Standards: What Attorneys Need to Know Leveraging the Feasibility - - PowerPoint PPT Presentation

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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

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific MONDAY, JANUARY 25, 2016

Gary R. Kent, P .S., Integrated Services Director, The Schneider Corporation, Indianapolis Jeffery N. Lucas, Esq., President, Lucas & Company, Birmingham, Ala.

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Strafford Publications

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January 25, 2016 Presented by Gary R. Kent, PS and Jeffery Lucas, JD, PS

The New ALTA/NSPS Land Title Survey Standards

~ What Attorneys need to Know ~

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1962 1986 1988 1992 1997 1999 2005 2011 2016 – February 23, 2016

The ALTA/ACSM (NSPS) Standards

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• 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)

The ALTA/ACSM (NSPS) Standards

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• 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

The 2016 ALTA/NSPS Standards

8

• NSPS is the legal successor organization to

ACSM

• The 2016 Standards are the next version of the

former ALTA/ACSM standards

Preamble

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…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

• f 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.]

Section 1 - Purpose

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…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.]

Section 1 - Purpose

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

What is Complete and Accurate?

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…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.]

Section 1 - Purpose

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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:

Accuracy and Precision

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• 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

Accuracy and Precision

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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 272.

Accuracy and Precision

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“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 272

Accuracy and Precision

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“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 272

Accuracy and Precision

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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.

Accuracy and Precision

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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

• ur measurements are

highly precise.

Accuracy and Precision

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• 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?

Accuracy and Precision

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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.]

Section 3.D. Boundary Resolution

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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.]

Section 3.E.iii. Measurement Standards

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• 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.

Accuracy and Precision

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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.]

Section 7 - Certification

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• All of this implicates at least two more

questions.

• The first question is what are the “appropriate

boundary law principles?”

Boundary Law Principles

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• 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

Appropriate Boundary Law Principles

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• 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?

Accuracy and Precision

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• 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.

Accuracy and Precision

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2015 Mississippi Standard of Practice

30

2015 Mississippi Standard of Practice

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• Let’s take that question one step further.
• Let’s say the title company removes the

survey exception from the title policy based

• n the idea that it has received an accurate

survey, when it has not.

Accuracy and Precision

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• 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

• pposed to merely having precise

measurements?

Accuracy and Precision

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“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)

Accuracy and Precision

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An ALTA/NSPS Land Title Survey must include: i. Section 5 fieldwork

• ii. Section 6 plat or map (including

relationship to record documents)

• iii. Table A items selected by client
• iv. Certification in Section 7

Section 1 - Purpose

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• Written authorization
• Dealing with atypical properties

– e.g., trailer parks, marinas, campgrounds – Non-fee interests

• Easements
• Leases
• Discuss scope with affected parties

Section 2 – Request for Survey

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• A. Effective Date 2/23/16
• B. Compliance with jurisdictional

requirements

– Conflicts with other standards

• C. There is a normal standard of care

Section 3 – Survey Standards, etc.

37

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

Section 3 – Survey Standards, etc.

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Request to set forth:

• Record description of property to be

surveyed

• Record description of parent tract if
• riginal survey

Section 4 – Records Research

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Surveyor must be provided with:

i. Most recent title commitment (or other acceptable title evidence) ii. Certain record documents

– Adjoiners – Easements benefitting surveyed property (Schedule A appurtenant easements) – Easements burdening the property (Schedule B2 easements)

• iii. Unrecorded documents if desired by client

Section 4 – Records Research

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If documents are not provided, or if non- public 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

Section 4 – Records Research

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• 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

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B. Rights of way and access

ii. Name of ways abutting the property, and location of edges of traveled way except when no access

Section 5 – Fieldwork

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E. Easements and Servitudes

• iv. Evidence observed on and above the

property of utilities on, over and beneath the property (with examples)

[formerly optional Table A item 11(a)]

Section 5 – Fieldwork

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• 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

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B. Boundary, Description, Dimensions, Closures

ii. 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?

Section 6 – Plat or Map

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C. Easements, Servitudes, Rights of Way, Access and Documents

ii. 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:

Section 6 – Plat or Map

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(a) Location cannot be determined from record

(b) No observed evidence (c) blanket easement (d) Not on or touching surveyed property (e) Limits access (f) Documents are illegible (g) Surveyor has info that it has been released

• r terminated

Section 6 – Plat or Map

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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

Section 7 – Certification

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• 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

Section 8 – Deliverables

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• Twenty (20) items
• 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

Table A

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6. Zoning

a) If set forth in zoning report/letter provided to the surveyor by client List:

• Zoning classification
• Setback requirements
• Height and floor space area restrictions
• Parking requirements

Identify date and source of report/letter

Table A

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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:

• Setback requirements

Identify date and source of report/letter

Table A

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11. Utilities

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

• btained from utility companies or

provided by client (reference source) c) Markings requested by surveyor pursuant to 811 or similar utility locate request

Table A

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11. Utilities

• 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

Table A

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18. Wetlands

• 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

Table A

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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

Table A

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Gary R. Kent, P.S. gkent@schneidercorp.com Jeffery N. Lucas, Esq. lucasandcompany@bellsouth.net

Questions?

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