I want to ask What statement do you use when you perform a survey without the benefit of a Title Commitment Policy? I have been using the simple statement "This surveyed performed without the benefit of a Title Commit Policy" I know there have to be better statements with better legal protection out there
I'm in a recording state and as such I see plenty of other surveyors products. There aren't many with any kind of statement of this sort and I've never heard of it becoming a problem. So I wonder if it is really necessary at all. Nevertheless, if you believe it is, I have two comments:
First, "Title Reports" are specific things only issued when there is title insurance being issued - ie/when property changes hands. Title companies offer other products under various headings that look very much like title reports, that we surveyors refer to as title reports, and that serve the same purpose as a title report for surveyors, but are not, in fact, title reports.
Second, there is the idea of "informed consent". A statement like the one you have been using probably has no meaning to the average land owner - your client. They cannot be expected to understand the ramifications of your statement. So it is unlikely to be any comfort to you in litigation. I suggest that you pump it up quite considerably with something on the order of "easements and rights of way may exist which are not depicted on this survey" or some such.
Last I knew the NYS Association of Professional Land Surveyors is proposing the following language to their revised minimum standards:
THIS SURVEY WAS PERFORMED WITHOUT
THE BENEFIT OF A CURRENT ABSTRACT
OF TITLE OR DOCUMENTS FROM A TITLE
SEARCH AND IS THEREFORE SUBJECT TO
WHATEVER STATE OF FACTS THAT MAY
BE REVEALED IN SUCH REPORTS
Licensed Land Surveyor
Finger Lakes Region, Upstate New York
Bigger question is when was the last time a title commitment was beneficial?
You can get the same schedule B documents that a title company would produce for a title commitment without the purchase of title insurance. You just have to pay for the informational title work. They produce the same documents but take on no liability for insuring the title. Still, as with the documents produced by title insurance, they often do not include all relevant documents of public record.
"This survey does not reflect the results of a current title report and may not be a complete representation of all easements and encumbrances."
I don't view this statement as a way to side-step liability. It's more about recognizing that very few folks know what a survey is and how it's performed. As I've learned from this site, there's a significant variation between states in regards to the process of deed research. I'm also aware that a surprising amount of lawyers, developers, lenders, etc., assume that every survey is an ALTA.
We don't purchase a Title insurance Policy for our clients, I don't see how it's relevant to put that in a Surveyor's Statement.
Still, as with the documents produced by title insurance, they often do not include all relevant documents of public record.
Makes me glad that I work under a Torrens title system....
I have generally used something like the following--
"No title policy, title commitment, or abstract was available. Therefore easements, if any, are not shown, and other matters of record may not be reflected in this survey. Obtain current title work and verify easements before constructing improvements."
If easements are shown from a plat or other source, the statement would need to be modified to explain where those easements came from, and to say that other easements, if any, are not shown.
I believe it helps to include the phrase "constructing improvements." If the client is not building anything, they can go on using the property as before, and your survey hasn't created any new problems. If they are building something new, you have warned them to check the records to prevent something like putting an outbuilding in an easement.
"This survey was performed without the benefit of a current title report and consequently may not depict all title matters affecting the property shown hereon"
I'm not so sure any of these statements protect the surveyor. I would like to know of any actual court case in which these random statements were critical. I see them all the time on certain surveyor's surveys and never on others. I am in the later category and never put statements like that on my surveys. I list the documents used in the production of the survey in conformance with the state or agency requirements.
Essentially, you're stating that if a title company doesn't do research on a parcel you don't aren't competent to do it yourself; so your survey is lacking.
I don't even understand this attitude. If your survey is boundary only: state that it's only concerned with the boundary limits, but don't volunteer that you're incapable of researching ownership.
Title companies aren't the ownership police, they simply cover with insurance very limited issues related to ownership of land. If things go south and they are involved don't think they will be liable and not you, and even if they pay off on a parcel, that doesn't mean the surveyor gets any protection. Believe me, I've been through it. The research is up to you. Simply state on your surveyor's statement that you're limiting this survey to boundary only. Referencing title company reports makes you look unable to do the work.
At a minimum the surveyor should research back to the creation of that parcel. This is a requirement for a boundary survey in my state. Showing easements on the plat is not. Adding a note stating that easements and other encumberances may exist and to consult with a title company is just letting the owner know there is more work to perform outside the boundary survey and other entities need to be engaged if they want a more complete picture.
There is a difference between a titile commitment and a title report.
A title commitment or sometimes a pro-forma is needed for an ALTA survey. This includes Exhibit A that has the current legal description and Exhibit BII that list potentials easements. The document does not include any additional deed research required for a boundary survey and is still up to surveyor to perform.
A title report traces deeds back for a particular length of time, say 100 years, to show the chain of ownership. It may or may not list potential easements depending on what was requested.
Lots of folks think every survey is an ALTA. Providing a statement that a title report was not part of the survey assists lenders, attorneys & paralegals, and others in evaluating the survey in front them. Although many PLSs are exceptional researchers, attorneys have additional resources and search methods.
We have an interesting challenge in creating documents that can be reasonably understood by a wide range of audiences. I routinely pass plats to laypeople and ask them to critique it. A common criticism is that I use a cookie cutter legend that may show symbols that are not on the plan. I haven't gotten any feedback about my, No Title Report disclaimer. I'll press it next time and see if they think it means I didn't do any research.
@lurker Yeah, at least 1 title company in my area had a name for that product; I think it was called a surveyor's report or something. I wish it was a standard thing across all title companies actually so it was easier to order.
I'm not so sure any of these statements protect the surveyor. I would like to know of any actual court case in which these random statements were critical.
I don't think I'd expect it to protect me in court, but it might at least keep someone from jumping to the conclusion that I showed all encumbrances.
A common criticism is that I use a cookie cutter legend that may show symbols that are not on the plan.
That's a low level beef that I have with surveys too. I will never show symbols or lines in a legend that aren't on the survey, and I will even customize the legend on each sheet to only show what is on that sheet (had a squabble with a coworker about this once even).
I think it's lazy and confusing for anyone that attempts to use the survey, and makes all of us look bad.
Does anyone know of an app or lisp that can build a symbol/line legend? The old Softdesk used to be able to extract only the blocks used in the drawing and create a table. Current process includes editing my entire library down to just the symbols used and respacing. With all the money we are forced to spend on Civil 3D you would think they would have a function built in unless I'm missing something.
That's a pretty standard note for most recent plats I come across. I think it acknowledges that title companies have their specialty and surveyors have theirs and the two working together produce the most complete picture. In theory that is... Of the four or five Land Title Surveys on my desk recently, only one came with what I call a complete title package.
@charlie_wagner I'm not aware of any app or routine.
Every place I've worked has simply had a drawing template with a big legend which contains every symbol and linetype, and we just manually picked the symbols and linetypes out of it if they were found in the drawing.