Commercial Real Estate: Survey Requirements

Vol. 2, No. 7

James P. McAndrews was formerly a partner with a partner with the law firm of Benesch, Friedlander, Coplan & Aronoff. He currently resides in Fairfax, Virginia.

 

From The Commercial Real Estate Practice Manual With Forms, Chapter 13

  • Learn the different types of surveys.
  • Learn the ALTA/ACSM Survey Requirements.

 

There are many different survey requirements. The requirements can be based on the type of survey needed, the American Land Title Association/National Society of Professional Surveyors (a member of the American Congress of Surveying and Mapping (ACSM)) (ALTA/ACSM) Survey Requirements, or a mortgagee’s survey requirements, all of which will be discussed later in this chapter. Some states, including Ohio, have enacted laws establishing minimum requirements that a surveyor must meet when preparing certain types of surveys.1 However, the surveyor may have some slight flexibility with respect to the measurements depending on the size and location of the parcel.2 Finally, the client may have additional requirements that the client will want to be shown on the survey.

 

Types of Surveys

There are many types of surveys. When an owner or a prospective owner desires to have real property surveyed, the owner should tell the surveyor the particular type of survey needed. The more common types of surveys are:

1. Land surveys (sometimes referred to as boundary surveys) show or establish the boundaries of a parcel of land and indicate the owner of the land and the owner of each abutting parcel as of a specified date. The recording information of each owner’s deed is usually shown on the survey as well.

2. Topographic surveys show both the plane and elevation of a parcel of land. A topographic survey also contains the boundary of the parcel and delineates the configuration of the surface of the earth (elevations), with contour lines at certain intervals as the land owner may request; for example, every 5 feet or 10 feet. A topographic survey also indicates man-made improvements, such as roads or other improvements to the parcel, as well as natural features such as ponds or streams. The foregoing information is required by an architect or construction contractor in the event of any construction on the parcel.

3. Monumentation surveys show the placement of iron pins (shown usually as (IP)), concrete markers, or other permanent markers to indicate the corners of the parcel. A monumentation survey or a land survey would be necessary if the owner wanted to erect a fence on the boundary lines of a parcel of land.

4. As-built surveys not only show the boundary lines of a parcel of land, but also locate the improvements specified by the owner (e.g., foundation, completed building, sidewalks, driveways, parking areas, easements, curbs, and curb-cuts). An as-built survey is normally required by a mortgagee as a condition precedent to a mortgage closing.

5. Mortgage surveys show substantially the same information as an as-built survey, unless more or less than an entire parcel is being mortgaged. However, a mortgage survey might have a more detailed surveyor’s certification than an as-built survey. A mortgage survey shows the boundary lines of the parcel of land being mortgaged, all improvements on the parcel, easements affecting or required for the use of the parcel, the roadways, curb-cuts, parking areas, and the flood plain.

6. Flood plain surveys show the flood hazard areas and whether they are, for example, a 100-year flood plain area or 50-year flood plain area, based upon maps showing flood elevations as established by the Federal Insurance Administration, which is under the Federal Emergency Management Agency, and in conjunction with the U.S. Corps of Engineers (but the Federal Insurance Administration may commission private contractors to prepare its maps). A flood plain survey is found more often on a mortgage survey or on an as-built survey than as a separate flood plain survey.

7. Leasehold surveys show the leasehold parcel merely as a part of the entire parcel, or merely the boundaries of the leasehold parcel and any of its interior divisions. A leasehold survey can also show any easements necessary for the proper enjoyment of the leasehold, such as ingress-egress easements or utility easements.

8. Land use-zoning surveys show the existing zoning classification and the current zoning on the parcel. A land use-zoning survey may also indicate the type of improvements on the parcel or the parcel’s present use.

9. Easement surveys show all easements located within the boundaries of a parcel of land. An easement survey is very important if construction is to commence on a parcel of land. The land owner must be certain that no improvements will be undertaken in any easement areas unless permission is obtained by the easement document or is obtained in advance of such undertaking.

10. Air rights surveys show the rectangular layout of the parcel of land on a horizontal level, as well as the vertical layout of the parcel in relation to the ground and other parcels. An air rights survey should show any easements required for ingress-egress, support, and utilities.

11. ALTA/ACSM surveys show all information required pursuant to the survey requirements adopted jointly in 2005 by ALTA and ACSM. The ALTA/ACSM survey requirements will be discussed below.

As noted earlier, a person requesting a survey must be specific as to what information should be reflected on the survey, and the requesting party should provide the surveyor with a list of survey requirements. Many lenders and title companies have a list of survey requirements that can be given to the surveyor when requesting a survey.

At times, the terms “survey” and “plat” may be used interchangeably. Technically, the term “survey” means both: (i) the process of determining the precise boundaries of the land, and (ii) the map or description that results from such process. The term “plat” means a plan or chart of a city or town that indicates the location and boundaries of individual properties. “Platted land” is “land that has been subdivided into blocks and lots, usually drawn to scale, with each lot numbered so it can be identified in connection with its sale to individual purchasers.”3

 

ALTA/ACSM Survey Requirements

ALTA and ACSM first adopted detailed requirements (ALTA/ACSM Survey Requirements) for ALTA/ACSM Land Title Surveys in 1962. The requirements were deemed necessary in order to standardize the form of survey and to have a survey that would be acceptable to all title companies when considering exceptions to title. In some areas of the country, surveyors believed that they were held to too high a standard because they were not surveying urban areas, but rural lands where precision was not as necessary, and this resulted in a substantial rewriting of the standards in 1986. Attorneys for mortgagees objected to the 1986 revisions and, as a result of the objections, further revisions were made in 1988, 1992, 1997, and 2005. The requirements as revised in 2005, effective January 1, 2006, are still in effect (see Exhibit 13-1).

 

Mortgagee’s Survey Requirements

When making a loan secured by a mortgage on real property, a mortgagee wants to be certain that the real property will not have any title problems or claims against the property in the event that the mortgagee must foreclose. The mortgagee will require a survey of the property, not only to have certain exceptions to title eliminated and to be certain that the mortgage description is actually the property intended to be mortgaged, but also to ascertain that the improvements, especially the buildings, do not violate any building setback or height restrictions or encroach on any adjoining property or easement areas. Over the years, mortgagees have established their own survey requirements, many of which are included in the ALTA/ACSM Survey Requirements. Among the survey requirements of the mortgagees are the following:

1. Surveys should reference the filed map, the particular reference to the property being mortgaged, and the city, county and state where the property is located.4

2. Surveys should reference the north arrow and whether the arrow is based on the true or magnetic meridian, the legend showing what each sign or line means and the scale of the drawing (for example, 1" = 10'; or on a large parcel, 1" = 900').

3. Surveys should reference the vicinity map to locate the parcel in relation to intersecting streets or, in the case of farmland, to state highways or the nearest town.

4. A legal description of the property shall appear on the face of the plat.

5. The point of beginning (POB) and the true point of beginning (TPOB) should be marked so one may ascertain where the description of the property starts and where the particular parcel of land begins.

6. A metes and bounds description, including a description of all curved lines with the points of each line clearly indicated, should be shown on the survey.

7. If a building has a party wall, the wall should be so noted, with a drawing of the other building using the party wall (a “party wall” is a wall used as a common wall for two adjacent or adjoining buildings or, in some instances, a wall jointly owned that separates two buildings).

8. The recording information for all easements and rights-of-way encumbering or benefiting the parcel should be indicated on the survey, or a notation should be made that such easement or right-of-way was observed by the surveyor, but that there is no information as to any recorded document reflecting such easement or right-of-way.

9. The survey shall reference all setback lines and building restriction lines. If there are height limitations, a note to that effect should appear as well. The zoning classification and permitted use for the property should also be indicated.

10. The survey shall reference all parking areas, driveways, planting areas in parking lots, curb-cuts, and curbs. Sometimes a mortgagee will want the parking spaces delineated, including the spaces for the handicapped, small cars, vans or motorcycles, as well as the total number of parking spaces.

11. The survey shall reference all gas, water and sewer lines, manholes, underground storage tanks, filler pipes, catch basins, and other drainage facilities, as well as the location of each.

12. The survey shall reference all wires, lines, poles, vaults and other boxes or equipment for all utilities, with a designation as to whether they are above or below the ground level, as well as the location of each.

13. The survey shall reference all railroad tracks and sidings.

14. The survey shall reference all fences, trees, shrubbery or walls on the perimeter lines.

15. The survey shall reference all improvements, including the exterior dimensions of the buildings, swimming pools, signs, fire escapes, balconies, roof overhangs, patios and the exterior dimensions of any interior courts. All buildings should be shown in relation to the property lines.

16. The survey shall reference the square footage or acreage of land and the floor area of the foundation of buildings, as well as the aggregate square footage of the buildings.

17. The survey shall reference the street number and address of the property.

18. The survey shall reference the names of adjoining landowners and the recording information of their deeds.

19. The survey shall reference all natural conditions, such as ponds, streams and wetlands.

20. Surveys should mark areas that are in the Flood Plain Zones as designated by the Federal Insurance Agency.

21. If the parcel of land borders on a navigable body of water, the high water mark should be indicated to allow the mortgagee and title company to determine whether there are any navigational servitude problems.

22. If courses or distances do not correspond with the recorded courses and distances, both the recorded and the actual courses and distances should be shown on the survey.

23. The names and width of the nearest public highways and any intersecting highways should appear on the survey.

24. Any monuments or markers at each corner should be indicated on the survey.5

25. If the survey describes more than one parcel of land, the survey should be sufficient to have the title company insure contiguity.

26. If there is a Reciprocal Easement Agreement, which is very common in shopping center developments, industrial or office parks, any common driveways, any restrictions and any easements that are the subject of the Reciprocal Easement Agreement should be shown on the survey.

27. A proper certification must be attached to the survey.6 Mortgagees prefer a certificate more detailed than the certificate provided in the ALTA/ACSM Survey Requirements, although many surveyors claim that they cannot give a broader certificate because doing so would void their insurance. The certification should be signed by the surveyor, and the surveyor should affix his or her seal to the certificate and place his or her registration number, address, and telephone number on the certificate.

28. The survey should show the date the survey was prepared and any subsequent revision dates.

A person may ask the surveyor to take pictures of the site and deliver the pictures, including the negatives, to him or her. Mortgagees usually have an appraiser take pictures of the site, and, as a result, this is not part of the mortgagee’s requirements, even though it could be future evidence as to the appearance of the site at the time the survey was prepared.

If a survey is to be prepared, it is imperative that the surveyor do a field survey, which requires the surveyor to go to the site and measure each course and distance. Sometimes, to cut costs, a surveyor might draw a survey from a filed plat or map or some other records, and never make any measurements at the site. The surveyor may also walk the site to attempt to be certain that nothing has changed. However, not actually having a field survey performed can have negative consequences.

For example, a builder marked out and had surveyed certain lots in a two-block area. When the builder began construction, the builder decided to move the corner house in from the side street two feet more than was originally intended. The house was within the property line, but if the occupant went out the side door to go to the rear of the property, the occupant would be trespassing on the neighbor’s property. A field survey uncovered this issue before the closing, and as a result, the boundaries of all lots were moved two feet to allow the corner owner to use his other side door legally and go to the rear of his or her property without committing a trespass. If the as-built survey had been prepared from prior drawings, this condition would not have been discovered.

Sometimes the field notes made by a surveyor are important to clarify any inconsistencies shown on the survey.7 Therefore, it is wise for the surveyor to keep all of his or her field notes with the finished survey.

 

Considerations Relative to Surveys and Descriptions

While title companies are primarily concerned with recording title and removing potential conflicts, surveyors are primarily concerned with being certain that the property descriptions are accurate and that the property can be easily located.8 If the starting point of the description is incorrect and the wrong property is described, the deed could be void.9 It is the surveyor’s responsibility to locate, if possible, the original boundaries and corners of the property.10 To locate the original boundaries and corners of the property, the surveyor attempts to obtain the original survey or plat, any field notes available, any surveys subsequent to the original survey, the names of the adjoining owners, and the descriptions of the adjoining properties. The surveyor also attempts to locate the monuments or corner markings, if still in place.11

In many states, including California, title is unmarketable if the only description is to a map that is not on file in the official records for the county.12 If a map, a prior deed or other instrument is recorded and the parcel can be determined from the descriptive data in that recorded document, the property description contained in the current deed, although incomplete, would be proper.13 If the description contained in the deed is inaccurate but the description in the prior deed is correct, and the prior deed is referenced by name of parties, date of deed, and recording information, the reference to the prior deed in the current deed will correct the defect.14 If a course is missing in the description contained in the deed, the courts will insert the missing course to carry out the intention of the parties.15

If there is a description giving both the metes and bounds and references to monuments, and there is a discrepancy between the measurements and the monument description, the general rule is that the monument shall control.16 However, “where it is apparent from the face of the deed that the intention was to convey a specific quantity of land, and the courses and distances include that precise quantity while the description by monuments embraces more or less, the former will control.”17

When land is bounded by water, it must be determined whether the waters are navigable or non-navigable. At common law, the term “navigable” referred to whether the waters were tidal or otherwise.18 Salt waters are navigable per se,19 as are all waters where the tide ebbs and flows,20 such as the Hudson River21 and the Great South Bay.22 A fresh-water river, which is nonnavigable by definition, may be navigable as a matter of fact.23 The fact that water is non-navigable by definition will not affect the public’s right to transportation upon its surface. Also, the public’s right of transportation or use of the river has no relevance to the question of who has title to its bed.24 An exception is made where streams or rivers serve as boundaries between one state and another state or nation, such as the Niagara River and Lake Champlain,25 which are subject to the same rules as navigable streams.

There are important differences between navigable waters and non-navigable water with respect to ownership and rights. Navigable waters are regarded as public highways and are held by the state in trust for public use,26 subject to control by the federal government for the purpose of regulating and improving navigation. Non-navigable waters, which are non-tidal waters, are private property.27 All waters are subject to the easement for navigation whether they are fresh or salt water, or tidal or non-tidal. States or private persons may own land under the waters, whether the waters are navigable or non-navigable, but with respect to navigable waters, the sovereign has the exclusive use and benefit of the land outside the “high-water mark.” For navigable waters, the sovereign or federal government has the beneficial title and interest, while the states or private persons have bare legal title.

The high-water mark in such instances is, for all practical purposes, deemed the true boundary of a person’s usable property.

 

Endnotes

1. OHIO ADMIN. CODE 4733-38—Minimum Standards for Mortgage Location Surveys in the State of Ohio—Effective Feb. 15, 1990.

2. For example: In Ohio, every measurement shall be made in such a manner that the linear error in the reported distance shall not exceed either (1) two-tenths (0.2) of a foot for major improvements, or (2) five-tenths (0.5) of a foot for major improvement location when a case arises wherein the greater linear error will not create ambiguity of location, provided the tolerance is clearly indicated (e.g., 500 feet +/- .5 feet). OHIO ADMIN. CODE 4733-38-04; see also ALTA/ACSM Survey Requirements.

3. ALVIN L. ARNOLD & JACK KUSNET, THE ARNOLD ENCYCLOPEDIA OF REAL ESTATE (1978).

4. McCollough v. Olds, 108 Cal. 529, 41 P. 420 (1895).

5. See Goss v. Golinsky, 12 Cal. App. 71, 106 P. 604 (1909).

6. See Forms of Certification attached as Exhibits 13-2 and 13-3.

7. Lillis v. Urrutia, 9 Cal. App. 557, 99 P. 992 (1908); Swarzwald v. Cooley, 39 Cal App. 2d 306, 103 P.2d 580 (1940).

8. See Sullivan v. Fant, 160 S.W. 612 (Tex. Civ. App.) (1914).

9. Heller v. Cohen, 154 N. Y. 299, 155 N.Y. 625, 48 N.E. 527 (1897).

10. Saunders v. Polich, 250 Cal. App. 2d 136, 58 Cal. Rptr. 198 (1967); DeEscobar v. Isom, 112 Cal. App. 2d. 172, 245 P.2d 1105 (1952).

11. Reid v. Dunn, 201 Cal. App. 2d 612, 20 Cal. Rptr. 273 (1962).

12. McPherson v. Schade, 149 N.Y. 16, 43 N.E. 527 (1896).

13. McCullough v. Olds, 108 C. 529, 41 P. 420 (1895); Calvi v. Bittner, 198 Cal. App. 2d 312, 17 Cal. Rptr. 850 (1961).

14. In re Mott Ave., 230 App. Div. 307, 243 N.Y. Supp. 741, aff ’d, 255 N.Y. 642, 175 N.E. 350 (1930); Pillmore v. Walsworth, 166 App. Div. 557, 152 N.Y. Supp. 344 (1915); Bernstein v. Nealis, 144 N.Y. 347, 39 N.E. 328 (1895).

15. Blume v. MacGregor, 64 Cal. App. 2d 244, 148 P.2d 656 (1944); Serrano v. Rawson, 47 Cal. 52 (1873); but see Adams v. Hopkins, 144 Cal. 19, 77 P. 712, 721 (1904).

16. Brookman v. Kurzman, 94 N.Y. 272 (1888); Robinson v. Kime, 70 N.Y. 147 (1877); Baldwin v. Brown, 16 N.Y. 359 (1857); White v. Williams, 48 N.Y. 344 (1872); but see Luginbuhl v. Hammond, 179 Cal. App. 2d. 350, 3 Cal. Rptr. 582 (1960); Garnsey v. Poston, 52 Cal. App. 2d. 828, 127 P.2d. 17 (1942).

17. Higinbotham v. Stoddard, 72 N.Y. 94 (1878).

18. Fulton Light, Heat & Power Co. v. State, 62 Misc. 189, 116 N.Y. Supp. 1000 (1909).

19. Trustees, etc., of Town of Brookhaven v. Smith, 98 App. Div. 212, 90 N.Y. Supp. 646, reversed on other grounds, 188 N.Y. 74 (1904).

20. Fulton Light, supra note 18.

21. Id.

22. People ex rel. Howell v. Jessup, 160 N.Y. 249 (1899).

23. Trustees, etc., supra note 19.

24. Ledyard v. Ten Eyck, 36 Barb. 102 (1862); Fulton Light, supra note 18.

25. Fulton Light, supra note 18.

26. Lewis Blue Point Oyster Cultivator Co. v. Briggs, 198 N.Y. 287, 91 N.E. 846 (1910).

27. Gouverneur v. Nat’l Ice Co., 134 N.Y. 355, 31 N.E. 865 (1892); Smith v. City of Rochester, 92 N.Y. 463 (1883).

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