Raymond Redniss, Redniss & MeadContrary to the belief of the general public, land surveyors do not determine ownership. Ownership of land is made up of and dependent on elements such as deeds, taxes, liens, mortgages, community rights, heirs, senior rights, restrictions, judgments, and many others. Though a land surveyor may form an opinion based on investigation, research, and location, evaluation of these elements is a question of law beyond the responsibility of the land surveyor.
The precise line of demarcation between the practices of law and of property surveying is difficult to distinguish as one seems to merge into the other. Perhaps the best concept is one that states:
The surveyor must obey the law in locating divisions of land, in creating new divisions of land, and in describing the land. Therefore, he must know the law pertaining to these functions.
There have been many writings describing land surveying and the Land Surveyor. In an 1876 essay titled “Judicial Functions of Surveyors,” Chief Justice Thomas M. Cooley summed up the role of the Land Surveyor:
If the original monuments are no longer discoverable, the question of location becomes one of evidence merely. It is merely idle for any State statute to direct a surveyor to locate or “establish” a corner, as the place of the original monument according to some inflexible rule. The surveyor, on the other hand, must inquire into all the facts, giving due prominence to the acts of parties concerned, and always keeping in mind, first, that neither his opinion nor his survey can be conclusive upon parties concerned, and second, that courts and juries may be required to follow after the surveyor over the same ground, and that it is exceedingly desirable that he govern his action by the same lights and the same rules that will govern theirs.
At the conclusion of the essay, Justice Cooley speaks of the “quasi-judicial capacity” of surveyors:
Surveyors are not and cannot be judicial officers, but in a great many cases, they act in a quasi-judicial capacity with the acquiescence of parties concerned: and it is important for them to know by what rules they are to be guided in the discharge of their judicial functions.
Though these words were written 140 years ago, they still accurately express the responsibilities of the surveyor engaged in property boundary location. Proper location of property lines depends upon evidence and procedures. In order to properly locate a boundary, the surveyor must make decisions in accordance with law. The surveyor must apply the law, as it exists, to boundary location as he is practicing it. Errors in judgment or even the lack of knowledge of some hidden evidence might be excused, but the surveyor is presumed to be competent in measuring. He is an expert because he knows how to measure, how to analyze errors in measurements, and how to control the quality of measurements for a given situation.
The subject of measurement procedures is treated extensively in many texts. Its importance should never be minimized. Measurements can never be made without an error of some magnitude, though it may be insignificant. The accuracy of every survey depends on the precision of the measurements taken. To properly address the purpose for which the survey will be used, the surveyor must know how much uncertainty can be tolerated.
The professional land surveyor, in addition to other duties, has the authority and responsibility (1) to locate property lines in accordance with record documents, (2) to locate encroachments on title lines, (3) to create new divisions of land, and (4) to depict by map or describe by writings the divisions created. Performing these duties requires knowledge of measurement techniques, of mathematics, of legal principles, including the law of evidence, and of past history and customs affecting surveys.
The Survey and Title Exceptions:
Some exceptions in a title commitment are obviously not, and some obviously are, survey related. UCC forms, leases, mortgages, taxes, liens, assessments, and other such items, are not locatable and, therefore, fall into the “obviously not” category. Easements, rights-of-way, encroachments, flood zones, granted rights, water bodies, etc., fall into the “obviously are” category and, therefore, need to be addressed on the survey by either depiction or notation or both.
However, there are other exceptions that may affect the property, but are not evident. Their description may be vague enough or may reference ancient owners of abutting property, thereby making it difficult to determine their impact. Agreements, restrictions, conditions, covenants, subject tos, etc., that may affect a portion of the property for some specific reason, fall into the gray area between the “obviouses.” A typical title search may find and note these record encumbrances, but the determination of their affect may require investigation well beyond the abstract of the subject property. It is here that the title insurer and the surveyor must collaborate.
The professional land surveyor does not confine research and location to just the subject property. Without understanding the root creation of what is purported to be the lines of title, the land surveyor cannot make a proper boundary determination. Reaching that understanding requires the research, location, and gathering of facts of not only the subject parcel, but those of every abutting parcel. Often, old surveys and record mapping going back far deeper than the statutory period of title, prove invaluable in locating vague or non-specific descriptions or encumbrances.
To put this in perspective, dealing with the vagaries of possible exceptions which might affect the quality of the lender’s interest, primarily impact commercial property. Commercial, in this sense, includes multifamily residential projects, but for the most part, not single family parcels. This brings us to the ALTA/NSPS Land Title Survey and the 3-way tug-of-war involving the land surveyor, the title company, and lender’s counsel!
What exactly is an ALTA/NSPS Land Title Survey?
ALTA is the American Land Title Association; NSPS is the National Society of Professional Surveyors. (prior to 2016, these surveys were ALTA/ACSM surveys; ACSM is the American Congress on Surveying and Mapping.) An ALTA/NSPS Survey must meet very specific requirements which are set forth in the 2016 Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys. The most important differences, for title purposes, between an ALTA/NSPS Land Title Survey and a standard physical survey are as follows:
a) Title exceptions are required to be provided to the surveyor;
b) Title to the adjoining properties must be noted;
c) All recorded easements must be depicted, or must be noted as to their status, and reference made to the title commitment by exception number; and
d) The survey is certified to the owner, the lender, and the title company.
Being as detailed as their requirements dictate, ALTA/ACSM Surveys are not inexpensive. If the lender insists on this, it is important for the surveyor to be provided with the title commitment and the preliminary exception documents as early as possible, as these documents are necessary for the survey to plan the scope of the research and possible necessary locations. At the same time, and before accepting, taking on the project, the surveyor needs to negotiate the details of what will be provided. Many times this is a matter of reaching an understanding between the lender and their “requirements,” and the limitation of the authority and responsibility of the land surveyor.
It is usually here, again, that the title insurer and the land surveyor work together to provide the lender appropriate assurances of the status of the title and the physical asset. Beyond those which are required by the standards of practice, additional requests made by lender’s counsel are a matter of accommodation, response to which may be limited by the purview of the profession. Requests for the surveyor to include statements regarding zoning compliance and use are inappropriate, as are requests for statements regarding the adequacy of utilities.
With respect to opining on title exceptions, a lender’s “requirement” that ALL exceptions be listed with a status statement on the survey is a request, not a survey matter and certainly not a requirement. Similarly, “requirements” for certain Table A items to be included, but were not originally requested, present problems late in the process. The problem is that these requests generally come AFTER the survey has been contracted, fees established, field work completed, and a draft issued! Why does this happen more often than not? That is a subject for another article!
Raymond Redniss, PLS, is principal surveyor at Redniss & Mead, Stamford, CT