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ALTA question of the day
Posted by Ron Lang on August 30, 2016 at 11:44 pmAbout 4 mos. ago I did a Design Alta on a outparcel for a national chain restaurant. Since then I have been hired to perform a design alta on the adjacent parcel. The title report on the 2nd alta reveals a few easements that affect the 1st alta which the title of the first alta did not mention.
Should I, with this new information, update the previous adjacent parcel alta to include the new found easements or should I leave it alone.
The title company on the first alta should have taken exception to these easements buy they did not catch them. What to do, what to do?
thebionicman replied 8 years ago 22 Members · 66 Replies -
66 Replies
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I agree with Holy Cow
For your own purpose, create a new drawing of the adjacent property with a new layer showing the easements that were not discovered by the Title Company or disclosed by signage by the utility or user.
😎
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Ron Lang, post: 388744, member: 6445 wrote: About 4 mos. ago I did a Design Alta on a outparcel for a national chain restaurant. Since then I have been hired to perform a design alta on the adjacent parcel. The title report on the 2nd alta reveals a few easements that affect the 1st alta which the title of the first alta did not mention.
Should I, with this new information, update the previous adjacent parcel alta to include the new found easements or should I leave it alone.
The title company on the first alta should have taken exception to these easements buy they did not catch them. What to do, what to do?
I would forward the easement documents to my former client. Let them know your fee to do a new map if they choose. You did your job on the old ALTA.
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CT code says to call it an ‘apparent encroachment’…so that’s what I do.
Sec. 20-300b-2. Property/Boundary and Limited Property/ Boundary
Surveys(a) Property/Boundary and Limited Property/Boundary Surveys require sufficient investigation, study, field measurement and evaluation of factors affecting boundaries, real property interests and other relevant matters with respect to the subject real estate to enable the surveyor to render a professional opinion as to boundary locations and any conflicts therewith.
These surveys require the preparation of a detailed field survey and are intended to present the surveyor’s property/boundary opinion. It is
recognized that certain factors pertaining to boundary line determination are beyond the surveyor’s purview and may require agreements between abutting property owners or action by the courts.
Facts surrounding such circumstances shall be noted.
(b) Types of Property/Boundary Surveys
(1) Property Survey A Property Survey is a type of survey intended to depict and/or note the position of boundaries with respect to:
(A) locations of all boundary monumentation found or set;
(B) apparent improvements and features, including as a minimum:
dwellings, barns, garages, sheds, driveways, roadways, surface utilities, visible bodies of water and swimming pools;
(C) record easements and visible evidence of the use thereof;
(D) record and apparent means of ingress and egress;
(E) lines of occupation, including as a minimum: fences, walls, hedges
and yards;
(F) deed restrictions pertaining to the location of buildings or other
apparent improvements;
(G) unresolved conflicts with record deed descriptions and maps;
(H) all apparent boundary encroachments; and
(I) monumentation required to be set at all corners created by a
deflection angle of not less than 70 degrees between two consecutive
courses and at intervals not to exceed 600 feet along the boundaries
between said corners, except where natural or man-made monumentation.
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Holy Cow, post: 388746, member: 50 wrote: It’s not your problem to solve.
Isn’t he responsible for making the first client aware of the problem?
It’s a problem for the OP when the first client sues everybody that touched it. Forwarding the information in a registered letter would look better in court than compounding the problem by hiding it until something else causes it to hit the fan.
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Bill93, post: 388758, member: 87 wrote: Isn’t he responsible for making the first client aware of the problem?
Actually, no. The ALTA/NSPS specification contemplates that a title insurer will identify all such easements of record. The surveyor is responsible for attempting to locate or plot them, and reporting any uses that would suggest some right of use. Beyond that, this is why title companies collect the premiums that they do.
It would be an ethical practice, however, to let the parties know that there *may* be other easements of record that the title insurer failed to report. If there is a loss to be covered, this is presumably when it is the least, not later.
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Liability wise, I believe that if the easements were recorded at the time that you performed the original survey that you were responsible to put them on your survey. I have found documents countless times that were not in the Title Package. The Title Company may share liability for not finding the document; however, they in no way accept any of your liability. In fact if they have a claim, they may look to you to help them with the settlement. They are not our friends. IMHO, the sooner you bring this to your client’s attention. The better it may go for you. Especially as you have now stated on a public forum that you have information that could be harmful if not revealed. However, I encourage you to discuss this situation with your Professional Liability carrier, as he has a definite interest and much more experience than us. You may also discuss this with your attorney. I would not give out any more details on this forum.
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I always do my own title search seeking out such things. Many times I have notified my client and the title company involved of their oversight. Part of the problem is that title companies don’t search back to when the Earth was still cooling like I do. Another rare situation is when an easement is created, say for ingress/egress, that then is conveniently left off of later conveyances of the servient tract but is still mentioned on the conveyances of the dominant tract. I dug out one of those for a client, but only because he insisted that he “had heard” that an easement existed but no one could seem to find it. It had been created in the 1870’s when his parcel was first cut out of the parent tract.
That said, I still don’t believe it is your problem. However, you might be able to negotiate a nice fee to do an update. What would worry me, though, is how many other problems might still be out there that weren’t of importance to the current client so were left off of the new report you have. If you are going to play the hero role, you need to have done your own research to confirm that this new information is all that was overlooked by the first title searcher. If you aren’t skilled at that you need to pay for your own title search but work with those doing the work to make sure they are digging to the bottom of the barrel.
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Bill93, post: 388758, member: 87 wrote: Isn’t he responsible for making the first client aware of the problem?
It’s a problem for the OP when the first client sues everybody that touched it. Forwarding the information in a registered letter would look better in court than compounding the problem by hiding it until something else causes it to hit the fan.
“Isn’t he responsible for making the first client aware of the problem?”
After completion of the first project? How long is he required to be a watchdog for completed work?
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Jim in AZ, post: 388808, member: 249 wrote: “Isn’t he responsible for making the first client aware of the problem?”
After completion of the first project? How long is he required to be a watchdog for completed work?
I would think that in this case, since he has new information due to new work, he should notify the old client. Maybe not legally required, but I would think ethically. It’s not like he was bored and looking for info (watchdogging), he was made aware of something and should pass it along.
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Jim in AZ, post: 388808, member: 249 wrote: How long is he required to be a watchdog for completed work?
I didn’t say whether he needed to dig for information, although some others say he should.
I said that he should reveal a relevant problem that has come to his attention by whatever means.
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The ALTA standards address responsibility for research. The Surveyor is required to show easements provided to him and evidence of any found during the field survey. None of the States i work in have a Statute that conflicts with that and I certainly wouldn’t sign a contract that did.
You have the chance to get paid for fixing somebody else’s mistake. JUMP ON IT! -
do the right thing.
inform your past client that you have new information, then move on.prelims are a moving target, they change as the “due diligence period” runs… the ALTA is just a piece of that puzzle.
this is all about Insurance, and you helping the Insurance Company limit their risk. -
I seem to have missed where ALTA (the title company) is going to actively defend me if I simply show the easements in the Title Commitment. Is there a Limit of Liability clause that I have missed? I like ALTA surveys as I have another set of eyes performing research. It reduces but does not do away with our liability. If the Standard of Care for research would have produced the easements, we will be found negligent. As Professionals, our responsibility to the Client that hired us for our expertise should extend beyond receiving the check. If the easements impact the ability of the Client to use the property for the purpose for which he bought it, he will make a claim with the Title Company and the Title Company will have you join the party. Your P&L company could take the position that you voided the terms of your policy by withholding the information. That is a worst case scenario. If actual construction has not taken place and the easement does not affect the development, the Client would most likely be pleased to receive a revised survey showing the new easements. I have been in similar situations and have been lucky to have a understanding Client. I wish the same for you.
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Ron Lang, post: 388744, member: 6445 wrote: About 4 mos. ago I did a Design Alta on a outparcel for a national chain restaurant. Since then I have been hired to perform a design alta on the adjacent parcel. The title report on the 2nd alta reveals a few easements that affect the 1st alta which the title of the first alta did not mention.
Should I, with this new information, update the previous adjacent parcel alta to include the new found easements or should I leave it alone.
The title company on the first alta should have taken exception to these easements buy they did not catch them. What to do, what to do?
“Should I, with this new information, update the previous adjacent parcel alta to include the new found easements or should I leave it alone.”
If you were going to amend your first map, you would have to do so with the approval of the Title Co. that issued the first report, would you not? The Survey and the Report are integral parts of each other and must therefor be consistent with each other. Have you discussed this matter with the Title Co.? Remember that they are under no obligation to show all the easements affecting the property – only those they wish to. The ones they list in Schedule B are those they decide to EXCLUDE from coverage anyway. Surveyors tend to think the exact opposite…
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Bill93, post: 388813, member: 87 wrote: I didn’t say whether he needed to dig for information, although some others say he should.
I said that he should reveal a relevant problem that has come to his attention by whatever means.
How long is he required to be a watchdog for completed work?
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Imbris,
The ALTA specs spell out the responsibility for research. Additional research can be negotiated under Table A. Absent a written law or rule that language sets the terms. The ‘Standard of Care’ in our Profession varies widely by geography, but I’ve never seen it elevate requirements in the face of things as explicit as the ALTA standards. -
thebionicman, post: 388847, member: 8136 wrote: Imbris,
The ‘Standard of Care’ in our Profession varies widely by geography, but I’ve never seen it elevate requirements in the face of things as explicit as the ALTA standards.So am I to understand that there are geographic regions where the Standard of Care is that a surveyor is not responsible for research? My understanding was that this was a basic and not an elevated requirement. The Title Company is not our Client. We are providing the survey to our Client. I had a Title attorney demand that I remove a railroad right of way from a plat, because they had a 2 million dollar budget to defend it. Flames were coming out of the phone when I demanded a signed hold harmless and defense agreement. Our duty is to the Client and not the title company.
This is what ALTA says:
4. Records Research – It is recognized that for the performance of an ALTA/NSPS Land Title Survey, the surveyor will be provided with appropriate and, when possible, legible data which can be relied upon in the preparation of the survey. The request for an ALTA/NSPS Land Title Survey shall set forth the current record description of the property to be surveyed or, in the case of an original survey prepared for purposes of locating and describing real property that has not been previously separately described in documents conveying an interest in the real property, the current record description of the parent parcel that contains the property to be surveyed.
In order to complete an ALTA/NSPS Land Title Survey, the surveyor must be provided with complete copies of the most recent title commitment or, if a title commitment is not available, other title evidence satisfactory to the title insurer. In addition, the surveyor must be provided with the following:
(i) The following records established under state statutes for the purpose of imparting constructive notice of matters relating to real property (public records):
(a) The current record descriptions of any adjoiners to the property to be surveyed, except where such adjoiners are lots in platted, recorded subdivisions;
(b) Any recorded easements benefitting the property;
(c) Any recorded easements, servitudes, or covenants burdening the property;
(ii) Any unrecorded documents affecting the property being surveyed and containing information to which the survey shall make reference, if desired by the client.Except, however, if the documents outlined above in (i) and (ii) of this section are not provided to the surveyor or if non-public or quasi-public documents are required to complete the survey, the surveyor shall be required to conduct only that research which is required pursuant to the statutory or administrative requirements of the jurisdiction where the property being surveyed is located and that research (if any) which is negotiated and outlined in the terms of the contract between the surveyor and the client.
Are there States that relieve the Surveyor from any documents that were not in the title package?
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Ron,
My first stop would be with the current title company. They are different companies right? Perhaps there is a document or two that they don’t show that terminates the easements that appeared in the adjacent property report. Let them know about your concern and see how they react. That would be a good topic for us altogether.
Secondly, if there is a disagreement or missing information on one or the other reports I feel that you need to alert your clients of this issue as soon as possible. Notice that I said clients. I am licensed by the state to work in the best interest of the public. It seems that disclosure is in the best interest of the public in this case.
Don’t change the previous survey/map unless you are directed to by the client and have an updated title report that shows new information. -
lmbrls, post: 388862, member: 6823 wrote: So am I to understand that there are geographic regions where the Standard of Care is that a surveyor is not responsible for research? My understanding was that this was a basic and not an elevated requirement. The Title Company is not our Client. We are providing the survey to our Client. I had a Title attorney demand that I remove a railroad right of way from a plat, because they had a 2 million dollar budget to defend it. Flames were coming out of the phone when I demanded a signed hold harmless and defense agreement. Our duty is to the Client and not the title company.
This is what ALTA says:
4. Records Research – It is recognized that for the performance of an ALTA/NSPS Land Title Survey, the surveyor will be provided with appropriate and, when possible, legible data which can be relied upon in the preparation of the survey. The request for an ALTA/NSPS Land Title Survey shall set forth the current record description of the property to be surveyed or, in the case of an original survey prepared for purposes of locating and describing real property that has not been previously separately described in documents conveying an interest in the real property, the current record description of the parent parcel that contains the property to be surveyed.
In order to complete an ALTA/NSPS Land Title Survey, the surveyor must be provided with complete copies of the most recent title commitment or, if a title commitment is not available, other title evidence satisfactory to the title insurer. In addition, the surveyor must be provided with the following:
(i) The following records established under state statutes for the purpose of imparting constructive notice of matters relating to real property (public records):
(a) The current record descriptions of any adjoiners to the property to be surveyed, except where such adjoiners are lots in platted, recorded subdivisions;
(b) Any recorded easements benefitting the property;
(c) Any recorded easements, servitudes, or covenants burdening the property;
(ii) Any unrecorded documents affecting the property being surveyed and containing information to which the survey shall make reference, if desired by the client.Except, however, if the documents outlined above in (i) and (ii) of this section are not provided to the surveyor or if non-public or quasi-public documents are required to complete the survey, the surveyor shall be required to conduct only that research which is required pursuant to the statutory or administrative requirements of the jurisdiction where the property being surveyed is located and that research (if any) which is negotiated and outlined in the terms of the contract between the surveyor and the client.
Are there States that relieve the Surveyor from any documents that were not in the title package?
The question isn’t does the State relieve us, it is does the State require it. The standard specifically says ‘unless required by Statute or administrative rule’. That is a big difference.
If easement research is not required by law or contract you will be hard pressed to demand it. I do perform research on my own, but I will never accept responsibility for things beyond the law and my scope. I know lawyers can make cases out of crap and judges do wierd stuff. I simply don’t live life worrying about it….
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