Landowners, lenders, contractors and title agents should familiarize themselves with the new requirements.
Background
Land title surveys are performed for a number of reasons by land owners, purchasers and lenders. The surveys generally:
- confirm the validity of the legal description of the property;
- identify the relationship of the property to adjoining properties;
- confirm the relationship of the recorded description of the property lines to the measured description of the property lines;
- identify the location of buildings and other improvements; and
- identify the location of easements or rights set out in recorded documents and by an inspection of the property which may reveal matters not of record.
A host of other important information may be depicted on the plat of survey as requested by the owner, purchaser or lender.
Surveys are typically performed by the surveyor after a title commitment and all “exception” documents are furnished to the surveyor. They can be performed to meet minimum standards of the state where the property is located, or they can meet minimum standards for ALTA/NSPS Land Title Surveys which are generally more stringent than the state surveying standards. The uniformity of the ALTA/NSPS requirements makes them the standard of choice for most developers and lenders who work in more than one state or who have a significant project.
New Requirements
The new Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys (the “Minimum Requirements”) changed on February 23, 2016. Promulgated by the American Land Title Association (ALTA) and the National Society of Professional Surveyors, Inc. (NSPS), the new Minimum Requirements represent the first change in five years to the requirements designed to address issues arising when title insurance companies are asked to insure title based upon a survey of property.
If no recent survey is available, title insurers include the “standard survey exceptions” of matters which might be revealed by a survey, including:
- facts, rights, interests or claims not shown by the public record;
- encroachments, overlaps, boundary line disputes; and
- rights or claims of parties in possession.
Lenders and owners desire title insurance coverage without these exceptions, and title insurance companies will typically delete these exceptions when a recent ALTA/NSPS Land Title Survey at least meets Minimum Requirements.
The Minimum Requirements provide that the ALTA/NSPS Land Title Survey must include:
- certain fieldwork (Section 5);
- a plat or map including depiction of documents in the land records as reflected on the title commitment or other evidence of title (Section 6);
- survey responsibilities and specifications selected by the client from a list of 20 optional items (Table A matters);
- a certification of compliance with the Minimum Standards (Section 7); and
- delivery of the plat or map of survey in hard copy or digital image (Section 8).
Significant Changes
There are a number of changes in the Minimum Requirements from the prior version. The more significant changes include the following Items on Table A:
Zoning: Revised Item 6 requires the client who hires the surveyor to provide the surveyor with an appropriate zoning report or letter and the surveyor is required to depict setback requirements if they do not require an interpretation by the surveyor. NOTE: The client should promptly order the zoning information.
Substantial Refuse: Revised Item 8 adds substantial refuse (including a dump or landfill) to the features observed in fieldwork that are to be depicted on the plat. It was previously listed in former Item 18. NOTE: Item 8 should always be included by the client for this reason.
Utilities: Revised Item 11 combines prior categories of utilities to require location of utilities on or serving the property determined by observation, plans obtained from utility companies and markings requested by the client by an 811 or similar locate request. NOTE: When the 811 call is made by the client, the 811 entity should verify it will respond to the call notwithstanding the fact that no digging or actual construction work will be immediately undertaken. If the 811 entity does not mark lines without immediate digging, the client should expect the surveyor to make an exception on the plat as to matters that would be revealed had the responder identified utilities following the client’s request.
Adjoining Owners: Revised item 13 requires the names of adjoining owners be based on tax records rather than more accurate land title records. NOTE: If the exact name of record owners is important, ask the title company to furnish that information.
Wetlands: Revised Item 18 requires the location of wetlands be shown only if delineation markers were placed by a qualified specialist hired by the client and are observed by the surveyor. NOTE: The wetlands delineation specialist should be required to mark the boundaries of identified sites.
Going Forward
Surveys should be carefully reviewed for compliance with the new Minimum Requirements. Depending upon what is depicted by the survey, the owner or lender may seek endorsements from the title insurance company providing additional coverage for additional premiums concerning access (ALTA 17 series), contiguity (ALTA 19), encroachments and easements (ALTA 28).
Owners, lenders, contractors, surveyors, engineers, architects, lawyers, title insurance agents and others should familiarize themselves with the new Minimum Requirements as they order, review and work with surveys in the future.
Finally, lenders who issue loan commitments with survey requirements should update their forms to incorporate the new minimum requirements.