Now, on to a new topic. Back in the good old days, I was best known for putting all kinds of crazy notes on my survey plats. I remember one surveyor telling me, “Milton, don’t you want to be liable for anything?” Now when I look back, that may almost be true. I did only want to be liable for the items I was being paid to provide. The fact is that some of my notes were a way to make up for not having a good contract spelling out what services I was providing my clients. In my travels, I get to see many different plats displayed at survey shows around the country and have been a judge at some of the meetings. I see a theme developing where most surveyors try to limit their liability with the use of notes or disclaimers. I think this may be a good time to take a look at a few of these.
The first one I almost always see is an attempt to limit liability dealing with utilities. If you are showing utilities, a note should be included on the drawing to limit the utilities shown as visible. The note may go something like this:
NOTE: In providing this boundary survey no attempt has been made to obtain or show data concerning existence, size, depth, condition, capacity or location of any utility existing on the site, whether private, municipal or public owned.
The next most common statement deals with not having the benefit of a title abstract or title search available to the surveyor while performing the survey. This note may read something like this:
NOTE: No abstract of title, nor title commitment, or results of a title search were furnished to the surveyor. All documents of record reviewed are noted hereon (list of documents). There may exist other documents of record that may affect this surveyed parcel.
Alternate note dealing with title search.
NOTE: The professional surveyor has made no investigation or independent search for easements of record, encumbrances, restrictive covenants, ownership title evidence, or any other facts that an accurate and current title search may disclose.
Another common note is an attempt to limit the surveyor’s liability dealing with environmental conditions. It may read something like this:
NOTE: Subsurface and environmental conditions were not surveyed or examined or considered as part of this survey. No evidence or statement is made concerning the existence of underground or overhead conditions, containers or facilities that may affect the use or development of this property.
Another area of concern is to have a copyright of the drawing. I see many plats that have some type of copyright statement. Due to recent changes in copyright law, a surveyor is no longer required to have a drawing registered with the government to enjoy copyright protection. All that is required is to have a statement claiming copyright and a circle containing a © on the drawing. A copyright statement including protection of digital data might contain the following wording:
NOTE: Copyright © John Doe Survey Company, Inc. All rights reserved. No part of this drawing may be reproduced by photocopying, recording or by any other means, or stored, processed or transmitted in or by any computer or other systems without the prior written permission of the surveyor. Copies of this plan without an original signature and impression seal are not valid.
Importance of the CertificateI think we all know the importance of the certificate we place on the plat. On the surface it looks unchanged over the years. On careful investigation, we see subtle changes that can reduce the surveyor’s liability. The most important change to the survey certificate is that today it is common to have the certificate addressed only to the client or people designated by the client. You can see how this helps from passing liability along to future owners of the property.
You have to be careful about the certificate you sign. I had one that said I had researched all deeds recorded and unrecorded. I called the attorney and told him there would be a $10,000 surcharge because of the insurance policy I needed to purchase to protect my company. He agreed to let me remove the part about unrecorded.
The American Congress on Surveying and Mapping (ACSM) has worked with the American Land Title Association (ALTA) for many years to better define a set of standards (called the ALTA standards) that outline what constitutes an adequate title survey. (The more complete name is Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys; the latest revision being 1999.) Item 8 of the requirements deals with the certification. In this item, they recommend that the certification made to the client be as follows:
To: (name of client), (name of lender, if known), (name of insurance company, if known), (name of others as instructed by client).
This is a good way to limit liability. The standards also provide three options dealing with accuracy or tolerance. These standards deserve a review, including those of you not doing ALTA surveys. The standards can be found at the ACSM website, www.survmap.org.
I hope some of my ideas help to explain to the client the services provided. Some of you may have other notes needed on a plat. Please share them with us. We may post them on the POB website.