Reconnaissance: Liability, Battles and Wars

There is a trend that was addressed in this column about two years ago, but that deserves another look since it is a problem that will likely get worse before it gets better.

Surveyors frequently seek guidance when they are asked to sign a seemingly innocuous affidavit or certificate for a small fee. In conjunction with or sometimes completely separate from that request, the surveyor is told that the caller has a poor copy of her ten-year old survey and can she simply provide a clean copy? Or maybe there is a request to “update” a 20-year old survey (“We only need an update; nothing has changed!”).

Surveyors need to be aware that such simple requests serve a purpose that is unrelated to surveying, but that will burden surveyors with high liability if they let them.

See sidebar below for a fairly typical example of a surveyor’s affidavit; there are many versions, most of which are not quite this egregious.

Without going into a long discussion on the myriad clauses that are problematic in this document, suffice it to say that surveyors should not sign something that even remotely resembles this. There are many reasons including, but not limited to, state standards, the ALTA/NSPS Standards, the normal standard of care, client and title company expectations, the possibility of persons being misled, and future misunderstandings over what the affidavit represents and what it does not.

Let the requestor complain. Let them tell you there is no additional liability. Let them tell you that you are the only surveyor they ever encountered who had a problem with it. (How many of you have been told you were the only surveyor who would not do something?) All of those statements are obfuscations.

Is this a sign that title companies do not like surveyors? Nothing could be further from the truth. The affidavit above probably did not even originate with the title company. In fact, title companies generally love surveyors. Many title companies wish they had a Land Title Survey on literally every property they insure. But that is simply not going to happen; that proverbial train left the station years ago.

Then why is this happening? There is tremendous pressure in the real estate transaction industry to close mortgage loans more quickly. That pressure comes from all directions—sellers, buyers, lenders and the government (all for their own reasons)—and is aimed at moving that ubiquitous closing date up in time.1 In order to accomplish that goal, extra time, costs and problems must necessarily be weeded out of the closing process. Surveyors are far from the only businesses that are impacted; in fact, title companies may actually be the most affected. But surveyors should know what to do to avoid being simple detritus in the process.

There are few innocent requests for a copy of an old survey, and—despite frequent assurances—the surveyor is often taking on new liability in providing that copy. The more parties that have a copy of a survey, the more potential liability the surveyor incurs. Even when a surveyor provides a free copy of an old survey, there can be associated liability—particularly if the surveyor knows it may be used as part of the documents related to a new transaction.

Seemingly simple requests to provide surveyor’s affidavits in lieu of surveys are nothing of the sort. Surveyors should read them carefully and decide if they can honestly sign them. They should also give careful consideration to providing “updates” of old surveys without a complete review of the previous survey, a site visit, review of current documents (including adjoiners), checking monuments and confirming that all current ALTA/NSPS and state standards have been met.2 They do not have to fold under the pressure, smokescreens and insults.

Practitioners, the profession and its licensing boards today may overcome challenges like these, and others more specifically related to technology, but in the next few decades—probably sooner—surveying will be consigned to its roots in boundaries and the preparation of property descriptions. Societal needs, external pressures and perhaps most notably, technology, will eventually win over the rest of what is, today, the practice of surveying.

It is important to note; however, that the future of the surveying profession and the future of the surveying business—while necessarily related—are two entirely different matters. One’s future surveying business can encompass most of what it does today, and more, even though the specific areas of professional practice will likely be narrower. With some entrepreneurship, and if the profession pays attention and continues to learn and evolve, the future of both are bright. As Will Rogers said, “Even if you are on the right track, you’ll get run over if you just sit there.”

1 According to a recent three-year study by Lending Tree, the length of time to close a mortgage has decreased from 74 days in 2017 to 40 days in 2019. https://bit.ly/2Vxo6EK

2 Persons familiar with this column and seminars presented by the author know that he takes great exception to the term “update.” There is no such thing. Every “update” is a new survey because it purports to represent the current conditions on the property pursuant to the current ALTA/NSPS Standards. If the surveyor has performed a survey of the property previously, the client might see a related time and cost savings, but it is a still a new survey.

Sidebar:
Surveyor’s Affidavit
The undersigned states that he/she:

  1. is a professional surveyor licensed in the state of _________________.
  2. Is familiar with the real estate described in the attached Exhibit A (“Real Estate”)
  3. has reviewed the survey of the Real Estate previously prepared by his/her firm and certified on [date] (“Survey”).
  4. is generally familiar with the improvements on the Real Estate and with that Survey.
  5. has inspected the Real Estate and found no material changes to the improvements on the Real Estate or to the improvements adjoining the Real Estate since the date of the Survey.
  6. has found that, to the best of his/her knowledge, the improvements on the Real Estate are within the boundary lines, easements lines and setback lines, if any, of said property, and that there are no encroachments of improvements on adjoining property onto the Real Estate, and that there are no assertions being made by an adjoining property owner, nor by the owner of Real Estate against any adjoining property owners, as to the location of boundary lines or disputes as to occupancy of any portion of their respective property.

This affidavit is being made to induce [title company] to delete the standard survey exception from a title insurance policy to be issued in connection with the purchase/financing of the Real Estate.

The undersigned hereby agrees to indemnify and hold harmless [title insurance company] from any claims, demands or expenses, including attorney fees, which shall be sustained due to any misrepresentations or inaccuracies contained herein.

About the Author

Gary Kent, PS

Gary Kent is Director, Integrated Services at The Schneider Corporation in Indianapolis. He is past-president of ACSM and chairs the ALTA/ACSM Committee for NSPS and the Liaison Committee for ALTA. He is on the Indiana Board of Registration and lectures both locally and nationally.