New 2016 ALTA/NSPS Land Title Survey Standards: What Attorneys Need to Know

Size: px

Start display at page:

Download "New 2016 ALTA/NSPS Land Title Survey Standards: What Attorneys Need to Know"

Virginia Kennedy
6 years ago
Views:

1 Presenting a live 90-minute webinar with interactive Q&A New 2016 ALTA/NSPS Land Title Survey Standards: What Attorneys Need to Know Leveraging the Feasibility Assessment Tool for Land Development Deals MONDAY, JANUARY 25, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Gary R. Kent, P.S., Integrated Services Director, The Schneider Corporation, Indianapolis Jeffery N. Lucas, Esq., President, Lucas & Company, Birmingham, Ala. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

2 Tips for Optimal Quality FOR LIVE EVENT ONLY Sound Quality If you are listening via your computer speakers, please note that the quality of your sound will vary depending on the speed and quality of your internet connection. If the sound quality is not satisfactory, you may listen via the phone: dial and enter your PIN when prompted. Otherwise, please send us a chat or sound@straffordpub.com immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again.

3 Continuing Education Credits FOR LIVE EVENT ONLY In order for us to process your continuing education credit, you must confirm your participation in this webinar by completing and submitting the Attendance Affirmation/Evaluation after the webinar. A link to the Attendance Affirmation/Evaluation will be in the thank you that you will receive immediately following the program. For additional information about continuing education, call us at ext. 35.

4 Program Materials FOR LIVE EVENT ONLY If you have not printed the conference materials for this program, please complete the following steps: Click on the ^ symbol next to Conference Materials in the middle of the lefthand column on your screen. Click on the tab labeled Handouts that appears, and there you will see a PDF of the slides for today's program. Double click on the PDF and a separate page will open. Print the slides by clicking on the printer icon.

5 The New ALTA/NSPS Land Title Survey Standards ~ What Attorneys need to Know ~ Strafford Publications Webinar January 25, 2016 Presented by Gary R. Kent, PS and Jeffery Lucas, JD, PS 5

6 The ALTA/ACSM (NSPS) Standards February 23,

7 The ALTA/ACSM (NSPS) Standards 2 year process Multiple meetings of ALTA and NSPS committees separately Final joint meeting of both committees ALTA 10 members NSPS typically 15 surveyors at committee meeting (300+ indirect participants) 7

8 The 2016 ALTA/NSPS Standards Section 1- Purpose Section 2- Request for Survey Section 3 Survey Standards & Standards of Care Section 4 Records Research Section 5- Fieldwork Section 6 Plat or Map Section 7 Certification Section 8 Deliverables Table A 8

9 Preamble NSPS is the legal successor organization to ACSM The 2016 Standards are the next version of the former ALTA/ACSM standards 9

10 Section 1 - Purpose For a survey of real property, and the plat, map or record of such survey, to be acceptable to a title insurance company for the purpose of insuring title to said real property free and clear of survey matters certain specific and pertinent information must be presented for the distinct and clear understanding between the insured, the client, the title insurance company, the lender, and the surveyor professionally responsible for the survey. [Emphasis added.] 10

11 Section 1 - Purpose In order to meet such needs, clients, insurers, insureds, and lenders are entitled to rely on surveyors to conduct surveys and prepare associated plats or maps that are of a professional quality and appropriately uniform, complete, and accurate. [Emphasis added.] 11

12 What is Complete and Accurate? Of course this begs the question: What is a complete and accurate survey of real property? 12

13 Section 1 - Purpose To that end, and in the interests of the general public, the surveying profession, title insurers, and abstracters, the ALTA and the NSPS jointly promulgate the within details and criteria setting forth a minimum standard of performance for ALTA/NSPS Land Title Surveys. A complete 2016 ALTA/NSPS Land Title Survey includes: [Emphasis added, and a list of criteria follows.] 13

14 Accuracy and Precision The Standards also address the issue of an accurate survey, but before we go there, let s consider the difference between precise measurements and accurate results: 14

15 Accuracy and Precision Accurate or accuracy is to take care to be careful to be free from mistakes or errors. An accurate statement, for instance, is a true statement, free of errors. In contrast Precise is characterized by precision, as in a measurement operation. Precision is also gauged by the degree of repeatability a measurement has. Quotes from Webster s New World College Dictionary 15

16 Accuracy and Precision The terms accuracy and precision are often confused and used interchangeably, when they should not be, since they mean different things. Precision has to do with refinement of measurement, while accuracy denotes nearness to the truth. [Emphasis added.] Wilson, Donald A., John Wiley & Sons, Inc., Hoboken, New Jersey, 2006, page

17 Accuracy and Precision Bear in mind, however, that a 1 in 10,000 survey is not necessarily a better survey than one which is 1 in 5,000, it is merely a more precise survey. The other consideration has to do with accuracy. has to do with accuracy. A 1 in 10,000 survey made of the wrong lot, or using the wrong corners or boundaries, may be very precise, but inaccurate and probably worthless. [Emphasis provided.] Wilson, Donald A., John Wiley & Sons, Inc., Hoboken, New Jersey, 2006, page

18 Accuracy and Precision That is one reason the courts have emphasized monumentation and the determination of correct boundaries rather than whether a survey was 1 part in 5,000 versus 1 part in 10,000. [Emphasis added.] Wilson, Donald A., John Wiley & Sons, Inc., Hoboken, New Jersey, 2006, page

19 Accuracy and Precision If the focus of a survey of property is to identify the true and correct property corners and the true and correct property lines, then an accurate survey would do that. Figure 1 shows that we have hit the bullseye, but the precision of our measurements is low. 19

Accuracy and Precision In contrast, Figure 2 demonstrates that our measurements have a high degree of precision, but we missed the mark the focus of

20 Accuracy and Precision In contrast, Figure 2 demonstrates that our measurements have a high degree of precision, but we missed the mark the focus of the survey. We precisely measured the wrong piece of property. Our survey results are completely inaccurate but our measurements are highly precise. 20

21 Accuracy and Precision When you combine high accuracy with high precision, you get valid results. Results that are well-grounded on principles or evidence; able to withstand criticism or objection, as an argument; sound. Webster s What do the Standards have to say about an accurate survey? 21

22 Section 3.D. Boundary Resolution 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 appropriate boundary law principles governed by the set of facts and evidence found in the course of performing the research and fieldwork. [Emphasis added.] 22

23 Section 3.E.iii. Measurement Standards 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. [Emphasis added.] 23

24 Accuracy and Precision When a surveyor performs an ALTA/NSPS survey and signs the certification, the surveyor is certifying to a complete and accurate survey of the subject property. This means an accurate identification of the true and correct corners and boundaries of the property; which, of course, implicates all adjoiners and coterminous property lines. 24

25 Section 7 - Certification This is to certify that this map or plat and the survey on which it is based were made in accordance with the 2016 Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys, jointly established and adopted by ALTA and NSPS, and includes Items of Table A thereof. The fieldwork was completed on. [Emphasize added.] 25

26 Boundary Law Principles All of this implicates at least two more questions. The first question is what are the appropriate boundary law principles? 26

27 Appropriate Boundary Law Principles Adverse Possession Title & Location Doctrine Common Grantor Doctrine Location Doctrine of Monumentation Location Original Surveyor/Following Surveyor Location Acquiescence Location Oral Agreement - Location Practical Location Location Repose Location Estoppel Location Junior/Senior Conveyances Location Issue 27

28 Accuracy and Precision The second question is, what happens if the surveyors doesn t/ understand the difference between accurate results and precise measurements, and certifies to an accurate survey that precisely identifies the wrong monuments and the wrong boundaries? 28

29 Accuracy and Precision Most other standards across the country have confused these concepts (as Don Wilson discussed), and actually define accuracy by the precision of the survey measurements. 29

30 2015 Mississippi Standard of Practice 30

31 2015 Mississippi Standard of Practice 31

32 Accuracy and Precision Let s take that question one step further. Let s say the title company removes the survey exception from the title policy based on the idea that it has received an accurate survey, when it has not. 32

33 Accuracy and Precision What happens when the title company has to pay a claim out on the policy when it is discovered that there is, in fact, an encroachment that would have been discovered had the survey been accurate as opposed to merely having precise measurements? 33

34 Accuracy and Precision Wolfe, the original owner, testified that he watched Wegner place the original stakes and that the stakes were in the same location when he sold the property to the Hannemans and when he showed the stakes to the realtor involved in the Hanneman/Geiger transaction. Thiessen [the following surveyor] testified that because the pipe did not meet his accuracy [precision] expectations, he decided not to use it as a boundary marker. Gilbert v. Geiger, 2008 Wisc.App. LEXIS 21 (Wisc.App.2008) 34

35 An ALTA/NSPS Land Title Survey must include: i. Section 5 fieldwork ii. Section 1 - Purpose Section 6 plat or map (including relationship to record documents) iii. Table A items selected by client iv. Certification in Section 7 35

36 Section 2 Request for Survey Written authorization Dealing with atypical properties e.g., trailer parks, marinas, campgrounds Non-fee interests Easements Leases Discuss scope with affected parties 36

37 Section 3 Survey Standards, etc. A. Effective Date 2/23/16 B. Compliance with jurisdictional requirements Conflicts with other standards C. There is a normal standard of care 37

38 Section 3 Survey Standards, etc. E. Measurement Standards ii. Uncertainties in location Due to reference monumentation Due to record documents Due to occupation/possession that differs from the record lines Relative positional precision 38

39 Section 4 Records Research Request to set forth: Record description of property to be surveyed Record description of parent tract if original survey 39

40 Surveyor must be provided with: i. Most recent title commitment (or other acceptable title evidence) ii. iii. Section 4 Records Research Certain record documents Adjoiners Easements benefitting surveyed property (Schedule A appurtenant easements) Easements burdening the property (Schedule B2 easements) Unrecorded documents if desired by client 40

41 Section 4 Records Research If documents are not provided, or if nonpublic or quasi-public documents are required to complete the survey, the surveyor shall conduct only that research: required pursuant to the statutory or administrative requirements of the jurisdiction where the property is located negotiated in the contract 41

42 A. Monuments B. Rights of way and access C. Lines of possession and improvements along the boundaries D. Buildings E. Easements and servitudes F. Cemeteries G. Water features Section 5 Fieldwork 42

43 B. Rights of way and access ii. Section 5 Fieldwork Name of ways abutting the property, and location of edges of traveled way except when no access 43

44 E. Easements and Servitudes iv. Section 5 Fieldwork Evidence observed on and above the property of utilities on, over and beneath the property (with examples) [formerly optional Table A item 11(a)] 44

45 A. Evidence and locations gathered pursuant to the Section 5 Fieldwork B. Boundary, Descriptions, Dimensions and Closure C. Easements, Servitudes, Rights of Way, Access and Documents D. Presentation Section 6 Plat or Map 45

46 B. Boundary, Description, Dimensions, Closures ii. Section 6 Plat or Map New Descriptions Why was a new description prepared? Avoid new descriptions unless deemed necessary and appropriate How the new description relates to the record Same as? How does it differ? 46

47 C. Easements, Servitudes, Rights of Way, Access and Documents ii. Section 6 Plat or Map Summary of all rights of way, easements & servitudes Burdening surveyed property If evidence of same was provided to the surveyor Record information, whether shown or not and a note if: 47

48 (a) Location cannot be determined from record (b) No observed evidence (c) blanket easement (d) Not on or touching surveyed property (e) Limits access Section 6 Plat or Map (f) Documents are illegible (g) Surveyor has info that it has been released or terminated 48

49 Section 7 Certification Only the unaltered certificate contained in Section 7 Except as required pursuant to Section 3.B. (local or state requirements) Date of fieldwork Date of plat/map 49

50 Section 8 Deliverables Copies to client and title company Other copies as negotiated Durable, dimensionally stable material Digital image in addition to, or in lieu of, hard copies pursuant to terms of the contract If recordation or filing required, produced in recordable form and recorded or filed 50

51 Twenty (20) items Table A Number additional items 21(a), 21(b), etc. Additional items explained (see Section 6.D.ii.(g)) An ALTA/NSPS Land Title Survey is not an engineering design survey 51

52 6. Zoning a) If set forth in zoning report/letter provided to the surveyor by client List: Table A Zoning classification Setback requirements Height and floor space area restrictions Parking requirements Identify date and source of report/letter 52

53 6. Zoning b) If set forth in zoning report/letter provided to the surveyor by client and if no interpretation is required by the surveyor Graphically depict: Table A Setback requirements Identify date and source of report/letter 53

54 11. Utilities Table A Location of utilities on or serving the property as determined by: a) Observed evidence (see Section 5.E.iv.) b) Plans requested by surveyor and obtained from utility companies or provided by client (reference source) c) Markings requested by surveyor pursuant to 811 or similar utility locate request 54

55 11. Utilities Table A Representative examples See Note to client, insurer and lender Without excavation, info may be incomplete, inaccurate and unreliable Utility locate requests may be ignored or result in incomplete markings 55

56 18. Wetlands Table A If there has been a field delineation of wetlands conducted by a qualified wetlands specialist hired by the client, surveyor will locate observed delineation markers 56

57 Table A 19. Offsite (appurtenant) easements If plottable, include as part of the survey pursuant to Sections 5 and 6 and applicable Table A items. Client to obtain necessary permissions 57

58 Questions? Gary R. Kent, P.S. Jeffery N. Lucas, Esq. 58

ALTA/NSPS Land Title Survey Standards: What Real Estate Counsel Need to Know

Presenting a live 90-minute webinar with interactive Q&A ALTA/NSPS Land Title Survey Standards: What Real Estate Counsel Need to Know Survey Exceptions and Survey Endorsements in Title Insurance Policies