ALTA/NSPS Land Title Survey Standards:

What Real Estate Counsel Need to Know Survey Exceptions and Survey Endorsements in Title Insurance Policies

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TUESDAY, MARCH 13, 2018

Presenting a live 90-minute webinar with interactive Q&A

Gary R. Kent, P.S., Integrated Services Director, The Schneider Corporation, Indianapolis

Mary A. Slade, Underwriting Counsel, First American Title, Indianapolis

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Strafford Publications

Webinar March 13, 2018

Presented by Gary R. Kent, PS and Mary A. Slade, Esq.

The ALTA/NSPS Land Title Survey Standards

~ What Attorneys need to Know ~

1962

1986

1988

1992

1997

1999

2005

2011

2016 – February 23, 2016

The ALTA/ACSM (NSPS) Standards

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• 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

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• 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

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• NSPS is the legal successor organization to ACSM

• The 2016 Standards are the next version of the former ALTA/ACSM standards

Preamble

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…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.

Section 1 - Purpose

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…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

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Of course this begs the question:

What is a complete and accurate survey of real property?

What is Complete and Accurate?

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…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

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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

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• 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

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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.

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Accuracy is addressed by Section 3.D.

• 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

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What are the “appropriate boundary law principles?”

• Order of Conflicting Title Evidence

• Junior/Senior relationships

• Unwritten title doctrines

• Control within subdivisions

• Follow in the Footsteps of the original surveyor

Boundary Law Principles

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The Standards also address the difference between precise measurements and accurate results.

Section 3 – Accuracy and Precision

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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.

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Accuracy and Precision

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• High accuracy + high precision = valid results.

• i.e. Results that are “well-grounded on principles or evidence; able to withstand criticism or objection, as an argument; sound.” Webster’s

Accuracy and Precision

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Request to set forth:

• Record description of property to be surveyed

• Record description of parent tract if original survey

Section 4 – Records Research

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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

Section 4 – Records Research

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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

Section 4 – Records Research

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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

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B. Rights of way and access

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

Section 5 – Fieldwork

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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)]

Section 5 – Fieldwork

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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

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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?

Section 6 – Plat or Map

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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:

Section 6 – Plat or Map

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(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

Section 6 – Plat or Map

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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

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• 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

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• 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

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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

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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

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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

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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

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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

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19. Offsite (appurtenant) easements

• If plottable, include as part of the survey pursuant to Sections 5 and 6 and applicable Table A items.

• i.e. Treat the appurtenant easement as if it were a fee parcel

• Client to obtain necessary permissions

Table A

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20. Professional Liability Insurance

• Nothing in regarding this item shall appear on the face of the plat/map

Table A

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Questions?

Gary R. Kent, PS

The Schneider Corporation

8901 Otis Avenue

Indianapolis, IN 46216

Phone - 317.826.7134

gkent@schneidercorp.com

Mary A. Slade, Esq.

First American Title Insurance

Company

11611 N. Meridian Street, Suite 430

Carmel, IN 46032

mslade@firstam.com

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