LAND SURVEYING

Gary R. Kent


What a Modern Survey Should Reflect

As with many professions, the changes wrought by technology over the past decade have brought a profound change to the Land Surveying profession. Notwithstanding technological advances, the demands of today's clients, banks and title companies are forcing Land Surveyors to adapt or" get out of the way".

Administrative Rules adopted by the Indiana Board of Registration for Land Surveyors in 1988, and revised several times since, outline the minimum standards required for the practice of Land Surveying in Indiana. Beyond the State's regulations, however, there are numerous minimum standards in effect for certain types of surveys - for example, the 1992 ALTA-ACSM Land Title Survey Minimum Standard Detail Requirements and the requirements for Indiana Surveyor Location Reports (now incorporated in the Administrative Code).

The client, most appropriately through her attorney, should have at least a basic understanding of these rules and standards in order to be able to ascertain, first, whether or not a particular surveyor can even perform under them, and then, once the survey is complete, whether the standards were met.

In addition to professional standards, many banks also have their own set of standards. It behooves the client's attorney to be familiar with all of these requirements.

Perhaps most importantly, a survey performed since 1988 in the State of Indiana, must include a "Surveyor's Report" required under the Administrative Code. This report should provide invaluable information to the client, title company, attorneys and lenders as they assess the risks involved and the problems encountered on any given survey.

In any case, the client, if they are to be properly served and protected, should by represented by attorneys and surveyors having an intimate understanding of the various survey requirements and how they may affect the survey process.


The Role a Land Surveyor Plays: Educating Your Client

When a Land Surveyor is first contacted regarding a potential client's need for a survey, there is an obligation to confirm that the proper type of survey is being requested. This will prevent wasted time, effort and money - not to mention hard feelings should the surveyor end up delivering the "wrong" type of survey.

Frequently, the Land Surveyor is contacted initially by a person unfamiliar with what they are requesting and as a result, for example, a "mortgage survey" may be requested when a Land Title Survey is needed. Interestingly, but unfortunately, this type of uninformed request comes as frequently from banks and attorneys as it does from laypersons.

If the order involves an ALTA-ACSM Land Title Survey, the Minimum Standard Detail Requirements for 1992 ALTA-ACSM Land Title Surveys outline the responsibilities of the client or the client's agent in placing the order, although these provisions are virtually always ignored - probably because even the more knowledgeable persons are often unfamiliar with the document.

Beyond educating the client, but related to the role of the Land Surveyor in the preparation of surveys related to the conveyance of land, the Land Surveyor is literally the eyes of the title company and lender - representatives of which will frequently never see the property first hand.

Funds are loaned and title insurance policies issued based on facts revealed by the fieldwork and record research performed by the land surveyor.

As any land surveyor will tell you, a surveyor cannot establish "property" lines. Only a court can do this. Still, a properly trained and experienced land surveyor is uniquely qualified to recognized and understand the many esoteric nuances associated with property boundaries. The land surveyor is often referred to as a quasi-judicial figure and a thorough understanding of real property statute and common law is necessary in order to fulfill that charge.

In perhaps the most famous essay ever written on surveyors, Michigan Chief Justice Thomas Cooley in the last century spoke of the judicial capacity of land surveyors. He wrote, "Surveyors are not and cannot be judicial officers, but in a great many cases, they act in a quasi-judicial capacity with the acquiescence of parties concerned; and it is important for them to know by what rules they are to be guided in the discharge of their judicial functions."

In any boundary retracement, it is the job of the land surveyor to "follow the footsteps of the original surveyor." Since this is of course usually impossible, the contemporary land surveyor must have a working knowledge and understanding of the practices and procedures of his or her predecessors. Additionally, familiarity with past state and federal laws which regulated the subdivision of the public lands and local ordinances and regulations is critical.

Even when unusual practices or errors in the past are not a factor, the land surveyor must understand real property law - both statute and common.

In short, the surveyor's role is to retrace boundary lines in a manner consistent with statute and common law and accepted survey practice. In order to effectively accomplish this assignment, the Land Surveyor must be familiar with all factors of law and accepted survey practice. Only in this way will the boundary lines have a chance of standing the test of a court challenge.


Fundamentals of a Survey: A Systematic Approach to Boundary Survey Problems

The Order

After considering the above discussion, the Land Surveyor should always carefully outline the agreed upon scope of work in a written contract so there is a definitive agreement outlining who is going to do what for whom.

It is important to all parties that any peculiarities related to the survey, such as identifying lenders' requirements or certifications, be addressed at the time of the order. This will prevent misunderstandings and wasted time later.

Along those lines, the person ordering the survey should have some knowledge of professional liability and registration/licensing issues in order to help resolve potential problems in those areas.

Gathering Information

Under the Indiana Survey Standards of 865 IAC 1-12 ("Rule 12"), the Land Surveyor has certain responsibilities associated with the gathering of information for research and investigation.

The surveyor must obtain the record description of the tract being surveyed, the record description of its adjoiners, related subdivision plats, and any other maps, documents, field notes and other data related to the survey from private or public sources. Typical of the other documents would be section corner references and copies of legal surveys and the recorded surveys of other surveyors.

Depending on whether or not the client has their own requirements, the surveyor may have a substantial number of other documents to research such as zoning, utilities and flood hazard.

Researching the Deed

Rule 12 and the several Land Title Survey Minimum Standard Detail Requirements require that the surveyor perform the survey in accordance with the record description.

Surveyors typically obtain copies of deeds directly from the courthouse, although in some cases, a local abstractor or title company may be contacted for assistance, particularly where the subject or an adjoiner involves an peculiar property such as a non-taxed parcel or abandoned railroad.

What Goes on in the Field

The field process is typically much more involved that the layperson may anticipate. The first step, reconnaissance, is basically a planning procedure. It is important in ascertaining what evidence is available, determining what elements need to be included as a part of the survey (in order to properly locate the boundaries of the tract) and in deciding fundamentally how the survey will be conducted most effectively and efficiently.

One of the most important aspects of reconnaissance includes investigating the existence, availability and integrity of survey monuments found (or not found, but required) to properly locate the boundary lines. Often, required marked are not found - there may be no modern record of them - and substantial work must be done in order to perpetuate their locations before further work can be done.

Once reconnaissance is complete and a determination of how the survey will be conducted has been made, the actual field survey commences.

Modern survey crews are typically comprised of two or three trained technicians with a variety of tools at their disposal including electronic total stations (highly accurate angle and distance measuring devices) with data collectors for downloading survey measurements directly into a computer and sensitive magnetic locators for finding buried survey markers.

Based on decisions made during reconnaissance, the crew runs the survey by making a series of angular and distance measurements carrier out in an orderly fashion. Depending on how the legal descriptions are written, the crew may be found running traverse lines a mile or more from the tract being surveyed.

In addition to the boundary aspects of the survey, other facets of the survey may be accomplished at this time. This would typically include the gathering of data required for a Land Title Survey such as building locations and documentation of evidence of prescriptive or adverse uses.

Foremost in the crew's mind should be the taking of redundant measurements in order to prevent - or at least to be able to mathematically isolate - measurement errors.

Putting it All Together

Once the initial field work is completed and delivered to the office for note reduction, the collected data is reviewed, checked for errors and loaded into the computer.

Surveyors utilize coordinate geometry for their calculations - typically setting up a coordinate grid system on which to base the calculations. Coordinates are calculated for the various points tied into the survey and the relationships of those points tested for consistency and integrity.

Once there has been a level of satisfaction and comfort as to the character of the various required points, that data is used to compute the actual corners of the parcel being surveyed.

At this point, evidence (often conflicting) is weighed and the laws of evidence are applied in order to determine deed line and corner locations consistent with common law. This aspect of surveying is where the science of measurement is separated from the art of boundary surveying. This is also where a great many surveyors lose their way.

Once final corners are determined and tested for consistency with the evidence, the survey crew is sent back to the field to set monuments at those points. The survey plat is then prepared, the Surveyor's Report written and the final product double-checked by both the crew and the office.


The Various Types of Surveys: Residential, Commercial and Construction

MINIMUM STANDARDS OF PRACTICE FOR LAND SURVEYORS IN INDIANA -"RULE 12"

In the summer of 1988, Indiana's Board of Registration for Professional Engineers and Land Surveyors adopted certain standards of competency for surveyors, 864 IAC 1.1-13. These standards were commonly referred to as "Rule 13". The standards were revised in 1991, and due to other changes occurring in the registration acts for Engineers and Land Surveyors, the standards were recodified under 865 IAC 1-12. They are now generally known as "Title 865" or "Rule 12" (see Appendix A).

Rule 12 establishes a number of requirements for the practice of Land Surveying in Indiana, but its primary emphasis is to require the surveyor to specifically determine and comment on the various uncertainties inherent in any survey as a result of monumentation, record descriptions, occupation and measurements. This commentary must be made in the form of a "Surveyor's Report" and must be provided to the client.

A second primary requirement of the original Rule 13, which was superseded by 1989 Senate Enrolled Bill No. 427 (subsequently codified as IC 36-2-19, Filing of Surveys), dealt with mandatory recordation of some surveys. IC 36-2-19 imposes a requirement upon surveyors to record certain surveys in the county recorder's office (and - in counties enacting an ordinance so specifying - to also file the surveys in the county surveyor's and/or auditor's office). Rule 12 now incorporates the requirements for survey recordation included in Senate Enrolled Act 427.

The Filing of Surveys act defines the types of surveys which must be recorded and specifies both the occasion when the survey is to be placed of record and the contents of the survey. Surveyor Location Reports or similar survey documents normally associated with a residential mortgage loan are specifically excluded.

Rule 12 also establishes certain classes of surveys together with requirements for each class which are based on the uncertainties related to random errors in measurement, instrumentation and procedures.

Rule 12 has generated a great deal of interest and confusion within the real estate community throughout the state. Taking the time to understand its requirements is well worthwhile.

Types of Boundary Surveys

A boundary survey is performed specifically for purposes of establishing or retracing the boundary lines of a tract of land. If the survey involves a tract that has been previously described in a document conveying an interest in real property, the survey is considered a retracement survey.

An original survey is a boundary survey performed for purposes of locating and describing real property which has not been previously described in documents conveying an interest in that property. The new parcel is normally a cut-out of a larger existing parcel, but may be created by the consolidation of several existing parcels into one.

The types of surveys normally required in a property transaction go beyond generic boundary surveys and are performed to specific industry-recognized standards. In Indiana, there are generally two sets of Land Title Survey Standards used and the application of these standards depends on the requirements of the specific lender and title company.

In order to assure that the lenders and title companies receive a consistent, reliable and relevant product, those industries have, together with representatives of the surveying profession, promulgated a number of standard requirements which must be addressed in the performance of a survey being performed for purposes of the transfer of real property.

Land Title Surveys normally are performed on commercial and industrial properties. There are two sets of accepted standards. These Minimum Standard Requirements call upon the surveyor to focus upon issues of concern unique to the title industry.

It is important to emphasize that Land Title Surveys must also comply with the requirements of Rule 12.

Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys

In 1962, the American Congress on Surveying and Mapping (ACSM) and the American Land Title Association (ALTA) adopted Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys together with an accompanying certificate. In 1986, 1988, and most recently in 1992 those requirements were revised. The 1992 certification and requirements for an ALTA/ACSM survey are set forth in Appendix B.

The client and/or attorney should recognize that both Rule 12 and the 1992 ALTA/ACSM Land Title Survey minimum standards establish certain classes of surveys and requirements for each class. The two types of classes are not; however, necessarily related to each other and each must be addressed individually as a part of the survey.

The ALTA-ACSM requirements also include Table A which provides the client with the opportunity to request certain additional items above and beyond the Land Title Survey requirements themselves. The client should be aware that many of these additional items may involve a substantially higher surveying fee and a longer time to complete. It is critical, therefore, that prior to contracting for a survey, the surveyor be aware of all requirements and any additional fee negotiated.

Minimum Standard Detail Requirements for Indiana Land Title Surveys

The surveying community in Indiana recognized some shortcomings and areas of concern in the 1962 ALTA-ACSM minimum standards and as a result, the Indiana Society of Professional Land Surveyors and the Indiana Land Title Association adopted the Minimum Standard Detail Requirements for Indiana Land Title Surveys and an accompanying certificate in 1970 (see Appendix C). The Indiana Land Title Survey is often referred to as a "Minimum Standards Survey" or an "I.L.T.A. Survey" and the certificate is usually referred to as a "minimum Standards Certificate".

As with the ALTA-ACSM standards, the Indiana Minimum Standards Certificate is a "short-form" certificate which states that the survey was made in accordance with the Minimum Standards rather than giving a recitation of all of the requirements within the body of the certificate itself.

Although there are differences between the Minimum Standard Detail Requirements for Indiana Land Title Surveys and the ALTA/ACSM requirements, they affect primarily the surveyor and not the final product as perceived by the client, lender and title company. The Minimum Standard Detail Requirements for Indiana Land Title Surveys require compliance with Rule 12 by reference.

A primary difference between the ALTA/ACSM Land Title Survey and the Indiana Land Title Survey revolves around the "Class of Survey". The ALTA/ACSM "Minimum Angle, Distance and Closure Requirements for Classes of Surveys" specify certain instrumentation and procedures in order to qualify a survey as meeting a particular class (Urban, Suburban, Rural or Mountain/Marshland).

On the other hand, the classes of surveys defined in Indiana's Rule 12 relate to procedures and instrumentation specifically aimed at calculating a "Theoretical Uncertainty" associated with random errors in survey measurements.

Indiana Surveyor Location Report

If a survey involves residential property, a Surveyor Location Report is normally required. In 1981, the Indiana Land Title Association and the Indiana Society of Professional Land Surveyors adopted a set of minimum standards in an effort to standardize what has been called a "mortgage survey", "unstaked survey" or "mortgage inspection". These standards became the basis for the Indiana Surveyor Location Report which was subsequently revised and incorporated into Rule 12 in 1991 (see Appendix D).

The Surveyor Location Report is a special type of survey - perhaps more properly called an inspection - the standards of which were designed specifically for purposes of assisting in the securing of a mortgage loan on residential property. The Surveyor Location Report standards are intended to be used on residential properties of less than four acres which contain no more than 4 dwelling units, but its use is not specifically restricted.

Property corners are not set on a Surveyor Location Report and persons should not attempt to use the Report for any purpose other than securing the mortgage loan.

Construction Surveys

Construction surveying is a type of surveying typically not related to boundaries per se. For most types of infrastructure improvements including, but not limited to residential, commercial and industrial buildings, streets, sewers, subdivisions and bridges, a surveyor must be employed in order to set stakes for the proper location, elevation and relative placement of the improvements.

The stakes as set by the surveyor are utilized by the various contractors to determine, for example, how much earth to move, how deep to cut a lake or when a wall is plumb or a floor level.

This type of work tends to be very specialized and requires a great deal of experience and confidence on the part of the survey technicians conducting the work.


What are the Surveyor's Obligations to the Client in Relation to Environmental Problems?

The land surveyor must be cautious about making commentary on environmental issues which are beyond the scope of his/her license to practice or expertise. Several years ago, some lenders began requiring surveyors to sign certificates stating, for example, that no hazardous materials were observed on the site. This author refused on the grounds that he was not trained in assessing potentially hazardous materials and that to put his surveyor's seal over such a statement constituted malpractice. Fortunately, this type of certification has not been seen recently.

Notwithstanding issues of expertise and licensing, the surveyor's obligations would seem to be limited to careful observation and appropriate reporting of readily observable conditions, such as vent pipes for underground tanks or obviously polluted sediment ponds, that could be a concern to the various parties involved in the transaction. On the other hand, the surveyor needs to be careful to not offer opinions that may unnecessarily taint the property.


Certification and Seal: Why, When and Where?

A discussion about certifications is probably appropriate. The Administrative Code requirements regarding certifications are limited to a statement that the survey was performed by or under the surveyor's direction and that it was executed in accordance with those requirements.

As mentioned above, however, the ALTA-ACSM requirements and the Indiana Minimum Standard Requirements call for more specific certificates. Frequently, lenders will also tailor-make their own certifications. All parties involved should be wary of such certifications.

Unfortunately, such certificates are usually provided to the surveyor after the survey is completed with instructions to sign and return - although they normally involved numerous items not addressed in the course of a normal Land Title Survey. The use of most lenders' certifications as written will invalidate the surveyor's errors and omissions coverage for that particular survey; which can be self-defeating when it is frequently a requirement that the surveyor have coverage prior to commencing work.

Some state registration boards have ruled that surveyors are not qualified to certify to or even give opinions on certain items which frequently appear in lenders' certifications. The state of Georgia has made such a ruling with regard to surveyors commenting on hazardous wastes.

The surveyor and attorney should be familiar with the various types of survey requirements and certifications. Normally through careful negotiation, the needs of the title company, lender and client can be met while still protecting the land surveyor from excessive and needless liability.