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Periodically frustration wells up and erupts like a long-repressed volcano. This seems to be occurring in some corners of the surveying community over the inability (or unwillingness) of many surveyors to correctly retrace property lines. The solution proposed would introduce a new term to the real estate lexicon, namely the "ALTA/ACSM Record of Survey." Briefly, the idea is to promulgate detailed specifications for the retracement, dealing with sundries like the minimum level of title research, which data can be relied upon, when senior and junior rights come into play, etc. After compliance, which, incidentally, would be voluntary, the plat would be entitled to the ALTA/ACSM Record of Survey label.
Something akin, perhaps, to the UL tag on appliances. It is interesting to note that this "Record of Survey" idea has not been proposed because there are too few "records of survey," but because the methodology of many surveyors in conducting retracements is so deficient as to fall off the scale. This concern is well-founded. It’s just that the proposed solution presumes too much, as I see it, and thus has the potential to make the situation worse instead of improving on it. We need less heat focused on this problem and more light.
My impression is that the Record of Survey specification aims, over time, to raise the quality of boundary surveys by steering weak surveyors though a rigid procedural track, ending in the finished survey. The trouble is that those same surveyors believe that what they are now doing is good enough. They will likely view additional requirements, however well intentioned, as being a meddling interference with getting the job done. Daniel J. Boorstin once wrote "The greatest obstacle to discovery is not ignoranceit is the illusion of knowledge."
To the extent that surveyors fail to understand what is necessary in a correct retracement, requiring them to place a particular statement on the plat will not make the situation any better. And make no mistake, if promulgated under the mantle of authority, in time, clients will require it. As I understand it, the reason for abandoning the various classes of survey formerly a part of the ALTA/ACSM standards was not in recognition that they were inappropriate in the first place (I’m sorry to say), but because no layman was ever comfortable ordering a Class B (or worse) survey. Consequently, few ever did. Why then would they be comfortable in ordering a survey which, by its omission, implies that the boundary might be incorrect?
So we end up some years later, with this being a de facto regulation, but do we end up with better surveys? Consider this: How are the "accuracy" standards now enforced? In other words, if a surveyor chose to completely ignore complying with them but merely certified that he did, how would he be found out? The short answer is that, in all but the rarest of cases, he will get away with it. What is different about this newest idea?
Regulations a Cure-all?
More laws do not ensure better surveys. In fact, something as brief as the directive "correctly analyze the available boundary evidence," which focuses not on intermediate steps but on the result, sufficiently expresses the goal. If the problem is that few are aware of correct retracement doctrine, enacting more laws hardly seems the solution.
A second part of this proposal would prescribe a statement on the plat indicating that this "higher" level of effort had been expended on the project. Now, wait a minute. If our presumption is that defensible retracement is only possible after thorough investigation in the record and on the ground, analyzed in light of applicable law, it follows that anything less than that would likely result in an indefensible retracement. Specifying enhanced efforts, then, announces to the real estate community that we surveyors recognize diluted efforts as appropriate in retracement. This would be a serious mistake.
There has never been any sanctioned performance below "determining the boundary location." Notwithstanding the apparent practice by many surveyors, there is no tier of products in this store. One size most definitely fits all. We will be forever plagued with a certain percentage of surveyors who will place cost above all other considerations and will cut corners to achieve that goal if need be. In this, we have the companionship of every other vocation. I might be nave, but I honestly do not believe they constitute most of the problem manifested here.
Retracement practice differs across the country, because the surveys we are asked to retrace differed. The original methods differed; the laws (both then and now) differ. Does the ALTA/ACSM specification fall short of the mark? Of course; any thoughtful surveyor would recognize that fact (and many have).
Committing Surveys
If it seems as if I am dismissing the proposal, it is not because the motive behind it is misplaced. Is there a problem out there? You bet. A friend of mine refers to surveyors who routinely "commit surveys" without being apprehended by the authorities. Retracement is simple in concept, but many times complex in execution. And as simple an idea as it is, many surveyors do not understand even its basics and proceed in the wrong direction.
But doctrine cannot be taught effectively through the promulgation of regulations. At best, the clumsy results of such an attempt will create an IRS-code-like monolith that will be as confusing as its pattern. At worst, it will mask the true nature of the problem, for no surveyor now deficient will become competent merely by complying with them.
As I see it, there are three legs to the solution: appropriate education, more effective pre-licensure evaluation, and meaningful enforcement. Currently, all three are out of breath. Space does not permit an adequate exploration of these topics now, but in the next issue we will dive in. Hang on to your seats!
Joel Leininger is a principal of S.J. Martenet & Co. in Baltimore and Associate Editor of the magazine.
A 203Kb PDF of this article as it appeared in the magazine complete with images is available by clicking HERE