Privity of Contract May Not Apply
The idea of a warranty or guarantee is separate from that of to whom the duty is owed. Our maps are generally held to express opinions, at least with respect to boundary and title issues. A warranty or guarantee is a certification that the work is "correct". An opinion is not "correct" or "incorrect", but either "well reasoned" or "poorly reasoned".
If two surveyors have differing opinions, but each is equally well reasoned, which is correct? If you are offering a warranty or guarantee, then who gets to decide whether or not your opinion is correct? There's a case (I can't recall the reference right now, but it can probably be found in Brown or Clark) where a surveyor did place an absolute guarantee of correctness on his map, apparently as some sort of marketing gimmick or out of an inflated sense of pride, and was thereby liable for his results. Absent the gaurantee, he would have been fine.
IMO, you should jettison the "successors and assigns". Yes, any such person trying to pin liability on you can get past it, but why open the door for them. Make their lawyers pick the legal lock and open the door.
The one provision that really bothered me was paragraph 10. How is the surveyor supposed to know what operations will ultimately be planned on the property? How can the surveyor know what utilities may be needed, what type of vehicular access, or whether existing drainage patterns will meet the desired design of the site? That's one I would absolutely refuse to certify to. Tell that you are already certifying to specific existing conditions according to record and visible physical features. They need to get their design engineers to render an opinion as to whether those conditions are conducive to any planned operations. It's out of your area of expertise as a surveyor and beyond your ability to foresee the potential for changed use plans.
Other Surveyors sign it!
When we're told "other surveyors sign it and don't have a problem with it", I think that it is unfortunately a true statement.
But it is most often true that the surveyors who just go along with these outrageous certificates (the one in the OP isn't bad at all compared to many I've seen) also prepare maps that exhibit surveys which took a similar lack of effort and care as was expended in reviewing and negotiating the certificate. That is, well below the minimum expected of a reasonable professional in similar circumstances.
My reply goes something like this: "Do you really want trust your investment in this property to someone naiive enough and careless enough to sign a certification that they can't possibly meet the criteria for?
If they say 'yes' by taking their business to such a surveyor, they are getting the service they deserve.
I do not worry about this anymore
I do not worry about this issue because the ALTA cetificate that is the standard certificate,per ALTA/ACSM, is a part of my contract. If the client elects to use another certification,other than the standard certificate, they must agree to hold me harmless. I do not know if this has been tested and that it would in fact protect the consultant. But I suspect that without protection for providing services that do not meet the minimum standard of care, one is taking on unaccounted risk. See below, standard CLSA contract language
10. ALTA Surveys. Client agrees that in performing requested ALTA surveys in accordance with this Agreement, Consultant may be required to sign a statement on the survey documents in a form set forth in Exhibit 1 attached hereto and incorporated herein by this reference. In the event that Consultant is required to sign a statement or certificate which differs from that contained in Exhibit 1, Client hereby agrees to indemnify and hold Consultant harmless from any and all liability arising from or resulting from the signing of any such different statement.
I do not worry about this anymore
I doubt that would hold up. When it comes down to it, nobody is forcing you to sign any particular certifiaction. You choose either to do it or not. Sometimes if you choose not, it means you don't get the job. If you choose to sign it, you are being compensated at whatever renumeration you agree to for doing so. I do not believe that you can, by contract, have the client release you from liability that you otherwise freely accept by signing the map with whatever certifications you place upon your map.
I do not worry about this anymore
The language comes directly for the CLSA contract and I am fairly certain that they had benefit of legal counsel in the preparation of this standard agreement.
I do not worry about this anymore
Perhaps, but I wouldn't rely on it. Do so at your own risk.
You make a very good point
I always ask to review the certification,if different from the standard, prior to entering into the standard agreement. So the differences have to be okay with me first.... I am not looking to be a test case.....
Other Surveyors sign it!
My Mom would ask"If all your friends jumped off a cliff, would you?"
Sometimes it is a good idea to do something because everyone else does it...
Like maintaining your equipment... not in this case however
Other Surveyors sign it!
> My Mom would ask"If all your friends jumped off a cliff, would you?"
Wow, Dane, I was thinking exactly the same thing.
You make a very good point
I have, in the past, allowed some deviation from standard language, but not to the point that I'm certifying to something beyond the ability of a surveyor to certify to. In recent years, the standards have gotten to a point that most common contingencies are covered, so one can educate a client by steering them to those particular items. The standards also have that Table A item for items not otherwise covered in recognition that no set of standards can foresee every contigencies or set of conditions, and to allow the professional surveyor and client some room to work on such items.
That is about the only place I would now allow something beyond the standard certification, and only within reason. No hold harmless required. My contract has been a slightly modified version of the CLSA contract, so I probably have that same clause in my contract, but I would never rely on it for protection.
see you on the waaaay down
lol Wendell
see you on the waaaay down
an anecdote from the ALTA/ACSM 2011 standards seminar I attended 11/17 as heard by the instructor...
"My job as an attorney is to do anything, absolutely anything to get this lender's certificate signed. I will threaten to kill the deal, not pay, sue, report you to the board, ANYTHING to get that signed, and if even ONE of you surveyors sign it, you are a damned fool."
Says a lot, I think.
see you on the waaaay down
This is why you do not sign any non standard ALTA certification without indemnity protection. I have no problem passing on the job. It is a good thing to know from the start, that your client will not listen to and follow your professional advice.
This is a sign of a poor client/consultant relationship in the making. I try to find out what I am in for from the beginning and steer clear when I see warning signs. You are welcome to all the problem clients that you can handle.
see you on the waaaay down
On the surface the standards appear to benefit the surveyor but they really do not. I think from now on I'll just forget the 2011 ones coming up and stay with the 2005 certificate.
Just why should surveyors abide by these standards if the rest of the parties involved, lawyers, title companies, sellers, lenders etc. could care less what certificate a surveyor signs as long as someones liability a$$ is on the line and the deal closes?
The whole thing is just a huge joke.
If the title companies get on board and stay with the ALTA standard certificate and will not accept any other, then I may have a bit of respect for these standards. Let's see that come into being in 2011.
see you on the waaaay down
What is the the point of an ACSM/ALTA Land Title Survey?
Is it just to get some broke Surveyor to take on all the miscellaneous liabilities that the Attorney can think of and can't think of anyone else to potentially blame?
I mean the Survey part of it seems to just be a side activity.
"Mr. Client, here is your boundary corner, you can see the building wall is about 5' from it."
"Oh I don't care about that, did you sign the Martian Invasion certificate yet?"
see you on the waaaay down
>What is the the point of an ACSM/ALTA Land Title Survey?
Originally they were limited to 5 feet either side of PL. There was also a statement made on some ALTA's that the buildings shown were plumb, determined by a bob string and eyeball.
see you on the waaaay down
I dunno, the longer I am in business the less I get excited about things like the statement, since I seem to get in hot water over things I never expect. There really is no way to know what will really get you in trouble. There is always someone who wants to blame you for something. It is the breaks of the game. Just dont miss that manhole, and make sure you are staking things within setback. The rest is stuff you cannot control.
see you on the waaaay down
> Just dont miss that manhole, and make sure you are staking things within setback.
Good advice.
Here is the dilemma.
If a surveyor substitutes a different certificate he is not abiding by the standards and is open for criticism.
If a surveyor refuses to change the certificate he will most likely not work for the client again because he wont play ball.
see you on the waaaay down
I totally concur when it comes to changing the certificate from what is the standard. I should have made that clear.
I guess the basic point was not to get to worked up over some things, but I would not make any change to the standard certification. There is always some avenue for a lawyer to go after you if you blow it (or even if you don't) so I suspect on the issue of "successors" you cannot relieve yourself from this liability if you want to.
Even take the issue of being a corporation. When we created our corporation, the lawyer said if I did not sign off on all correspondence a specific way, people can theoretically sue you personally because you did not properly follow some protocol on the signoff since it would legally imply that the corporate shield was penetrated. That was the first time I started to think "WTF is it with the legal profession?"
The function of these types of certifications is to eliminate the need to prove that the surveyor had a duty to those who MAY want to sue you.
Your responsibility as a professional is to limit your liability exposure to a select few so that your risk is reasonable and you will continue to stay in business rather than wasting your money defending yourself against frivolous law suits.
The only entities that should be identified on an ALTA are, the buyer, the lender and the title insurer, by name and no 'sucessors' etc gibberish. NEVER EVER CERTIFY TO AN ATTORNEY REPRESENTING ANY OF THESE THREE!!!!
For the certification you listed, a $2 or $3 million fee would be reasonable.
To reject this type of certificate, you need only have your liability insurer provide an opinion letter, they won't insure against this type of total liability.
Make sure that you copy your refusal to use that certification to all the parties to the contract, explaining the additional cost to them if this type of certification is really required.
The major benefit to you whern you limit your certification is that any further use of the survey beyond this sale puts the 'guaranty of accuracy' on the party who is passing on the survey and they must defend any law suit before they can turn around and sue you.
Richard Schaut
