Billboard Insider recently received a question from a reader that I bet many of you have experienced:

This quandary is perhaps more unfortunate than common for the sign owner. Indeed, this scenario will likely end unsatisfactorily for the outdoor company for several reasons. First, whether the survey is recorded or not, the company that buys or builds the billboard assumes the risk that is compliant with State regulations and location requirements. That’s why due diligence is so important, whether in evaluating the purchase of billboards in an acquisition agreement, or developing sites and installing them. Either way, the sign owner will likely have no remedy against the State if it turns out the survey he innocently relied on is inaccurate.

Second, the sign owner may have a remedy against a seller of a billboard that provided an inaccurate survey. But, usually the acquisition agreement requires waiver of these types of mistakes and damages, especially after the passage of time, and if adequate due diligence is afforded. If the sign owner built the sign at the wrong site due to the mistake of the surveyor he hired…well, the surveyor should be responsible for his error and the damages it caused, but good luck getting him to be accountable after several years.

Third, the State likely has no legal responsibility under these circumstances, but even if it did, sovereign immunity would probably shield the State from liability anyway. Sovereign immunity is waived, allowing a sign owner to sue and recover against the State in limited situations, like where one could demonstrate that a State official, like a permit officer, acted “ultra virus” or outside his official authority. An error made in a survey, even if it was prepared by the State, probably doesn’t rise to the level of such an unauthorized and illegal act.

The bottom line is take care of your own business, especially in making important decisions on the locations of billboards you buy or build.

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