We have a Town that is telling my client that they will not approve his building permit due to the following two notes on the map:
1) Subject to any covenants, easements, restrictions, conditions, and agreements of record.
2) Subject to the right, title or interest the public may have for highway use.
My reasoning behind these notes are (other than the obvious one of protecting my own liability):
1) While we have a title report, we have seen things left out of title reports many times. Suddenly a utility comes out of the wood-works and holds up an easement (recorded or not) or the title searcher did not go back to the beginning of time or they relied on an older filed map which did not show an easement. This is why they have title insurance. We have done our due diligence here already by tracing back around 100 years worth of deeds. But we didn't trace this back to the beginning of time. The current lot is part of a subdivision from the 1950's but the parent parcel can go back to 1695ish patent.
2) This one I guess I could remove because the road width is called out on an old subdivision plat, but thats pretty rare around here (especially on older maps) and I don't really want to set a precedent with them on this. I asked the Town through a FOIL request to provide the acceptance of the road dedication, or the official highway map, or an official statement from the Town attorney that they had accepted the dedication of the road. Their response was to ignore me and when I called and asked they said they had none of the documents and the Town would not say on paper that they accepted the dedication. I realize that dedication can be accepted by maintenance after time but wouldn't that essentially be a user ROW with a potentially different ROW line than the old map?
Am I off base on my thinking here?
Reword it to say the same thing and bury it elsewhere on your drawing.
This survey was based on a title report provided to me and......Yada Yada yada. Loose the subject to stuff
tomchurch, post: 438609, member: 10174 wrote: We have a Town that is telling my client that they will not approve his building permit due to the following two notes on the map:
1) Subject to any covenants, easements, restrictions, conditions, and agreements of record.
2) Subject to the right, title or interest the public may have for highway use.My reasoning behind these notes are (other than the obvious one of protecting my own liability):
1) While we have a title report, we have seen things left out of title reports many times. Suddenly a utility comes out of the wood-works and holds up an easement (recorded or not) or the title searcher did not go back to the beginning of time or they relied on an older filed map which did not show an easement. This is why they have title insurance. We have done our due diligence here already by tracing back around 100 years worth of deeds. But we didn't trace this back to the beginning of time. The current lot is part of a subdivision from the 1950's but the parent parcel can go back to 1695ish patent.
2) This one I guess I could remove because the road width is called out on an old subdivision plat, but thats pretty rare around here (especially on older maps) and I don't really want to set a precedent with them on this. I asked the Town through a FOIL request to provide the acceptance of the road dedication, or the official highway map, or an official statement from the Town attorney that they had accepted the dedication of the road. Their response was to ignore me and when I called and asked they said they had none of the documents and the Town would not say on paper that they accepted the dedication. I realize that dedication can be accepted by maintenance after time but wouldn't that essentially be a user ROW with a potentially different ROW line than the old map?
Am I off base on my thinking here?
Aren't both of those statements tautologies, or things that are necessarily so? Since it is true that every parcel of land is subject to record claims, I don't think it needs to be said.
The client's title policy will probably have those same disclaimers and you can probably take it off your drawing.
1. You can not disclaim anything beyond what your BOR requires you to be liable for.
2. It will not stop a good lawyer.
0.02
I cant answer your query here but in circumstances where I am asked to, or 'you cant do...' I ask why they say such and from what part of the legislation do they say that, or where in xyz is that listed?
Asking questions in an email, especially, is I find a way to put the onus back onto them to justify their actions. If they cant and its 'cos I say' then time to discuss more.
That questioning I find most times solves the issue as the person throwing their authority about has to justify their arguments and support them in some meaningful way.
It also seemingly keeps them in that place of authority and you are the lesser without ruffling feathers.
tomchurch, post: 438609, member: 10174 wrote: 1) Subject to any covenants, easements, restrictions, conditions, and agreements of record.
tomchurch, post: 438609, member: 10174 wrote: 2) Subject to the right, title or interest the public may have for highway use.
What you seem, to them, to be saying is "there is a bunch of stuff affecting this property that I'm not showing". We understand what you are trying to say, that stuff can crop up in spite of your best efforts. But i can see why they would object. Rework your statement.
I don't think those notes will really help you.
#1 is just a basic principle of real property law, maybe it makes sence in a deed, but why say it on application for a permit? On the other hand I don't see why the town would object.
#2 If the road is shown on a subdivision plat and a public entity is maintaining it, why would you need any more documentation? But again why would the town object?
Mark Mayer, post: 438641, member: 424 wrote: What you seem, to them, to be saying is "there is a bunch of stuff affecting this property that I'm not showing". We understand what you are trying to say, that stuff can crop up in spite of your best efforts. But i can see why they would object. Rework your statement.
I think that is the superior insight into the problem. There are several levels at which all surveying-related matters may be understood and "how a group of laymen tasked with enforcing some local government regulations will interpret anything" is Level 2, just barely above ""how my barely literate client will understand anything that I report to them. That is Level 1.
Unless rules have been changed recently that I am unaware of, in Florida we have a duty to show visible easements, easements shown on a recorded plat or on right of way maps recorded in the Transportation Plat Book, and recorded easements that are furnished to us by the client. But, that's it. We are not responsible for conducting title searches to locate easements. I typically place notes similar to #1 somewhere on my maps. Often times I place it at the end of any new legal description, and in addition I will add the word/phrase "existing" and "or not of record". I have never been asked/required to remove the note.
As a follow up to my previous post, I have personal knowledge of an AT&T buried cable easement that was the subject of a lawsuit.
#1. The easement had no signage.
#2. There were no visible indications anything was buried across/through the property
#3. Though the easement was recorded, the Clerk completely failed to index the deed. Thus, there was no way for a title examiner to know about it.
#4. The survey map did not show the easement. ie. The easement was not visible, the easement was not marked, and the client failed to furnish a copy of the easement deed. In other words, without benefit of a crystal ball there was no way for the surveyor to know there was anything under the ground.
#5. The title insurance company had to settle up with the new land owner, and then sued everybody possible...the Clerk of Court, the title examining company, the surveyor.
There are times when the surveyor simply has no way of knowing or finding everything. Even when you look very hard. So, I will keep putting the "subject to" note on my map. In the above matter my company provided the survey, however, during discovery my attorney learned the attorney issuing the insurance policy did so prior to receiving a copy of the survey map. (In other words he couldn't blame the surveyor.) Thus, I was excused from the lawsuit. Sadly (for the title examiner), he was ordered to pay $100,000 damages even though there was no possible way for him to have found the easement deed.
In Colorado, only licensed surveyors can create new subdivision lots, or change the location of existing subdivision lots. However, many town and county planning departments place requirements for condition of approval that are either: substandard survey practice, or, information that has nothing to do with surveying. when this happens, our choice is to either fight for 10 years chasing squirrels and losing your client who hires another surveyor that complies with "town regulations", or, do what Just A. Surveyor does: find a way to hide your correct information on the plat so that you are doing a legal plat (and will keep your license), or do what many of us do and "decertify" information shown that is Town required but outside the auspices of a statute defined survey plat. A general note that seems to work here for "subject to easements or rights not shown by the public record" is "only plottable and surveyable easements of record are addressed by this plat".
tomchurch, post: 438609, member: 10174 wrote: We have a Town that is telling my client that they will not approve his building permit due to the following two notes on the map:
1) Subject to any covenants, easements, restrictions, conditions, and agreements of record.
2) Subject to the right, title or interest the public may have for highway use.
I'm all about compliance and getting ahead when the roadblocks are thrown up.
I'd probably say
1. Per GF XXXXXXXX, items A-Z of Schedule B are as shown hereon. Period. Who cares if someone missed an easement Methuselah drafted. That's not your job to say what the property is subject to or otherwise.
2. This note is silly at best. Either your tract has an interest in the road (happens here all the time), or it stops at the ROW and in either case, the note is not covering any donkeys, but a surveyor playing a title attorney.
Revise note 1. Show Schedule B. Remove Note 2. Don't ever do them again. Collect your fee. Enjoy a cold beer.
I. Ben Havin, post: 438677, member: 6834 wrote: As a follow up to my previous post, I have personal knowledge of an AT&T buried cable easement that was the subject of a lawsuit.
#1. The easement had no signage.
#2. There were no visible indications anything was buried across/through the property
#3. Though the easement was recorded, the Clerk completely failed to index the deed. Thus, there was no way for a title examiner to know about it.
#4. The survey map did not show the easement. ie. The easement was not visible, the easement was not marked, and the client failed to furnish a copy of the easement deed. In other words, without benefit of a crystal ball there was no way for the surveyor to know there was anything under the ground.
#5. The title insurance company had to settle up with the new land owner, and then sued everybody possible...the Clerk of Court, the title examining company, the surveyor.There are times when the surveyor simply has no way of knowing or finding everything. Even when you look very hard. So, I will keep putting the "subject to" note on my map. In the above matter my company provided the survey, however, during discovery my attorney learned the attorney issuing the insurance policy did so prior to receiving a copy of the survey map. (In other words he couldn't blame the surveyor.) Thus, I was excused from the lawsuit. Sadly (for the title examiner), he was ordered to pay $100,000 damages even though there was no possible way for him to have found the easement deed.
Right, there are times when even the most diligent surveyor will miss something, but I don't see how the "subject to..." helps. It's just a statement of law. It certainly is a true statement of law, but a surveyor doesn't have the power to change the law by adding or not adding a note. Its like putting a statement on a deed that says "subject to forclosure for not paying taxes."
On the other hand, I don't see how it could possibly hurt, and I might want to fight the town too, just because I doubt there is an ordinance saying you can't put harmless notes on your survey.
aliquot, post: 438761, member: 2486 wrote: Right, there are times when even the most diligent surveyor will miss something, but I don't see how the "subject to..." helps. It's just a statement of law. It certainly is a true statement of law, but a surveyor doesn't have the power to change the law by adding or not adding a note. Its like putting a statement on a deed that says "subject to forclosure for not paying taxes."
On the other hand, I don't see how it could possibly hurt, and I might want to fight the town too, just because I doubt there is an ordinance saying you can't put harmless notes on your survey.
It's just a part of our standard disclaimer. We add it to the end of new legal descriptions to let the world know we have not checked all this stuff out. Others are certainly free to keep the paragraph in their deed language or not. Totally up to them. We have tons of other "truth in advertising" notes in other places. I agree though, I don't have the power to change law, but I like the notes. Others seem to also, as I see more and more area surveyors using many of the same notes we've been using for the past 20 years. It doesn't hurt. Also, I've attended many continuing education sessions where the instructors preach "truth in advertising" as they like to call it. To me that's mostly what it is.
I've read countless deeds that fail to call out individual easements, and just cover it by something like, subject to all easements and encumbrances.....
I don't understand how we, as boundary surveyors, ended up being liable for missing stuff, when the lawyers who were part of the conveyance, aren't.
Record a Results of Survey with your notes then reference that document on the submittal to the city.