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New ALTA/NSPS Land Title Survey Standards to Take Effect in February 2021

Effective February 23, 2021, the 2016 Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys are being replaced with the new 2021 Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys (“2021 Standards”). The 2021 Standards include a variety of changes which seek to further limit surveyor’s liability and provide better clarity. Some of the more notable changes are as follows:

  • Various references to the word “shall” were replaced with “must” to reflect the United States Supreme Court’s decision in Gutierrez de Martinez v Lamagno 515 U.S. 417 (1995) in which the Court ruled that “shall” is a false imperative that really means “may,” and that “must” is the word that imposes an obligation or command.
  • Section 5.E. - Easements and Servitudes. This section was rewritten to clarify the surveyor is only obligated to note observed evidence of easements, servitudes and other uses which are “on or across” the surveyed property as opposed to those that affect the surveyed property. In addition, utility location markings, if any, are now required to be shown including a note of the source of the markings or a note if unknown. Further, the depiction of utility poles located within 10 feet of the perimeter boundary was unintentionally omitted from the prior standards and this has been corrected in the 2021 Standards.
  • Section 6.C. - Easements, Servitudes, Rights of Way, Access, and Documents. In an effort to limit the items shown in Schedule B of the title commitment on the face of their surveys, Section 6.C.ii now limits the survey summary to rights of way, easements and “other survey-related matters.” Section 6.C also added a new subsection viii. to outline the surveyor’s responsibility when the surveyor becomes aware of a recorded easement not otherwise listed in the title evidence provided.
  • Table A. Requirement 18, regarding field delineation of wetlands, has been removed, and the introductory paragraph to Table A has been amended to clarify that Table A items may be negotiated.

Note, there are other changes to the 2021 Standards that are not outlined above which may need to be considered when contracting for a new survey.

Download 2021_ALTA-NSPS_FAQs_20201214.pdf

Download 2021_ALTANSPS_Standards_Final_Official.pdf

NSPS adopted the new 2021 Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys on Friday October 30th.  ALTA had previously adopted them on October 1st

So, we now have a new set of ALTA/NSPS Standards; HOWEVER, keep in mind that they are not effective until February 23, 2021.

Also, please remember that this document was approved unanimously by the members of the joint ALTA/NSPS Committee which is comprised of numerous members of both NSPS and ALTA.

 

    • The U.S. Supreme Court in the 1995 case of Gutierrez de Martinez v. Lamagno 515 U.S. 417, found that the word “shall” is a false imperative that actually means “may.” So the Joint Committee reviewed each use of the words “must” and “shall” and used the one that it felt was most appropriate in each case, with “must” indicating an imperative.
    • Section 3.D. – Clarifies that the property that is the subject of the Land Title Survey is now expressed throughout the Standards as either “the surveyed property” or “the property to be surveyed.
    • Section 3.E.i. – The definition of Relative Positional Precision has been modified such that it now applies only to “the monument or witness marking any boundary corner of the surveyed property relative to the position of the monument or witness marking an immediately adjacent boundary corner of the surveyed property” Previously, it included the relationship of “the monument, or witness, marking any corner of the surveyed property relative to the monument, or witness, marking any other corner of the surveyed property.”[highlights added]  

      In addition, in order to create a more defensible definition of RPP, the Committee added a sentence clarifying that the definition refers to “local accuracy” and that, in addition to how it can be estimated with a correctly weighted least square adjustment of the survey, it can also be computed using “the full covariance matrix of the coordinate inverse between any given pair of points.” The latter change will probably have no practical effect on the typical surveyor and survey, but it is an important addition to 3.E.i. to clarify the definition of RPP.

    • Section 4 – The Records Research section appears in the red-lined version to be almost completely changed; however, upon close review one will see that there are very few changes; the content of the section has merely been rearranged for clarity.
    • Section 5.C.ii. – This item has been modified in order to reference Section 5.E.iv. with respect to which utility poles need to be located.
    • Sections 5.E.ii., iii. and iv. – The Committee decided that utility locate markings should be located and shown as evidence of easements and utilities, including a note as to the source of the markings (with a note if unknown).
    • Section 6.C.ii. – This item now calls for limiting the summary to rights of way, easements and other survey-related matters. This is a Land Title Survey and it does not concern itself with matters that are not survey-related.
    • Section 6.C.ii.(e) – Clarifies that surveyors may provide objective information on rights of way, easements, or survey-related matters (i.e., whether they are on or touch the surveyed property), or, if they are so inclined, they can also opine on the “effect” of such matters, but that such opinions will be based on the description contained in the document. This prevents surveyors from being put in the position of opining on the legal effect of an easement.
    • Section 6.C.iii. – A minor change that eliminates what amounted to an unintentional requirement that surveyors determine if an abutting street or road is public.
    • Section 6.C.vi. – Include the tax parcel number for adjoining properties, except where the adjoiner is a platted land.
    • Section 6.C.viii. – This new item addresses a problem that many surveyors have encountered. If the surveyor becomes aware of a recorded easement not identified in the title evidence provided (typically a title commitment), the surveyor must now advise the title company of the easement and if no evidence of a release is provided, that easement must be shown or its existence otherwise explained on the face of the plat or map.
    • Table A introduction – The introductory paragraph of Table A now clarifies its original intent (from 1988) that the wording of a Table A item may also be negotiated, in addition to whether the item will be included and the associated fee. Any negotiated changes to the wording of an item (and any additional negotiated items) must be explained with a note.
    • Table A items 6(a) and (b) – These items have been modified in order to clarify that zoning information specific to the surveyed property must be provided to the surveyor. Of course, there is nothing to prevent surveyors from negotiating to conduct zoning research themselves if they are qualified and so inclined.
    • Table A item 10(b) – This item, which addressed whether certain walls are plumb, has been eliminated, leaving what had been item 10(a) as simply item 10
    • Table A item 11 – This item has been significantly simplified with the aim of trying to better manage clients’ expectations relating to the ability of a surveyor to show underground utilities. There are now two choices that a client can select from. Note that a choice relating to 811 locate requests has been eliminated. With few exceptions, such requests are unhelpful and the Committee does not expect that trend to be reversed. Of course, surveyors are encouraged to negotiate their own wording, especially if it is their experience that there are processes for locating underground utilities in their areas that are, in fact, productive.
    • Table A item 18 – The wetlands item has been deleted; it continues to be confusing to clients and is unrelated to any title issue. Of course, wetlands could be addressed with an additional Table A item negotiated as an item 20.
    • Table A item 19 – The wording of this item has been revised yet again. By selecting this item, offsite easements (which are typically included as easement parcels in Schedule A of the title commitment) will be surveyed as if they are fee parcels (except that they will not be monumented).

There are many other minor revisions as you will note.

 

 

logo.pngFurther Information From the NSPS

What is an ALTA/NSPS Land Title Survey?  Gary S. Kent, PLS 

2016 ALTA/NSPS Standards - effective February 23, 2016 

2016 ALTA/NSPS Standards - Fillable Table A 

"Red line” markups of the changes from the 2011 edition to the 2016 edition of the ALTA/NSPS Land Title Survey Requirements

 

ALTA/NSPS Standards: Statement on Copyright

“ALTA and NSPS permit “derivative” versions of the 2016 Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys only for company branding/use and for education/training purposes.”

 

 Land Title Surveys Explained by Gary Kent, Chair of the Joint NSPS/ALTA Land Title Surveys Committee

 In order to really understand what a Land Title Survey is about, one needs to understand the land tenure system in the United States and the role of title insurance. That takes some time and effort, but the singular most important fact is that in the United States, there is no guarantee of  ownership of real property. A deed is, in fact, not proof of your ownership of real property, it is only evidence that you might own it. 

 Overcoming this problem and being able to confidently buy real property, or to obtain a loan to buy or develop real property, requires some sort of assurance that one's investment is not at risk. The way that is accomplished in the United States is with title insurance.

 There is not a bank in the United States that will lend money to purchase or develop real property unless it is provided a title policy in order to ensure that its investment (the real property collateral) is protected. In addition, lenders require that one of the standard exceptions to the coverage afforded by a title insurance policy - the "standard survey exception" - be deleted from their policy. 

 The exact wording of the standard survey exception varies, but an example is: an exception for any "Claims of parties in possession, boundary line disputes, overlaps, encroachments and any other matters not shown by the public records which would be disclosed by an accurate survey and inspection of the property."

 This is a standard exception to title insurance coverage because of the myriad of potential problems that could be detrimental to the integrity of a property's title and that will remain completely unknown unless a Land Title Survey is performed. 

 When the title company is provided with an acceptable Land Title Survey, it will remove that standard "blanket" survey exception and write exceptions for the specific problems identified on the Land Title Survey that represent possible problems with the title. The buyer and lender are then on notice as to the specific title problems that may affect the property and that, therefore, the title policy will not cover.

 In order for all of that to work, the title industry must be confident that surveyors will provide a survey that will disclose all of those potential title problems (to the extent that they can be observed by the surveyor). Hence, the Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys were developed (first in 1962 and revised 8 times since - most recently effective February 23, 2016).

 The standards are jointly developed and adopted by the American Land Title Association (ALTA) and the National Society of Professional Surveyors (NSPS). This joint effort is required to assure that the needs of the title industry are addressed while necessarily taking into account what it is possible to accomplish - at a reasonable cost and in an acceptable time frame - by virtue of the survey process. 

 Having provided the reader that necessary background, we can describe the process. 

 A Land Title Survey is first and foremost a boundary survey that includes a lot of requirements above and beyond just simply surveying the boundary. This is  because of the need to also identify all of those potential title problems listed in the standard survey exception above.

 The ALTA/NSPS requirements are therefore almost all aimed at having the surveyor collect and document data from the records and on the ground in order to support the needs of title companies when they are asked to insure title without the standard survey exception. 

 Achieving that end is, from the survey standpoint, a multi-part, multi-dimensional exercise. 

 First, there must be extensive research both into the public records and into relevant private records. 

 If the survey is of an existing parcel, it is called a "retracement" and the surveyor's job with respect to the boundary is to "follow in the footsteps" of the original surveyor of the parcel.  Often, that original survey was decades or more in the past, and finding the relevant records may entail a lengthy search through public and quasi-public records, and what is sometimes a fruitless attempt to find information from other private surveyors relating to that original survey.

 Once the necessary records have been located - or not - the survey process moves to the field investigation.  A diligent search for original or subsequent survey markers is made including the controlling or reference corners upon which the boundary lines and corners are dependent.

 Except when the property is a lot in a platted subdivision (and even often in that case also) those reference corners and lines are typically some distance from the property.  In many cases, they may be up to a mile away. In addition, those reference corners are very frequently buried anywhere from a few inches to several feet beneath roadway pavement or under or around trees, fences, walls or buildings.  The relevant evidence may also be very difficult to find and ascertain, like long-abandoned roads, railroads or canals upon which the corners and lines of the boundary are dependent. 

 Finding the relevant evidence in order that the surveyor can develop a defensible opinion as to the boundary's location is typically the most difficult and time-consuming part of the survey. 

 Once that field evidence is located and documented, the analysis of that evidence begins. Almost never is the evidence in perfect congruence with what the records say, and the surveyor must then run through an extensive iterative process of sorting through the evidence, weighing it, conducting many calculations to test it, and finally applying the appropriate boundary law principles to the evidence in order to arrive at the location that he or she believes best represents the boundary as originally established by that original surveyor. 

 In the process of collecting the field evidence of the boundary, the surveyor will also locate the many other features required by the ALTA/NSPS standards such as the building locations, access points, evidence of use of the property by others, possible encroachments, fences, drives, utility features, water features, parking lots,  parking spaces, etc., etc.

 All of that fieldwork is conducted using a wide variety of tools at the disposal of the modern surveyor. Field conditions and other factors, like the size if the property and the number and density of improvements, will typically dictate the appropriate tools. They may include electronic total stations, robotic total stations, magnetic locators, GPS, ground/penetrating radar, utility locate technologies, aerial mapping, aerial photography, remote sensing, laser scanners and unmanned aerial vehicles (aka "drones"). More mundane tools like shovels and pick axes are usually required because the evidence that needs to be found and located is frequently, if not usually, beneath the surface.

 After the boundary corners and lines have been retraced to the satisfaction of the surveyor, the surveyor will return to the field to set or reset any missing corner markers. 

 Then the plat/map of the survey is prepared to document those boundaries and all of the located features. The plat/map is prepared using any of a number of computed aided drafting (CAD) programs like Autodesk's AutoCAD, or applications that run inside AutoCAD. There are a number of other popular drafting/computing software systems used by surveyors such as Carlson.

 The drafting process can be very  automated with metadata on field-collected features being used to automatically create line work, connect up the related lines, place the appropriate symbols and even label boundary lines. Of course, presenting all of that data in a legible, readily understood form necessarily takes some manual adjustments of labelling locations, etc.

 The plat/map must also show any gaps or overlaps with adjoining properties as revealed in the records, and the location and extent of any easements identified in the title commitment.

 There are many notes required on a Land Title Survey such as those related to the depicted easements (e.g., recording information, whether shown, and, if not, why not).  Other notes include, but are not limited to, those identifying problems or ambiguities relating to the boundary, areas that were inaccessible, and water boundary boundaries. 

 If the surveyor deems it appropriate to prepare a new property description based on the results of the survey, that will be undertaken with great care given to not inadvertently creating new title problems or confusion as to the boundaries and corners. A new description may be written to indicate new corner markers that were set or to reflect higher precision in measurements and dimensioning than the old description did. It should be noted, however, that just because there are differences between measured and record dimensions that most assuredly does not mean the old description is bad and needs rewritten. Like boundary locations, legal description interpretation is a function of legal principles, not mathematics.

 Once the plat/map has been completed and any and all issues related to boundaries and easements resolved, it is sent out for review and comment by the interested parties (title company, lender and client/buyer). Any comments received will be reviewed and addressed if necessary, and the final plat/map then signed and sealed by the professional surveyor and sent to the interested parties. 

 Depending on the size and location of the property, the complexity of - or problems with -the legal description, the number and clarity of easements, and the amount of improvements and utilities on the property, the fee for a Land Title Survey can run from perhaps $2,000 at the very low end, to several hundred thousand dollars at the high end.  The effort could take anywhere from about a week to several months.

 

 2011 Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys  Requirements are effective February 23, 2011.

 

Summary of Significant Changes from the 2005 Standards to the 2011 Standards 

 

New Standards with red highlights showing which clauses within those Standards are substanitaily new or are otherwise significantly modified from the 2005 version. 

 

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