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Advantages of ALTA Surveys Vs Aerial Alternatives
Frequently Asked Questions regarding ALTA/ACSM Land Title Surveys versus other sources, such as Express or Aerial Mapping Services.
What is the purpose of the ALTA/ACSM Land Title Survey product?
The ALTA/ACSM Land Title Survey was formulated to be a survey on which the title insurer could rely to make specific underwriting decisions regarding the deletion of the standard survey exceptions within a title policy. When issuing this policy (in most cases to the lender), the holder of the policy wants these standard exceptions removed. As the survey will report on the ground matters of concern in relation to these exceptions, the ALTA/ACSM Land Title Survey is the tool that gets the insurer to their comfort level to delete these. Furthermore, the survey is certified by the surveyor to the title insurer (and other transaction parties), therefore extending the liability to the surveyor for any error or matter not reported or shown.
Can a product based on an aerial photo provide the title insurer with the same level of comfort?
These products are far less accurate and conclusive than an ALTA/ACSM Land Title Survey. Aerial photography can in no way compare to the precision necessary to meet the accuracy standards that are a part of the ALTA/ACSM Land Title Survey Requirements. As an example, consider the standard title exception pertaining to rights, interests or claims of parties in possession not disclosed by the public records. When relying on an ALTA/ACSM Land Title Survey, the boundary line of the property and the relationship of all improvements and easements are reported with extreme accuracy. Even with high-resolution photos, it is impossible to locate property corners and any existing survey ground monuments on an aerial map product. Without an exacting location of property corners, it is impossible to super-impose the property boundary onto the aerial map within an acceptable level of accuracy. If the boundary cannot be accurately depicted, then the easements locations, which are most likely tied into the boundary cannot be accurately shown. In most instances, there would be questionable scenarios regarding the possibility of encroachments either across property lines or into easements, which would greatly influence the decision regarding the deletion of this exception.
How then is the title insurer utilizing this product to delete the standard exceptions?
In the cases of which we have learned, the TITLE INSURER is the preparer of both the TITLE POLICY and the EXPRESS Aerial Map. An independent surveyor does not provide or certify this product. Because they are relying on their own product to make these underwriting decisions, they are taking the risk that no claim will arise regarding the issues raised within the standard survey exceptions. There should be questions asked of the title insurer who may be preparing the map product to suit their best interest rather than those of the ultimate property owner or lender. We strongly recommend that an ALTA/ACSM Land Title Survey be prepared by a surveyor who is acting as a third party and has no interest in any underwriting decision and can accurately report the facts to then be reviewed not only the title insurer, but by all parties within the transaction.
Does the ALTA/ACSM Land Title Survey provide any other benefits other than to the title insurer?
Certainly. Although the main purpose of the survey is to allow the title insurer to delete the standard survey exceptions, many other parties within a real estate transaction rely upon the survey and the matters reported thereon during the due-diligence process. The buyer and more importantly their legal counsel who is looking out for their client's best interests are very concerned about the information revealed on the survey. Not only regarding the matters relating to the deletion of the standard exceptions, but the exacting configuration of the land, matters on the property relating to zoning compliance, restrictions, easements not revealed by public record but observed on the ground by the surveyor, etc. It is clear that the comfort level needed regarding these issues could only be obtained by reviewing a current and accurate on the ground survey. The lender and their counsel are concerned with these same issues. From the seller's perspective, when the ALTA/ACSM Land Title Survey is prepared and presented to the buyer and lender, it reveals all the facts and the condition of the property at the time of sale providing the seller with a certified document should any future claim be made against them regarding an alteration to the property after they no longer had ownership. Additionally, the ALTA/ACSM Land Title Survey is typically certified by the surveyor to not only the title company, but to the buyer, the lender, sometimes their legal counsel and sometimes to the seller providing yet another level of comfort. The aerial mapping product provides no form of certification, so no liability is extended to other transaction parties therefore offering no comfort level regarding the reliance of any of the matters shown or not reported.
Is there any guarantee to the accuracy of the legal description when the aerial mapping product is utilized?
Again, as the aerial photo product does not cause any on the ground surveying to occur, there is no guarantee to the accuracy of the legal description of record and more importantly, there is no verification of any discrepancy between the record legal and the facts on the ground. On many occasions a legal description is recorded with a transcriber's error or a mathematical error of closure. Without an on the ground survey to check for these discrepancies; gaps, gores or overlaps may inadvertently be created causing a potential claim against the property. On an ALTA/ACSM Land Title Survey, the legal description is revealed and the surveyor must note and show any discrepancy between the record and measured dimensions. Furthermore, the surveyor must report any gap, gore or overlap. On the aerial product, the legal description is not shown.
What about relying on the aerial mapping product for zoning compliance issues?
In reviewing an ALTA/ACSM Land Title Survey, legal counsel representing either the lender or the purchaser are reviewing the zoning code and the restrictions contained therein and relying on the facts reported on the survey to determine compliance. With an aerial photo product, it would be impossible to be sure that the buildings on the property were within any setback requirements. The superimposed boundary that is overlaid on the photo cannot be held to a sufficient level of accuracy, as no monumentation is uncovered, etc. Therefore there cannot be any accuracy in reporting the relationship distance between a building and the true property line. With regards to the number of parking spaces, it may be possible to see the parking areas and the striping of the same on an aerial photo, but again, there may be questions on whether all the spaces are actually contained within the property boundary lines and due to landscaping, overhangs, garages, etc, there may be spaces that aren't evident on the photo. There is no way that the height of a building can be determined from an aerial photo.
Does the provision of an aerial map involve any actual surveying practices that may be in violation of the statutes for land surveying within the corresponding state where the property may be located?
The ALTA/ACSM Land Title Survey is performed and prepared by a surveyor who holds a license of registration within the corresponding state. Furthermore, within the ALTA/ACSM certification, the surveyor must state that they have not negated the positional accuracy requirements that are within their state statutes. However, the aerial product contains no such certification and no signature or stamp of a registered professional surveyor. Many state surveying boards may interpret this product as some form of survey since it is then being utilized to delete the standard survey exceptions from a title policy. The fact that it contains no certification or stamp or signature may not exempt the provider from violations or legal action on the part of state surveying licensing boards. Promotional materials from the provider of these aerial products indicate that the product is prepared by licensed land surveyors and surveying technicians. Many states may view the provision of this product as practicing surveying without a license.
What are the cost and time savings in receiving an aerial mapping product versus an ALTA/ACSM Land Title Survey product?
With regard to pricing, it is very difficult to say. It all depends on the current aerial photos that may be available within the area of the subject property and the quality. If interpreting facts from a photo in order to make underwriting decisions, etc., you would want to review a current photo and not one taken five years ago. In some areas, there may not be recent photos available, requiring the preparer to hire an aerial firm to fly the property and take a current photo. The cost of this current photo in addition to the preparation of the map could in some instances rival or even exceed the cost of an ALTA/ACSM Land Title Survey. With regard to timing, again, the availability of the current photo would come into play. If there was no current photo available, the flyover would have to be scheduled and then weather conditions would become a factor. In promotional materials we have seen for the aerial map product, a time frame of three weeks is given. The three-week time frame is pretty typical for an ALTA/ACSM Land Title Survey, but certainly there are many instances where a complete survey can be delivered in a shorter time frame.
Are there any provisions within the ALTA/ACSM Land Title Survey Requirements for any type of aerial photo reliance that may offer some cost or time savings?
With the adoption of the 2005 Minimum Standard Detail Requirements, there was a new Optional Table A Item added relating to orthophotography. This optional item after being discussed with the client and the title insurer, allows the surveyor to rely on these photo products for the basis for the location of certain improvements (excluding the boundary). When this item is included, it still causes the surveyor to perform an on the ground boundary survey, but the surveyor can then rely on the photo, etc. to show the location of the interior improvements. The benefit of this Optional Table A item really only comes into play on large format (acreage) properties which may consist of hundreds or thousands of acres where the interior improvements are sparse and may not add a huge value to the property. At Bock & Clark, we have utilized this option on coal mining facilities, ski resorts, large recreational vehicle parks and campgrounds, forestlands, windmill farms, vineyards, etc.
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