The highest evidence of title to property is the deed. Other than the deed, the two most important documents relative to the conveyance of real property are the title insurance policy and the survey map of the property.
Title insurance and boundary surveys are intricately intertwined, due primarily to the unilateral efforts of the title companies issuing title insurance policies. Unilateral, because the title company can issue what it refers to as “survey coverage” on any boundary survey map proffered by the landowner in conjunction with the issuance of a title insurance policy without the input of the land surveyor and regardless of the surveyor’s willingness to be the guarantor of the survey results.
Survey results, meaning the on-the-ground location of the property lines as represented on the map of survey being underwritten by the title company. Rest assured, if the title company provides “survey coverage” and there is something wrong with the location of the property lines, the insurance company will presumably pay out on the policy and will then seek indemnification from the surveyor for any mistakes in that representation. This will, of course, make the surveyor the ultimate guarantor of the property lines in question.
Title Insurance and Survey Coverage
Most landowners do not understand the importance of these two documents (especially the survey) or why they are significant. To be sure, most buyers of real property1 will purchase a title insurance policy, because they will be required to buy, at the very least, a “Lender’s Policy” of title insurance for the mortgage company. Simply put, the mortgage company isn’t going to lend the money without having its interest protected at the expense of the borrower. Presumably, most homeowners will also obtain an “Owner’s Policy” of title insurance, but that is not a foregone conclusion.
If landowners truly understood the dynamic between the owner’s title policy and the boundary survey, it is hard to imagine why, for the price of a survey and some additional premium, they wouldn’t also opt for “survey coverage,” resulting in both title insurance and boundary location insurance. This would be akin to Torrens Title.
Actually, the default coverage under the standard ALTA Policy is that the survey of the property is covered under the policy. Subject to exclusions that will be listed in Schedule B, “Covered Risks” under the standard ALTA policy include:
“Any encroachment, encumbrance, violation variation, or adverse circumstance affecting the Title that would be disclosed by a complete and accurate survey of the land.”2 [Emphasis added.]
This is nothing less than property line location insurance, at least that is what the title companies think. “Lawyers Title argues that survey coverage does not cover all alleged defects in the survey, but only errors in identifying the boundaries of the property and any encroachments affecting those boundaries.”3 [Emphasis added.]
For “survey coverage” to not be included under the policy, the title company must specifically exclude it in Schedule B, through what is commonly referred to as the “survey exception.” The result of “survey coverage” when the “survey exception” has not excluded it, is that the property boundary lines shown on the survey are being guaranteed as to accuracy of location.
“In addition, Lawyers Title offered to provide Doubletree ‘a more complete title insurance policy’ that would insure ‘against loss because of discrepancies or conflicts in boundary lines, encroachments or protrusions, or overlapping of improvements, excluding from the coverage specific matters disclosed by the survey,’ if Doubletree obtained a survey of the property and paid an additional premium. Doubletree decided to purchase this more complete policy, and the parties have referred to the additional coverage Doubletree purchased as ‘survey coverage.’”4
Title v. Location
As we know and have discussed on many occasions in this column, the determination of any property boundary is a two-part question of law and fact. The legal question is: What is the property? The factual question is: Where is the property located?
“The question of what is a boundary line is a matter of law, but the question of where a boundary line, or a corner, is actually located is a question of fact.”5
The legal question is generally answered by the title documents (the deed) and this is what the title company typically insures.
“A deed of conveyance is the highest evidence of title to real estate, and when coupled with possession, the grantee has all the indicia of title.”6
The factual question is the surveyor’s question to answer through retracement surveying principles and practices. Occupation, which, in and of itself, is evidence of title, plays a significant role in retracement surveying.
“Possession of land is prima facie evidence of title and is sufficient evidence of title as against all persons but one who can show either a prior possession or a better title.”7
The ALTA Surveying Standards, to a certain extent, dictate how retracement surveying is to be conducted in order to achieve a “complete and accurate” survey of the property as called for under the Standards and the “survey coverage” clause of the standard ALTA Policy.
“The boundary lines and corners of any property being surveyed as part of an ALTA/NSPS Land Title Survey shall be established and/or retraced in accordance with the appropriate boundary law principles governed by the set of facts and evidence found in the course of performing the research and fieldwork.”8 [Emphasis added.]
This begs the question: What are the “appropriate boundary law principles”? If you don’t know what they are you better find out because achieving an “accurate survey” of the property is dependent upon the proper application of these principles.
“Relative Positional Precision is a measure of how precisely the surveyor is able to monument and report those positions; it is not a substitute for the application of proper boundary law principles. A boundary corner or line may have a small Relative Positional Precision because the survey measurements were precise, yet still be in the wrong position (i.e. inaccurate) if it was established or retraced using faulty or improper application of boundary law principles.”9 [Emphasis added.]
When the certification is added to the ALTA survey and incorporated into the title policy inducing survey coverage, the property boundary lines are now insured. Do landowners know that they can buy property location insurance along with title insurance? Do land surveyors know that their surveys of property can and are being used to issue such insurance, rendering the land surveyor the ultimate guarantor of that location? My anecdotal evidence indicates to me that the answer to both of these questions is no.
You Are in the Insurance Business
I’m not sure that too many surveyors fully understand this relationship between the insurance policy and the boundary survey. There are many factors that make me think this. First, is the wide-eyed, deer-in-the-headlights look I get from surveyors when I explain the relationship in a live seminar. Second, is the relatively low fees surveyors charge for residential lot surveys. They do not appear to know that they are providing insurance coverage as well as surveying services.
Finally (but not an exhaustive list), is the widely held belief in the surveying community that surveyors don’t locate property lines (i.e., limits of ownership); they simply locate deed lines which may or may not be the true and correct (accurate) property lines. If the “written title lines” are not reflective of the true property lines, then deed-staking, if it is a boundary law principle at all, would not be the appropriate principle to apply and the survey would be “inaccurate” by definition. The genesis for this belief is not hard to find:
“The professional property surveyor, in addition to other duties, is often given an exclusive franchise or shared privilege (1) to locate property lines in accordance with a written description, (2) to locate encroachments on written title lines ….”10
For the uninitiated, this means simply stakeout the deed lines. The idea continues in this book to the present day:
“In keeping with recent legal decisions, we have somewhat modified some of the terminology. For instance, seldom is the term property line or property boundary used. It is our belief that property rights, including property boundaries, are legal questions and as such are not addressed by land surveyors. Surveyors locate boundaries, or land boundaries or deed lines. They do not and cannot locate property rights.”11
Nevertheless, Brown effectively pronounced his mea culpa on deed staking in his 1979 article “Land Surveyor’s Liability to Unwritten Rights.”12 While walking back his early deed staking beliefs, Brown made an interesting statement:
“What did the client have in mind when he asked the surveyor to locate his boundaries? Was he asking the surveyor to locate his ownership? Or just the deed lines? As all surveyors should know, there is a vast difference between ownership and written deed rights. The written deed is merely evidence of ownership, not proof of ownership; title to land can be transferred by unwritten rights. From my experience with clients, very few know that there is a difference between the two; most clients want to know what they own.” Id.
Indeed. Maybe surveyors don’t know what their clients want but it’s not difficult to figure out what the title company wants. It wants a survey of the property that is complete and accurate because the title company is going to insure the limits of ownership as represented on your map. How does it feel to be in the insurance business?
- For the purposes of this discussion, it can be safely assumed that the vast majority of real estate transactions taking place in the United States are single-family homes with a mortgage.
- ALTA Owner’s Policy of Title Insurance, (7-1-14).
- Lawyers Title v. Doubletree Partners, 739 F.3d 848, 860 (U.S. 5thCir. 2014).
- Id., at 853.
- Walleigh v. Emery, 163 A.2d 665 (Penn.1960).
- Keifer v. Klinsick, 42 N.E. 447 (Ind.1895).
- East Canyon Land & Stock v. Davis & Weber Canal Co., 238 P. 280 (Utah 1925).
- “2016 Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys,” Sec. 3.D.
- Id., at Sec. 3.E.iii.
- Brown, Curtis Maitland and Winfield H. Eldridge, “Evidence and Procedures for Boundary Location,” (first edition), 1962, John Wiley & Sons, Inc., New York and London, Preface at vi. In this edition, Brown misguidedly uses the term “property survey” to describe the process of laying out written title lines and “occupation survey” to describe the process of surveying property ownership.
- Robillard, Walter G., Donald Wilson, “Evidence and Procedures for Boundary Location,” Sixth Edition, 2011, John Wiley & Sons, Inc., Hoboken, New Jersey, at 2.
- Brown, Curtis M., “Land Surveyor’s Liability to Unwritten Rights,” Surveying and Mapping, Vol. XXXIX, No. 2, 1979, at 119-123.
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law changes and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.