SURVEY REVIEW I. GENERALLY While every real estate attorney recognizes the importance of title insurance, fewer realize the significance of obtaining an accurate survey of the property to be purchased. Don t use the seller s survey! It was not prepared for this purchaser. In fact, it is possible, if a survey is not ordered, for a purchaser to contract to buy a particular tract of land, to receive a title policy insuring title to the property contracted for, and then learn after the closing that he has not purchased the property he thought he was buying. In such an instance, the negotiations, the sales contract and even the title insurance have not provided the buyer with his main objective-purchasing a particular tract of real estate. A survey is essential to identify and distinguish real property and to aid in establishing the status of title to the property. Attached hereto is a checklist summarizing the important issues that should be addressed in reviewing a survey. The following discussion sets forth standards and specifications for surveys to be performed in Texas, but the discussion is certainly applicable in reviewing a survey in any ALTA/ACSM jurisdiction. II. THE MANUAL OF PRACTICE FOR L A N D S U R V E Y I N G IN TEXAS ( SURVEYOR S MANUAL ) The Surveyor s Manual is a handbook prepared by the Texas Society of Professional Surveyors ( Society ), outlining professional standards for surveyors and establishing specifications for various types of surveys. Every attorney should be familiar with the Surveyor s Manual. Its stated purpose is succinctly set forth in the Introduction as follows: (a) These professional standards prescribe recommended practices for land surveying in the State of Texas, so as to insure the completion of the survey in accordance with commonly accepted standards of professional services, prevailing technological progress and current public welfare requirements. The standards further provide a means whereby competence may be readily distinguished in the land surveying profession. It is intended that these standards be commonly accepted as fundamental and necessary, except where a differing federal, state or local law, ordinance or rule may be more restrictive. (b) In preparing these standards, it is anticipated they will be of considerable value to property owners in Texas in engaging the services of qualified personnel to establish corners and boundaries to their respective properties with a degree of accuracy which will stand the test of time. It is further anticipated that these standards w i l l assist the county clerks in the counties of Texas in receiving and accepting maps for recordation; which maps, in complying with these standards, will be of the required professional quality. (c) It is lastly anticipated that these standards will be of considerable interest and value to the public and to other professions, most notably the legal and real estate professions. 1
III. Land Title Surveys The Society has established standards and specifications for various types of surveys, and familiarity with them will aid the attorney in communicating with the surveyor. Of these various types of surveys available, the attorney will most often deal with a Land Title Survey. The Surveyor s Manual defines a Land Title Survey as a comprehensive investigation and evaluation of significant factors affecting and influencing the location of the boundaries, ownership lines, rights of way and easements within or immediately surrounding a certain lot, parcel or quantity of real estate. Such study and evaluation will culminate in the de liberate and clear location or relocation on the ground of the perimeters, division lines or boundaries and the determination of area of the certain lot, parcel or quantity of real estate. A Land Title Survey differs from a traditional or standard property survey in that the Land Title Survey is for title insuring purposes and therefore must include greater detail not normally gathered in the traditional or standard property survey. The practice of locating land boundaries requires the expert skill of a Registered Professional Land Surveyor (Surveyor) well-versed in the science and art of boundary law and long practiced in the mechanics of measuring and computing values pertaining to such surveys. The purpose of a Land Title Survey is to establish or reestablish, on the ground, the physical or theoretical location and extent of real property lines, political boundaries or lines defining the perimeters of public or private ownership, including the exteriors or centerlines of all easements, the evidence indicating any possibility of prescription or limitation rights and all improvements within the site. A. Inclusions Land Title Surveys may include, but are not limited to, the proper location, documentation, description, or platting of the following real estate: (1) Residential, commercial and industrial lots, tracts, plots, blocks, sites or subdivisions. (2) Acreage tracts for homesites, small farms and small ranches. (3) Investment, agricultural or commercial lands for production of timber, crops, livestock, oil, gas, coal, or quarries, mines or other excavations. (4) Public properties such as parks, beaches, lakes, roads, streets, waterways, highways, building sites. (5) Leases for commercial, agricultural or industrial purposes. (6) Improved properties for the purpose of locating buildings, utilities or other facilities in relation to the property lines. B. Production A Land Title Survey will produce but not be limited to: (1) Monuments for corners, points of curves or references to property lines of the involved land. (2) A signed, sealed, and dated written description depicting the new survey. (3) A signed, sealed, dated, and certified map or plat clearly depicting the survey as made on the ground. (4) As required, a written report of the surveyor s: findings and determinations. (5) Marked boundary lines and corners. 2
C. Property Locations or Conditions The degree of precision and accuracy exercised by the surveyor in a Land T i t l e Survey is determined by the location of the property. The Surveyor s Manual breaks these locations of property down into four groups or conditions : urban business district areas, urban a r e a s, suburban areas and rural areas. The location or condition of the land determines the tolerances (or amounts of allowable variation or imperfection with respect to the surveyor s calculations) to be used by the surveyors. Tolerances for a rural tract, for example, allow for more variation in determining the boundary survey than the tolerances for an urban business district. Conditions are defined by the Society as follows: 1. URBAN BUSINESS DISTRICT, COND ITION I. Any land survey made in a downtown business district of any city, town or village shall be known as an Urban Business District Land Survey, Condition I. A Condition I survey may define exterior boundaries, subdivide property, locate or relocate lots or tracts, define routes or rights of-way and partition urban business district property for any legal use purpose. An Urban Business District Land Survey may be made in any geographical area of the state for any appropriate legal purpose including title company insurance requirements for deletion of area and boundary exception on any real estate. 2. URBAN, COND ITION II. Any land survey made within the corporate limits of any city, town or village, but not in the recognized downtown, business district, shall be known as an Urban Land Survey, Condition II. A Condition II survey may determine exterior boundaries, subdivide property for subdivision purposes, locate or relocate individual lots or tracts, define routes or rights-of-way and partition urban property for any legal use or purpose. An Urban Land Survey may be made in any geographical area of the state except within the downtown, business district of a city, town, or village and may be used for any appropriate legal purpose, including title company insurance requirements for deletion of area and boundary on any real estate in urban, suburban and rural areas. 3. SUBURBAN, COND ITION III. Any land survey that is made outside the corporate limits of any city, town or village, but in any area that is or is intended to be primarily used for residential, commercial or industrial purposes or land lying between such residential, commercial or industrial areas whose value is influenced by the presence of such nearby developed real estate shall be known as a Suburban Land Survey, Condition III. A Condition III survey may determine exterior boundaries, subdivide property for subdivision purposes, locate or relocate individual lots, or tracts, define routes or rights-of-way and partition suburban property for any use or purpose. The Suburban Land Survey may be made in any geographical area of the state except within 3
corporate limits of a city, town or village and may be used for any appropriate legal purpose including title company insurance requirements for deletion of area and boundary exceptions on any real estate in suburban or rural areas. 4. RURAL, CONDITION IV. All land boundary surveys that are made outside a corporate city, town or village limit or outside a suburban residential, commercial or industrial subdivision to locate boundaries of unimproved or improved lands used for the production of crops, livestock or minerals, including gas, oil or coal (fossil fuels), shall be known as a Rural Land Survey, Condition IV. Partitioning of such land may also be done provided the primary purpose, nature or use of the surveyed land is known to remain unchanged. A Rural Land Survey is intended to locate the boundaries and determine the quantity of improved or unimproved farm, ranch, or quarry lands, define routes or rights ofway, or to partition the site for like use, but is not to be used for subdividing into tracts or lots for a different purpose or use. Surveyor s Manual, supra, at iv-v. IV. ALTA/ACSM STANDARDS The American Land Title Association (ALTA), with the National Society of Professional Surveyors (NSPS), a member of the American Congress on Surveying and Mapping (ACSM), have developed minimum standard detail requirements for land title survey. The ALTA/ACSM Standards differ from the Manual of Practice, in that the ALTA/ACSM standards address land title surveying only, while the Manual of Practice addresses ten different types of categories of survey. The ALTA/ACSM Standards became effective in 2006 and are not designed to apply to topographic surveys, construction surveys, root surveys, or other specialty projects. V. THE SURVEYOR A. Selection A survey should be prepared by a licensed Texas surveyor who is acceptable to each party involved in the transaction. The quality of the survey depends greatly upon the ability of the surveyor; thus, selecting a competent professional is crucial. Once the surveyor is selected, the client and surveyor should discuss the client s specific requirements and whether the surveyor can meet those needs. B. Client Relationship The Surveyor s Manual discusses the surveyor/client relationship and sets forth the duties a surveyor owes his client: The client, as always, has the absolute right to demand and receive reasonable professional services for any legitimate project, whether in accord with these specifications or not. For equal protection of the 4
surveyor and client, however, the client must be informed whether the service he requests will or will not meet these requirements. The best possible method of protecting each party is by use of a contract for a specific service signed by the client. Any section or subsection of these specifications may be stricken or deleted by request of the client and such deletion should be documented. Surveyor s Manual, Specifications, at 1. Also note that Texas courts have recently ruled that the surveyor may be liable under the Texas Deceptive Trade Practices Act for misrepresentations to his or her client, Smith v. Herco, Inc., 900 S.W.2d 852 (Tex. App. Corpus Christi 1995), writ denied. C. Written Contract The Surveyor s Manual as quoted above states that the best way to insure that both parties know exactly what is expected from the survey is to have a written contract between the client and the surveyor expressly stating specifications for the survey. Such a contract, however, is rarely utilized since ordinarily an earnest money contract requires a survey to be delivered to the purchaser within 10 to 30 days after the execution of the contract, thus allowing no time for the surveyor and the client to enter into a contract. The necessity of immediate action to obtain a survey makes impracticable the negotiation and drafting of a formal contract with the surveyor. The next best alternative is to provide the surveyor with a copy of the relevant earnest money contract in which the specifications and time limitations relating to the survey have been set forth prior to the purchaser executing the contract. The surveyor should promptly determine whether he can deliver the completed survey in compliance with the terms of the contract in a timely manner and so advise the purchaser s attorney. Also note that if the surveyor performs the survey, he may have lien rights under the Texas Property Code. The statute requires that the surveyor prepare a plan or plat by virtue of a written contract with an owner for the location of the boundaries of real property, V.T.C.A. Property Code 53.021(c). D. Communication Communication with the surveyor remains vital even after the survey is completed. Symbols and markings used by surveyors may vary from surveyor to surveyor and can be frustrating and confusing to one reviewing the survey; further, certain information cannot be relayed entirely by means of the survey. Thus the surveyor should be consulted concerning any questions that arise during the survey review. VI. SURVEYOR CERTIFICATION A surveyor s certification placed on a survey makes certain representations concerning the survey, including, inter alia, representations as to the accuracy of measurements, locations of improvements and rights-of-way, means of ingress and egress to the property, and the flood status of the property. Surveyors are reluctant to certify as to the existence of easements and underground utility lines because 5
a survey is merely a visual inspection of the physical condition of the land, which does not reveal legal conditions affecting the land such as easements and rights-ofway. The surveyor will, however, certify as to whether recorded easements and rights-of-way physically encroach upon the surveyed tract; for example, whether the utility company that has the easement actually has located a line on the surveyed tract. As discussed above, the desired certification is a matter to be negotiated between client and surveyor, and requirements as to certification should be set out in the earnest money contract. VII. READING AND INTERPRETING THE SURVEY To evaluate competently the survey once it is completed, an attorney must be familiar with certain basic surveying terms. Some of the most commonly used terms are defined below. A. Bearing Source The source of the bearing (or course) must be stated in the report, on the map, or in any description as: (1) Geodetic Bearing; (2) Grid Bearing of the Texas Coordinate System of 1927 (or 1983) (with the proper zone specified), Tex. Nat. Res. Code Ann. 21.071 et seq.; or (3) A record bearing or the relation thereto, along a line monumented on the ground as called for in said record. B. Texas Coordinate System The Texas Coordinate System of 1927 (or 1983) was created by Article 21.071 of the Texas Natural Resources Code Annotated. The system is designed to make property descriptions more certain by providing a means of tying them to benchmarks, monuments, and more specifically the triangulations and traverse stations of the U.S. Coast and Geodetic Survey. The U.S. Coast and Geodetic Survey is a survey made by the U.S. government for the purpose of determining the latitudes and longitudes of points on the earth s surface within the United States. The Texas Coordinate System and U.S. Coast and Geodetic Survey employ a grid system consisting of vertical and horizontal lines which are perpendicular to each other. The grid is placed over a Lambert Conformal Conic Projection, which is a map projection in which all meridians are represented by straight lines radiating from a common point outside the mapped area, and the parallels are represented by arcs or circles whose center is the same common point. The projection may have one or two standard parallels that maintain exact scale, while the scale varies along the meridians, and, since the meridians and parallels intersect at right angles, angles between locations on the surface of the earth are correctly shown. Most grid systems, including the Texas Coordinate System, use X and Y coordinates and are measured in feet from arbitrarily established points. The Texas Coordinate System has established imaginary points (called points of origin, which are actually intermediate points of origin and not ultimate points of origin) outside of the particular zone in question. The Texas Co 6
ordinate System has established five such zones. The zones are designated by counties (Tex. Nat. Res. Code, Section 21.074) and are lateral strips traversing the state from east to west. The point of origin for the X coordinate (which is the east coordinate) is always assigned a value of 2,000,000 so that it will always be a positive number, and the point of origin for the Y coordinate (which is the north coordinate) is assigned a value of 0. Other coordinates are measured in feet, not degrees, from these arbitrarily designated points of origin. For instance, in the Texas Coordinate System, a location with an X coordinate of 2,800,000 feet and a Y coordinate of 780,000 feet means that the point is 800,000 feet east of the point of origin for the X coordinate and 780,000 feet north of the point of origin for the Y coordinate for that zone. It is important to know the zone in which the property in question is located. Surveys based upon the Texas Coordinate System are easily identifiable, as they have X and Y coordinates and should typically have conversion charts to enable one to convert from the coordinate system to the regular north/south system. The Texas Coordinate System will become more and more important as the technologic trend continues toward global positioning systems. C. Boundaries A boundary represents the perimeter of the property and is denoted on the survey by a heavy solid unbroken line. D. Calls This term refers to the statement of course and distance representing a particular boundary line on the survey; e.g., THENCE North 23 degrees, 14 minutes 15 seconds East 1046.3 feet along a fence to a railroad tie set for a fence corner. E. Category This term refers to a unit dividing major professional services of a registered public surveyor into defined segments of similar nature, procedure, and practice. Surveyor s Manual, Standards, at 3; e.g., a land title survey is a category, a route survey is another category. F. Certification The surveyor s certification is an optional representation signed by the surveyor warranting that the survey is a true, correct and accurate representation of the property as determined by the survey together with such other representations and warranties concerning the survey as the surveyor and his client may agree upon. G. Closure A mathematical application whereby a determination is made as to the exactness that a geometrical form is generated or attained within its confined elements 7
of connecting lines and points; a computation method used by a land surveyor to test the quality of field survey measurements and to apply corrections in balancing or adjusting the survey to meet precision specifications. The computation of geometrical closure is seldom an assurance of the degree of accuracy to which a land parcel has been surveyed, but rather a means whereby excessive errors or blunders can be ascertained. H. Controlling Monument A monumented land corner to which a land survey is referenced. I. Curves Curves are described in the following terms: (1) Radius-half the diameter of a circle (usually abbreviated as R ). (2) Are a portion or segment of a curved line and with respect to a circle it is a segment of the circumference be tween two radius lines (usually expressed as being the arc length and is abbreviated L ). (3) Chord-a straight line which intersects a curve in two places (usually expressed as a call and distance). (4) Central (or Delta) Angle-the angle formed by the intersection of two radius lines in a circle (usually abbreviated by the delta sign). (5) Tangent-a straight line drawn outside of a circle touching the circumference at only one point and perpendicular to a radius line drawn to that point (usually reference is to a point of tangent P.T. ). (6) Curves to the Left and to the Right-indicates direction of curve. (7) Point of a Curve-the point where a particular c u r v e starts or stops ( P.C. ). (8) Point of a Compound Curve-the point at which a curve with one radius stops and another curve in the same direction with a different radius begins ( P.C.C. ). (9) Point of a Reverse Curve-the point at which a curve going one direction stops and a new curve going the opposite direction starts ( P.R.C. ). (10) Critical Elements of a Curve-the critical elements of a curve are the delta (angle), radius, tangent, arc length, and chord length. Although a curve is best described by the radius and arc length, it may be accurately identified by any two of the elements listed above because, given two of the measurements, the others may be computed. For nontangent curves, i.e., curves in which the straight sides leading into the curve are not tangents of the imaginary circle which would be formed by an extension of the curve, the chord length, in addition to two other elements, is necessary to identify the curve. 8
J. Date of Survey The date on which the survey was taken should clearly be marked on the survey, and the date should never be more than six months prior to the date of the closing. K. Field Notes Field notes are literally what they declare themselves to be, i.e., the notes made by a surveyor in his field book of his findings about a particular tract of land from a survey made on the ground. A proper survey is made in the field, on the ground, and not at a desk. L. Land Title Survey A survey of real property performed by a Registered Professional Land Surveyor to be used by a title insuring agency for insuring title to said real property. M. Legal Description Information necessary to distinguish the property in question from all other property. N. Metes and Bounds The boundary lines of land with their terminal points and angles. Metes and bounds may consist of course, distance, calls for joinder, calls for natural objects bounding a tract, such as gullies, streams, lakes, or bays, or even artificial monuments or objects, such as railroads, roads, fence lines and the like. They are the descriptive material by which the outer perimeter of the particular tract is identified. O. Signature of the Surveyor All surveys should be signed by a registered public surveyor. P. Surveyor Seal and Number All surveys should be marked with the seal and number of a registered public surveyor. VIII. CONCLUSION In conclusion, it is critical to remember that the title insurer and the surveyor can provide the purchaser with extremely valuable information, but it is the attorney s function to obtain the maximum amount of information on behalf of his client. Beyond merely insuring that the purchaser has good and either market able or indefeasible title, the insurer should provide the purchaser with all the information regarding any peculiarities, irregularities or exceptions to that title. Likewise, the surveyor is the person who not only provides a description, but also physically 9
walks the property and observes and makes a record of everything he sees, including anything unusual about that particular piece of property. By accepting anything less, the attorney for the purchaser is not receiving the services that he should be getting from these extremely valuable resources. The attorney s job is to obtain, verify and correct all matters affecting title prior to the closing. In this regard, it is a good practice to enumerate specifically in a closing instruction letter exactly what the title company is directed to do and exactly what language is to be used in the title commitment. After the closing, no amount of hindsight can compensate for a poorly phrased title exception or a generally located easement or encroachment. If the attorney, however, has been diligent in his dealings with the title company and the surveyor, he will have protected his client s interest and rendered him an invaluable service. 10
Checklist for Review of Survey 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. Check the date of the survey. Determine for what purposes the survey was made. Is the survey of the appropriate category and condition for the intended purpose? Check to see that the certification meets contract specifications. Check for the surveyor s signature and seal on the survey. Determine on which system the survey is based. Locate north arrow. Determine beginning and/or commencement point tied to some point on the ground that can be located. (If survey is based on Texas Coordinate System, determine what zone the property is within.) Compare survey plat to field notes. Determine which records were used to identify matters on the survey and compare records to the survey. If records do not coincide with survey, contact the surveyor for an explanation. Compare all easements and other matters listed on title commitment to survey and locate on the survey. If easements are not located on the survey, contact the surveyor for an explanation. Review all notes on the survey. Are there indications of any unauthorized use of the property or unexpected conditions? Review survey for encroachments onto the surveyed property or protrusions of improvements on surveyed property onto other property. Do you want an encroachment endorsement Form 19.1? Check survey for any easements or matters not shown on the title commitment. Check for improvements that overlap easements and overlapping of easements. Check for flood plain certification. Check on access to streets. Do you want the access endorsement Form T-23? 1
17. 18. 19. 20. 21. 22. 23. Check on utility availability to site. Check for building setbacks and other zoning requirements and for compliance therewith. Determine whether the monuments have been located. Determine whether the property is within a larger subdivision. If so, compare survey plat to the subdivision plat. Determine whether there is a necessity for fault, topographic or other type of map. Contact the surveyor regarding any unrecognizable symbols or other information that is unclear. If the property contains multiple tracts, are they contiguous? Do you want the contiguity endorsement Form T-25 or T-25.1? 2