Yes, it is subject to the statute of limitations for contract actions unless the certifications extend the period. In NY that would be 6 years (for all contracts, not just survey work), but our statute for professional negligence is either 2 or 3 years (can't recall which).
For example, let's say a recorded easement is missed and is found 5 years after the survey and will get in the way of development plans for the owner who is the third owner since the survey was performed. The original survey was an as-built of an old folks home for a refinancing or something. It goes out of business, burns to the ground, and this current owner buys it for other development purposes.
In most areas this would fall under professional negligence if a reasonable search would have turned it up, because a reasonable search is standard practice. But, the statute has run out on that action, so no civil liability. The owner might file a complaint with office of professional discipline and there might be a reprimand or fine or something of that nature. But no damages due the current owner from a civil malpractice claim.
The contract action statute has not run out. Whatever the contract language is, it's pretty much a moot point because one can't contract to lower than the minimum standard of care (in most situations), which we have established this falls under. So, under the contract, the surveyor would be liable for damages in a civil action for breach of contract, but only to those they have a contractual duty to. Let's say (to get a little sympathy going for the surveyor maybe) the title report was provided and the surveyor did not perform their normal reasonable search because they thought the contract language was covered when it said they need only show recorded easements shown in the title report (typical ALTA language). If the certification is to "successors and assigns" of the buyer or seller, then this current owner will be able to bring suit. This is true even though the contract at the time did not contemplate this future owner and their development plans. In fact, if the surveyor had been dealing with this owner and knew of the development plans, the surveyor would have made sure to perform more research.
I'm not sure this is the best example, but the point is that contracting with "successors and assigns" of owners is dangerous. The surveyor does not and can not know what uses these subsequent owners may want to put the property to. It could also be something like a missed couple of parking spaces. Maybe the lines were faded, or they were hidden under a snowbank or something. The new owner has to add another handicap space and it costs a couple thousand for remarking, but it's only needed because the new owner is putting the property to a differing use where that requirement comes into play. Or the new owner can't find the monuments and will not pay for a field visit so sues claiming they were never set per the contract. The surveyor now has to recover and replace for free or spend time in court arguing with printouts or pictures that they did comply with the contract.
Successors and assigns are required for lenders because of the mortgage market. However, certifying to other unknown parties in unknown subsequent situations is actually a deterent to those parties seeking the updates for their particular purposes that they should be looking for. Instead, they rely on the old work (they have a contract for it after all) for purposes that they really should not. I argue it is detrimental to the public welfare to even offer to certify to successors and assigns of owners or their attorneys. It only can lead to false assumptions and misplaced reliance on outdated documents prepared for differing needs than the present ones.
Well said.
In our state we have peremptive prescription, which takes us as surveyors and engineers out of the picture in 5 years. It is not related to the prescription issue of one year here in Louisiana. When we finish a project, after 5 years we are protected under our peremption statute.
What you say is all true, Tommy. where it makes a difference is sometime down the road, some party you've never heard of suffers some damage in connection with a project on the property. It may be a developer contracting with the actual landowner 3 or 4 conveyances after your client, and the problem may have nothing whatsoever to do with the survey. But standard shyster procedure is to look for anyone who remotely had anything to do with the project and name them as defendants.
In a case like that, the addition of "successors and assigns" can be read similarly as "Sue me too! Out me on the list! See, I even asked you as Successor and your lender as Assign to not leave me out of the fun."
As Larry pointed out, you've removed the step of them having to prove that you owe a duty to them. You may or you may not. If you actually owe the duty (i.e. as expressed in Bell v. Jones), the court will figure that out. If there is significant separation between your work and the plaintiff, then they have some work to do which may not pay off unless you've certified to them as part of a class of people. If they have any doubt about being able to prove the duty owed, the additional step of proving a that duty may be just enough for them to leave you off that party invite list.