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Reconnaissance: Reflections on One October, Tom Petty and Land Title Surveys Print E-mail
Written by Gary Kent, PS   
Friday, 24 November 2017

A 510Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

Sitting, as I write this column, in the eighteenth airport I have been through in 2017, my thoughts wander from the mundane (what to eat) to crises (North Korea). What will probably be referred to as One October took place a week ago tonight. Yesterday I spoke on health and safety in the workplace and found it necessary to mention--along with Lyme disease, OSHA 300's, giant hogweed and frostbite--the need to prepare for activeshooter incidents. ALTA/NSPS Land Title Surveys, legal descriptions, easements and active shooters. We've come a long way, baby.

My head spins. Where to start?

The most recent `innovation' in the lending community appears to be the request of the surveyor to simply add new parties to the certificate. No "update" needed1! Easy, quick, and most importantly, low cost (i.e., cheap). As chair of the committees responsible for the ALTA/NSPS Land Title Survey standards, I have received numerous inquiries asking what I think about this.

Lenders want transactions (in particular, mortgages) to be consummated as easily and quickly as possible. That's an admirable goal, and one that is good for the economy. They also want them completed at as low of a cost as possible (not because they are paying for any of it, mind you, but because the lower the closing costs are, the more people there are who qualify for a loan). And--ignoring one of the causes of the late, great recession--that is good too.

But when the goal of quick, easy and cheap seemingly comes at the expense of the surveyor's mandate to protect the health, safety and welfare of the public, do we have a legal, if not ethical and moral, obligation to manage, as best we can, those things that are within our purview and area of responsibility?

Can we add parties to the certification and simply show that as a revision without "updating" the survey? I am not aware of any statute or regulation in any state that actually prohibits it. So, it's likely "legal." But is it ethical?

Is anyone going to be misled into incorrectly believing that they have a survey showing current conditions when, in fact, they do not? If a problem occurs after closing because, as it turns out, the current conditions of the property were not reflected on the survey, will the aggrieved party's attorney give the surveyor a pass? Should she? Will your board of licensure/ registration question the propriety of issuing of such a survey? Should it?

With apologies to what I believe are most surveyors, the rest of us need to grow a backbone and quit cowering before the attorneys who are simply trying to shift liability from their client to anyone who will--either knowingly or ignorantly--accept it. Enter the gullible surveyor. Sure, I'll certify that there are no encroachments! Sure, I'll certify that all utilities are shown! Sure, I'll certify that there are no violations of the zoning ordinance! Hey, the attorney told me I had to; I won't get paid otherwise!

"I have been doing this for twenty years and you are the first surveyor who refused to do this." That's either a flat out lie or a sorry statement about the other surveyors that the attorney has been using.

An encroachment is defined as an illegal trespass--an "unlawful entry onto the land of another.2" Nothing in those words sounds much like the practice of surveying.

Can you see what is buried underground?

A "violation" is a legal determination, not a matter of survey.

Please! Stand up and say: "NO! I cannot do that because it's against the law for me to practice law or to certify to things of which I have no personal knowledge. And even if you persuaded me to do that for you, my professional liability insurance will not cover me if there is a related claim (which, by the way, also means you, lender, will likewise have no protection)."

Use a written contract and put clauses in it to protect yourself and your company. Write a very specific scope. For example:
• "The certification will extend to the following parties only" and then list them: lender, buyer (or owner, in the case of a refinance), and title company (by name, if you have them). That's all. "Other parties [like the law firm] may be certified to for an additional fee."3
• "Utilities will be necessarily be shown based exclusively on observed evidence, plans that are obtained from utility companies and the owner, and markings based on an 811 utility locate request. The client should be aware that it is not unlikely that the 811 locate request will be ignored4 and the surveyor will likely not be able to obtain some or any of the utility plans. In any event, lacking excavation, the underground utility information shown on the survey will be inaccurate and incomplete. If that is deemed unacceptable, the site will need to be excavated and a private utility locate ordered, both for an additional fee."

Are surveyors not the Tom Pettys of the world? Resourceful, hard-working, unpretentious. Tough-minded and big-hearted. Of the people. Right? Tell me why you lay there, revel in your abandon. You don't have to live like a refugee.5

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.

1 Those who have heard me speak on Land Title Surveys know how much I despise this word, hence the quotation marks.
2 See www.businessdictionary.com
3 Successors and assigns for the lender are not a concern of mine
4 In some states, pursuant to the law
5 Refugee by Tom Petty and the Heartbreakers. RIP.

A 510Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

 
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