I have done enough ALTA/NSPS Land Title Surveys, I would think I would have run across this before (I am sure I have and dealt with it but at this time, I do not recall).
In the title report is an easement, and it affects the property. Whether it can be plotted or not, I do not think matters, but in this case it cannot The ALTA Survey is sent out preliminary listing the easement as affecting the property, but noting it as not plotted on the map.?ÿ
So now the lender gets the survey and the title report, and in reviewing, gets the title company to remove an easement, that affects the property. Should I still note this easement on the survey, but as something not in the title report? Like in a general notes section, as opposed to in the Title Report Document notes? Or do you remove it completely.?ÿ
The title company can remove coverage on an easement but not the easement itself.
You are responsible for what you know, not just for what the title company wants you to know.
Paul in PA
The title company can remove coverage on an easement but not the easement itself.
You are responsible for what you know, not just for what the title company wants you to know.
Paul in PA
Good Point. And if you get down to it, I suppose this is the main reason I asked the question.?ÿ
I would ask for the document or evidence that released said easement.?ÿ If there is one than it would not be material to the title and not be shown.?ÿ I've had this happen and wasn't aware that there was a document releasing the easement that I was making a big stink over.?ÿ?ÿ
The title company isn't going to remove an easement from the title report just because the lender finds it inconvenient. There must have been some other reason that they believed the easement was void, or at least did not affect the property. Find out what that reason was.?ÿ ?ÿ
The title company should be able to explain why it came off. My reading of the standards indicates that if it was not revealed by your normal statutory research, and is not provided by the title company, then you may not need to show it. The details of your state and situation does have a bearing on this.
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The way I handle these is "[Type] easement per [Book & Page] may affect subject property [and is shown hereon] [but is not shown hereon]."
Nearly 40 years ago I was in the process of an ALTA survey and noted a line of utility poles diagonally crossing the property.?ÿ No easement in the title documents.?ÿ Noted the tags on the poles indicated they were owned by the local (Baby Bell) telephone company with "contact" by local power company.?ÿ At the time I was also doing right-of-way/easement surveying for the telephone company.
Called the telephone company right-of-way agent I was working with and asked about that line.?ÿ He told me to come to his office and he would supply me with a copy of the original title document.?ÿ This proved to be a blanket easement on the parent tract dating from before the Civil War. The easement was to a telegraph company bearing the name of the county in which it was located. The original hand written document, bearing gold foil seals with colored ribbons, was in the telephone company fireproof vault.?ÿ I showed the information on the ALTA plat and submitted it to the attorney representing the client.
Later received a call from the attorney informing me I couldn't show that and any telegraph company would have long been out of business. My reply was that the current telephone company right-of-way agent had informed me otherwise.?ÿ The telegraph company was now a subsidiary of the telephone company and the local line-men's pay checks included the telegraph company name.?ÿ Also told him of the age and qualities of the "original title document" of which I had a photocopy.?ÿ The attorney asked for a copy and said he would have a talk with the title company as to the quality of their work.
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If documents and/or conditions exist that establish the easement it should be shown/noted until documents/conditions exist that extinguish the easement. I don't believe there is much leeway allowed on an ALTA. Although you may rely on information provided by the title company for your research, I don't believe you are relieved of your duty to the public if you have knowledge from another source and fail to disclose it on your ALTA. Clients have the option of asking for easements not to be shown on their survey but I don't believe this would be allowed on an ALTA survey.
I agree. Despite the ALTA standards stating "surveyor shall be required to conduct only that research which is required pursuant to the statutory or administrative requirements of the jurisdiction where the property being surveyed is located", if the surveyor has knowledge of a plottable easement/servitude which by all indications is still in force, it needs to be shown.
The title company may take it off the schedule B items, but that doesn't make it go away. If the client or title company has a problem with that, and cannot provide evidence that the easement has been extinguished, they can go fly a kite.
I'm gonna show everything that looks like it is a utility and name it what it looks like whether there is record of it or not?ÿ
One local title company will not take anything off of a property if it has anything to do with the parent tract even when it can be proven that it is not on the tract being surveyed.
Thank you all. I have taken the easement out of the schedule B notes, as it has been removed, and added the recorded document to the general notes area. I know what is going to happen next.?ÿ
If anyone is still reading this thread.... Same ALTA Survey as in my OP. We did numerous Topos, ALTA's, and other things for the seller of the property. The buyer is now our client. Some of the other things were proposed easements, that did not show up in the title report. So, I know that they were proposed, and I know they are not in the title report. They either (a) for some reason never got recorded (b) got recorded and missed by the title co., or (c) got recorded and the title co. intentionally left them out of the report. How do you approach this??ÿ
(a) for some reason never got recorded
Maybe the reason they never got recorded is that they never got executed, i.e. the proposal was rejected and the easement wasn't created.?ÿ I don't think I'd show a proposed easement on an ALTA unless I had documentation strongly indicating an intent to execute (similar to a proposed right-of-way change).?ÿ Showing an unsupported proposal could wreck the deal, leaving the surveyor open to a claim for damages.
How do you approach this?
At the title company level. Lots of legals get prepared that never become recorded documents.?ÿ Title Companies do miss a lot, but if you alert them to something they will generally get on it.?ÿ ?ÿ?ÿ
@ppm It shouldn't matter who your client is and we need to always be in a position to be continuing on with a different client/same property scenario. That is why its important to do the right thing and disclose everything.
I don't know what State you are in and the laws regarding recording there, but it might not matter if the document was filed or not.
Title companies miss a lot of things. It appears to me that their business model is different than mine. I can't afford to be sloppy. I can go on and on with this point.
That said, I cannot imagine a situation where a Title Company would purposely leave something off their document leaving them open to litigation or worse a claim.
