Okie Mike, post: 453835, member: 11404 wrote: I have been asked by a title insurance company to certify that a boundary survey I completed is "wholly within the land described in warranty deed recorded in bk.....". I did not do an ALTA on this property, only a boundary survey. Usually I would have no problem with making this statement, but this survey took some interpretation on my part. The original legal description was vague. North 5280, west 660, etc..No calls for adjoiners, corners, lines, or other properties.
I feel confident in my survey, but I am not sure I should certify to their request. What should I tell the title company? This is a company I deal with often. I cannot say "go pound sand." I am looking to reply professionally.
Thanks
I would preface their language with "It is my professional opinion that..."
I'm with Spledus, if they wanted an ALTA and certification, then it should've been discussed at the beginning of the job. Don't come to me afterward, asking for something else. Not saying that the survey quality would be any different. But some of what you're paying for in the ALTA is the certification. The boundary survey itself should suffice.
Okie Mike, post: 453835, member: 11404 wrote: I have been asked by a title insurance company to certify that a boundary survey I completed is "wholly within the land described in warranty deed recorded in bk.....". I did not do an ALTA on this property, only a boundary survey. Usually I would have no problem with making this statement, but this survey took some interpretation on my part. The original legal description was vague. North 5280, west 660, etc..No calls for adjoiners, corners, lines, or other properties.
I feel confident in my survey, but I am not sure I should certify to their request. What should I tell the title company? This is a company I deal with often. I cannot say "go pound sand." I am looking to reply professionally.
Thanks
Seeing that a boundary survey is just a professional opinion of the location of the boundary, you can certify that it is your professional opinion. I also agree with the previous post that the deed description is only one piece of evidence used to form an opinion of the location of the boundary. Often times extrinsic evidence is needed.
Tom Adams, post: 453904, member: 7285 wrote: Your survey plat depicts your interpretation of the deed. Tell them that your survey plat and your monuments shows your determination of the location of the boundary, and you certified the plat when you signed and stamped it.
Those are my first thoughts. Do they want that statement on your survey plat?
yes
Dave Karoly, post: 453866, member: 94 wrote: I would not make such a certification because the primary purpose of the Deed description is to identify the property. It does not not have to describe the boundaries at all or precisely so. The Deed is the only evidence of title but not the only evidence of location (generally with exceptions); this is another way of saying "what boundaries are is a matter of law, where boundaries are is a matter of fact." A Survey of a Deed should substantially conform to the Deed description but extrinsic evidence may influence the precise location. An interpretation of the Deed language should be that to which the Deed language is reasonably susceptible.
Since the Deed is only part of the evidence evaluated (although the most important piece) I would not certify that the survey is in perfect compliance with the Deed just as I would not certify the same to an old survey of the Deed. Of course a proper survey of a Deed is in law the same although not perfectly in compliance, just the same it could be misleading because the description was not precisely followed.
Dave, I hope you don't mind but I am going to use some of your reply in my answer to the Title co.
Okie Mike, post: 454174, member: 11404 wrote: Dave, I hope you don't mind but I am going to use some of your reply in my answer to the Title co.
The answer from Dave is exactly why they are asking the question. The property lies within the described area or it doesn't. It's a perfectly reasonable question that should have been answered during the survey. If the boundary shows lands beyond those described in the deed there should be clear notes or a narrative explaining why.
My reply would be that I already certified the correct answer to that question on my map.
"... to my best knowledge and belief."
Essentially title people will try and shift responsibility to you if they can. This is done to surveyors across our industry, from the oil and gas operators to the title industry.
It is exactly why the processes laid out in the ALTA format exist. From the surveyor's perspective, to make sure reasonable expectations are placed on the surveyor. You aren't the insurer, he doesn't want to pay off on issues but he is taking money for just that purpose.
If the survey has ambiguities with the deed or location on the ground, then there are some issues a surveyor can't solve. Landowners have authority to do that, surveyors don't. Not that we can't help, give suggestions for remedies and offer up our expertise and services to help correct problems.
But we don't issue insurance.
Hold your ground on this.
Here's an abbreviated sketch of a tract for which I was asked to certify fell "entirely" within the E/2 of the SW/4. I had to decline.
(see attached pdf)
The resolution of this was really fairly simple and the conditions were unique, but here's a little history:
The entire SW/4 was owned by a man and wife. The fenced area was a small home site that was willed to a daughter at the time of the husband's death. In the will the property was described as "commencing at the 80 acre mark on Redbud Lane; then north 208 feet 9 inches; east 208 feet 9 inches; then south 208 feet 9 inches; then west 208 feet 9 inches". It was determined the fence was built at some time by a lessee after the original owner's death, but not after the death of his wife.
Key to attempting to locate this boundary was the fact at the time of the preparation of the will the decedent owned the entire SW/4. While the will was recorded with the county, his estate was never actually probated. This was probably due to the fact Oklahoma is a joint tenancy state. When the wife eventually passed away and the estate was probated her will divided the SW/4 between two sons; described as "the east half of...and the west half of...SW/4". No mention was made in the probate of the 1 acre tract. The daughter continued to occupied the house until her death. Both brothers apparently acknowledged their sister's estate "owned" the 1 acre tract and had assumed it was within the boundary of the East Half of the SW/4.
The property was leased for agricultural for a few years at which time the brother owning the "East Half of the SW/4" wanted to sub-divide his portion. I was asked to prepare a plat for this development. Since the 1 acre house site had never been conveyed by any other means other than being "willed", it did not initially show up in record research by me nor the title company.
The heirs of the deceased daughter proceeded with a quiet title suit and were successful. All they were successful in gaining clear title to was the original description in the old man's original will. The two brothers differed in their sentiment about the one brother "selling out" his half. At this time the brother owning the "west half" became hostile.
After the quiet title I was asked to update the survey and certify the 1 acre tract fell entirely within the E/2 of the SW/4. Even though everybody involved "wanted" it to be there and "thought" it was so, I had to explain that due to evidence in the field the "existing boundary" of the tract appeared to occupy a small portion of the "West Half". The title company thought a good fix would be for me to "certify" the boundary fell entirely within the "East Half". I could not.
I will admit it was a coin-toss. I probably could have set corners in the field and written an eloquent metes & bounds that kept the tract in the east half of the quarter and everything would have moved on smoothly. But to do that I would have had to ignore the only boundary evidence that existed; the fence.
It was actually a fairly simple resolve. Both brothers and the sister's estate swapped quit-claim deeds of the "original" description. I did prepare a M&B and set corners to keep the 1 acre within the E/2. And then everybody swapped quit-claim deeds for the "new" description. I think all in all there were sixteen quit claim deeds filed by all the parties involved.
Since then when I see a note stating "NOT INCLUDED IN THIS PLAT" for an out-tract, I have to wonder what all had to happen to make it so.
Okie Mike, post: 453835, member: 11404 wrote: I have been asked by a title insurance company to certify that a boundary survey I completed is "wholly within the land described in warranty deed recorded in bk.....". I did not do an ALTA on this property, only a boundary survey. Usually I would have no problem with making this statement, but this survey took some interpretation on my part. The original legal description was vague. North 5280, west 660, etc..No calls for adjoiners, corners, lines, or other properties.
I feel confident in my survey, but I am not sure I should certify to their request. What should I tell the title company? This is a company I deal with often. I cannot say "go pound sand." I am looking to reply professionally.
Thanks
Couple of thoughts.
One, you are working to a certain level of evidence in your jurisdiction. You shouldn't certify to more than that unless contracted to do that. So, the statement needs qualification language. For instance: "it is my professional opinion based on the preponderance of evidence collected....". BTW, how many know what the standard of evidence is in their jurisdiction for a retracement survey? It's not necessarily "preponderance of evidence" which is a generic level associated with civil law cases, and repeated in textbooks as if it is the one and only.
Second, I don't like the language "...land described...". Usually, descriptions are not completely accurate, hence the need for a survey to begin with. I would rather see language such as "...land intended to be conveyed in warranty deed...". If you use "land described" and report north 5281 you may well be held to have gone outside and not "wholly within".
My contract spelled out the certification that was to be made and that additional certifications would be reviewed for suitability for an additional fee. My answer is "My plat makes the certification stated in our contract." . Usually when it begins to cost them money, the requirement goes away. You think the attorney is doing this out of their concern for the Client?
In Texas, your signature and crimped seal implies that you have done everything possible, no more is needed.
"Surveyed on the ground by:" is all the certification I put on every drawing and property description.
No one asks for an ALTA.
Boundary surveys are made for intelligent buyers, the mortgage and title companies for title insurance.
Duane Frymire, post: 454219, member: 110 wrote: Couple of thoughts.
One, you are working to a certain level of evidence in your jurisdiction. You shouldn't certify to more than that unless contracted to do that. So, the statement needs qualification language. For instance: "it is my professional opinion based on the preponderance of evidence collected....". BTW, how many know what the standard of evidence is in their jurisdiction for a retracement survey? It's not necessarily "preponderance of evidence" which is a generic level associated with civil law cases, and repeated in textbooks as if it is the one and only.
Second, I don't like the language "...land described...". Usually, descriptions are not completely accurate, hence the need for a survey to begin with. I would rather see language such as "...land intended to be conveyed in warranty deed...". If you use "land described" and report north 5281 you may well be held to have gone outside and not "wholly within".
Within the land described is an objective statement. Adding intent to the certification cannot make it 'more objective'...
thebionicman, post: 454228, member: 8136 wrote: Within the land described is an objective statement. Adding intent to the certification cannot make it 'more objective'...
Exactly, which is why I wouldn't use "land described".
Maybe a more concise way to put it:
On a boundary survey more than just the current vesting deed is considered as evidence of the boundary location. Therefore it is not possible to certify a survey of the boundaries of the current vesting deed is entirely within the description contained within that Deed. Presumably the purpose is to certify the survey exactly conforms to the Deed description without other relevant evidence being considered. I would be willing to state the survey is my professional opinion of the location of the boundaries of the land transferred by the Deed recorded in Book X, Pg. Y.
Dave Karoly, post: 454235, member: 94 wrote: Maybe a more concise way to put it:
On a boundary survey more than just the current vesting deed is considered as evidence of the boundary location. Therefore it is not possible to certify a survey of the boundaries of the current vesting deed is entirely within the description contained within that Deed. Presumably the purpose is to certify the survey exactly conforms to the Deed description without other relevant evidence being considered. I would be willing to state the survey is my professional opinion of the location of the boundaries of the land transferred by the Deed recorded in Book X, Pg. Y.
Yes, this strikes me as a tactic for the title insurance company to remove the survey exception, while retaining the survey exception. Gotta admire folks that are good at their job.
Here is how ALTA/NSPS puts it in their Land Title Survey standards:
"Boundary Resolution - The boundary lines and corners of any property being surveyed as part of an ALTA/NSPS Land Title Survey shall be established and/or retraced in accordance with appropriate boundary law principles governed by the set of facts and evidence found in the course of performing the research and fieldwork."
The description provided:
"The request for an ALTA/NSPS Land Title Survey shall set forth the current record description of the property to be surveyed..."