Affects or Does Not Affect | That is the Question (ALTA Surveys)
Ever since the 2016 Minimum Standard Detail Requirements were released, there has been much conversation in the surveying community about the role of the Professional Surveyor in addressing title exception documents on an ALTA/NSPS Land Title Survey.
Section 1 of the 2016 Minimum Standard Detail Requirements (2016 Standards) state the purpose of the Land Title Survey:
1. Purpose – Members of the American Land Title Association® (ALTA®) have specific needs, unique to title insurance matters, when asked to insure title to land without exception as to the many matters which might be discoverable from survey and inspection, and which are not evidenced by the public records.
For a survey of real property, and the plat, map or record of such survey, to be acceptable to a title insurance company for the purpose of insuring title to said real property free and clear of survey matters (except those matters disclosed by the survey and indicated on the plat or map), certain specific and pertinent information must be presented for the distinct and clear understanding between the insured, the client (if different from the insured),the title insurance company (insurer), the lender, and the surveyor professionally responsible for the survey.
The title company will perform a search of the public records for any documents that might affect, burden or benefit the subject property. This search will be represented in their commitment for title insurance provided to the Surveyor.
The ALTA/NSPS Land Title Survey is sufficient for the title company to remove the standard survey exception from the title policy. However, most clients will want the title company to remove any special exceptions from their policy which do not affect, burden or benefit the property. For example, an easement that is related to the adjacent property or a property across the street. The title company will look to the Surveyor to make a professional assessment as to whether each exception is applicable to the subject property, so they can remove it from the title policy.
Section 6 paragraph (C)(i) and (ii) of the 2016 Standards specifies how easements are to be addressed on the survey:
C) Easements, Servitudes, Rights of Way, Access, and Documents
i) The location, width, and recording information of all plottable rights of way, easements, and servitudes burdening and benefitting the property surveyed, as evidenced by documents provided to or obtained by the surveyor pursuant to Section 4.
ii) A summary of all rights of way, easements and servitudes burdening the property surveyed and identified in the title evidence provided to or obtained by the surveyor pursuant to Section 4.
Such summary shall include the record information of each such right of way, easement or servitude, a statement indicating whether or not it is shown on the plat or map, and a related note if:
(a) the location cannot be determined from the record document;
(b) there was no observed evidence at the time of the fieldwork;
(c) it is a blanket easement;
(d) it is not on, or does not touch, the surveyed property;
(e) it limits access to an otherwise abutting right of way;
(f) the documents are illegible; or
(g) the surveyor has information indicating that it may have been released or otherwise terminated.
This is where the conversation takes an ugly turn. I have been involved in countless arguments in the last 2 years over this issue and really think it needs to be addressed from another viewpoint.
There is a movement in the surveying community that the Professional Surveyor is not qualified to make a statement as to whether a title exception affects the subject property. Followers of this theory will say this responsibility lies with the title company or an attorney. Some will imply that using the word “affect” is somehow a legal opinion.
Surveyors who share this opinion will state something similar to the following notations when addressing exceptions:
- …Is shown on the survey
- …Lies within the limits of the property
- …Is not on or does not touch the subject property
- …Does not cross the subject property
All in a concerted effort to avoid using the word “affects” Why?
According to Black’s Law Dictionary “affect” is to act upon; influence; change. The Surveyor is not being asked HOW IT AFFECTS the property, only if it DOES AFFECT the property. Who better than a Professional Surveyor to state whether a document (that contains a legal description) affects or does not affect a property? We are supposed to be the professional property locators, aren’t we?
The true argument seems to be over semantics, and this sect of the surveying community seems to vehemently oppose using the word “affect” for some reason.
Even though I have stated my opinion above regarding the use of the word, a simple solution would be to just use the same words as Section 6 paragraph C of the 2016 Standards: (underlined above for emphasis). As an example:
- …Burdens the subject property and is shown hereon
- …Does not Burden the subject property
- …Benefits the subject property and is shown hereon
- …Burdens the subject property and is blanket in nature
This approach actually makes more sense than using the word “affects” anyway. If we have complied with paragraph C (i) and (ii) then we have made the determination whether a document burdens or benefits the property. If we have already made that determination, then we should be able to place those findings in a note on the survey, shouldn’t we? And word it in a manner that coincides with the requirements.
Each Professional Surveyor has the right to make their own decisions based on what they feel is best for them. I am not saying everyone has to do things my way. However, I see our profession being diminished if we continually pass our responsibility onto other professions. In this case, the title company or attorneys.
The title profession has historically looked to surveyors to make the assessment regarding easements. Why would we want to deny that responsibility by arguing over the use of a particular word? If we keep telling them that it’s their job, eventually they will ask “why do we need surveyors?"