Certify to Abstract Company?

Let me clarify, the abstract company is the agent for the title insurance company and they want in certified to them as well as the title insurance underwriter.

Tom

Seems reasonable to me. I bet others will think I'm nuts.

What I wonder is why? My guess is that they are keeping them for future searches. It's VERY common practice in NY for title companies to use old surveys and not get new surveys when a property is sold, they don't care about certifications or even if it is a complete map.

If we certify it to them, are we giving them a certification to use this map for whatever future needs they have including future property transactions?

Tom

Tom,
No. From what I understand their name is included for the same reason the Client and Bank. Not for the use in further transaction. Sorta like a CYA. Complicated at times. maybe someone else can chime in and explain better than me.

On an ALTA I have no problem putting the names of everyone I know that will view the document for the closing process.

On a regular title survey I do not include any names nor any more than the State BOR requires. "Surveyed on the ground by: signature and date with contact info"

When client insists upon extra, I charge extra.
😉

i don't have a problem with it.

the way my attorney explained it to me, anyone that could reasonably be assumed to rely on your survey may have a claim of damage against you if you screw the pooch.

> i don't have a problem with it.
>
> the way my attorney explained it to me, anyone that could reasonably be assumed to rely on your survey may have a claim of damage against you if you screw the pooch.

Well snoop, since I might someday buy that home do you want to add my name to your cert now in case I move down there, how about adding the sellers/buyers attorney to your cert, after all he reviewed your work and gave a recomendation to his client. Hell, the neighbor just might have to be addded on your cert by your logic. After all he could reasonable be assumed to use your work.

Please please just say no. For the goodness of our industry if nothing else.

The reason they want you to certify to them is to show privity of contract which allows them to skip some of the court process and get right after you. Your attorney is correct, anyone who relies on your work has a claim aganst you but will have to jump through more hoops and costs to sue you.

In NY if you sign and certify that your survey is prepared in accordance with the code of practice for land surveys as adopted by NYSAPLS the certification must be limited to the persons for who the survey was prepared for, the Title company (not local abstractor), lending institution and or governmental body so stated.
(seventh revision, July 18, 1997 page 2 sec. B4)
Jim Vianna

> Please please just say no. For the goodness of our industry if nothing else.

> The reason they want you to certify to them is to show privity of contract which allows them to skip some of the court process and get right after you. Your attorney is correct, anyone who relies on your work has a claim aganst you but will have to jump through more hoops and costs to sue you.

I must disagree....this is a bit of hyperbole. Adding the name of an abstract company to a title survey will not be the death of the land surveying profession.
(I thought that was "light-squared"....)
In the real world, when it comes to a negligence lawsuit, those "hoops and costs" will be minor inconveniences to any plaintiffs or attorneys that have true cause to take you to court.

Secondly, in 80% to 90% of the title survey orders I have received over the years have come directly from abstract companies. In many cases, they do a preliminary inspection to see if a survey is warranted, they provide the title report and abstract, and at the end, the check I receive usually comes from their bank account.
A very good case could be made for stating that the survey is prepared for them, as well as the lender, borrower and title company. I doubt that a surveyor would get many future survey orders from an abstract company whose requests to be certified have been rejected.

As for the NYSAPLS Code of Practice:

> In NY if you sign and certify that your survey is prepared in accordance with the code of practice for land surveys as adopted by NYSAPLS the certification must be limited to the persons for who the survey was prepared for, the Title company (not local abstractor), lending institution and or governmental body so stated.
> (seventh revision, July 18, 1997 page 2 sec. B4)

The Code addresses this issue in two places. Section A-4 states:

The sole purpose of certifying a survey to a title company or lending institution is to confirm the opinion of the Surveyor to his client and to the title company or lending institution for a specific transaction. It is not intended to extend this obligation beyond such transaction, or to additional title companies, lending institutions owners or subsequent owners.

This much debated passage was intended to prevent FUTURE use of the survey by parties in subsequent transactions, not the transaction at hand. I recently had a survey where three title companies and three banks were party to the transaction (yeah, big bucks on that mortgage). Should I have refused to certify based on the passage above? I think not.

Section B, titled "Standard notes" provides the wording for various notes to be placed on a title survey map, and Note 4 is:

4. Certifications on this boundary survey map signify that the map was prepared in accordance with the current existing Code of Practice for Land Surveys adopted by the New York State Association of Professional Land Surveyors, Inc. The certification is limited to persons for whom the boundary survey map is prepared, to the title company, to the governmental agency, and to the lending institution listed on this boundary survey map.

There is no prohibition in either of these with regard to certifying to an abstract company, or multiple lenders/title companies, etc., nor does the phrase "must be limited to" appear in either passage. I doubt that anyone sees it as a prohibition against certificatuion to additional parties.....indeed, the option must lie with the surveyor and his contractual obligations to the client.

Once again, we must keep in mind that our profession is run as a business, and sometimes keeping our business running profitably will do more for the profession than stiff-arming an abstract company.

> I must disagree....this is a bit of hyperbole. Adding the name of an abstract company to a title survey will not be the death of the land surveying profession.

of course not, but where does it stop, should we add attornies and other third party non-paying entities?

> In the real world, when it comes to a negligence lawsuit, those "hoops and costs" will be minor inconveniences to any plaintiffs or attorneys that have true cause to take you to court.

possibly but one never knows, why make it easier for them?

> There is no prohibition in either of these with regard to certifying to an abstract company, or multiple lenders/title companies, etc., nor does the phrase "must be limited to" appear in either passage. I doubt that anyone sees it as a prohibition against certificatuion to additional parties.....indeed, the option must lie with the surveyor and his contractual obligations to the client.

I do, it clearly states that if you are certifying the survey to the code of practice it is only for your client, lending institution, gov body and title company, no where does it say abstractor/attorney/third party. If you want to add any other entity you can't certify it using the "code of practice" you will need a different certification, same situation as an ALTA survey, you only use their certification. If you are asked and agree to add other statements etc. it is not an ALTA

Jim Vianna

ALTA requirements

7. Certification - The plat or map of an ALTA/ACSM Land Title Survey shall bear only the following certification, unaltered, except as may be required pursuant to Section 3.B. above:

To (name of insured, if known), (name of lender, if known), (name of insurer, if known), (names of others as negotiated with the client):

This is to certify that this map or plat and the survey on which it is based were made in accordance with the 2011 Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys, jointly established and adopted by ALTA and NSPS, and includes Items of Table A thereof. The field work was completed on ___________.

Date of Plat or Map:_____ (Surveyor’s signature, printed name and seal with Registration/License Number)
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

I don't see the big deal with certifying to an abstract company. What is their exposure and how much liability can you assume for them? If the title insurance company get sued NOTHING is going to prevent them from reaching you. The abstract company is probably not going to be a party of either side of the suit.

> of course not, but where does it stop, should we add attornies and other third party non-paying entities?

My reply was in relation to abstract companies only. As a matter of policy, I never certify to the attorneys or other non-invested third parties. My concession to the abstract company, as I stated, was a practical one. In a perfect world, I'd rather certify to the buyer ONLY, but we all know that's not going to happen.

> possibly but one never knows, why make it easier for them?

Again, my point is this: Percentage-wise, how often does a survey error escalate to the point where it becomes a lawsuit? At that point, the attorneys are spending money, the bank is spending money, maybe even the buyer is spending money.....filing the necessary motions to get soemone else included in the lawsuit is peanuts if things have deteriorated that far.

> If you want to add any other entity you can't certify it using the "code of practice" you will need a different certification.....

I that that is a mis-interpretation of the intent of the Code. The intent is for additional certifications not to be tacked on after the current transaction. As I stated in my example, I had a survey with three title companies and three banks. Under ysuch an interpretation, I couldn't certify that survey under the Code of Practice because there were "additional title companies, [and] lending institutions...." Clearly that is not the intent of the phrase. One of the main concerns of the State Association over the years was surveys being turned over with names being added on infinitum in subsequent transactions.

> As I stated in my example, I had a survey with three title companies and three banks. Under ysuch an interpretation, I couldn't certify that survey under the Code of Practice because there were "additional title companies, [and] lending institutions...." Clearly that is not the intent of the phrase. One of the main concerns of the State Association over the years was surveys being turned over with names being added on infinitum in subsequent transactions.

Cowboy,
I follow what you are saying and in the case you mention it is okay (at least in my perspective) because those entities you mention all were a part of the transaction you were surveying for and specifically mentioned as certifible to under the code and not future lenders/title companies.

As you know what typically happens is non-contractual parties try to get added to our certifications without a fee, usually using the ploy "other surveyors have" to twist our arm.

If we can stick to just our client, client's lender, clients title company and gov agency as stated to in the code we could all make more money and reduce our exposure.

For those that don't: If you want to add other parties please charge for it as you are taking on additionally liability.

Jim Vianna

Jim,

I have to disagree with the statement that by including an abstract company increases your liability.

Anyone that relies on the survey can claim damages if there is negligence, errors, etc. You can not reduce your liability.....

If the abstract company somehow incurs expenses due to the surveyors negligence then the abstract company will pursue relief, whether they are in the certification or not.

> Jim,
>
> I have to disagree with the statement that by including an abstract company increases your liability.
>
> Anyone that relies on the survey can claim damages if there is negligence, errors, etc. You can not reduce your liability.....
>
> If the abstract company somehow incurs expenses due to the surveyors negligence then the abstract company will pursue relief, whether they are in the certification or not.

Sorry Don, Jim has it right. If adding extra names carried no extra liability, there would be no reason to add those names.

The Alta Standards recognize this fact when they specifically state that certifying to extra parties must be negotiated with the surveyor. Why negotiate something that carries no additional liability? There is no reason if that were the case. This item is to be negotiated so we can charge for the additional liability.

Larry P

PS: Jim, tell Laurie and the kids I said hello.

No arguement about the liability part.

My post clearly explains why I think they have the right to ask to have their name on the survey. They are involved and they have a stake in the accuracy of my survey.

It's an additional liability I can deal with.

The distinction that some above are missing is between liability for professional negligence as opposed to liability for contractual matters.

Anyone that has suffered damage proximately caused by the surveyors professional negligence can sue said surveyor. Statute of limitations in NY is 3 years from date of survey.

On the other hand, contractual matters have a 6 year statute of limitations and one must establish privity of contract in order to sue. Parties named in certifications are extended privity of contract. Codes such as ALTA/ACSM or NYSAPLS are the terms of the contract when so certified to.

Example:
I list the adjoiner deed reference incorrectly by merely a typing error and I don't find it during my map checking procedure. This in no way affects the use of the map for my initial clients intended purpose, it does them no harm, and does not rise to the level of professional negligence. It is a clear breach of the contract clause stating the adjoining deed references will be shown and the abstract company uses my map 5 years down the road for initial starting reference for a search. My transcription error causes them a few hours of work to straighten out. The abstract company now sues for $500 in small claims court.