AND THE SURVEY SAYS....
by Barry Whalen, ATG Law Clerk

Introduction

Land surveys are an integral part of real property conveyances. The survey depicts the legal description of the property to be transferred and can confirm or deny the parties' understanding of the location of the property and its improvements. Generally, the land survey establishes the boundaries of the property, improvements on the property, easements, and other more specific information such as zoning classifications if requested. The land survey is also an important tool for title insurance as it is relied on to insure against defects that would normally be disclosed by an accurate survey. Because title insurance companies rely on surveys to detect certain title exceptions, it is imperative that precautions are taken to insure the accuracy of the survey. Among the important issues to address when a survey is used is if it will be performed by a licensed surveyor and if the type of survey to be conducted includes the necessary information required by the title insurer as well as the client.

Professional Surveyor Licensing Requirements

To be a surveyor in Illinois, a party must obtain a surveyor's license in accordance with "The Illinois Professional Land Surveyor Act of 1989." 225 ILCS 330/16. The Act defines surveying as a variety of actions including establishing boundaries, preparing plats, and preparing descriptions. 225 ILCS 330/5. Therefore, any person engaged in these activities needs to be licensed. The first step in obtaining a license in Illinois is to take the Land Surveyor-in-training examination. To take the exam, an applicant must have the following: "(1) a baccalaureate degree in Land Surveying from an accredited college or university; or (2) a baccalaureate degree in a related science including at least 24 semester hours of land surveying courses from a Board approved curriculum of an accredited institution." 225 ILCS 330/13. Once an applicant has passed the Land Surveyor-in-training exam, then he or she must practice surveying for four years under the supervision of a professional land surveyor before taking the Professional Land Surveyor exam. 225 ILCS 330/12. If applicant passes the exam, he or she will receive a license as a Professional Surveyor.

Other states, such as Indiana and Wisconsin, have very similar requirements to be a land surveyor. Indiana's requirements are almost identical to those of Illinois. IC 25-21.5-5-2. Wisconsin's statute, while not identical, is very similar requiring a bachelor's degree in land surveying or completion of two years of an approved course in land surveying, two more years of practice in land surveying and passing an exam. Wis. Stat. § 443.06 Land surveying is an extremely technical practice, and thus it is very important to make sure the survey is being done by a professional who is licensed in the given state.

Surveyor Liability

Use a professionally-licensed land surveyor is critical for a title insurance company. If the survey turns out to be inaccurate, the title company is better protected if it has relied on a survey done by a professional surveyor. When land surveyors perform surveys, while they "are not considered 'insurers' of the correctness of their findings, all courts agree that a land surveyor has a duty to perform a survey with reasonable care, skill, diligence, and ability and may be held liable for damages occasioned by a breach of that duty of care." 117 ALR 5th 23. Further, most courts have held that "the title insurer [is] entitled to indemnity for damages caused by the surveyor's negligent preparation of the inaccurate survey." 117 ALR 5th 23. Enright v Lubow, 202 NJ Super 58, 493 A2d 1288 (NJ Super AD, 1985) involved a title insurance company that issued a policy and relied on the surveyor's location of a utility easement. The survey turned out to be incorrect and the insurance company ultimately had to pay a claim that was made by the property owner. The title company then made a claim for reimbursement against the surveyor. The court held that "[t]he obligation of the Title Company to pay stems solely from the error by [surveyor] in his survey in mislocating the utility easements. Under the circumstances the Title Company is entitled to full indemnity." Therefore, when a survey is needed, as long as the one used is prepared by a professionally-licensed land surveyor, then the title insurance company or attorney using the survey will be protected against inaccuracy resulting from a surveyor's violation of the duty of care.

Types of Surveys

While there are universal licensing requirements for surveyors throughout the states, the actual prepared surveys can vary in name and description from community to community. Thus, it is important for attorneys to be familiar with the many different types of surveys.

ALTA/ACSM Land Title Survey
The ALTA/ACSM land title survey is the most detailed and most commonly used survey for commercial real estate transactions. The ALTA/ACSM standards were adopted by the American Land Title Association and the American Congress on Surveying and Mapping in 1962 and are regarded as the most accurate and reliable survey standards in use. Thus, title insurance companies can rely on these surveys to insure the title to real property without exceptions as to survey matters.

Some of the standards of the ALTA/ACSM survey are that all walls, buildings, fences, and other visible improvements on the property or within five feet of a boundary line have to be included. Also, all encroachments, easements, and setback lines have to be indicated. This includes easements, encroachments, and servitudes created by adjoining properties or roads. In addition, the location and type of all visible utility equipment will be identified on an ALTA/ACSM survey, allowing the reader to determine how utilities are using the property.

If a survey meets the ALTA/ACSM standards, the following certification will be on the plat:

To (name of client), (name of lender, if known), (name of title insurance company, if known), (name of others as instructed by client):

This is to certify that this map or plat and the survey on which it is based were made (i) in accordance with "Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys," jointly established and adopted by ALTA and ACSM in 1992, and includes Items _____ of Table A thereof, and (ii) pursuant to the Accuracy Standards (as adopted by ALTA and ACSM and in effect on the date of this certification) of a(n) [insert "Urban," "Suburban," "Rural," or "Mountain/Marshland" here] Survey.

Date:
(signed)
(seal)
Registration No.

When this certification is present, a title insurance company can rely on the survey to be an ALTA/ACSM survey.

While there are many requirements in an ALTA/ACSM survey, there are two unique aspects. First, an ALTA/ACSM survey will always be classified as either urban, suburban, rural, or mountain and marshland. These classifications are important because each requires a different level of accuracy under the ALTA/ACSM standards. Generally, the urban class refers to commercial property while suburban refers to single-family homes. Second, an ALTA/ACSM survey has optional requirements set forth in Table A of a standard ALTA/ACSM survey that include items such as flood zone designation and location of utilities. The optional requirements are very important because many lenders, purchasers, and title insurance companies routinely require some of them to be included. Therefore, it is important for the attorney to ask the relevant parties what options they require as well as if there is any other information they want included on the survey.

Boundary Survey
Another commonly used survey is a boundary survey (also referred to as "title survey" or "land survey"). A boundary survey is one that establishes the perimeters, division lines, or boundaries of a certain estate. Further, a boundary survey is required to meet certain minimum standards of accuracy. A boundary survey does not necessarily have to meet the ALTA/ACSM standards. The Illinois Administrative Code states that a boundary survey has to include the following:

  1. Clear and legible field notes containing all pertinent information, measurements and observations made in the course of the field survey.

    2.  

  2. Unless requested otherwise by the client or his/her agent, a plat of survey.

    3.  

  3. A legal description for any parcel surveyed.

    4.  

  4. Unless requested otherwise by the client or his/her agent, monuments or witness points shall be set for all accessible corners of the survey. 68 IL ADC 1270.56

The boundary survey is a very generic survey with minimum requirements. For example, a boundary survey does not have to include improvements, rights of way, or easements unless the client requests them or these items appear to indicate an easement on the property.IPLSA Standards For Boundary Surveys. However if the land is in a recorded subdivision, then any easements and setback lines that affect the parcel must be shown. 68 IL ADC 1270.56. As with the ALTA/ACSM survey, it is important for attorneys to inquire as to what additional requirements the relevant parties want included in the survey.

Types of Boundary Surveys

Condominium Surveys
When performing a survey for a condominium, the standards of the Condominium Property Act must be observed. 765 ILCS 605. Section 5 of the act describes the specific requirements of the condominium survey which include exact measurements of the boundaries as well as measurements for the actual condominium units on the property.

Subdivision Surveys
Subdivision surveys are similar to condominium surveys in that they are very specialized. The subdivision survey is done specifically to for the purpose of subdividing land and is governed by the Plat Act. 765 ILCS 205. The most notable difference between a subdivision survey and a general survey is that it is mandatory that the corners of the subdivision be monumented for a subdivision survey.

Staked Survey
A type of survey to be wary of is the staked survey. The staked survey is basically a mortgage inspection with the corners of the property "marked" or "monumented." This type of survey does not include the relation of adjoining properties to the surveyed property. Also, the staked survey does not have to include improvements, rights or way, or easements. Therefore, it would not be an appropriate survey for a title insurance policy. It is, however, more detailed than a mortgage inspection and may be sufficient for smaller residential transactions where extended coverage is not necessary.

Mortgage Inspection

One concern that often arises with surveys is the subject of mortgage inspections. A mortgage inspection is little more than a professional opinion of the relation between the boundaries of an estate and buildings or improvements on that property. However, Section 5 of the Illinois Professional Land Survey Act of 1989 requires a mortgage inspection to be performed by a professional surveyor. Thus, a mortgage inspection is often confused with a survey. Mortgage lenders use the mortgage inspection as substantial proof of the relation mentioned above. A mortgage inspection will generally contain some language stating that the document is a mortgage inspection and not a boundary survey. Attorneys should be on the lookout for clients who may be mistakenly relying on a mortgage inspection as a survey, and advise them that an actual survey should be conducted.

Many real estate contracts that include a clause requiring a survey and a mortgage inspection will not satisfy that requirement. Therefore, if you represent a seller who must provide a survey, be aware that providing a mortgage inspection may not satisfy the terms of the contract. If you represent a buyer, be aware that a mortgage inspection may be less than your client is entitled to under the contract and may not provide adequate information.

Attorney Inspection of the Survey

The most important aspect of a survey for an attorney is making sure that the survey does not reveal any serious title defects. The attorney should review several items to determine if title defects are present:

  1. The survey and legal description of the property in the title commitment match;

    2.  

  2. All easements, encroachments, and improvements are noted on the survey and have been examined to see if they are acceptable to the client;

    3.  

  3. The survey meets all the statutory requirements for the type of survey it purports to be, such as an ALTA survey; and

    4.  

  4. The survey includes all the information that the involved parties requested.

Conclusion

While there are many types of surveys that identify several different issues, the ALTA survey is generally the most reliable. An attorney should usually request a boundary survey when a survey is necessary and then review the conducted survey to make sure it meets ALTA standards. If these steps are followed, the survey will usually be sufficient and the attorney will be protected against surveyor error.

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