Successors and/or Assigns

Successors and assigns for the lender is not a big deal to me. The bank might sell the debt to another bank down the road. Adding it to the owner(s) name would be different.

I cannot understand the opposition to adding "successors and/or assigns" to your certification. The liability already exists and you cannot limit your liability without an agreement. And, the current client cannot limit your liability to just them, it extends to those who may reasonably rely on your work, whether it is the current owner or future owners.

Can someone please tell me that this has prevented a claim, or been successfully used as a defense in a claim against a surveyor? Otherwise it just makes us look like obstructionists and, basically, just jerks.

Dtp

I really do not care to have my survey that the client paid for to be passed as a file stuffer for free. The bank putting these transactions get paid each time, the attorneys get paid each time, but the lowly surveyor gets passed through for free. Each entity that it passes to can now be added into a law suit against you. I know that these days everyone sues everyone for no reason and will find their way into a the law suit. However it is a little easier to be excused from claims if you did not have a contract with them, and adding them as a successor and/or assigns is almost the same as the contract and makes it harder to be excused from their part of a claim.

I do understand that if I screw up my work I am liable for that.

"loans which may be made to the equity holders of Owner"

That wording includes future loans. That would be a definite NO!

Paul in PA

I don't generally have a problem with "successors and/or assigns" of the lender. The nature of the commercial lending market is that a certification to the originator of the loan is probably good for less 36 hours before the loan is securitized or resold. I assume this is going to be the case going in and base my fee accordingly. I don't worry so much about avoiding liability; I'm in the business of selling liability, I just worry about being compensated fairly in relationship to the amount of liability I'm selling.

What I'd really like to see in the next revision of the ALTA standards is for ALTA and NSPS to bring a representative from the commercial lending industry into the equation. I perform a lot of ALTA surveys and it's the lender's council that run the show - in a lot of cases they come straight out and tell the title insurance underwriter what they want to see insure or excepted in order for them to make the loan.

They need to understand that when you say "NO!" you mean "NO!"

On the other hand.................I'm one of those who does not worry about such wording in the first place. In nearly 30 years I have yet to become aware of any issue from including such words on any ALTA's. Not saying it couldn't happen.

Another point to keep in mind is that, while the original lender may want that language in the certification, that is no guarantee that any successor or assign will find the language sufficient from their point of view. At least 1/3 of my ALTA surveys are resurveys for new lenders.

Terry_Jr, post: 322421, member: 5661 wrote: I really do not care to have my survey that the client paid for to be passed as a file stuffer for free. The bank putting these transactions get paid each time, the attorneys get paid each time, but the lowly surveyor gets passed through for free. Each entity that it passes to can now be added into a law suit against you. I know that these days everyone sues everyone for no reason and will find their way into a the law suit. However it is a little easier to be excused from claims if you did not have a contract with them, and adding them as a successor and/or assigns is almost the same as the contract and makes it harder to be excused from their part of a claim.

I do understand that if I screw up my work I am liable for that.

When that survey is being passed from file to file how much additional work did you perform? What new actions did you undertake to increase your liability?

Like it or not, our surveys run with the land. Anyone with an interest in that land can have an action against you, whether you name them or not.

foggyidea, post: 322419, member: 155 wrote: I cannot understand the opposition to adding "successors and/or assigns" to your certification. The liability already exists and you cannot limit your liability without an agreement. And, the current client cannot limit your liability to just them, it extends to those who may reasonably rely on your work, whether it is the current owner or future owners.

Can someone please tell me that this has prevented a claim, or been successfully used as a defense in a claim against a surveyor? Otherwise it just makes us look like obstructionists and, basically, just jerks.

Dtp

"The liability already exists and you cannot limit your liability without an agreement."

As a matter of fact, you probably can't limit your liability with an agreement either! You certainly can't limit it without a written agreement with these as yet unknown future parties...

Tommy Young, post: 322434, member: 703 wrote: When that survey is being passed from file to file how much additional work did you perform? What new actions did you undertake to increase your liability?

Like it or not, our surveys run with the land. Anyone with an interest in that land can have an action against you, whether you name them or not.

Tommy,
This is the same if you perform a survey on a piece of land for client A and sells it within a year to client B. The new owner client B wants a survey in his name. Will you not charge client B for a survey? Or will you tack on a base fee? This is that same type of case.

Jim in AZ, post: 322458, member: 249 wrote: "The liability already exists and you cannot limit your liability without an agreement."

As a matter of fact, you probably can't limit your liability with an agreement either! You certainly can't limit it without a written agreement with these as yet unknown future parties...

That was what I meant Jim, you would have to have the agreement of the future owners because you cannot limit the liability without permission of all that have the right to rely on your work.

Terry_Jr, post: 322459, member: 5661 wrote: Tommy,
This is the same if you perform a survey on a piece of land for client A and sells it within a year to client B. The new owner client B wants a survey in his name. Will you not charge client B for a survey? Or will you tack on a base fee? This is that same type of case.

How is that the same?

Just came across this as I'm dealing with an ALTA as well. I've been specifically instructed NOT to put successors and assigns on our surveys by our insurance provider. I actually had this conversation with the insurance companies legal counsel a few years back. What he told me is that by putting that on the face of my survey, I void the insurance coverage. I agree I cannot limit my liability, however, I'd rather have my insurance company pay for any damages that it come out of my pocket! Insurance folks may have been just blowing smoke, but I was advised on it by our rep, then contacted by the insurance company's legal counsel as well. I'd say they're pretty serious.

The parties to be certified to are negotiated and stated in my contract. Anyone else wanting that luxury can pay me for it.
We just talked about this. Get paid for your time, costs, LIABILITY and value. Toss in some for aggravation when warranted. Never give away any of these.

Make sure you include in your contract at the very beginning, what you will and will not certify to. And if they insist on successors and assigns, I just tell them that our E&O will not pay a claim if we put in on there. They WANT us to carry the liability and they WANT us to have insurance since everyone knows that surveyors usually don't have two nickels to rub together. So, if your insurance will be voided, they won't have deep pockets to dig in.

Gary Kent has a position on this that, for the life of me, I can't remember. I think he also stated that to have it with the lenders is no big deal. But not for the owners of the property, or buyer, whomever you are doing the survey for.

Lenders, yes - those loans get peddled before the ink on the signatures is dry. Anyone else's S A/O A, no.

The purpose of an ALTA Survey is to facilitate a loan. I would think the Surveyor would be liable to anyone who he can reasonably foresee would rely on his product. The Surveyor is charged with knowing about the business he is serving; the mortgage business commonly resells loans, that is how the business works. Certifying to successors and assigns just saves the Attorney five minutes of explaining the Surveyor's third party liability to the Judge with the Judge nodding his head yes the whole time.

On the Title side, you don't want to certify to successors and assigns because the chain of title goes on forever. Loans disappear as soon as the property sells or refinances.