We often look at this from a liability issue, as in "my survey is good for anyone who wants to use it". But this is not only a liability issue, it's a business issue, more specifically, a profit issue.
When you buy a new car and you trade in the old one, do you just give it back to the dealer for free and say....."here, I already paid for it, now you can make some profit off it too"? Is your virus software provider just giving you updates for free after the original term of agreement is up? Of course not.
In most cases, a bank or other lender wants to be specifically named in order to have the least amount of difficulty tracing back responsibility/liability if anything should go wrong. They want their names to appear on that survey.
Think about it....why do we have certifications in the first place? To list who we are going to be responsible to. Otherwise, your survey could have a single note that says "To Whom It May Concern...."
As most of us know, the mortgage market is a volatile marketplace....mortgages are bought and sold often, sometimes within days or even hours of the original transaction. In a large institutional real estate transaction, there may be dozens of entities involved. A month later, none of the original parties may even be present at the new table.
And more and more, the ordering of a new title survey is becoming a thing of the past.....many lenders and title companies will close on any piece of paper they can put their hands on. They look for any excuse to cut the land surveyor out of the transaction, and indemnify themselves by writing out lengthy exceptions..
Why should we write off any future potential for profit simply because they want us to? Of course, any title survey that is re-used after the original closing should be updated, but do you trust banks, lenders and attorneys to see that this is the case? At least without the "successors and/or assigns" notation, they will come back to you, if only for the addition of a name, if not a full survey update.
Professional liability is only one issue........guaranteeing a continuing business with a healthy profit margin is something else to consider.
Well said.
One of the keys to my companies survival over the last couple of years have been update surveys. Updating ALTAs that we have done in the past has meant a steady flow of revenue through some of the leanest of times when no other work was coming in. I don't know how much my firm stance on not adding "Successors and Assigns" has really meant to getting that attorney to call me for an update, but I believe it is at least a few.
Don't give it away!
I have never felt the need to get paid more than once for surveys I have already performed. This does not mean I don't charge to go out to the property and document any changes to the improvements and update the title and easement research. We provide this on a time and material basis. I am all for them using my survey again if the new lender and title company are good with it.
We recently picked up a multi-family developer as a steady client because of this policy. When they found out we were not going to pork them for a new survey after only 6-months of the original survey, the president insist all of their project managers use us for new development. We now get all of the raw boundary surveys, design surveys and construction staking merely by being reasonable about our costs. In short, I agree 100 percent with this post; it's business not liability.
aNOTHER Why Not "Successors and/or Assigns"?
Along the same lines, I like to put "Survey Map of Lands of Jones", hoping that during the next transaction they ask me to change the name to bla bla. I then will not release a updated map with out an update.
Exactly what Gene said.
Hmmmm.....
I have no problem with certifying "to" some specific bodies, but I sort of wonder if it has any meaning. I don't know that we are limiting our liability when we do that.
In my opinion, I am rendering an opinion that has to do with my particular area of expertise. I am not "guaranteeing" title, or some other function that is done by other specialists. I am an professional rendering an opinion, based on boundary and surveying principles in my state under which I am licensed.
To me, it is like askng, say, a forensics pathologist the cause of death. S/He doesn't certify to his client his opinion.....s/he renders an opinion, and certifies that based on his/her expertise this is his opinion.
Your job is to protect the public regardless of who your client is, and when you sign and stamp your seal to your drawing, you are certifying that you have determined this boundary based on your knowledge and expertise in this particular area for which you are licensed.
Any document, plat, or paper that is produced as a result of a land survey, I need to seal and sign every page of that document. I don't know that some disclaimer on each page that I stamp will limit or change my certification of that land survey result.
But I am no lawyer, so maybe I am missing something here.
Tom
I Am No Lawyer Either
But the thing that I keep thinking about is this:
They want their names to appear on that survey. They make a big deal about it all the time.
Obviously there is some value for them to have the names placed there.
If it didn't matter, why would every closing have a laundry list of participants who want to have their names placed upon that survey?
Of course "protect the public"........but keep in mind that generally you don't perform land surveying services for "the public"......you perform them for "a client".
The only surveys that I do that have certifications to specific entities are ALTA surveys. Every other one is unrestricted , "I hereby certify that....."
I really don't see the difference, although I understand Angelo's statement I agree with Gene...
Don
I thought I'd heard that if someone thinks they have a claim against you, having their name on a certification saves them the step of proving they had reason to rely on your work. That may be a big or small point, I don't know.
I Am No Lawyer Either
> But the thing that I keep thinking about is this:
>
> They want their names to appear on that survey. They make a big deal about it all the time.
> Obviously there is some value for them to have the names placed there.
>
> If it didn't matter, why would every closing have a laundry list of participants who want to have their names placed upon that survey?
>
The reason they want their name on the certification is because of a thing called "privity of contract." A party who can claim "privity" has a direct link to the surveyor in case anything goes afoul. By having privity, the surveyor has a duty to that party to perform the service. If there is a breach of duty and damages are caused by that breach, the surveyor can be held liable to the party who was ultimately damaged. Typically, that is one party and the surveyor is liable to that one party, no matter how many parties are named.
If the title company gets caught up in a lawsuit over a title issue that should have been disclosed by the survey, then the surveyor is liable to the title company. If the lender relies upon the survey and is somehow damaged by a boundary discrepancy they've inherited that wasn't disclosed, then the surveyor is liable to the lender. It's pretty simple, really.
When the surveyor does a boundary surveyor for a landowner, the surveyor's liability extends to whomever relied upon the surveyor's work and was directly damaged from a failure of that work. That could be owners, title companies, lenders, contractors, neighbors, etc. An ALTA, in my opinion, carries less liability than a "normal boundary survey" which usually fails to limit the surveyor's liability to certain named parties.
There are many ways surveyors can limit their liability for their survey work. Adding "successors and assigns" to the lender doesn't add any liability. It does, however, make certain that the lender can rely upon the product if they choose to sell their mortgage to another lender. That's good business for them and the surveyor.
JBS
A collateral issue or three
The problems start with one's vocabulary!
1. Quit using the term “update”! If you insist on using a term of that nature, use something similar to “Reestablishment of liability exposure!”
2. How does “Time and Material” relate to liability exposure and the plaintiff's award?
3. Your survey has VALUE! And, often its value has little to do with the hours it took you to prepare the document(s).
4. The value mentioned above may be much more than the value at the time of the initial transaction!
daw
