- SPECIAL REPORTS
- THE MAGAZINE
As major providers of professional liability and business owners’ insurance to surveyors, we at Victor O. Schinnerer of Chevy Chase, Md., review a fair number of contracts and respond to many questions. A question surveyors frequently ask is, “Why should a professional [surveyor], who knows better than anyone else what kind of survey is required for a specific project, be confronted with standards of any kind, especially those presented by a client?” In answering this question, we remind the surveyor that within his or her own profession there is disagreement about the quality and contents of specific surveys. The clients of surveyors report great variations in the quality of surveys (e.g. inconsistent data displays). There is even the suspicion that certain surveys are performed by the “windshield survey” method—that is, without the surveyor even going on the site to make the minimum measurements. However inaccurate or unfair this impression may be, surveyors’ clients insist on the need for a set of standards that will assure them of the value of the services both as to accuracy and content of the survey.
Standards have a leveling effect on the profession. Practitioners are apt to deliver services of unequal quality when they perform according to self-determined standards based on their own impressions of what is required. When a set of concise, comprehensive standards is included with the Request for Proposal (RFP), surveyors can be assured that their competitors are playing by the same rules.
Standards: A Positive ImpactIt is worthwhile to remember that most clients have little or no understanding of surveying procedures and practices. That is one reason why one of the most frequent causes of disputes over fees between professionals and their clients is a poorly defined scope. A carefully crafted scope of services defined by well-prepared standards minimizes confusion at the contracting stage of a project as well as at the bill-collecting stage.
Some members of the industry have argued that printed standards increase a surveyor’s liability. That is true—when the surveyor is not conversant with the standards that apply to a specific project. The surveyor who fails to perform up to a standard, either through ignorance or incompetence, will eventually be brought to task. But in the long run, well-developed standards will limit a surveyor’s liability by clearly defining scope and accuracy requirements. A client reluctant to pay a bill, for instance, is unable to claim surveyor misfeasance or nonfeasance when the surveyor’s work was demonstrably performed to a printed standard agreed upon by both the client and surveyor.
Printed standards also assist in establishing the normal standard of care in an occupation. In professional liability cases, one of the first questions to be dealt with involves the standard of care that should have been applied to the subject case. The normal standard of care is usually established through testimony, an examination of similar cases and a review of common law edicts. Printed standards necessarily establish a certain minimum below which a professional’s performance may not fall, but ideally do not set forth the normal standard of care performed by the professional on a project-specific basis. In any case, having printed standards assists in defining a minimum performance level. The normal standard of care must at least be at that level and preferably higher.
The Origin of Today’s StandardsThe use and development of published standards for surveyors has been an issue for many years. An example of the evolution in published standards is evidenced in the history of the ALTA/ACSM Standards.
The 1962 ATA/ACSM standards (ATA was the American Title Association, which became the American Land Title Association) made reference to exactness in surveys. Exactness, perfection and “error-free results” are words and phrases inappropriate to describe a surveyor’s work. There is no exact, perfect or error-free measurement. Furthermore, this document required the surveyor to report “maximum positional tolerance of corners.” The document did not define the term nor is it found in standard surveying texts or dictionaries. (“Allowable positional tolerance of corners” was required to be not more than 0.02 feet in urban areas and not more than 0.04 feet in suburban areas.) In the final statement of the preamble, it was stated that the title insurance industry was entitled to rely on the “highest professional quality both as to completeness and accuracy”—a standard well beyond the normal standard of care required of professionals by law.
In 1979, the American Congress on Surveying and Mapping (ACSM) revised the document, but this version was acted upon only by ACSM and never became a jointly published standard. In 1986, ALTA and ACSM jointly published new “Minimum Standard Detail Requirements for Land Title Surveys,” rejecting the more objectionable items of the earlier versions. At the request of the ALTA Lenders Council, the standards were revisited and revised in 1988. Again in 1992 and 1997, the ACSM committee examined the standards due to surveyor concerns. There were apparent problems with interpretation and application. The accuracy and precision standards within Table 2, the current version’s “Minimum Angle, Distance and Closure Requirements for Survey Measurements Which Control Land Boundaries for ALTA/ACSM Land Title Surveys,” were said to be too rigid and inflexible, and were an impediment to the use of new technologies. There were criticisms of inconsistency and redundancy throughout the body of the standards, especially regarding the additional survey requirements of Table 3 (today’s Table A). As a result, the boards of ACSM and ALTA revised and approved the standards in 1999.
Today, the ALTA/ACSM standards are the benchmark for published standards. They define a minimum level of performance by the surveyor and provide the owner a better understanding of what they should expect from a surveyor each and every time.
Providing a Specialty ServiceLawyers and insurance professionals are not qualified to provide design services. Equally, surveyors should not assume that they can provide legal or insurance advice for their own or their clients’ use. Each specialty service should be provided by those qualified to provide that service. Therefore, we recommend that appropriate legal advice be obtained when negotiating any binding document, including your professional service agreement.
Sharing the information contained in this article with a client and the client’s attorney may help educate them and create realistic expectations that can be documented in the professional service agreement. Further information about this and other topics can be obtained in “The Surveyor’s Contracts and Risk Management Manual” jointly published by Victor O. Schinnerer and ACSM. Copies of the manual can be purchased through the ACSM website at www.acsm.net.
How Can the Standards Help Clients?An Illinois surveyor recently voiced his concern about the ALTA/ACSM Standards. Here is his concern, followed by a response from Gary Kent, PLS, ACSM past president.
“I have always been somewhat troubled by the ALTA/ACSM Standards with respect to how the standards are understood by our clients. As all surveyors know, the Standards do not address the “art of surveying” and how property corner locations are determined by preponderance of evidence. How two surveyors can disagree with the measurement between point A and point B with all the high-tech equipment available is a logical question that any attorney or title examiner could raise. Perhaps it is time that the Standards be revised to include statements that will focus on the inexact science of surveying land title boundaries so general users of plats will have a clear understanding that surveyors do not and can not ensure the accuracy of property locations.”
Gary Kent responds:
“I agree that the standards do not address the “art” (I prefer the term “law”) of surveying—at least not directly. This is not unexpected. Statutes that address the “law” of surveying (other than with respect to the public land surveys) are few and far between. Even state board-adopted standards rarely address the legal aspects of boundary determination other than by instructing the surveyor to “...represent the locations, consistent with the best evidence available” (Arizona) or to make an “interpretation of location in accordance with law and/or precedent...” (paraphrased from Indiana and Massachusetts).
Almost all “law” related to boundary determination is from common law. This issue is, however, broached indirectly in the ALTA/ACSM standards in a variety of ways. In the first paragraph of the ALTA survey, the standards note that
“...title insurance companies are entitled to rely on the survey furnished to them being of the appropriate professional quality, both as to completeness and as to accuracy.” To me, this implies that the work must be conducted in accordance with some acceptable standard—both as to “how” it is conducted and to what level of accuracy. Where there is a written standard, there is a good chance that it will be the criteria. Minimum standards adopted by state registration boards are probably the best example of this.
As to the question of how two surveyors can disagree over a measurement with high-tech equipment, the answer lies not in the measurement itself, but in “from where” and “to where” the measurement is made. Most of the disagreements between surveyors result not from measurements themselves but from (1) one surveyor not having all of the information that the other has (and all of the things that can fall out of that lack of information), or (2) one surveyor making an incorrect or unsupported boundary determination.
With respect to the need for the standards to explain “the inexact science of surveying land title boundaries so general users of our plats have a clear understanding that surveyors do not and can not ensure the accuracy of property locations” I would suggest that the second and third paragraphs of the Introduction to the Accuracy Standards address this issue very well. These paragraphs read as follows:
The lines and corners on any property survey have uncertainty in location which is the result of (1) availability and condition of reference monuments, (2) occupation or possession lines as they may differ from record lines, (3) clarity or ambiguity of the record descriptions or plats of the surveyed tracts and its adjoiners and (4) Positional Uncertainty.”
“The first three sources of uncertainty must be weighed as evidence in the determination of where, in the professional surveyor’s opinion, the boundary lines and corners should be placed. Positional Uncertainty is related to how accurately the surveyor is able to monument or report those positions.
Surveyors should not only be able to communicate these concepts in lay terms, but they should also be able to explain how these concepts affect the lines and corners of each and every survey they undertake in a Surveyor’s Report included as a part of each survey. If they can do that, they will go a long way toward clearing up the problems that you bring up.”