I've told the parties involved that I would only use the certification provided in the ALTA standards and forwarded Trent Turks argument:
and then was sent this cert to use:
SURVEYOR’S CERTIFICATE
The undersigned, being a registered surveyor of the State of [PROPERTY STATE] certifies to: (i) [BORROWER], and its successors and assigns, (ii) {ISSUER}, and its successors and assigns, (iii) {BOND TRUSTEE}, and its successors and assigns, (iv) CITIBANK, N.A., a national banking association, and its successors and assigns, (iii) FANNIE MAE, and its successors and assigns, and (iv) ____________________________ [insert name of title insurance company if title insurance so requires] 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 National Society of Professional Surveyors in 2011, and includes Items [1, 2, 3, 4, 6, 7(a), 8, 9, 10, 11, 13 and 16] of Table A thereof. Pursuant to the Accuracy Standard 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 [PROPERTY STATE], the Relative Positional Accuracy of this survey does not exceed that which is specified therein.
2. The survey was made on the ground between _____________________ [insert dates survey was made] and correctly shows the area of the subject property, the location, size and type of all buildings, structures and other improvements situated on the subject property, all driveways or other cuts in the curb upon any street which the subject property abuts, and any other matters situated on the subject property. The courses and distances and other information contained in the survey are correct.
3. [Except as shown on the survey,] there are no visible easements or rights of way of which the undersigned has been advised.
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.
5. The location of each easement, right of way, servitude, and other matters affecting the subject property and listed in the title insurance commitment no. ____________ dated _________________, 20____ issued by ______________________________ [insert name of title insurance company issuing commitment] 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 restrictions of record referenced in such title commitment.
6. The subject property has access to and from a duly dedicated and accepted public street or highway. [If not, so state.]
7. [Except as shown on the survey,] the subject property does not serve any adjoining property for drainage, utilities, or ingress or egress.
8. The record description of the subject property forms a mathematically closed figure. [If not, so state.]
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 designated of any area shown as being within a Special Hazard Area.]
[If the certificate is attached to rather than typed or otherwise reproduced on the face of the survey, add a paragraph specifically identifying the survey (such as by date, property description, and survey number) to which the certificate relates.]
The parties listed above are entitled to rely on the survey and this certificate as being true and accurate.
Then came this comment from Citibank:
Yes it is an issue, I have heard the arguments before and don't need to see the form ALTA/ASCM canned response.
Fannie Mae still requires the long form
There is nothing that prevents the surveyor from exceeding the standards.
I do understand that they cannot put it on the face of the survey but nonetheless have had several surveyors agree to put in a side letter, the reason being, all the particular items in the long form certification can be matched up to Table A items and reps otherwise included in the 2011 standards, Fannie Mae just wants to see it in writing, spelled out.
If the surveyor has a specific concern or problem with ANY of the specific items 1-9 on the long form, please have them call me.
I have trouble with their items 3, 4, 6, 7, 8, & 9
Item 8 - The record description is a subdivision ie. Lots 1-19, Block 11 & Lots 1-19, Block 13 of Travers Sub together with the vacated streets.
Item 9 - There is no FIRM for the area and the city states there are no sensitive areas identified for this area.
I know this is a long post I believe this presents a large liability problem for surveyors.
Here is Trent Turks argument the first post would have been to long to include it.
The Most Important Word Added to the
2011 ALTA/ACSM Land Title Survey Standards
If you or your firm prepares ATLA/ACSM Land Title Surveys, you should be aware by now that the standards have been revised for 2011. They became effective February 23, 2011. Now that we are past this date, all ALTA/ACSM Land Title Surveys must conform to the new standards. While there have been many upgrades and changes made to the standards, I would like to focus on the one single word added to the standards that I consider to be profoundly important. That word is “unaltered”, contained in the following statement from Paragraph 7 on Page 7:
“7 - Certification – The plat or map of an ALTA/ACSM Land Title Survey shall bear only the following certification, unaltered, except as may be required pursuant to Section 3.B. Above:”
For years and years, land surveyors have gone to battle with title insurers, banks, and their respective attorneys about the certifications that they require on the face of ALTA/ACSM surveys. Many times surveyors succumb to the demands of these entities and place certifications on the face of their surveys that are entirely inappropriate. This change to the standards came specifically from this problem, and is an attempt to arm land surveyors with the ammunition they need to just say “NO” when asked to add certifications to the face of their surveys that are not appropriate.
This change is going to provide land surveyors with the opportunity to educate their clients about the ALTA/ACSM survey standards and assist them understanding the ALTA/ACSM Land Title Survey certification. As you begin to produce your ALTA/ACSM surveys with the new certification on them, you will undoubtedly get phone calls and emails from the title attorneys, lenders, etc. demanding that you add their certifications to the survey as well.
How are you going to respond?
Discussing these standards with your client is extremely important. Remind them that these standards were created through a joint effort between The American Land Title Association (ALTA) and The American Congress on Surveying and Mapping (ACSM). The American Land Title Association represents the interests of title insurers. This Association agreed, on behalf of title insurers interests, that these standards are appropriate and sufficient for title insurance purposes. No changes to the certification should be required or necessary to issue title insurance. Remember, the attorney is simply trying to obtain title insurance coverage to protect the client and the lender.
Many certifications from lenders and title insurers contain redundant language in them. They simply re-state items that are already contained in the standards. The very items they are asking you to certify to in the certificate are already contained in the ALTA/ACSM standards. Inform the attorney that, according to paragraph 7 of the standards, you can only place the surveyor's certification from this paragraph, unaltered, on your survey. Then, simply point out that you are certifying to many of the very items he wants in the certificate because you are certifying that this is an ALTA/ACSM Land Title Survey. The standards contain the items he wants you to certify to.
This discussion with your client or your client's attorney will also provide a wonderful opportunity to remove the items from certifications that are not appropriate. For example, as a land surveyor are you really qualified to certify that a site conforms to all zoning ordinances? Are you really qualified to certify that a site has adequate water and sewer capacities? Explain to your client that some of the items they are asking you to certify to are not contained in the ALTA/ACSM Land Title Survey Standards and simply are not within the appropriate duties or responsibilities of a land surveyor.
You may be asked to provide a separate certification, on your company letterhead, certifying to all of the items that they think they need. They will want you to cross-reference your survey, of course. This cross-reference will simply make this document part of your survey. Just remember, if you do this you are extending your liabilities beyond the ALTA/ACSM standards. That piece of paper, with your letterhead and stamp on it, will carry every bit as much weight as your survey carries if you make an error on it.
Surveyors – you now have an opportunity to take a big step towards resolving issues about surveyor certifications thanks to the new 2011 ALTA/ACSM Land Title Survey standards. Use this change to the standards to your advantage and communicate appropriately with your clients. Help them understand the changes and understand that the certification contained in the standards is appropriate and actually covers the majority of their certification needs.
The ACSM website at www.acsm.net offers .pdf copies of the standards, along with a “red-lined” version that depicts the changes made for 2011.
Trent Turk, LS
President
GeoSurvey, Ltd.
www.geosurvey.com
The only one I may have a problem with is...
#7, That one is tough.
the other ones I can work with, but they are going to PAY for it.
Maybe thats why i don't do a lot of these.
Mr. Turk makes some excellant points!!
We plan to stick to the certification as listed. If the client requests additional certifications, we will do as tha ALTA/ACSM Standards say we can do and provide those certifications in a separate document.
We will certify to only those items that are within our responsibility to decide upon. We will not certify to anything that falls to lawyers or engineers. They can hire them to do that.
AND, because this requirement is beyond the requirements stated in the ALTA/ACSM Standards, it will be provided for an additional fee.
Another interesting point. Why is it that the surveyor's feet are being held to the fire for compliance while the title guys can slide?
Example, we are to be provided with the "most current" title insurance commitment report, not necessarily a "current" titrle insurance commitment report. So it IS ok for my client to give me a 3 year old title insurance commitment report that was prepared for a refinancing of the project and it is ok that that report is based on a survey and plat done eleven years PRIOR to that title insurance commitment?
I have to be precise and exact, they can be "historic"?
The only one I may have a problem with is...
I've monkeyed with #7 in the past until it read something like this:
Except as shown hereon, during the field survey of the subject property no above ground evidence was observed indicating that the subject property serves any adjoining property for drainage, utilities, or ingress or egress, other than the normal overland flow of storm water.
It might not be in the best interest on the business side, but I refuse to complete the certification even in a form letter. I am of the opinion that completing the certification in a form letter is circumventing the intent, which is to NOT deviate from the ALTA cert. If ALL surveyors were to hold fast and refuse to complete the certification in a form letter this issue would go away. Also, this certification has absolutely nothing to do with “higher standards” !
On a side note, when I did add their certification in the past, it was usually 1/4 of the size of what they provided and concerning item 7. "Subject property does not serve any adjoining property for drainage, utilities, or ingress or egress", doesn't every adjoining land cross-serve one another for surface drainage ?
> doesn't every adjoining land cross-serve one another for surface drainage ?
Not if you own the Great Salt Lake 😉
Radar
I can't remember one that didn't.
The comment from the Citibanks response I find the most interesting is :
all the particular items in the long form certification can be matched up to Table A items and reps otherwise included in the 2011 standards,
If that is so, then why do they need more?
7 - Certification – The plat or map of an ALTA/ACSM Land Title Survey shall bear only the following certification, unaltered, except as may be required pursuant to Section 3.B. Above:”
It's not an ALTA survey if you tamper with the certification.
Look up Gary Kent's Lenders Certificate article (Google it) and send it to him.
Your insurance company won't stand behind you if you don't comply with the standard.
Also, never certify as to "compliance". It's not a survey issue, it's a legal issue.
If Fannnie Mae wants to see it spelled out, put the dang ALTA/ACSM standards on the survey.
I absolutely would not sign that certification.
QUESTION #4: What happens if the Surveyor is requested to change the Certification?
Does that mean it’s not a “real” ALTA/ACSM Land Title Survey?
There is some concern in the Client community regarding the use of the words “only” and
“unaltered” in Section 7 covering Certification.
Under the 2011 Standard, the only certification allowed on the face of an ALTA/ACSM Land Title
Survey is the Certification in Section 7, except as required by law or regulation. Some state
surveying boards, for example, require specific wording for Certification.
The Certification in Section 7 is almost always sufficient and this standard “short-form”
Certification covers every issue that the Surveyor can actually and honestly certify to by stating
that the Survey was conducted in accordance with the Standards. The change effected by the
wording in Section 7 of the 2011 Standard is essentially a statement from the title industry and
the surveying profession that title insurance coverage can be provided without additional or
alternate Certification.
For those Clients who require an additional or alternate Certification, it is permissible to
negotiate with the Surveyor to provide another additional Certification on a separate sheet of
paper and cross-reference it to the Survey.
In lieu of an additional or alternate Certification, the drafters believe that Lenders may simply
use these standards (including Table A, and Table A, Item 22, if necessary) as the basis for their
requirements.
Who wants to bet that "Fannie Mae" has no such desire and the real problem lies with an attorney somewhere who is trying to justify their fee?
If "Fannie Mae" insists on this long form of certification, would it be too much to ask that "Fannie Mae" put that in writing and send a copy of same with a signature of a real person who is standing behind that demand?
The word UNALTERED appears in the new standards for a very good reason. ACSM was (and is) trying to protect us surveyors. When it comes to extending your liability needlessly, just say NO. Or, negotiate an appropriate fee to cover the extra liability.
Larry P
Among many other problems with the long form:
An easement isn't visible per se - it is a right, burden, or obligation. There may be visible evidence of easements, but that is not the same as "visible easements."
Every site except the top of a hill serves another site for drainage. That's the way water flows.
As to the utilities, how would you know if there were underground utilities installed by stealth without permit. Sign that statement and you are liable for anything they discover under the ground during construction, and that is when it can get really expensive as everything grinds to a halt.
ps I'm hoping many of you do what I do. The first paragraph of my proposal clearly states that "I will perform a 2011 ALTA survey (the most recent standards), using the mandatory ALTA certification, to include optional Table A items:" They sign it, I go to work.
Tell citibank to shove it. Your contract is for an ALTA, they can figure out how to satisfy Fannie Mae. They don't give a snot about anything but selling the loan afterward. They want off the hook for what they screw up, but want you to stay on the hook for any mistake you might make.
I have completed several “Fannie Mae” surveys recently. All have had the standard ALTA certificate.
I find it amazing that each of the attorneys have given me Fannie Mae’s survey requirements and each are different from project to project. Don’t get me wrong, they are similar, but all are different. I explain how much it would cost to do the requirements and then we negotiate what they can live without to get the cost down. I will not certify to drainage unless I obtain elevations first. I will not certify to locations of underground utilities unless they dig them up for me. Usually when they hear that, they back down.
Also, when it comes to “access to and from a duly dedicated and accepted public street or highway”, sometimes in Texas, TxDOT has ‘no access’ areas along their highways. Just because a property abuts a road, does not mean it has access to it.
Good luck,
Miguel A. Escobar, RPLS, LSLS
Everytime I get into one of these battles it is always me against two or maybe three attorneys. It would sure be nice if ACSM had an attorney that could argue our cause (for a fee paid by the surveyor) when we run into a brick wall like this.
I don't think the idea of a certification on a seperate letter is a good idea, if they want and ALTA Survey they have to use the ALTA certification if not then they need to negotiate for a different type of survey.
>
> Then came this comment from Citibank:
>
> Yes it is an issue, I have heard the arguments before and don't need to see the form ALTA/ASCM canned response.
> Fannie Mae still requires the long form
> There is nothing that prevents the surveyor from exceeding the standards.
> I do understand that they cannot put it on the face of the survey but nonetheless have had several surveyors agree to put in a side letter, the reason being, all the particular items in the long form certification can be matched up to Table A items and reps otherwise included in the 2011 standards, Fannie Mae just wants to see it in writing, spelled out.
> If the surveyor has a specific concern or problem with ANY of the specific items 1-9 on the long form, please have them call me.
This part, if true is very disheartening...
At Gary Kent's excellent ALTA seminar he quoted an attorney:
"My job is to threaten, harrass or cajole the surveyor to sign the certification to my client's satisfaction. Any surveyor who does is a damn fool".
