When ordering an ALTA/NSPS Survey with land that has a potential encroachment of property, ’'s important to understand what is and is not the surveyor's responsibility to report. In this blog post, we will discuss the responsibilities that fall to the land surveyor per the standard requirements.
What are the Surveyor’s Responsibilities in Reporting Potential Encroachments?
The ALTA/NSPS Land Title Survey Minimum Standard Detail Requirements give an outline of the surveyor’s responsibilities in reporting and showing potential encroachments over boundary lines in sections 5.B.v and 5.C.iii. It’s also the surveyor’s responsibility to conduct thorough observations during the field work and note the extent and nature of any potential encroachment. This is either on the surveyed property from an adjoining property or right-of-way, or from the surveyed property onto another individual’s land.
It’s also up to the surveyor to note any potential encroachments into burdening easement rights on the property that was surveyed, or over any platted or clearly defined zoning-imposed setback line. These same observations should then be shown on the plat survey; however, the surveyor is not obligated to determine ownership. Ownership is beyond the limits of a surveyor’s expertise.
Surveyor’s Responsibilities: What Does This Mean
It may be clear to all transaction parties, for example, that the neighbor’s driveway is encroaching over the property line onto the surveyed property. If the surveyor states that the “neighbor’s” or “adjoining owner’s” driveway encroaches 2.7’ onto the subject property, the surveyor is assuming that the existence and/or use of the driveway is an illegal trespass because it is clearly owned by the neighbor. The surveyor may be unaware of a written or oral unrecorded agreement that allows for the trespass.
Surveyor Observation: Caution of Overstepping Rights
In order to provide thorough reporting but avoid legal opinion, a surveyor should provide the following observation: “Driveway crosses over onto surveyed property by 2.7’, as shown.” This statement doesn’t declare any ownership, which is done so intentionally. The transaction parties often try to challenge the surveyor to make a statement of ownership, especially for fence lines. It’s important to understand that if the surveyor does so, they are extending liability by making a declaration that is, again, legal opinion.
In some states, like Maryland, even the word “encroachment” can be interpreted by government agencies as a determination of ownership, which renders an opinion. Surveyors must be extremely careful to follow the Standard Requirements without overstepping their rights and increasing liability.
Bock & Clark has been serving the commercial real estate industry since 1973 and provides quality reports for all 50 states and Canada. If you’re interested in ordering an ALTA/NSPS survey, contact us for more information.