New 2016 ALTA/NSPS Land Title Survey Standards: What...

The audio portion of the conference may be accessed via the telephone or by using your computer's

speakers. Please refer to the instructions emailed to registrants for additional information. If you

have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.

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.

Tips for Optimal Quality

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

1-866-873-1442 and enter your PIN when prompted. Otherwise, please

send us a chat or e-mail [email protected] 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.

FOR LIVE EVENT ONLY

Continuing Education Credits

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 email

that you will receive immediately following the program.

For additional information about continuing education, call us at 1-800-926-7926

ext. 35.

FOR LIVE EVENT ONLY

Program Materials

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 left-

hand 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.

FOR LIVE EVENT ONLY

Strafford Publications

Webinar 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 ~

5

1962

1986

1988

1992

1997

1999

2005

2011

2016 – February 23, 2016

The ALTA/ACSM (NSPS) Standards

6

• 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

7

• 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

9

…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.]

Section 1 - Purpose

10

…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

11

Of course this begs the question:

What is a complete and accurate survey of real property?

What is Complete and Accurate?

12

…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

13

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

14

• 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

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.


16

“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


17

“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


18

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

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

• 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

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

22

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

23

• 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

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

25

• All of this implicates at least two more questions.

• The first question is what are the “appropriate boundary law principles?”

Boundary Law Principles

26

• 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

27

• 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

• 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

2015 Mississippi Standard of Practice

30

2015 Mississippi Standard of Practice

31

• 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

• 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

“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

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

35

• 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

36

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.

38

Request to set forth:

• Record description of property to be surveyed

• Record description of parent tract if original survey

Section 4 – Records Research

39

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


40

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


41

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

B. Rights of way and access

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


43

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)]


44

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

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?


46

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:


47

(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 or terminated


48

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

49

• 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

50

• 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

51

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

52

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

53

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 obtained from utility companies or provided by client (reference source)

c) Markings requested by surveyor pursuant to 811 or similar utility locate request

Table A

54

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

55

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

56

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

57

Gary R. Kent, P.S.

[email protected]

Jeffery N. Lucas, Esq.

[email protected]

Questions?

58

New 2016 ALTA/NSPS Land Title Survey Standards: What...

Documents

Transcript of New 2016 ALTA/NSPS Land Title Survey Standards: What...