past thread
There is indeed some good information on the other thread.
It can take awhile to come up with wording for a surveyor's-report form that will satisfy the lenders without creating more liability than what goes with the survey. It's easily possible to create more liability by using words such as "all" or "none", or an unqualified "yes" or "no". But once you have some standard replies you can re-use them.
I've seen the form posted by Foggyidea many times, under the name of "HUD Surveyor's Report". It is a HUD form and has evidently been borrowed by Chicago Title and many others. Some of the questions have been incorporated into ALTA Table A since the mid-1990s.
IMO, most of the questions on this form can be answered in such a way as to limit liability to what is actually visible on the site, e.g. "None visible", "No visible grave markers" or "None known to the undersigned." But Question 10 is a real liability trap. I answered it many times with "No information."
The originating lenders would always say that HUD required a yes-or-no answer to Question 10. But when you asked the local HUD office, they would say, in effect, "Let the surveyor answer it however he likes."
On one occasion I was especially glad I had answered with "No information," when a truckload or so of buried asbestos turned up on the first day of excavation on a site we had just surveyed. The asbestos was mixed with some rubble from an old industrial building that had been torn down decades earlier. The project was shut down for six weeks while a hazardous-waste firm dug it all out and removed it.
If I had answered "No" to Question 10, could my company have been required to pay damages for failing to report the buried asbestos? Probably not. Could we have been named as a defendant and forced to spend $10,000 or so in legal fees to clear the matter up? You bet.
A couple of times I ran into attorneys for commercial lenders who wanted something more than "No information" on Question 10 or its equivalent. I would first point out that they could have a report prepared by an environmental-consulting firm. Of course those reports are not cheap, partly because of how much the environmental firms have to pay for liability insurance, so that suggestion wasn't very popular.
If the attorney still wanted something from me, I would write a separate note along the lines of, "I walked this site on [date]. The site was clear of snow and underbrush and the ground surface was clearly visible [or not, as the case might be]. I saw some loose paper litter and several soda cans. I did not see any scrap lumber, old tires, automobile parts, scrap metal, discarded appliances, oil drums, or food waste", all of which would be a strictly factual eyewitness statement, drawing no conclusions, and a lot different from answering "No" to Question 10.
Some professional-liability insurors publish books or pamphlets explaining how to avoid liability traps in certifications and reports. The language is oriented toward architects and engineers, but applies to surveyors as well. I found some good publications of this kind some years ago while doing research for an article on the subject.
In the course of 25 years of doing ALTA surveys, I found it was generally possible to get hold of the lender's survey requirements and certification forms before sending out a proposal. It usually took about 3 days to get them, since the client would have no idea what these things were and the loan officers often didn't know either. But once that material turned up, I could modify the scope of work and certification language to avoid liability traps, and put the modified material into the proposal. It saved a lot of grief.
