ResearchWhose Responsibility?

Traditionally, the responsibility of discovering written evidence prescribing the location of property lines has fallen to the surveyor. Curiously, the ALTA/ACSM Land Title Survey standards seem to ease away from that historical obligation and place the burden elsewhere. They require the client to provide the surveyor with "complete copies of the record description of the property, any record easements benefitting the property, the record easements or servitudes and covenants affecting the property (Record Documents), documents of record referred to in the Record Documents, and any other documents containing desired appropriate information affecting the property being surveyed and to which the survey shall make reference. . ." (emphasis added)

A few preliminary thoughts: I was not on the committee that negotiated the standards, nor have I spoken in depth with anyone who was. However, even if the committee did not intend to modify the traditional responsibilities, the very reason for standards is to codify an understanding between parties referring to them. Thus, even if ALTA and ACSM meant something different, the users of the standards, that is, practicing surveyors and the clients who hire them, must interpret the language published. So my views, like most other surveyors offering these surveys, are based only on a careful reading of the text, in context with the standard of care as I understand it. (The standard of care likely varies somewhat across the country, but the principles underlying the practice are fairly uniform.)

Im not certain what "desired appropriate information" means, but one could conclude that it refers to any information the surveyor "desired" to consider in the retracement. Thus, the client would be charged with the obligation of supplying whatever documents are necessary to complete the survey, and the surveyor would be relieved of any such responsibility. Elsewhere, the standards appear to reinforce the notion. The preamble to the standards contains the following: "It is equally recognized that for the performance of a survey, the surveyor will be provided with appropriate data which can be relied upon in the preparation of the survey." This, of course, raises a question: Can I, under the ALTA standards, rely solely upon client-supplied data in conducting the work? Although the answer to this question may seem obvious, the issue might be grayer than appears at first blush. I had that hammered home to me during a recent seminar on the standards in which members of the audience explored my logicat my expense, of course!

The easiest way to test a theory for soundness is to reduce it to an absurdity. If the client saw fit to provide me with nothing, could I conduct the survey using nothing as my basis? (Gee, maybe that explains . . .) Most surveyors would probably reject that notion. Documents are indispensable evidence of the location of the boundary. Because the Statute of Frauds requires that all conveyances of real property interests be in writing, the documents constituting those writings comprise our earliest and most complete understanding of the parcel history. Moreover, records of former surveys, if available, accredit what might otherwise be uncalled-for monuments, possibly lending them dignity otherwise out of reach. One can easily conclude that a retracement without benefit of supporting documents is no retracement at all. It is also important to keep in mind that our obligation does not run solely to the client, but to the adjoiners as well. Therefore, if the client (or the clients agent) deems this responsibility as trivial and we act accordingly, adjoiners could suffer collateral damage as a result.

There is no prohibition against surveyors delegating the task of boundary research to the client. But one cannot delegate responsibility. The surveyor, as the expert on the theory and practice of retracement, is vested with the obligation of judging the adequacy of the research and retains the responsibility for any omissions therein.

A Different Perspective

But there are some arguments on the other side as well. Good practice dictates that we insist on the title commitment revealing any recorded encumbrances affecting the property, the theory being that title companies have expertise in searching for encumbrances that surveyors generally do not. Our drawing, then, contains a caveat that the only recorded encumbrances depicted for the parcel are those mentioned in the title commitment. At first glance, this practice seems to fly in the face of our responsibility to uncover whatever documents we deem necessary to the project. How can we claim not to have the expertise to uncover all recorded easements burdening the property while at the same time recognizing that the documents necessary for correct retracement await our search? In fact, all retracements, not merely ALTA surveys, depend on the discovery of the controlling grants. Do we expect the client to supply us retracement documents on those surveys as well?

Although searching the same set of land records, surveyors and title abstractors have a completely different focus from one another. Surveyors are (or should be) trying to uncover the sequence of grants culminating in the current boundary location and thus must consider adjoining chains of title in the search. Title abstractors are seeking to document ownership and uncover any liens or burdens on the parcel in questionand only on the parcel in questionand are thus relieved of studying adjacent properties. Complementary to each other, neither of the research efforts gives a complete title picture of the property.

Where does that leave us? It appears that, even interpreting the language in the standards in the light most obligatory to the client, other considerations override any delegation of the responsibility for boundary research by the surveyor. Although the information revealed by the title commitment is necessary to the complete understanding of the interests in the property, the research conducted under the surveyors charge is equally important. No standards can change that. No surveyor should want that.

Copyright 1998 By Joel M. Leininger, LS

About the Author

Joel M. Leininger, LS

Joel Leininger, Associate Editor of the magazine, is the managing partner of S. J. Martenet & Co., a 154-year-old surveying firm in Baltimore, Maryland. He lectures frequently around the country on surveying-related subjects. Leininger has authored more than thirty articles and essays dealing with surveying and retracement, some of which have been published in Canada and Australia. Prior to his work at S.J. Martenet, he served as department head at Fisher, Collins and Carter, and as project manager with Daft-McCune-Walker, both in Baltimore. Leininger has also served as both Contributing Editor and Associate Editor of Professional Surveyor Magazine. He served five years on the Maryland Board of Registration and is a past-president of the Maryland Society of Surveyors. Contact Joel Article List Below