Need some assistance from the LS community

[mpallamary]

I have a question I could use some feedback on.

A land surveyor is preparing a land description for a piece of property for purposes of describing the land for a Certificate of Compliance. These are naturally governed by the Subdivision Map Act and these descriptions are used to describe, encumber and transfer property.

The surveyor prepares the description and includes the following note:

"Note: This description has been reprinted from a Trustee's Deed recorded XXXX (date) and is provided as a convenience to identify the parcel subject to this Conditional Certificate of Compliance. Neither the company nor any of its officers or employees assumes responsibility for the accuracy of said description."

How does this disclaimer comport with the "responsible charge" obligations of the surveyor?

Does this create marketable title?

Does this introduce ambiguity in the chain of title?

If the description is in error, who is held responsible and liable with such a disclaimer?

Is such a disclaimer permissible and can one use it on other survey documents such as maps and records of survey?

Thank you all for your consideration of this matter.

[land butcher]

This surveyor is submitting a description based on data from a document prepared by others. Title Cos run fast and loose these days and there could be errors. Read the hold harmless at the end of your title report.

Only other options would be to review all the deeds associated with the parcel or do a lot survey. A office traverse of the desc may or may not uncover any errors.

To me the surveyor is covering his butt having to use a desc prepared by others and it may be the only desc. If the deed closes the only other way to determine its accuracy would be to do a ground survey.

I don't see any issues with the hold harmless.

[dmi]

What is wrong with using the current vesting deed?

Is it any wonder, with such a practiced as described, that some surveyors are complaining of lack of work, low wages and benefits in the private sector?

[mpallamary]

Thanks guys! I hope others will weigh in on this inquiry. It is an issue that can use more thoughtful comments such as the ones you have provided.

[mpallamary]

I wanted to add more about the description. It is an aliquot part description that excludes a 125' X 250' segment. It is not metes and bounds nor is it complicated. The question deals with whether or not the land was always aliquot. There is nothing fancy about the description. The question involves its origin.

[Dylan Kolstad]

The surveyor surely knew the reasons for the cert of compliance, and if something smelled fishy he/she should have researched the title back far enough to determine whether this description was a problem. Even though a title company likely insured title on this description, in my opinion, the surveyor's role in this process should be to act as quality assurance to a certain extent. Else why would this surveyor have been hired to sign and stamp the description? If the parties don't own the land being described, his/her repeating that description and stamping it won't fix that.

I don't think that disclaimer is meaningful, as it conflicts with the responsibilities of the license/licensee. However, it's hard to lay blame without knowing the full facts of the situation. There may be plenty to go around...

[BeachBum]

I do not remember where I learned this, but it is something that has stuck with me my entire career, and I think it applies to this situation.

A property owner has the right to draw conclusions from everything we set in the ground and the products we provide.

A Land Surveyor has the duty to prove existing evidence is in the correct position or correctly portrayed in the documents we provide.

Given that, you accept responsibility for “Rubber Stamping” any previous work regardless of any disclaimer that you may come up with.

[Ian Wilson]

One of my mentors often used medical examples when discussing professional practices within land surveying. At the risk of taking the same sort of criticism he did, I’ll offer up the following:

Say a surgeon performs an operation to remove a patient’s foot.

Say the surgeon slaps a disclaimer on his work saying, “I, Joe Surgeon, MD, have consented to remove Patient X’s foot by surgical means. I have removed the foot Patient X indicated was the correct one. Neither I, my partners, this hospital or any of its officers or employees are responsible if the wrong foot was removed.”

Say the surgeon gets sued for malpractice because the wrong foot was removed.

Do you think the surgeon would stand much of a chance using that disclaimer as a defense?

Professional Land Surveyors' Act §8726:

A person, including any person employed by the state or by a city, county, or city and county within the state, practices land surveying within the meaning of this chapter who, either in a public or private capacity, does or offers to do any one or more of the following:


(l) Determines the information shown or to be shown within the description of any deed, trust deed, or other title document prepared for the purpose of describing the limit of real property in connection with any one or more of the functions described in subdivisions (a) to (f), inclusive.


In fact, trying to throw the blame on the Trustee’s Deed and its author might actually be aiding and abetting.

Does it create marketable title? Wasn’t that created by the document relied upon by the Trustee’s Deed? Wasn’t the Trustee relying upon a title company to insure marketable title?

Does this introduce ambiguity in the chain of title? Not really. On the face of it, the authority and competence of the surveyor are brought into question, but not the validity of the title chain. If anything,it introduces a little levity into the chain.

If his description is in error…? He is! Please see §8726(l) of the professional Land Surveyors’ Act for proof of this.

The disclaimer is permissible. It doesn’t mean anything. It could be prima facie evidence of competency, though.

[mpallamary]

Thanks Ian. I am trying to figure out the implication and of course if such a disclaimer sets a precedence for the community.
I will continue digesting the replies.

[mpallamary]

Thank you Dave. As always, your insight and sense of professional duty and obligation is greatly appreciated. I shall continue eliciting comments.

[E_Page]

One of th efirst things that came to me with regard to marketable title was a question: Was the Trustee's Deed a Trustee's Deed Upon Sale? If so, it is more or less equivalent to a QCD in its effect and warranties.

It basically says, "to the extent that I have any title interest in the herein described property, and I am unsure of that extent or if I indeed do hold a valid title interest, I am conveying it all to you."

Until the quality of title based upon record documents prior to the Trustee's Deed is verified, it seems to me that marketable title is remains a question.

I agree with the others who say the note by which the surveyor attempts to absolve himself of responsibility for the content of the description he prepared is inappropriate and most likely ineffective.

There are ways to write a description which is sufficiently specific to identify a property yet sufficiently vague to account for any uncertainties in the information provided by which to draft the description. Such a description puts someone attempting to determine the boundaries at some point in the future on notice of the defficiencies or uncertainties involved.

A description written which is deceptively specific, implying greater certainty than actually exists, accompanied by a note that attempts to mitigate the effect of the falsely specific information is potentially harmful. It is not uncommon for such descriptions to lose the "unnecessary" verbiage when transcribed by a title technician or legal secretary onto a new form ("gee, if we eliminate this little paragraph that doesn't seem to have anything to do with actually describing the property, we can fit it all onto one sheet. Won't that be efficient and nifty!).


Another question (a few questions): Was the Certificate of Compliance granted? Did the County examine title as part of the review? Did any title company gaurantee or insure title as part of that process?

I suspect by your questions that none of that happened, or that if a CoC was issued, the title examination and title insurance/assurance was not part of the process.

If that's the case, the CoC only eliminates one barrier to marketability. It is a legal parcel as far as the County is concerned for zoning purposes and such, but if title is not clean, the county's determination has little effect. It's merely one hurdle cleared, with at least one to go.

[mpallamary]

Here is some more information. The description was prepared by a County Surveyor over significant protest as the land in question does not appear to satisfy the requirements for COC processing and there were a lot of questions about the description itself.

I have attached a redacted copy to see the description in context. From my perspective a licensed land surveyor is a licensed land surveyor and all licensed land surveyors are held to the same standard. If that is not the case, what are the rules and laws that distinguish a private surveyour from a public surveyor?

Can anyone place a disclaimer on their work?

Does the fact that the description and attendant disclaimer was prepared by a County Surveyor change anyone's opinion and if so, why?

Again, many thanks to everyone!

[subman]

Michael

The first question to come to my mind: was there a contract between the property owner and the County Surveyor?

From my experience, the burden is on the property owner to submit the legal for a COC and that has always been done by the private practice members of the survey community.

If the County provides that service for a fee, isn't a contract still required under the LS Act. Food for thought...

[mpallamary]

Thanks! There was no contract as the County forced the document on my client under extreme protest. The County selected the deed and we did not provide it or endorse it and we questioned the document.

[land butcher]

The issue is "what is the desc based on"? Where did the surveyor get his info to write this desc.
This appears to be a simple desc but, as I stated, if it is copied from a title report/deed does not make the doc it was copied from correct. But to what extent do we verify a description.
Since this came from a govt agency there should not be a disclaimer, any legal desc coming from a govt agency should be accurate.
I fail to see why they put the disclaimer on it as suing a govt agency is like finding hens teeth.

In response to Ian, the limit on medical malpractice in CA is $250K, set in the early 1970's and not adjusted for inflation. As a major law firm in SF states on their web site, "In CA there is no such thing as medical malpractice", I have first hand knowledge of this. We surveyors do not have a cap on our liabilities.

[desert turtoise]

Responsible charge ? supervising your subordinate, if he/she is allowed to take the lead and make decisions without supervision,and a mistake is made, the buck stops with section 8703, the licensed person.

Marketable title ? why are surveyors involved with this ? Because lawyers ask. Send the lawyer back to the title company and have him ply his profession in the courts. The courts are concerned with "what" title is.

Disclaimer permissible ? We see it on ROS maps. In fact, I just put one on a ROS filed last week regarding two deed descriptions that had a very minor over-lap. Ended up detailing the rock wall, laying in repose for at least 80 years, with acquiescene by adjoiners.

The surveyor has responsibilities to discover, disclose, document, and record. If a contract does not cover resolution of defective descriptions, how is the LS obligated legally ? If he wants to resolve it,and the public needs to have it resolved, fine.

What is standard of care? Our textbooks and case law tells us it is what the majority of our peers would do under similar circumstances or while performing a like-type of survey, in the same locality. We know we have to meet or exceed it.

The standard of care is muddled by our state government regs; a typical so-called "expert" (often an outsider with regard to locality) is contracted to come into a particular county and investigate a complaint. How can that person be an expert on the local stdandard of care ?That is a reason why citations are handed out. No expert can bat 1000; they have to get a % of them wrong. Fortunately, there is a person on the board who shows patience and some depth of understanding. Citations can go away and justice is served.

Which reminds me, someone used the "R" word earlier. Can we refrain from saying who should be revoked ? It's a serious matter. For that to apply, I think the licensee should be a repeat offender, a serial incompetent. MOst try to be 100% competent but end up being only 99% perfect. We are human.

[mpallamary]

Great comments and observations. Thank you!

[LS_8750]

I see no room for disclosures in legal descriptions. Period. God forbid, but transactions need to wait until everything is in line.

Marketable Title: when you have a description that basically negates itself how can you assure that it is legitimate? Is that assurance (can the property be surveyed) not the basic responsibility of the land surveyor in responsible charge?

If I created a set of civil engineering plans that contained a similar disclosure I would be laughed out of the state. Who even knows how the Board would handle it.

Remove the disclosure by surveying the property. Duh.

[mpallamary]

Thanks Clark. Valuable commentary! I appreciate it.

[scarpa]

Clark,

I have to laugh a bit and rib you as an engineer. The following is from a set of improvement plans which is signed by an engineer.

[INDENT]
“SPECIAL NOTES: Where underground and surface structures are shown on the plans, the locations, depth and dimensions of structures are believed to be reasonably correct, but are not guaranteed. Such structures are shown for the information of the contractor, but information so given is not to be construed as a representation that such structures will, in all cases, be found where shown, or that they represent all the structures which may be encountered.”[/INDENT]

This type of statement is fairly common. Is it due to lack of budget, scheduling, and/or scope to properly identify the “structures”? Or, is it just the standard of care/practice which we have come to accept?

In simple terms, does “not guaranteed” equate to “not assuming responsibility” (paraphrased from description note)?

“If I created a set of civil engineering plans that contained a similar disclosure I would be laughed out of the state.” These statements are out there, but I do not see many engineers emigrating to other states.

NOTE: I am not siding with the CS, but just pointing out something I found humorous.

[mpallamary]

Great comments all! Thanks!

[land butcher]

That's pretty standard on street plans, esp when it comes to utilities that have little or no surface alignments such as sewers and waterlines. Edison, Cable, phone and gas lines are wherever they dug the trench.

My cousin, a Contractor, opted to install the cable so his street could get cable TV. He checked with gas, edison, and phone - they all stated they were a min of 30" deep (the edison guy was a neighbor). So my cousin sets his ditch witch at 14" and hit every one of them. So much for records.

At a hotel I surveyed the grader came in and found a 3-4in dia phone cable. Super checked the plans and his records and the phone company stated that line was 6ft below what our sub grade was. So he told the contractor to cut it. It was the main cable to the western white house. In less then 20 min about 6 phone trucks were on the scene. Super was covered by the info from the phone co and he said if he called it would take 3-4 months to get the phone co to lower it. This was faster.

[mpallamary]

Nice. What a mess.

[MFORD]

I agree with D Wolley that the disclaimer on the legal description is moot. All it does is point to the obvious attempt by the surveyor to avoid responsibility if the description turns out to be incorrect. He would have been better off leaving it out. It’s one thing to be incorrect. It’s quite another to deny responsibility for your professional decisions in writing on a recorded document.

Similarly I ran across the following note on a recently filed ROS that, in my mind, attempts to alleviate the surveyor from liability if it turns out he may be wrong.

“NOTE: There may exist other documents of record and not of record that affect this surveyed parcelâ€￾.

This note sounds like the surveyor is admitting he didn’t perform the proper research and is attempting to absolve himself of the responsibility for not doing so.

In both cases surveyors would have been better off leaving the note off the filed/recorded documents.

Mike Ford

[dmi]

Has anyone been admitted to a hospital or had a medical proceedure performed lately.? My memory is that medical release froms are used all the time. Were these documents an exercise in futility, would there continued use make sense? It seems to me that people still sue their doctors when things go wrong, but probably they cannot sue the doctor for the things on the paper they signed and agreed not to sue over. This just means now you have to have a clever attorney.

I don't have the facts to back this up, but I am going to guess that where there is a claim of negligence and that claim is proven to be true, all bets are off. There would be no protection from the medical release form nor should there be.

The Alta/Acsm Land Title Survey standards and certification might be a good example of where statements placed upon a document have liablity limiting capacity.