About half of my ALTA surveys have the standard "surveyors exception" (Pasted below) as part of the Schedule B Section II exceptions.
(Paste)
"Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land. The term ”encroachment” includes encroachments of existing improvements located on the Land onto adjoining land, and encroachments onto the Land of existing improvements located on adjoining land."
How do other surveyors out there address this exception?
I feel like the exception needs an explanation from the surveyor since I did do an accurate and complete survey of the land. Otherwise I'm stating that "ANY encroachment, encumbrance, violation, variation, or adverse circumstance" IS shown on this plat, of which there is NO WAY I can state that. I feel like the property owner would get cheap insurance from the surveyor if this exception is not properly addressed. Because what would not be covered by something so broad as "ANY encroachment, encumbrance, violation, variation, or adverse circumstance."
Here is my reply on the ALTA survey to this exception:
"An Accurate And Complete Survey Of The Subject Parcel Was Performed At The Date Of This ALTA/ACSM Land Title Survey. All Above Ground Encroachment(s), If Any, Within The Subject Parcel Is Shown Hereon. The Surveyor Makes No Claim As To The Existence Or Non-Existence Of Any Below Ground Encroachment, Encumbrance, Violation, Variation Or Adverse Circumstance Affecting The Title Not Disclosed By The Record Documents Or Found At The Time Of Survey."
Am I being too verbose with my reply to this exception? Am I protecting myself? Am I worried about nothing? Maybe it needs some editing?
Thank you for any enlightenment!
> "An Accurate And Complete Survey Of The Subject Parcel Was Performed At The Date Of This ALTA/ACSM Land Title Survey. All Above Ground Encroachment(s), If Any, Within The Subject Parcel Is Shown Hereon.
I think this statement exposes you to excessive liability. Your E&O carrier may well view it as an express warranty and the basis for denial of coverage for any claims arising from the work.
If you've done a survey according to ALTA standards, then you've adhered to the standard of practice and the ALTA certification adequately represents your work. The "surveyor's exception" is a catchall exception for the title company, but it would have to prove (in court!) that you failed to meet the standard of practice in order to shift liability onto you.
Jim, You bring up an excellent point about E&O insurance. Any ideas on a simple way to address this exception? Should it be left blank? Thanks!
I just list it "as shown hereon"
You may "feel like" the need to comment on this exception, but I don't, and in all my decades of doing ALTA surveys I have never had a title company request this. Ever. My advice is to remain silent on the subject.
There is no exception that will lessen your liability according to your BOR regulations
and
anything else that you may foolishly put signature under that some attorney insists you certify too that is beyond what you can promise.
:-O
"See attached survey"
Well, Bruce is a master of ALTA survey's in my book! I'll take his advice any day on this matter. Thank you for the reply Bruce.
Yes, I will certainly not certify to anything extra other than the standard ALTA Surveyors certification.
I get a bit pleasure telling the reviewer, sorry, per ALTA standards I'm not allowed to certify anything extra.
No way I'd agree to that....nice try though.
> You may "feel like" the need to comment on this exception, but I don't, and in all my decades of doing ALTA surveys I have never had a title company request this. Ever. My advice is to remain silent on the subject.
:good:
Who says you have answer every exceptions .
> You may "feel like" the need to comment on this exception, but I don't, and in all my decades of doing ALTA surveys I have never had a title company request this. Ever. My advice is to remain silent on the subject.
This.
My standard title report note starts: "The following survey related exceptions..."
>" Who says you have answer every exceptions" .
DING, DING, DING, DING.... we have a winner!
I took the idea from another poster here. I answer each exception. However there are many that either don't pertain to the parcel, or just do not apply. I answer those with "Not Plottable" Not sure if plottable is really an official word, but it gets the point across.
As an attorney and a surveyor I advise to stay away from the term encroachment because it is a legal term requiring a legal opinion surveyors are not licensed to make. For example a building may physically encroach over a property line, but as a surveyor we have no idea if an unrecorded easement exists. Nor is it our place to decide questions of adverse possession or acquiescence. All a surveyor is licensed to do is to physically measure the improvements and plot them in relationship to the property lines and plot any recorded easements that are able to be plotted.
Our firm will only state an improvement physically encroaches over a property line by and give a dimension. Lawyers who take issue with this approach back down when I point out the word encroachment is a legal term and I refer them to Black's Law dictionary if they disagree.
Surveyors should not be asked to give legal opinions, even if it seems to clearly be an encroachment at first glance, that is the lawyers job and they are simply passing the liability onto the surveyor if there is more to the story than it appears at first glance.
That is one valuable post. Being a Surveyor I have to add my .02...
There are many forms of evidence we are qualified to observe and report. We are not limited to record documents and measurements. While I stop well short of attempting to adjudicate an issue, I will gather evidence of apparent fact patterns. We should be familiar enough with those to understand what to look for. Once gathered we objectively report the facts. As was wisely pointed out we should also know when our duties and qualifications are exhausted...
"My standard title report note starts: "The following survey related exceptions...""
Absolutely! I see surveyors listing all kinds of tax related issues and other items that they have no knowledge about whatsoever. Just can't figure out why they want to do that...
"As an attorney and a surveyor I advise to stay away from the term encroachment because it is a legal term requiring a legal opinion surveyors are not licensed to make. For example a building may physically encroach over a property line, but as a surveyor we have no idea if an unrecorded easement exists. Nor is it our place to decide questions of adverse possession or acquiescence. All a surveyor is licensed to do is to physically measure the improvements and plot them in relationship to the property lines and plot any recorded easements that are able to be plotted.
Our firm will only state an improvement physically encroaches over a property line by and give a dimension. Lawyers who take issue with this approach back down when I point out the word encroachment is a legal term and I refer them to Black's Law dictionary if they disagree.
Surveyors should not be asked to give legal opinions, even if it seems to clearly be an encroachment at first glance, that is the lawyers job and they are simply passing the liability onto the surveyor if there is more to the story than it appears at first glance."
THANK YOU DAVID!!
So David what do to personally label or dimension such an occurrence?
Do you just dimension the building?
You you label it as a "possible encroachment" and/or "consult attorney"
I simply dimension the building and list as "over line" and let the observer make the legal interpretation.
