California Surveyors Forums

Section 5. of the Minimum Standards state:
The survey must be performed on the ground (except as may be otherwise negotiated pursuant to Table A, Item 15 below). Except as related to the precision of the boundary, which is addressed in Section 3.E. above, features located during the fieldwork shall be located to what is, in the surveyor’s professional opinion, the appropriate degree of precision based on (a) the planned use of the surveyed 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. The fieldwork shall include the following:

Section 5.D. further states:
"The Location of buildings on the surveyed property observed in the process of conducting the fieldwork"

I'm looking into a potential project where the buyer is on the fence as far as requiring an ALTA. The lender is not requiring an ALTA, but the buyer "may" want one... It is a vary large parcel (or several parcels), spanning several sections, approximate 2,000 acres. There are numerous existing buildings on the parcel(s) (barns, modular structures, houses, shops & equipment sheds), most of which are well within the boundaries of the parcel(s).

Is there any way to perform the ALTA without "survey locating" the buildings that are well within the boundaries of the parcel? Can I show the buildings "approximate location" (based on USGS ortho imagery) ? Or add a note "buildings not within 20 feet of the surveyed boundary are not shown"

Can I avoid surveying the separate parcels? And only survey the exterior boundary of the parcels combined?

Thank you,

On a survey, you can deviate from a required field precision as long as you provide an explanation as to why.
Personally, I would not avoid surveying building corners because zoning compliance is frequently an issue that lender are concerned about, as it can impact property value.
ALTA standards are not codified, they exist in order to provide uniformity when contracting a certain type of a survey. You can offer to renegotiate a requirement (for building corner accuracy, for example). This needs to be accepted by your client and the lender.
Also keep in mind that if you deviated from standards of practice for ALTA's in favor of something less precise, in case there is a issue, you could be liable for misfeasance.

You have to be familiar with the zoning and value of each building. Equipment sheds for example, due to low replacement cost are often not an issue.
House with a foundation - do you want to take on that liability?

If you read the first few paragraphs of ALTA requirements, it tells you what their purpose is and who cares about them. That will give you a clue about who it is that needs to agree to any modifications:

https://cdn.ymaws.com/www.nsps.us.com/r ... 30_grk.pdf

It is more common to negotiate language of Table "A", but with any unique conditions on a site, it may be possible to have a conversation about standard items.

Also, note that minimum requirements are not specifying the relative positional precision for buildings, but leave it to the surveyors' professional judgement what is appropriate.

There have been times when I surveyed a site with no buildings shown whatsoever, because we knew that the site is in the beginning stages of demolition for that specific ALTA (it was a construction phasing load that had to be secured), so no-one, the title insurer or the lender cared about having those buildings located (among some other site details which were omitted for that purpose).
What we were going to do and how and why was clearly outlined in the contract.

CBarrett wrote: Mon Jun 06, 2022 11:07 am ...
Also keep in mind that if you deviated from standards of practice for ALTA's in favor of something less precise, in case there is a issue, you could be liable for misfeasance.

True.

They are asking you to save a well heeled client money at the potential risk of a negligence claim for a high liability standard.

ALTA minimum standards, when breached, leave practically zero room for the land surveyor's defense against a claim.

True, a surveyor is allowed to negotiate some changes to the standards, but why would a surveyor want to do that? Gary Kent uses golf courses and docks as his example when the standards are not ideally suited. He also uses traversing in particular circumstances when the error will exceed allowable tolerance based on the standards i.e. through stairwells with short sights.

The buildings that are well outside of the setbacks may be of little consequence to the other parties - how much work, measure in dollars, would it be to measure them on the ground? $1000, $2000, $5000? How much did the owner pay for this 2000 acre transaction, closing cost, title costs, real estate and broker fees, appraisals?

I believe surveyors are lulled into thinking these ALTA surveys are, as explained to me, "simply a checkbox for the lenders to close the deal". I suppose it is true until there is a claimed filed.

Bottom line, a surveyor can do almost anything on an ALTA - including breaching the minimum standard (showing no monuments or two monuments) - and get away with it nearly every time. However, that one time a claim is filed and the survey doesn't meet the standard an errors and omissions policy will hit the max limit.

As real estate deals begin falling through due to development delays, costs, and escalating interest rates the owners will begin looking to get out of their properties and we will see litigation spike. I am already starting to see it on my end. Frankly, ALTA litigation is much easier for all parties (except the certifying surveyor) to litigate in that the objective standard of care is easily proven because the basis is a nationally accepted written minimum standard. Fish in a barrel.

It doesn't make sense to be at risk to accept a job to save millionaires money.

DWoolley

DWoolley wrote: Mon Jun 06, 2022 2:18 pm I believe surveyors are lulled into thinking these ALTA surveys are, as explained to me, "simply a checkbox for the lenders to close the deal". I suppose it is true until there is a claimed filed.

Exactly!

Until one has interacted with a few lawyers and been a party of the 'liability shifting game'.
Here... we'll pay you less and manipulate you into taking on more liability ... and many inexperienced surveyors are 'thankful for the work'.
Wow, I could knock out 15 ALTA's like this a month, and make ......, and maybe even have $5,000 in profit, and accrue $250 million of personal professional liabilities with no statute of limitations. Yay, something to look forward to in retirement when you still need to carry insurance. Even just a deductible on something like that eats up your 401K.

How many surveyors have heard of business risk management? At least conceptually?

DWoolley wrote: Mon Jun 06, 2022 2:18 pm...It doesn't make sense to be at risk to accept a job to save millionaires money.

I agree, I'm really asking just to make sure I understand the ALTA standards. I perform about 1 ALTA survey every other year, there simply isn't a volume of them being done in my area, so I really appreciate this discussion. Every time I quote an ATLA I have to review the standards as I'm not readily familiar with them.

As I read Section 5.D. I must field locate the buildings (except that Table A, Item 15, does allow me to rely on ORTHO imagery to locate the buildings)

am I reading the above Section correctly?

Secondly: is there any way to provide an ALTA (and truthfully sign the statement) and NOT locate (or show) the buildings?

I'm an absolute stickler for being "technically correct" If I tell the client: "I MUST show the buildings on an ALTA" I want to be absolutely certain I'm correct in saying so.

The Client has requested Items 1 (exterior boundary of the combined parcels only), 2, 3, 4, 8, 11, 16, & 19 of Table A. The Client requested several ag wells that are known to be close to the boundary to be located, and also requested the buildings to NOT be located. Again, If I tell the client: "I MUST show the buildings on an ALTA" I want to be absolutely certain I'm correct in saying so.

I should add this: the property appraised for over $10,000,000 recently, the value in this property is in the agricultural production (strawberry plants, alfalfa hay, and water availability), not so much with the buildings, which are located hundreds of feet from property lines. The setback on the ag zoning is 20 feet on the front, 0 feet on the rear and sides. Knowing where the wells are relative to the property line is critical, whereas the buildings are not. So I understand the client not being concerned with the buildings in this case. ALSO: there is no lender involved, so the client may elect to have a (non-ALTA) boundary survey done to simply verify the well locations and monument the corners. An extra $3,000 to show the buildings plus an extra $3,000~$5,000 to plot the easements for the ALTA may easily push the ALTA off the table.

Again, If I tell the client: "I MUST show the buildings on an ALTA" I want to be absolutely certain I'm correct in saying so.

Perfect. No lender, no removing the survey exception from title, no ALTA certificate and the survey is no longer an ALTA.

Draft a scope of work utilitizing the portions of the ALTA standards you can agree upon and survey the property.

Good luck.

DWoolley

What is he going to give you for title information, will there be a current title report?
Be sure that you understand in depth why your client needs this survey. ALTA's are usually tie to a pending financial or insurance transaction. If a client unilaterally decided he doesn't want to spend money on building locations, this may (or may not) be acceptable to other parties in transaction.
This could come back to you as "why didn't you tell me"?

Where is your title information going to come from?

I do between 2 and 20 ALTA's per year (clusters)... there has been a number of times where I had special cases where some of the Standard ALTA requirements were waived (with an agreement of all parties).

Interior of agricultural property could be one of those, especially if these buildings are sheds and barns, with no foundation and not counted for human occupancy. I have not dealt with this particular case.

I have dealt with temporary classrooms on a privately owned educational facility, where batteries of classrooms and associated sheds and temporary structures used for educational purposes were not surveyed beyond just outlining the extents of classrooms, and extents of practicum yard.

Another ALTA, for a company that is a defense contractor, had an extensive area where the entry was barred due to a security clearance, so lender and a title co. relied on the company's internal records to do risk assessment.

Then I've seen a sundry variety of 'inaccessible areas' where you had physical lack of (safe) access, neighbor hostilities and unable to secure surveyor's personal safety (in certain types homeless encampments)...

It is not impossible to find a reasonable exception to ALTA standards, acceptable to all parties of a transaction. Whatever you do, document... document... document... so you can show you've done your due diligence.

A common request is for an "ALTA", but in fact they are only requesting a detailed survey and are relying on the standards for a scope of work. I provide surveys that are similar to an ALTA sans the title and certificate. Including the applicable portions of the standards in the contract works to protect a land surveyor from a negligence claim. In play it looks like this, surveyor agrees to perform a survey that includes the ALTA minimum standards 1, 3, 5 and 9, the surveyor performs to those standards but the work product is not an ALTA. The surveyor contracted and applied those portions of a nationally accepted standard and surveyed to that standard (presuming state laws were followed), where is the valid negligence claim due to a breach of duty? The burden is on the plaintiff.

CBarrett, I would not want to argue about a failure to perform a duty due to "accessibly". Hypothetically, suppose it was in the context of a "searched found nothing" monument when a monument actually exist - this includes a monument under a wall, on the adjoiner's property with hostile dogs, down 3.0', whatever - the burden shifts to the surveyor/defendant to prove there was no negligence. The monument accessibility/existence would not be a point of discussion unless someone else found it after the fact (boom! all over except the crying). The is an unfavorably subjective "access" issue contrasted to an objective standard.

Personally, I would not want to rely on the monument inaccessibility argument - there is sure to be a line from here to Las Vegas of surveyors willing to bible swear they'd dig that hole to China fighting a neighbor's dog with every shovel full before they would say "searched found nothing" for a monument. That is often a losing argument that results in a land surveyor writing a check after a couple of years of flopping around with the attorneys.

Restated, the surveyor said she searched for the monument (finding monuments is a land surveyor's exclusive duty) and determined the monument was not there - later, it proven to be a false statement and there were damages. The defense is, "ah, I didn't want to ask the neighbor for access" or "it was hot outside" or "the dog ate my homework"? All the same losing arguments for failed setbacks (owner purchased the property with the idea of expanding the building only to realize the setback on the ALTA was shown incorrectly), improvements outside of the easements, a building footing over the line (an actual case in the northeast ((Connecticut?)) the surveyor claimed a "lack of accessibility" to the building and subsequently wrote the check - $2m IIRC). I have seen this movie several times.

DWoolley

I'm not talking about monument searches or things which would result in alternative boundary locations existing. I can't say I ever encountered accessibility issues with monumentation.

I'm talking about situations where it was reasonably acceptable that conditions existed which would allow you to deviate from minimum ALTA standards, and still fulfill diligence due a project.

For example, if I am having to seriously compromise safety of my field crew, and therefore deviate from standards and risk ALTA litigation, I am much more willing to defend why I didnt locate couple building corner, than having to explain why my chairman lost his face or bled to death out due to aggressive dog bites... or some other situation where my guys are risking loss of life or limb in an unusual situation, it will be no-go.

Last time I checked actuarial reports, value of human life is about 9 million dollars (at least it was 7 or 8 years ago when I checked). So in light of that having to explain missing topo data on an ALTA is not something I fear, even if I have to do it in court.
(My grandpa was an attorney, I'm generally not in fear of intelligent logical arguments. I know you do expert witness work in surveying, so did my other grandpa.. I gather that's how my parents met, anyhow, I digress).

What you are describing is something like attempts where lack of due diligence was being excused on an insufficient proof of lack of accessibility.

I'm not sending my guys into homeless encampments known for violent conflicts. I'm not sending my guys into hazmat areas (I had a defense contractor site ALTA not too long ago which had areas restricted due to radiation exposure, and another where you needed homeland security clearance. For those limits of accessibility were delineated.

Beating a dog with a shovel will earn you criminal charges nowdays, in California, I'm not doing that either. You want to test that in court, fine, I'll take that risk.
However that line of thinking is heavily subjected to the slippery slope of worst case situation, as if there are no degrees of thought and methodical research between condition A and decision B.

This is why I say, be sure to understand and document the situation. If someone feels unqualified to substantiate their methodology, or evaluate the risk they are taking, then staying on the safe side of the line is certainly a good option.

CBarrett:

As shown here, various situations have their own particulars and one size does not fit all. When the questions begin to be asked about a problem almost every land surveyor will have their reasons/justifications for their particular actions or inactions. You may agree, access as a basis for breaching a duty sounds inherently flimsy.

The questions start with "What did you know? When did you know it? And what did you do about it?"

Interesting discussion.

DWoolley

PS Yesterday I prepared a scope of work for a boundary, topographic map and underground utility location and utilized the ALTA minimum standards and Table A. The contract says we will use the standards, but will not have the title or the certificate on the work product. This conversation reminded me to take my own advice on multifaceted projects. Set the written standard in the contract, follow the standard, no negligence claims.