Christopher Naughten, Vice President and Senior Commercial Counsel of Fidelity National Title Insurance Company’s National Commercial Services office in Washington, D.C. compiled this summary from his webinar presentation, which can be found at: www.dcncs.fntic.com. Chris is member of the Real Property Section of the Maryland Bar.
This article is designed to provide a short summary and highlights of the changes and additions to the new 2016 ALTA/NSPS Survey Standards and Table A that went into effect on February 23, 2016.
The last update to national Survey Standards was in 2011. In 2012, the former representative member of the joint liaison committee, the American Congress on Surveying and Mapping (ACSM) merged with National Society of Professional Surveyors, Inc. (NSPS). NSPS is now the national industry association representing professional surveyors and has become the liaison committee member of the ALTA/NSPS Standards Committee. The American Land Title Association (ALTA), founded in 1907, is the national trade association of the abstract and title insurance industry and has its representatives participating on the ALTA/NSPS Standards Committee.
For 2 years ALTA/NSPS Standards Committee (the “Committee”) members met and discussed language and issues with the 2011 Standards; addressed problems that have arisen since the last Standards were promulgated and the new 2016 Standards are a result of this collaboration.
The 2016 Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys, including its Table A options, is the playbook for the 4 stakeholders involved in insuring title to land, namely: the title insurer, the owner/borrower/client, the lender and the surveyor. It is the agreed upon set of distinct guidelines for a survey to be acceptable for a title company to insure title free and clear of survey matters, except those disclosed by the survey.
Generally, the Committee addressed inconsistencies with the 2011 Standards its Table A options section. It made wording and definitions more consistent and emphasized the surveyor’s “fieldwork obligations” to locate objects and features observed in the process of conducting fieldwork. The Committee addressed the baseline criteria that defines a ALTA/NSPS Survey, namely: What the on-site field work will include and what is excluded; actual preparation of a plat/map showing fieldwork results and relationship to documents relating to the subject land; and addressing and, in some cases, adjusting/shifting responsibilities and standards of care.
New features of the 2016 Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys include the following:
Section 2 – Request for Survey – the “list of a-typical properties or interests” now expanded to include “easements.” This was to address the need for appurtenant easements to be mandatorily included in the subject property being surveyed.
Section 4 – Records Research – a section greatly expanded. It is now imperative that the Surveyor must be provided copies of all documents available that relate to the subject property. The distinction of recorded and unrecorded documents was deleted. This clarifies the reference in the 2011 (and earlier) standards where some of the documents were referred to in the as “Record Documents” were not actually documents recorded in the office of public record. 2016 standards have abandoned the term “Record Documents” throughout, in favor of merely referencing those documents that are “to be provided to the surveyor.” List of documents to be provided to the surveyor now includes “records established under state statutes for the purpose of imparting constructive notice of matters relating to real property (public records)” (e.g., deeds, copies of easements), and any “unrecorded documents that affect the property and to which the client wishes the surveyor make reference.”
This section also addresses what happens when surveyor is NOT provided those property-related docs – burden shifts back to the surveyor in a limited way. The most important change to Section 4 is the last paragraph. All previous versions of the Standards, dating back to 1962, avoided naming exactly who was responsible for obtaining other necessary documents. The new 2016 standards direct the surveyor to look to jurisdictional standards, whether statutory (as they are in a few states) or administrative/regulatory (as they are in most states) when either the documents that were to be provided by virtue of Section 4 are not forthcoming, or the surveyor needs other documents to complete the survey. For those states that have no jurisdictional standards (California and a few others), surveyors need to be familiar with the normal standard of care as referred to in Section 3.D.
Section 5 – Fieldwork – The issue of “degree of precision” exercised by Surveyor’s fieldwork had also been ignored since 1962 and, again, it was past time to address it. The degree of precision pursuant to the 2016 Standards is to be based on the surveyor’s professional judgment when taking into account “(a) the planned use of the property, if reported in writing to the surveyor by the client, lender, or insurer, or (b) the existing use, if the planned use is not so reported ….”
A number of fairly minor but important modifications were made to Section 5.
Section 5B-ii – Rights of Way and Access – change to draw both width of “traveled way” and width of actual ROW. Previously, there was only a requirement to show the legal right of way.
Section 5.C.ii – Improvements Located Along Boundary – Surveyor will now show all improvements within 5 feet of the boundary line unless the access is restricted, which then should be noted as restricted access areas on the survey.
Section 5.E.iv – Utilities and Easements – major change here – Essentially, what used to be Table A Item 11(a) has now been made a requirement. This eliminates the confusion caused by the conflict between former Table A item 11(a) (evidence of utilities) and Sections 5.E.i. and ii. (observed evidence of easements) in the 2011 Standards.
The Issue: If Table A item 11a (or 11b) was not checked, the surveyor did not need to locate any observed evidence of utilities. However, if that utility evidence fell within an easement for which documentation was provided, or if that utility evidence represented the possibility of a prescriptive easement, the evidence did need to be located. Thus, there was confusion over whether or not utility evidence needed to be located and if the wrong decision was made in that regard, there could be a very serious problem for the surveyor.
Section 5.G.i. – Water Features – Survey shall now show all water features inside and outside (within 5 ft) of the boundary line.
Section 6 – New Legal Description – Addresses the issue of new legal descriptions—leaving it to the judgment of the surveyor based on the planned use of the property as reported (or not).
Section 6.A. – Notes – Now provides the option for the surveyor to add Notes relating to his/her fieldwork.
Section 6.B.ii. – New Description Must Be Explained – Now, when the surveyor decides it is appropriate to prepare a new description based on the results of the fieldwork and documentation provided, a new survey now requires a note explaining how the new description relates to the record description (i.e., if it describes the same property and, if not, how it differs).
Section 6.B.vii. – Gaps and Overlaps – Surveyor is not responsible for determining how to resolve a problem with gaps or overlaps – just report it. That resolution is left to third parties and the title insurer to resolve.
Section 6.B.xi. – Restricted Access – Character and location of walls, fences etc. within 5 ft of boundary line; again areas of restricted access must be noted.
Section 6.C.ii. – Easements, Servitudes. Rights of Way, Access and Documents – this section was substantially amended. It was reformatted to read in a list of example options. This formalizes the current practices of listing each title exception shown in the title commitment provided to the Surveyor, (1) noting the recording information; (2) indicating whether or not it is shown on the Survey; and (3) a related note chosen from the new select list of options:
“(a) the location cannot be determined from the record document;
(b) there was no observed evidence at the time of the fieldwork;
(c) it is a blanket easement;
(d) it is not on, or does not touch, the surveyed property;
(e) it limits access to an otherwise abutting right of way;
(f) the documents are illegible
(g) the surveyor has information indicating that it may have been released or otherwise terminated.
“In cases where the surveyed property is composed of multiple parcels, [the Surveyor must] indicate which of such parcels the various rights of way, easements, and servitudes cross or touch [each parcel].”
Section 6.D. – Presentation [of survey product] addresses size, legibility; and 2 new items added:
“(f) Supplementary or detail diagrams when necessary;
(g) Note (or exceptions) to Table A Option Items/Requirement”
OVERVIEW & CHANGES TO TABLE A – OPTIONAL SURVEY RESPONSIBILITIES AND SPECIFICATIONS:
Table A options are the elective choices made by the client/lender which will meet the client or lender requirements and satisfy the conditions to obtain requires title insurance coverages. Here, the Lender customer needs to heavily weigh in.
Table A Item 6 – Zoning – Formally recognizes the practice among the stakeholders for some years now. New Item 6 requires that a report or letter containing the zoning information that the client or lender wants identified on the plat/map be provided to the surveyor by the client.
This addresses the problem identified after adoption of the 2011 standards whereby title companies were to provide this information, but—due primarily to liability issues—they often declined to do so.
This revised Item 6 also addresses two (2) significant issues that arose in practice: Whether to just list or graphically depict zoning set-back lines; and what happens if the surveyor reads it wrong? 2016 Item 6(b) fixes both issues. The surveyor now must graphically depict zoning setback lines, as most lenders require; but it relieves the surveyor from having to graphically depict setback lines if doing so requires an interpretation on the part of the surveyor. This protects the surveyor from the risk of making an error in misinterpreting a zoning code. The Item also requires the surveyor to note the title and date of the zoning report or letter, as the source.
Table A Item 8 – Area of Refuse – Now states “substantial areas of refuse,” which was necessary in exchange for the elimination of former Table A Item 18 (“Observed evidence of site use as a solid waste dump, sump or sanitary landfill”).
Table A Item 9 – Parking – This revision both clarified and imposed two (2) new responsibilities when addressing parking. The clarification is now the surveyor must show the number of parking spaces and type of parking space it is. Presumably this is done in a table. The new duties are: (a) surveyor must include surface area parking lots AND spaces in parking structures (above-ground and subsurface); and (b) they must show striping of “clearly identifiable” parking spaces but just on “surface lots.”
Table A Item 11 (Utility Easements) – Big changes relating to this item were discussed in Standard 5.E. above. Conflict arises with 2011 Standards 5.E. (show utility easements) and 2011 Table A, Item 11 (show evidence of utilities). This has been a difficult item for surveyors and it continues to be even more problematic over time. Main concerns revolve around client expectations, difficulty in getting responses to one-call utility locator requests and difficulty in obtaining plans.
Pointing out what was 11(a) in 2011 has now been included in 5.E.iv. 2016 Standard. All of this revolves around the question of who is supposed to order these “Miss Utility” type calls. Item 11 now only involves what had been 11(b)—what might be referred to as a “utility investigation.”
Now, the responsibility for (a) ordering utility plans, which may reveal easement and service info and for (b) ordering utility locate services clearly lies with the surveyor.
Also, the wording in the “Note” following Item 11 has been modified and expanded to more accurately describe what surveyors may actually be able to accomplish with regard to locating utility services and easements. A similar note could—and probably should—be part of the surveyor’s contract and should also appear on the face of the plat or map with information related to the actual results of the specific investigation.
Table A Item 13 – Identifying Adjacent Property Owners – 2011 imposed a Surveyor duty to do an owner check or order deed search to verify adjacent property ownership; Surveyor now must only identify adjacent owners found on local tax records. This clarification now includes all “adjoining sites” not just plotted land as required in 2011.
Table A Item 16 – Evidence of Work – This is word clarification. New Item changes “recent” work to “current earth moving, construction or building additions observed during fieldwork.” “Recent” was too subjective.
Former 2011 Table A Item 18 – evidence of site use as a solid waste dump, sump or sanitary landfill is eliminated; identification of such matters are properly the subject of a Phase One Environmental Assessment, not a survey.
NEW Table A Item 18 – Wetlands – One of the biggest problems that came out of the 2011 standards was the pervasive lack of understanding of wetlands on the part of clients, lenders and surveyors. Part of the problem is that the term “wetlands” is a not a defined legal term but a term of art. For 2016, this Item now states what was intended in 2011 (old Item 19), and the new wording makes it clear that surveyors are not responsible for delineating wetlands. The responsibility of identifying and locating wetlands falls to 3rd parties. Surveyor is only now responsible for showing wetland boundary markers placed by others. It is now up to the client to hire a qualified environmental specialist to mark the area for the Surveyor to depict. “If no [such] markers [are] observed, the surveyor shall so state [on the survey].”
NEW Table A Item 19 – Appurtenant Easements – Revision to old 2011 Item 20. The easement is now defined as being “appurtenant,” or benefiting the fee simple land being surveyed. Recall Standard No. 2 – “easements” now included (see above). The easement is to be surveyed in the same manner as the fee simple land being surveyed.
Former 2011 Table A Item 19(b) – eliminated Table A. 1. Marker Requirement from Appurtenant Easements – What was in the 2011 standards was eliminated because setting monuments on someone else’s property, without access or permission was problematic and could constitute a trespass.
Item 20 – Professional Liability Coverage – Now states that information related to professional liability insurance shall not appear on the face of the plat or map. This is in response to those attorneys who have sometimes made the demand that surveyors identify the extent of their professional liability coverage on the face of the plat/map. This is more suitable for the client contract.
Each change to the 2016 Standards and Table A addresses a specific purpose or issue that arose since the last update in 2011. Many more minor changes appear besides those highlighted in this summary. Every change either directly or indirectly assists all the stakeholders by improving the value of the survey product. The ALTA/NSPS Committee continues to address the inevitable new issues that may arise over time with the goal of maintain insurable survey products while keeping requirements and expectations clear realistic and achievable.