Private surveys conducted for a specific client for a specific reason, usually for due diligence purposes during a real estate contract period are being reused many years after the survey was prepared.
For some reason (usually under the idea of saving money) many years later, title companies and realtors are using old, out dated surveys to fulfill contract stipulations for new real estate transactions.
Apparently this practice is legal and customary.
Title insurance companies provide clear title and take exception (not providing coverage for) to survey related deficiencies under the blanket of using old surveys done for others that are outdated, but yet leave the survey exception within the title insurance policy.
Out of 100 title policies written, 95 have a survey exception (no protection)
Out of 100 r/e closings, 18 have a new survey
Did You Just Wake Up, Rip Van Winkle ?
$$$.$$
Paul in PA
.... and we only have ourselves to blame. Who wants to spend good money on a "professional" service that, in many cases, is nothing more than a technician's rendering, doing nothing more than creating problems and certainly offering no solutions.
Who would hire a CPA who's only service was to put the income & expense numbers in the proper columns but yet refused to file the tax returns because of "liability concerns"? What good is a CPA who tells you "I cannot file your returns, as that may involve interpreting and applying the law. Go hire an attorney and sue your neighbor"??????
Brian,
It makes the hair on the back of my head (and not too much there) raise up at some of the posts here that talk of only giving an opinion and showing all possible boundary lines without making the decision of where the actual boundary line is.
I have to imagine that the surveyor has no liability insurance and is afraid to make a decision. I would suspect that this attitude would bring on more liability?
Where did this rationale come from anyway?
Did You Just Wake Up, Rip Van Winkle ?
:good:
Maybe surveyors should turn surveys into more than just informational documents.
I wonder if copyrite (sp), laws are stronger if the documents were more of an art forum?
Did You Just Wake Up, Rip Van Winkle ?
So Paul, tell me what you have done about this problem. Yes it is an issue that has been around awhile, But, I guess you are like most other land surveyors that I know. -- You run your mouth, offer criticism but yet do nothing about the issue.(?)
Have you contacted your state board?
Have you contacted your state real estate commission?
Have you contacted your professional trade organization?
Have you written letters to the insurance commission?
Have you posted information on blog sites?
Have you given talks & presentations to training seminars for realtors?
Have you ever attempted contacting a lobbyist?
I Have.
See the thread:
Meeting with copyright Attorney (Legal Issues)by JB ? @, Charlotte, NC, Monday, April 11, 2011, 20:46 (636 days ago)
I'm trying to figure out how to post the Westlaw .docs the attorney pulled up in this thread. Any ideas?
> I'm trying to figure out how to post the Westlaw .docs the attorney pulled up in this thread. Any ideas?
What's the format?
Microsoft Office Word 97-2003.
I was going to print as pdf and convert to jpg to post as a picture, but some of these are quite long.
check out the state regulations for NC, Keith and you may find an answer. Here I am required to show all lines, overlaps, gaps, record lines and occupation lines if they differ. Heck we arent even supposed to show a preference when we can prove a senior right exists...I am not allowed to show one line bold over another line. (This supposedly is a title matter, not to be resolved by surveyors.)
Maybe lawyers have survey authority where your work?
The surveyor is not making the decision.
Do you actually tell your landowner clients that you cannot show them where their boundary is?
Dropbox link to files
Here's a link to the docs we had a copyright attorney dig up:
Dropbox
I really wonder what a landowner thinks after spending money and getting a "survey Plat" that shows all possible lines and not one line that is his boundary?
$$$.$$ Is My Answer And Opinion
Once you deliver a survey dated 1/07/2003, ten years later it is still a survey as of 1/07/2003. If the title company has a copy legally obtained in 2003, does "fair use" allow them to now reference said survey? They are not claiming it is anything but a ten year old survey. They have in no way caused you harm.
Next time you issue a survey put a "License" statement on it's face.
"This survey is licensed to the named parties for the named purposes."
Ten years later you can sue them or others for violating your license agreement. Of course if you do not have as much money as Microsoft you may not prevail.
As it is, once that paper leaves your possession, that paper and the information on it is no longer your property.
Practically any law you envision, if it was at your request, any judge could consider it self serving.
Paul in PA
$$$.$$ Is My Answer And Opinion
When someone uses the previous survey on new transactions, there is usually the affidavit or owner's statement that no changes to the property or boundaries have been made since that survey for a fee.
The new buyer can sign off and wave the survey for a fee.
In both instances the title company and underwriter and attorney that gives the title opinion and/or fill out the forms are receiving a fee for using the previous survey to make their decisions.
At the same time they are putting in disclaimers that in case of any claim, they will do nothing until a new survey is made.
That use of the survey product is not the problem. The problem lies with the product being out dated and mostly not relevant of what is affecting the property today.
The fact that fences have been changed, building have been placed, concrete poured and many other possible improvements or detriments have happened are left to whom to be responsible.
Is that fair to the new buyer that the existing prevalence of the property is left in minds that cannot make that decision legally.
OK, so I am going to play devil's advocate here. Other than gripe and complain on a message board, what can we as surveyors do to improve this situation? If a customer comes to me with a survey that my company did in say 1994, showing a house and a driveway. He can look on the drawing and see that the house and driveway that are on the drawing look pretty much identical to the house and driveway that exists in the field. All of the propety pins on the 1994 drawing are in the ground and he knows where they are. He is selling the property and moving out of town. What can I say to this guy to convince him to spend $1,000 on another survey? We all know why he needs one, but does he give a crap about statute of limitations? Heck no, he is moving. Do you think the buyer cares? Well if you screwed it up in '94, what makes me think you won't screw it up again? (buyer's thoughts). I like the idea of selling a "survey update". Freshing up the pins, checking everything in the field, new drawing etc. But I would only do this for my old surveys, not someone else's. What if it were another guys survey? What can we do to convince these people to spend the money? I am not asking rhetorical questions, but am looking for truly serious answers.
$$$.$$ Is My Answer And Opinion
The problem is L-I-A-B-I-L-I-T-Y.
Everything we do is not always above reproach.
We make blunders and mistakes.
Sometimes we make wrong opinions.
In many of these cases, we don't realize the error's been made until it(the error), is discovered.
What happens when the error is discovered by a party to whom the original service was performed for?
Especially in the case of a mortgage Loan Service, which is actually a service for the bank/mortgage company/title company and/or the underwriters(NOT the owners), and the particular mortgage for which it was performed is long-gone and no more liability exists(even given the error), for which the service was performed to protect?
With an owner's affidavit, isn't there a chance that liability could now be extended to completely new parties?
