On the Level

January 1, 2004
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How to exculpate (to declare or prove guiltless).

The September/October newsletter of Victor O. Schinnerer & Co. Inc., underwriting manager of professional liability lines based in Chevy Chase, Md., called Guidelines for Improving Practice, carries an article titled "Surveyor's Case Shows Importance of Exculpatory Language." It is based on a recent Indiana case in which a surveyor provided a Surveyor's Location Report for title insurance purposes. The survey was apparently less than complete and exhaustive, and carried the following exculpatory statement:

"The report is designed for use by a title insurance company with a residential loan policy. No corner markers were set and the location data shown is based on limited accuracy measurements. No liability is assumed by (the surveyor) for any use of the data for construction of new improvements or fences." ."

In spite of the disclaimer the client erected a barn, which later turned out to encroach on an adjoiner's parcel by 20 feet. Predictably, the client sued the surveyor for the cost of the land required to bring the barn into the client's title. A lower court rejected the client's claim and an appellate court affirmed the judgment. Surveyors will be gratified and encouraged by this case, but it would be well to take care when relying on exculpatory clauses for protection when performing work to less than the normal standard of care.

The surveyor in this case required the purchasers to execute a document titled "Survey Receipt with Hold Harmless" in which the client certified acknowledgement of the "encroachments, easements, limitations and/or conditions thereon." Guidelines observe that this acknowledgement of the exculpatory clause of the report shielded the surveyor from a charge of negligence and the point may be that the Surveyor's Location Report was reinforced by the Hold Harmless document. One additional step I recommend is for a clause to be added to the surveyor's contract specifying the limitations of the proposed survey. That way the client receives an exculpatory warning at the beginning (in the contract), at the conclusion of the survey (in the Surveyor's Location Report) and as a final acknowledgement of the limitations of the survey (in the Hold Harmless clause).

In this case the issue was a survey designed for a specific, narrowly defined purpose. It is always a risk that a client will use such a survey for some higher, more demanding purpose; a properly stated disclaimer is an appropriate remedy. There are other services provided by surveyors for which the exculpatory clause is equally important. I have observed that surveyors are required to execute certifications more often than perhaps any other design professional. The impact of a certification is as much for what it does not say as for what it affirmatively states. We may add words like "To the best of my knowledge and belief" and "Accuracy established according to accepted standards of professional practice." Architects regularly apply a statement on their plans to the effect that "all dimensions are to be verified by the contractor."

Perhaps the most common surveyor's certificate is the so-called mortgage inspection report. Surveyors in many parts of the country make these reports in the form of plot plans showing, typically, houses positioned on lots in accordance with zoning and building requirements though they did not perform full-blown property surveys. Offsets and dimensions may be shown to "plus or minus" precision. The prudent surveyor adds a note to the plan stating the purposes of the plan and that it is not suitable for construction of improvements or fences on the property.

Over the years I have seen an amazing variety of these statements from the cryptic "Not intended for building purposes," to long and involved paragraphs spelling out the limitations of the survey and the methods by which it was achieved. Whether these disclaimers are adequate to protect the surveyor from a charge of negligence (and to protect the homeowner from material damages as a result of misuse of the plan) is uncertain and may only be decided on a case-by-case basis. In at least one case I have seen, the surveyor showed offset dimensions to the nearest tenth of a foot from building corners to the property lines while stating that the plan was not suitable for building purposes. The logic in this practice escapes me. Why should a surveyor's measurement, reported to the nearest 0.1 foot not be reliable for purposes of fence construction or even for a building addition where there is more than enough side yard according to zoning? A homeowner can be excused if he is confused, especially after paying for the plan at the real estate closing.

In a Connecticut case (Oligino v. Fuller, 1979), the surveyor certified on his plot plan that the building did not encroach over the street line, title lines or building lines, and that there were no violations of zoning regulations and no easements or encroachments "other than those shown and depicted hereon." In fact, the plan showed (graphically) the house to be in violation of the street setback requirement of the zoning bylaw. (The 40-foot setback requirement was noted on the plan and the actual distance from house corner to street-38.24 feet-was shown.) In litigation the court found that "(t)he defendant's reliance on the claimed exculpatory phrase is misplaced since the court finds that the language in question is, in fact, part of the final clause only." Further, the court stated, "What is required is a surveyor's certification that no such violation exists"¦" After a lengthy discussion on semantics the court said, "The law avoids interpretations of language which lead to absurd or untenable results. Indeed, it is doubtful that any bank would give a mortgage on property if it realized that it would have to look behind the surveyor's certificate." Again, further in the decision the court entered the quote, "Certificates of expert examination are intended to be exhibited, not hidden under a bushel."

In other words, exculpatory phrases and clauses are to be clear, open, reasonable, understandable and anticipated by the professional and the client. And they must make good sense to everyone who reads them, and they must not obviate the purposes the service was intended to serve in the first place.

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