Traversing The Law: This Is Why Surveyors Exist
In my August and October columns, my most recent, we discussed a litmus test for property boundary surveys (i.e., how to know when you have gotten it right) and what the appropriate boundary law principles are and how and when they apply — at least to the extent that can be done in a short column. Both of those subjects implicated the 2011 ALTA/ACSM Land Title Survey Standards or, as we will refer to them below, The Standards.
I credit the 2011 revisions to The Standards for shedding some light on the land surveyor’s responsibility to render an accurate survey of property through the proper application of the “appropriate boundary law principles governed by the set of facts and evidence found in the course of performing the research and survey.”1 I also credit the 2011 revisions for clarifying the fact that precise measurements do not equate to accurate results.
The requirements of The Standards make it clear that those who will be relying on the survey are expecting it to be “complete and accurate.”2 The Standards also make it clear that an “inaccurate” survey is one where a “boundary corner or line … was established or retraced using faulty or improper … boundary law principles.”3 This has always been the surveyor’s responsibility. The only thing new is that it is now written into an actual standard of practice.
So, in order to have an accurate survey of property, one must apply the appropriate boundary law principles in light of the facts and circumstances of the case. There is really no other way to view this, but I know that many surveyors do not really realize the implications of what they are doing when they sign an ALTA certification under The Standards currently. Evidence the fact that surveyors are still doing ALTA surveys at cut-rate fees that can only allow for some form of math stakeout, not the application of proper boundary retracement theory.
Contradiction and Ambiguity
The 2011 Standards, however, have a built-in contradiction that creates an ambiguity relative to the appropriate boundary law principles. When you scroll down to Section 6 and the discussion turns to the information that must be shown on the “plat or map,” subsection B.vii. states, in pertinent part, as follows:
“Where gaps or overlaps are identified, the surveyor shall, prior to preparation of the final plat or map, disclose this to the insurer and client for determination of a course of action concerning junior/senior rights.” [Emphasis added.]
I didn’t discuss junior/senior rights along with the other appropriate boundary law principles in my last column. Let’s just say, I saved that discussion for this column. Junior/senior rights and the influence on the location question are fact issues that involve a common grantor, the chain of title, and the extrinsic and collateral evidence gathered during the course of conducting a survey. Once these factors have been evaluated, the location of the common boundary between the two tracts is generally resolved in accordance with the senior conveyance. This is a question of location, not a question of title.
So, why wouldn’t the surveyor, charged with the responsibility for rendering an accurate survey of property through the application of the appropriate boundary law principles, not also be charged with rendering an opinion on the location of the common line between a junior and senior conveyance? Why would the title company (the insurer) and client need to tell the surveyor what to do in this situation? In the same breath that you say questions of title do not belong to the surveyor, you have to say questions of location do not belong to the title company.
Happily, however, the approved but not yet effective 2016 Standards have solved the conundrum. As approved, Section 6.B.vii. now reads, in pertinent part, as follows:
“Where gaps or overlaps are identified, the surveyor shall, prior to or upon delivery of the final plat or map, disclose this to the insurer and client.” [Emphasis added.]
There is no longer a conflict with Section 3.D. The key was the removal of the requirement to go to the title company and the client for direction on an issue that they do not understand. Maybe that’s a little harsh. But just as the land surveyor may have some knowledge about title to property, a title examiner may have some knowledge about the location question, but is not qualified to render an opinion on that question just as the surveyor is not qualified to render an opinion on title. As re-written, the contradiction is removed and the surveyor is free to render an opinion as required under Section 3.D. by applying the appropriate boundary law principles, including an opinion on the location of the property lines in the junior/senior rights scenario.
Thank you, Gary Kent and the committee, for getting it right.
Now, Can Surveyors Get it Right?
Gaps and overlaps raise some interesting issues vis-à-vis the title and location questions.
As a basic premise from which to begin, title to property is generally ascertained through a written instrument, that when properly executed under state law (this implicates the appropriate conveyance vehicle and the applicable recording statutes) conveys ownership from one entity to another. The long and the short of it is title is “what” someone owns. But, this is only half the question. The next question is “where” is it located? The location question is not a legal or title question; it is a factual question that only the land surveyor is licensed and sanctioned by the state to render an opinion on, in the first instance, before litigation.
The location question involves not only the title documents and the description contained therein, but also deed interpretation in light of the evidence gathered and the surrounding circumstances, evaluating extrinsic and collateral evidence, understanding the standard of care when conducting a survey of property and, finally, applying the appropriate boundary law principles in rendering a well-reasoned opinion on where the property is located on the ground. The location question resolved by the surveyor in this manner is nothing less than an opinion on the limits of ownership as conveyed under the title documents. The surveyor does not give an opinion on what is owned, but on the limits of that ownership.
This is a hard concept for the land surveyor, title attorney, title examiner and other related professionals to understand and fully comprehend. Surveyors have been no help here, either.
For decades now, the land surveyor has treated the title and the location questions as one-in-the-same. If the land does not comport to the description in the title documents, then the land must be made to reflect the geometry in the deed. This is exactly the opposite of what happens when the appropriate boundary law principles are in play and the boundary dispute goes to court. Generally, it is the title documents that are forced to fit the facts on the ground.
Gaps and Overlaps
In the gap and overlap scenario, if the location question is to be resolved through the application of the principles of junior/senior rights, the common grantor must be determined. You do not have a junior/senior rights scenario without a common grantor. Just because one conveyance is older than the other, standing alone, this does not establish the relationship. Once the common grantor is identified and what that common grantor owned, then the sequential conveyances out must be examined.
When it comes to interpreting any deed of conveyance, the fundamental goal is to ascertain the intent of the grantor and, to a lesser extent, the grantee. With regard to intent of the common grantor in a junior/senior rights scenario, we have a Dr. Jekyll and Mr. Hyde situation. In the case of an ostensible gap being created by the conveyances, the search remains for the true intent of the grantor, Dr. Jekyll. Did he intend to divest himself of all that he owned, or did he intend to retain the gap portion? With respect to an ostensible overlap, if Mr. Hyde did not own the overlapping area at the time of the junior conveyance, regardless of what he may have intended to do, he cannot rightfully sell that area.
Again and only as a general proposition, the senior in the junior/senior scenario gets what was conveyed and the junior gets what’s left over. This is the presumption going in unless the contrary can be proven. So, in the overlap situation, the junior gets shortened; in the gap situation, he gets the surplus. In either situation, the bold line — the limits of ownership along the common boundary between the senior and the junior -— gets drawn at the extent of the senior’s conveyance.
Assuming the ALTA Standards are involved, Section 6.B.vii. would be in play and, depending on the circumstance, I might also draw the other title line, since that is the concern of the title company. This would be one way, but maybe not the best way, of disclosing the ostensible overlap that doesn’t really exist. When that line is drawn, it often becomes the battle line. In another case, I might not draw the other title line, especially if the difference is insignificant and showing the difference between field and record measurements is sufficient to disclose. In such a situation, I am reminded of the “de minimis rule” (de minimis non curat lex) that the law does not concern itself with trivialities. And yet another way, and maybe the best way, would be to report the ostensible overlap or gap and your resolution of it on the face of the survey in the notes or in a surveyor’s report, if appropriate.
Notice also, for the senior conveyance, the title line coincides with the limits of ownership, but this is not the case with the junior. This is why title examiners are not qualified to render an opinion on the location question; in their minds, there are two lines. This is because they insure to both lines. But under American property law, there is only one line of ownership. The whole idea that gaps and overlaps exist at all is because the title companies think that they do.
In resolving the apparent conflict of the gap and overlap, I believe that an abstract of title back to the common grantor is an absolute necessity if the surveyor is to render a well-reasoned opinion on the limits of ownership. If we are not doing this, then why do we need surveyors? All we need are more title companies, more litigation and a GIS map with all of the math neatly laid out.
- Section 3.D., Minimum Standard Detailed Requirements for ALTA/ACSM Land Title Surveys (2011).
- Id. at Section 1.
- Id. at Section 3.E.iii.
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.