- SPECIAL REPORTS
- THE MAGAZINE
Weasels are small ferocious creatures that have a reputation for getting in and out of tight places with ease. It becomes easy to see that slick, well-worded phrases (often with a legal flavor) have come to be known as “weasel words.” We have all seen them in fine print on a contract or insurance policy. Maybe we have used them ourselves on a survey. Perhaps there have been times when we didn't use them but wish we had.
There are a number of such "weasel words" whose sole purpose is to excuse shoddy and incompetent work and avoid liability. Informed and knowledgeable surveyors recognize these "weasel words" for what they are. I have avoided using examples of these in this article. Most reputable surveyors don't use "weasel words" to avoid responsibility, nor do they bury these words in the fine print. They use them to inform the client and future user of the limitation and accuracy of the product they are looking at and often place them in large print so they are very hard to ignore.
The best place to start a discussion of this type (which is sure to draw strong reaction and opinions from both sides) is to address some of the underlying issues which impact thought on the issue. There are three facts, which we must be up front about.
Lawsuit, anybody?We, in America of 2000, live in one of—if not the most—litigious societies the world has ever known. You need look only as far as the morning newspaper to see reports of a jury giving a large reward to some poor consumer because he or she was hurt using (or often as not misusing) a product made by some big company with big pockets. Take a look at the hair dryer in your bathroom. Does the average person really need to be warned not to use an electrical hair dryer in the shower? Apparently, the hair dryer companies think they do. If juries have awarded settlements in cases where common sense on the part of the “victim” would have in all probability prevented or lessened the damages, is there any hope for defense in a technical field as complicated, subjective, and grossly misunderstood as surveying? It makes sense that we would want to take the same precautions and place warnings about the misuse of our products in plain sight so as to protect our clients from themselves and ourselves from their lawyers.
What exactly does a surveyor do?As surveyors, we practice a profession that is grossly misunderstood by not only the vast majority of the public for whom we work but by our fellow professionals as well. Often, it is the lawyers, bankers, real estate agents, etc., who have the greatest misconceptions and misunderstandings about the end product a surveyor gives them.
Not long ago, I had a high-placed official of a nationally known title insurance company request an ALTA survey on a local commercial property. When I asked him what options he wanted, he had no idea what I was talking about. After faxing him a copy of the latest ALTA standards, he told me he had never seen them before. Attorneys are no better. One attorney told me he had only had one class in law school on real estate law, and only one week was dedicated to description and location matters; the rest was contracts and land deals. We would do well to remember that these same corporate suits are often the ones trying to get surveyors to certify to responsibility and liability on surveys far beyond the scope of a normal survey.
I do not intend to get into the mortgage survey debate here but, armed with only a plat of a mortgage survey, does the lay person really understand that he or she does not have something that should be relied upon to build a property line fence? In the mind of the average person, a surveyor signed the plat, so it must be "accurate” survey. The vast majority of our clientele have no clue as to the difference between a mortgage survey and an ALTA survey. In the mind of the consumer, why should they pay $5,000 for an ALTA survey when they can get a mortgage survey for $150, and the end product so often looks the same?
Is that what you said?Surveyors are notoriously poor communicators. For the most part, we are analytic types that would rather deal with numbers than words. This fact, in various forms, is often lamented as a source of the surveyor’s low social standing. No matter how uncomfortable or distasteful for us, we have to deal with the public and express our ideas in a manner THEY understand.
For us boundary/property line surveyors, this frustration is further compounded by the fact that what we do is filtered through an inexact legal system. Boundary surveying is not an exact science; it is an art. Surveying is the exact science of measurement. Boundary surveying is the application of that exact science through a porous legal system on an imperfect world. It is often the lowly surveyor who is expected to explain the elements of deed construction to property owners who do not own what they thought they did. One individual called and asked me to explain a couple of facets of his survey, although I was not the surveyor who performed it. I recommended he contact the surveyor who had. He said he tried, but the only response the surveyor would give him was “because that’s the way I said it was.” Now that's not communication that generates warm and fuzzy feelings to a client who has just paid big bucks for a survey. In this case, it was a matter that could have been very easily addressed by statement or two on the plat.
It seems that many of our contemporaries operate under "the picture is worth a thousand words" philosophy. “I showed it on the plat. That ought to be enough!” While this attitude may be prevalent in the profession, it can also be dangerous. Some things cannot be explained well in pictures; text or dialog is also needed. Considering that few people out there have had any formal training in map reading, it becomes apparent that we may want to add a little bit more to our surveys.
Protecting YourselfDoes every survey require a full-blown survey report? Probably not, but a few well-worded phrases or paragraphs might go a long way to aid the understanding of the end user. Remember that what we do today could be referred to more than a century from now. In all probability, someone other than our client will use our survey—likely for a purpose it was not prepared for. We have little means to control who uses or misuses our products. We have no means to know the frame of reference that user will apply to the product. Horror stories abound of the liability of these old surveys. Will common survey practice today be understood the same in the future? Probably not. What was common survey practice 50 years ago is hardly touched on in survey courses. How can we expect someone in the future to “follow in our footsteps” if we don’t tell them what kind of shoes we were wearing? Often this can be done with a simple note on the plat. Would it not be prudent from a liability standpoint to post our own warnings on these surveys?
Surveyors do themselves a great disservice when they do not try to protect themselves by the collection and judicious use of some stock phrases that can be used on surveys. Here are some of the statements that we at Bell Surveying & Mapping Inc. (French Lick, Ind.) use in an attempt to educate and inform our clients while limiting the potential liability of the misuse of our works.
Mortgage surveysOn the plat of all mortgage surveys, we include the following statements. For some of you, they may look vaguely familiar. They are paraphrased from the Kentucky State requirements for a mortgage survey.
- This is NOT a boundary survey.
- Information on this plat SHOULD NOT be used to construct ANY improvements.
- Bearings & Distances shown on this plat are RECORD DIMENSIONS from the description provided by the requesting party and NOT verified in the field as being true and correct.
- This plat should be considered incomplete and not used for any purpose without the associated report.
In the accompanying report we include the following statements:
- This report is designed for use by a title insurance company with loan policies only. No corner monuments were set, and the location data herein is based on limited accuracy measurements. This inspection is subject to any inaccuracies that a subsequent boundary survey may disclose. Therefore, no liability will be assumed for any use of this data for construction of new improvements or fences. This IS NOT a BOUNDARY SURVEY.
- I hereby certify to the named parties that the above described real estate was inspected under my direct supervision on the date indicated and that to the best of my knowledge and belief, this report conforms with the requirements contained in sections 42 through 44 of 865 IAC 1-12 [this is the portion of the Indiana Code which states the minimum requirements for a mortgage survey.] for surveyors' location reports.
Do these statements prevent someone from misusing or attempting to misuse the product? No! We still have real estate agents that give their clients old mortgage surveys and represent them as boundary surveys. But, when that client calls in to complain about not finding corners and is shown a complete copy of plat, minus the whiteout, and a copy of the report, I assure you it is not the surveyor who looks bad. Should someone who ignored these statements try to sue, I think they would have an uphill battle.
Boundary surveysWe operate in a very rural area. Some of the counties are not as good as others about keeping auditors' plats up to date. It is not uncommon for there to be contract sales that are not recorded or even unrecorded deeds of conveyance that surface. We cannot be responsible for these issues. We use the best information known to us, and we do not guarantee that it is right; that is the title company’s job.
On boundary surveys we include the following:
- Source of ownership information.
- Ownership shown hereon is per county records indicated above or in title work and/or ownership certificates provided by others. This office assumes no responsibility for the correctness of the public records or information provided by others. This office makes no guarantees nor assumes any responsibility for additional facts which could impact on the location of property lines had accurate and correct title abstract work been provided.
We always place the client and the purpose of the survey in the body of the survey report (This is required by the Indiana Code). Does this limit exposure and misuse? Yes, it does. We have had folks come back and try to make cases when they've used our work for purposes for which it was not intended. When shown that the product clearly stated what its purpose was and told that their purpose is contrary to that stated purpose, their argument becomes weaker, and often as not, they go away.