is an agreement, typically involving the sale or purchase of goods or services. A survey itself is typically the product of a service you buy.

Are you saying the surveyor asked you to sign a copy of the survey (which you paid for) which he retained for his records? Bizarre!

Never heard of anyone buying a contract, only paying for the product. And you think you have some obligation to this guy? What a creep!

If someone presented me with a "survey" and asked me to sign a copy of it for them to retain I would have refused it the same as if someone presented me a contract agreement PRIOR to having a survey performed which included "exclusive use" language.

This thread makes me lose a lot of respect for surveyors in general. Exclusive use is a bunch of crap. Intimidation of naive people is really uncool.

[CJsails]

I hear you Delancy, but nobody asked me sign anything. The only thing I signed was the check I paid for the survey with. The reason I say the survey qualifies as a contract is because of the one surprising thing I learned in that college course (not coarse) is that there is such a thing as a verbal contract. There doesn't have to be anything in writing. There only has to be an "agreement" between the parties. Have fun trying to prove a verbal contract exists, but law says you can have a go at it.

[valhalla360]

Originally Posted by CJsails

I hear you Delancy, but nobody asked me sign anything. The only thing I signed was the check I paid for the survey with. The reason I say the survey qualifies as a contract is because of the one surprising thing I learned in that college course (not coarse) is that there is such a thing as a verbal contract. There doesn't have to be anything in writing. There only has to be an "agreement" between the parties. Have fun trying to prove a verbal contract exists, but law says you can have a go at it.

The report is NOT a contract. The contract is the verbal agreement you made. Unless that verbal agreement included the surveyors ownership of the material produced (the report), the contract never mentioned ownership.

A key point of contract law is both parties must agree. The surveyor doesn't get to change or add terms to the contract without your agrement. Example: If you write a letter stating you own the surveyors car and hand it to him, you don't own the car because there is a "contract".

This is simple unenforceable language. It's commonly done to intimidate people. Most of the time, people don't want to challenge what appears to be very offical looking contract language.

[bstreep]

Ugh. Dealing with folks that don't know what they are talking about, on a public forum.

1) I'm a Certified Appraiser - and have been for 15 years.

2) Our single largest expense, as a company, is liability insurance. By far. I imagine it is also the case with a surveyor.

3) A survey contains (generally) a value opinion, commonly called an "appraisal".

4) In several courts, it has been determined and ruled that an "appraisal" is confidential work product that is protected by US copyright law, that belongs only to the appraiser and the client. No other users are permitted, nor can any other users rely upon it, nor can it be distributed. This is also to limit liability to the original purchaser. By the way, if it's for insurance purposes, it probably belongs to the insurance company.

5) If you want to go ahead and ignore this, by all means, do so. At your own risk. When you get sued, and lose, and have to pay court costs, don't cry here. In discovery, they will find this thread, by the way. And your name in it.

6) Think of this as well, folks. In Texas, if you sell a house, and you, the seller, provide a land survey to the buyers, YOU now have taken on ALL of the responsibility of the accuracy of that survey. That's the law here, and in most states. See, it's because the survey company only wants a single liability - you, not the next guy. Yes, it's a LAND survey. But here's the deal - YOU profited in the sale of your boat survey. You NOW have burdened yourself with the results of that survey, and the surveyor has NONE. ZERO responsibility. But you do now... Good luck in court on THAT one too.

P.S. A Chief Counsel for a LIABILITY company better know liability law pretty damn well. And he does.

P.S.S Anyone that thinks copies can't be traced, is just wrong... Each printer and copier has its own signature. Big brother...

[smj]

Originally Posted by bstreep

Ugh. Dealing with folks that don't know what they are talking about, on a public forum.

1) I'm a Certified Appraiser - and have been for 15 years.

2) Our single largest expense, as a company, is liability insurance. By far. I imagine it is also the case with a surveyor.

3) A survey contains (generally) a value opinion, commonly called an "appraisal".

4) In several courts, it has been determined and ruled that an "appraisal" is confidential work product that is protected by US copyright law, that belongs only to the appraiser and the client. No other users are permitted, nor can any other users rely upon it, nor can it be distributed. This is also to limit liability to the original purchaser. By the way, if it's for insurance purposes, it probably belongs to the insurance company.

5) If you want to go ahead and ignore this, by all means, do so. At your own risk. When you get sued, and lose, and have to pay court costs, don't cry here. In discovery, they will find this thread, by the way. And your name in it.

6) Think of this as well, folks. In Texas, if you sell a house, and you, the seller, provide a land survey to the buyers, YOU now have taken on ALL of the responsibility of the accuracy of that survey. That's the law here, and in most states. See, it's because the survey company only wants a single liability - you, not the next guy. Yes, it's a LAND survey. But here's the deal - YOU profited in the sale of your boat survey. You NOW have burdened yourself with the results of that survey, and the surveyor has NONE. ZERO responsibility. But you do now... Good luck in court on THAT one too.

P.S. A Chief Counsel for a LIABILITY company better know liability law pretty damn well. And he does.

P.S.S Anyone that thinks copies can't be traced, is just wrong... Each printer and copier has its own signature. Big brother...

Could you post a link that states that I, as a property seller am responsible for a survey that I pass along to a buyer? I agree the surveyor at that point is probably not responsible but the buyer is, as they had every right to purchase their own survey through a surveyor who has liability insurance.


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[boatpoker]

Not a lawyer but ...... You guys don't seem to understand the difference between liability insurance and E&O insurance so I'll have to take your arguments with a grain of salt.

PS. All SAMS surveyors have liability insurance. Few have E&O and those that do don't want to tell you for obvious reasons