I received this certificate from an attorney who was looking for a proposal for a ALTA survey and have a reservation to a couple of the items listed. After reading so many horror stories on the old site where the land surveyor is expected to certify to everything under the moon, I took the stance of only using the cert right out of the ALTA standards, with the idea that using anything else would not be meeting the ALTA standard.
Maybe I'm getting gun shy, but when I see the word ALL used, my Spidey Senses start to ring. Have you received a similar cert from an attorney?
Thanks
Bob
SURVEYOR'S CERTIFICATE
The undersigned, being a registered surveyor of the State of Wisconsin certifies to (i) ______________(“Purchaser”), and its successors and assigns, (ii) ____________ (“Lender”) and its successors and assigns, and (ii) ___________________ (“Title Company”) and its successor and assigns as follows:
1. This map or plat and the survey on which it is based were made in accordance with the "Minimum Standard Detail requirements for ALTA/ACSM Land Title Surveys," jointly established and adopted by the American Land Title Association and NSPS in 2005 and includes items 1, 2, 3, 4, 6, 7(a), 7(b)(1), 7(b)(2), 7(c), 8, 9, 10, 11(b), 14 and 16 of Table A thereof. Pursuant to the Accuracy Standards as adopted by ALTA and NSPS and in effect on the date of this certification, undersigned further certifies that in my professional opinion, as a land surveyor registered in the state of Wisconsin, the Relative Positional Accuracy of this survey does not exceed that which is specified herein.
2. The survey was made on the ground on ___________, 2010, and correctly shows the area of the subject property, the location and type of all buildings, structures and other improvements situated on the subject property, and any other matters situated on the subject property.
3. Except as shown on the survey, there are no visible easements or rights of way of which the undersigned has been advised. [If there are none, state that there are none.]
4. Except as shown on the survey, there are no observable, above ground encroachments (a) by the improvements on the subject property upon adjoining properties, streets or alleys, or (b) by the improvements on adjoining properties, streets or alleys upon the subject property. [If there are none, state that there are none.]
5. The location of each easement, right of way, servitude, and other matter affecting the subject property and listed in the title insurance commitment dated _________________, 2010, issued by ________________ with respect to the subject property, has been shown on the survey, together with appropriate recording references, to the extent that such matters can be located. The property shown on the survey is the property described in that title commitment. The location of all improvements on the subject property is in accord with minimum setback provisions and other zoning restrictions except as shown on the survey.
6. The subject property has access to and from a duly dedicated and accepted public street or highway.
7. Except as shown on the survey, the subject property does not serve any adjoining property for drainage, utilities, or ingress or egress. [If nothing is shown, state that specifically.]
8. The record description of the subject property forms a mathematically closed figure.
9. Except as shown on the survey, no portion of the property shown on the survey lies within a Special Hazard Area, as described on the Flood Insurance Rate Map for the community in which the subject property is located. The survey correctly indicates the zone designation of any area shown as being within a Special Hazard Area. [If nothing is shown, state that specifically.]
10. All utilities, vehicular access and drainage necessary for the operations of the subject property access the subject property directly through contiguous public rights of way or contiguous publicly dedicated easements without reliance on private access/easement agreements or access through private property.
11. This certificate relates to that certain survey numbered __________ and dated ____________________, 2010, made by __________________________________________.
I recently did one. The attorney called with their cert and I said, fine, but I'm taking all the alta stuff off. He said he neded an Alta, to which I retorted, its not an Alta with any other cert than in the standards.
Then I went on to ask why I wasn't provided the documents as per the standards and he found somethin else other than trying to buffalo an east Texas surveyor.
When I do these, its in the contract up front I will only use the alta cert.
Give em hell Harry!
Hi Bob,
Of course you're right to insist on the verbatim ALTA cert, which will be the one and only in 2011, but we see those lender certs all the time.
I've won the cert battle before, but if one had to (each must make his own judgement)
you would go thru and edit it with "visible" and "of which I am aware" and to "the best of my knowledge and belief" type qualifiers.
Better to just convince the lawyer that ALTA certs will provide for his/her concerns.
Hey Steve,
Long time no talk to man. I'm real glad to see your upright and breathing. I was planning on holding the ALTA cert and explain to the attorney that these lenders certs release everyone of liability because they dump it all on the surveyor.
It might cost me the job, but if you want all of the items including the nonsense ones, then just ask for a boundary survey and not an ALTA. The property is all building with party walls on both sides and a alley and street on the other.
Bob
Hi Kris,
That is the same stance I was planning on taking. This is a new client and he needs a little educating on the standard especially in the area of certifications
Bob
Leave this out wherever it appears: "and its successors and assigns".
This one is pretty tame compared to some that I have seen. I know the argument for using only the ALTA certificate, but sometimes you have to bend a bit. In the past, I have used the standard ALTA certificate and included the other required certificate as well.
With regards to this one, I would not include the "successors and assigns" and would change "correctly" to "accurately." Also, you should run the cert. past your Professional Liability Insurance carrier as some of the terms (all, correctly etc.) may void your coverage on the survey. Paragraph 10 is problematic as well. As surveyors we probably are not qualified to determine what items would be necessary for the operations of the property.
I generally tell attorneys that there is a fee for my surveying services and an extra fee for jumping thru hoops, being a rodeo clown and for stuntman activities.
And that I don't like doing any of the extras.
Sometimes too much is expected of us and we have to contend to ask everyone to play by the rules we have and not to change them.
Surveyors Certificate>(?) "successors and assigns"
"..Leave this out wherever it appears: "and its successors and assigns"."
Has there ever been a case where this has prevented a future user of the survey plat from successfully making a claim against a negligent action by a surveyor?
It has always been my understanding that our liability extends beyond the client and to those who relay on the survey plan. And that you cannot waive that liability since the client does not have the right to waive future users liability..
Surveyors Certificate>(?) "successors and assigns"
"successors and assigns" just eliminates one legal step.
You are still liable to anyone who had reasonable expectation to rely upon your survey.
Surveyors Certificate>(?) "successors and assigns"
Whatever happened to the doctrine of "Privity of Contract"? Is that something I just need to forget about in my older age?
Surveyors Certificate>(?) "successors and assigns"
You need to review the professional liability of the Profession of Land Surveying. Your liability is to those who rely on your work. As Cowboy said...
The attempt to waive that responsibility will just throw one more block in the process, should you be sued, but to my knowledge it has never held up.....
Privity of Contract May Not Apply
Donoghue v. Stevenson: a friend of Ms. Donoghue bought her a bottle of ginger beer, which contained the partially decomposed remains of a snail. Since the contract (the sale of the ginger beer) was between her friend and the shop owner, Mrs. Donoghue could not sue under the contract, but it was established that the manufacturer has a duty of care owed to their consumers and she was awarded damages in tort.
By virtue of the State granting you a license to perform land surveying services, which includes a duty to the public, there may not be a 'privity of contract". Recent court cases throughout the country have shown that "privity of contrct" may no longer apply to land surveyors, as they use their "quasi-judicial" powers to determine boundaries.
Think about it.....when you perform a boundary survey, you’re not only surveying your client’s property, you are surveying the common boundary with every adjoiner. So right there, there are as many people you owe a duty to as there are adjoiners.
Privity of Contract May Not Apply
I just did a quick google search and found a bunch of notes on privity of contract as is relates to it being eroded over the last 100 years or so. One from a Lucas 2008 seminar that I found a *.pdf of on-line:
“Surveyors may be held liable for the damages that result from their mistakes, misrepresentations, or negligence. Lack of contractual privity between the parties is not a defense in an action for tortious negligence. A surveyor's duty has been held to extend to subsequent purchasers who relied upon the survey to their detriment.”
The one thing that I find odd is that I just didn't grab the phrase "privity of contract" out of thin air. I know I've heard it at seminars in the past. Can someone tell me when this doctrine officially died? We regularly place a note on our surveys that any certification hereon "does not contitute a warranty or guaranty, either expressed or implied" Are we deluding ourselves in this manner also?
Mike
I don't do ALTA's very often but the worst certificate request was when the lender wanted me to sign that no codes were being violated on the property. I don't know who thought that one up but I was told "well other surveyors sign it". WOW!
Just do the standard Certificate-a lot of time was put into it and that is what the title people should have.
Privity of Contract May Not Apply
I'd say that you are Mike... it just adds a small legal step for the plaintiff to overcome, that is to show that they had the right to rely on your work... and they did, and there was an error due to negligence which caused them damages. All sorts of warranty's are implied by your plats; Don't you certify to anything on them? If you are certifying to compliance with state standards then you are warrantying that you are in compliance, no?
Remember that the standard of care is what will be at issue. If the error is made in "good faith" then liability shouldn't follow... Local Standard of Practice will be the issue. And, were you prudent and diligent in your work..
Privity of Contract May Not Apply
The original party which was hurt can sign over their right to sue to third parties. I think the transfer of title may also be a transfer of the right to sue. If not, then the original party can convey that right to the third party by written document.
> Just do the standard Certificate-a lot of time was put into it and that is what the title people should have.
I don't know about elsewhere, but for commercial settlements in the DC area the title companies have pretty much become subservient to the lender's council who now drives the whole show. I've regularly seen emails from lender's council to the title company dictating the terms of the policy.
No matter what NSPS and ALTA do with the standards, until the lenders are somehow brought into the discussion we're still going to have request for alternative certificates (except after the 2011 standards go into effect they will be requesting them as a letter separate from the survey) and we're still going to have to hear that "everyone" else signs it.
Yeah; just sign it-no big deal.
Some of them get so large there's hardly room for the drawing.
Privity of Contract May Not Apply
"When faced with an unacceptable certification, or one that puts the surveyor at an unreasonable risk, it is often difficult to react in a positive and protective manner. Some engineers and surveyors have tried to obtain state legislation that gives a standardized and logical definition of “certify.” Although a legislative solution probably is not possible in most states, when a surveyor confronts a certification requirement that challenges the surveyor’s professional practice, ethics, or insurability, the surveyor can attempt to place an asterisk next to the title of the certification and add the following definition:
* As used in this Certification, certify means to state or declare a professional opinion of conditions regarding those facts or findings, which are the subject of the certification, and does not constitute a warranty or guarantee, either express or implied."
The above is a direct quote from our (at the time I worked for this particular firm) hand-out material at a Professional Liability seminar hosted by our E & O insurance carrier, one of the "big-boys" on the east coast. I just re-read the hand-outs that I have on hand from this seminar and came across this one, oddly enough, right on the internet from a *.pdf.
I understand that this quote comes directly from an insurability stand-point vis-a-vis your final product.
Mike