The memoranda included herein are for informational purposes only, and
are not intended as legal advice. Although the memoranda have been
prepared by attorneys with this firm, they are not intended to constitute
legal advice or legal opinions which may be relied upon. You should seek
legal advice from your own attorney. No attorney-client relationship is
intended with the dissemination of this information. The firm requires a
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representation or performance of legal services.
TABLE OF CONTENTS
I. An Overview
A. Bundle of Rights
B. Considerations of Purchase
C. Due Diligence Investigation
D. Title Commitments and Surveys
II. Definition, Purposes and Terminology
A. Definitions
B. Purpose
C. Terminology
III. Land Surveying in Texas
IV. Selecting and Hiring A Surveyor
V. Review of Survey
A. The Legend
B. The Legal Description
C. The Map
D. The North Arrow
E. General Notes and Symbols
F. Access
G. The Certificate
VI. Conclusion
SURVEYS
I. An Overview
A. Bundle of Rights.
Real estate law practitioners are trained to view real property not only as the physical
property, the “dirt, and the bricks and sticks”, but also as the “bundle of rights” which the
owner may exercise with regard to the dirt and bricks and sticks. This “bundle”
includes(among other rights) the right to use of the surface and the airspace, the right of
lateral support from the adjoining owner, the right to explore, drill and produce mineral
substances, and the right to convey a portion or all of the “bundle”. On nearly all parcels
of land, the exercise by the owner of the rights in the “bundle” is restricted. A parcel may
be encumbered by deed restrictions that prohibit certain uses, such as “no commercial
use”. Deed restrictions may prohibit all but certain specified uses, such as “single family
residential only”. There may be easements that burden the land and run in favor of
adjacent landowners. There may be city ordinances and state and federal regulations
affecting the property which prohibit an owner from exercising rights on the land. An
example would be a tree ordinance which prohibits the removal, without a permit, of a
tree four inches or greater in diameter. Another example would be federal regulations
prohibiting development of wetlands or natural habitats of animals on the endangered
species list.
Additionally, certain rights may be severed from the “bundle” prior to conveyance to the
owner. An example would be prior conveyance of the mineral estate to a third party, or a
conveyance of a life estate to another. The severance of some of the “bundle of rights”
not only would prevent the owner from exercising those rights, it may also impact the
owner’s exercise of the “bundle” the owner has been conveyed.
B. Considerations of Purchase.
When a prospective purchaser of real property contemplates purchase of a parcel, there
are numerous considerations which must be investigated to determine whether the parcel
should be purchased. Such considerations would include the following:
Will the property be appropriate and adequate for the intended use?
Is the use of the property legally restricted and if so, would these restrictions have
a material impact on the planned use?
Do others have the right to use or occupy a portion or all of the property, and on
what terms?
In other words, the prospective purchaser will want to know approximately which
“sticks” in the “bundle” will be conveyed to him at closing, and which “sticks” have
already been conveyed to third parties.
C. Due Diligence Investigation.
In many transactions, the prospective purchaser will take for granted that the “bundle”
being conveyed in a real estate transaction is adequate for the planned use. In many
residential transactions, for example, the prospective purchaser will do very little
investigation to determine legal limitations as to the use of the property. It is likely that
the prospective purchaser will not review exceptions to title or a survey until the actual
time of closing (if at all). It is not uncommon for the prospective purchaser of residential
real property to rely on the “experts”, the title company escrow officer, the real estate
agent and the lender to look after the purchaser’s interest. This is also true in many
residential and commercial lease transactions.
On the other hand, many prospective purchasers are desirous of having an investigation
undertaken to determine the physical condition and the legal status of the rights inherent
in the conveyance transaction. This investigation is commonly referred to as the “due
diligence investigation”. Due diligence investigations are particularly common in
commercial real estate purchase and financing transactions. If for example, a person is
considering purchase of a 300 acre tract for a mixed use development, to include 275
acres of single family residential and 25 acres of retail use, there are numerous inquiries
to be investigated to ensure that the property could be developed for such use. The
inquiries would include the following:
1.Deed restrictions and ordinances regarding use of the property
2.Easements encumbering the tract
3.Outstanding mineral reservations and leases
4.Outstanding reversionary property interests
5.Environmental impact and the existence of hazardous substances
6.Wetlands and protected species issues
7.Flood zone determination
8.Utility availability and hydrological studies
9.Subsidence issues
10.Road access and traffic patterns
11.Drainage patterns investigation
12.Governmental exactations in plat approval process
The due diligence necessary to ascertain that a mixed use project could be developed on
the tract includes an investigation as to the physical characteristics of the tract and an
investigation as to the legal characteristics of the “bundle of rights” to be conveyed to the
prospective purchaser. A review of a title commitment and the exceptions to title will be
very instrumental in determining whether the tract may be developed according to the
prospective purchaser’s plan. An investigation based solely on a review of recorded
documents with nothing more, however, would be inadequate. A practitioner would be
hard pressed to do an adequate review of the title documents without the review of an
adequate land title survey of the property to locate easements, set-back lines, boundary
line encroachments, areas of coverage of deed restrictions, and designated drillsites, to
mention a few items. In most earnest money contracts and option contracts for the sale
and purchase of improved and unimproved commercial real property, provision is made
for a period of review of title and survey, allowing the prospective purchaser to object to
items shown on the title commitment and/or the survey. Typically, the seller is given a
period to cure or respond to the objections, and if the seller fails to cure the objections,
the prospective purchaser may elect to terminate the contract. The contract usually
contains a detailed provision specifying who is responsible for providing (and paying for)
the survey, designation of the surveyor whose services are to be utilized, the minimum
requirements of the contents of the survey, and the date the survey must be delivered to
the prospective purchaser. In addition to the purchaser’s interest in preparation and
review of a survey, it is typical for institutional lenders to require a survey as a condition
of providing financing for a purchase transaction.
D. Title Commitments and Surveys.
On most real estate purchase and finance transactions, the purchaser and/or the lender
will require title insurance. Although it is beyond the scope of this presentation to discuss
due diligence relating to title commitment review and title insurance, an understanding of
some of the basics is required in order to understand issues relating to surveying. Initially,
a title company issues a title commitment, which is a legal promise to provide title
insurance on a particular tract. This commitment indicates to the prospective insured
under what conditions the title company will issue insurance. Schedule “A” of the
commitment sets out the dollar amount of proposed insurance, the name(s) of the
proposed insured(s), and a sufficient legal description of the tract, the title of which is to
be insured. Schedule ‘B” of the commitment contains the exceptions from coverage;
Schedule “C” contains certain requirements or conditions which must be satisfied before
the title policies (owner and mortgagee) will be issued. The items shown on Schedules B
and C are typically referred to collectively as the “title exceptions”. On Schedule B of a
current form title commitment, preprinted item 2 is commonly known as the “survey
exception”. It reads: “any discrepancies, conflicts, or shortages in area or boundary lines,
or any encroachments, or any overlapping of improvements”. With this exception in the
final policy, the title company would not include coverage of the physical conditions on
the property. However, Procedural Rule P-2 of the Basic Manual of Rules, Rates and
Forms for Writing Title Insurance in the State of Texas (the “Basic Manual”), allows an
owner or a lender to obtain a deletion of this verbiage except for “shortages in area” (the
title company is prohibited from insuring the actual size of the tract). By requesting and
obtaining the P-2 deletion, the owner and lender are obtaining insurance coverage as to
the non-existence of an encroachment or protrusion, and as to boundary line disputes.
Under Rate Rule
R-16 of the Basic Manual this endorsement deletion is free to the lender on the
mortgagee policy; to obtain the same endorsement on the owner policy will cost the
insured 15% of the original premium cost of the owner policy.
Generally, a preliminary title commitment will also contain a blanket exception on
Schedule B for unrecorded easements, rights of ways and other matters which would
have been discovered by a current survey or by physical inspection of the property. Once
an adequate survey is provided, the title company will delete this exception from the title
commitment.
Schedule C will contain an exception that states: “satisfactory evidence must be provided
that there is legal access to and from the land”. This condition will be met if a survey
satisfactory to the title company verifies that legal access to a dedicated public street
exists (either directly or through private legal agreements). Although title insurance does
not insure “adequate” access for the purchaser’s proposed use, if a satisfactory survey is
provided, the title insurance will insure legal access from the tract to a dedicated public
street. Finally, it would be a very difficult task for a practitioner to review the title
exception documents without the benefit of a survey. The exact location of an easement,
a right of way or a drillsite is a fundamental consideration in determining whether the
title exception in question will have a material adverse impact on the rights of the owner
in the proposed use of the land. Without a survey to locate these matters, the attorney or
legal assistant could not properly advise the client with regard to the specific title
exceptions.
II.
Definition, Purposes and Terminology
A.
Definitions.
Black’s Law, Sixth Edition, defines Survey as “the process by which a parcel of land is
measured and its boundaries and contents ascertained”. Another definition would be “a
graphic representation of certain physical and legal characteristics of a specified tract of
real property”. There are three major components of a survey: (i) the map or drawing
showing the boundaries, the corner monuments and the improvements and other physical
matters, (ii) the legal description of the tract represented by the map, and (iii) the
certification by the surveyor as to what is represented in the map.
B.
Purpose.
The purposes for which surveys are undertaken include the following:
1.To generate a legal description sufficient for purposes of conveyance
2.To determine the exact square footage or acreage contained in a tract
3.To identify and locate the boundary lines of a tract of land
4.To determine actual distances along a boundary line
5.To determine the existence and precise location of easements, utility lines and rights of
way
6.To determine the precise location of buildings and other improvements
7.To determine the extent of protrusions and encroachments
8.To determine the existence and extent of access to and from the property
9.To determine the centerline of an easement, right of way or utility line
10.To determine whether all or a portion of a tract is in a federally defined flood plain or
floodway
11.To determine the topographic features of a parcel of land
12.To serve as the basis for a subdivision of land for platting purposes
13.To assist in resolution of legal disputes relating to conflicting boundary lines, and
easement and building setback line
encroachments.
C. Terminology.
1. “Professional surveying” is the term used in Texas for land surveying. The
Professional Land Surveying Act of 1979 (V.A.T.S. Article 5282c) provides that
professional surveying means the practice of land, boundary, or property surveying or
other similar professional practices. The term includes any service or work the adequate
performance of which involves the application of special knowledge of the principles of
geodesy, mathematics, related applied and physical sciences, and relevant laws to the
measurement and location of sites, points, lines, angles, elevations, natural features, and
existing man-made works in the air, on the surface of the earth, within underground
workings, and on the beds of bodies of water for the purpose of determining areas and
volumes for:
(a) the location of real property boundaries;
(b) the platting and layout of lands and subdivisions of land; and
© the preparation and perpetuation of maps, record plats, field note records, easements,
and real property descriptions that represent those surveys.
2. “Registered Professional Land Surveyor” means an individual registered as a
registered professional land surveyor by the Texas Board of Professional Land
Surveying.
3. Bearing Source: The derivation of the survey’s point of beginning and the initial
direction of north, in relation to which the survey’s measurements are performed. The
initial direction can be magnetic north, the direction that a compass needle would point,
true north, the direction to the geographic north pole, assumed north, an assigned
assumed bearing to a specific line of the survey or Grid North, a north orientation as one
moves east or west. The Texas Coordinate System uses a grid north. The most common
bearing source directions used by surveyors are true north and grid north.
4. Boundaries: a series of straight or curved lines which represent a perimeter of a tract of
land.
5. Call: the statement of a course and distance describing a particular boundary line.
6. Curve: the path of a line in a consistent arc of a circle. Curves are described by
reference to the following geometric terms:
Arc: a segment of a circumference of a circle, the length of the arc is commonly denoted
on a survey as “L” Central Angle or Delta Angle: the angle formed by the intersection of
the two radii lines extending to the center of the circle from the points of curve,
commonly denoted on a survey by the delta sign Chord: A straight line intersecting a
curve at two points, commonly expressed as a call and distance Point of Curve: the point
at which a curve starts or stops Point of Compound Curve: the point at which a curve
going one way stops and a new curve in the same direction, but with a different radius,
begins Point of a Reverse Curve: the point at which a curve going in one direction stops
and a new curve going in the opposite direction begins Point of Tangency: the point
where a curve stops and a straight line begins Radius: half of the diameter of a circle.
7. Date of Survey: the date on which the field work of the survey was completed.
8. Field notes: the notes made by the field team describing the findings from taking
measurements on the ground. Field notes include courses and distances, and monuments
found or placed by the surveyor.
9. Strips and Gores: unintentional overlaps or gaps between boundary lines (strip being
rectangular and gore being triangular).
10. Texas Society of Professional Surveyors (TSPS): the trade association for
professional surveyors in Texas. Formerly called Texas
Surveyors Association.
11. Tolerance: the allowable imperfection in any measurement in a survey.
12. Units of measurement:
Foot: 12 inches; basic English unit
Meter: 39.37 inches; basic international unit
Vara: 33 ½ inches; basic Spanish unit; to convert varas to feet, multiply by 100 and
divide by 36. To convert feet to varas, multiply by .36
Labor: 1,000,000 square varas or 177.136 acres
One League: 25,000,000 square varas or 4,428.4 acres
Rod or Pole: 16.5 feet or 5.94 varas
Chain: 66 feet or 4 rods
Link: 7.92 inches
Mile: 5,280 feet; 1760 yards; 80 chains; 320 rods; or 1,900.8 varas
Acre: 43,560 square feet
Section: an area of land one mile square and containing 640 acres
III. Land Surveying in Texas
All land surveyors must be licensed in Texas by the Texas Board of Land Surveying. The
Profession Land Surveying Act of 1979 (V.A.T.S. Article 5282c) provides that land
surveying in the State of Texas is synonymous with “professional surveying”. Public
surveying is defined as the practice of land, boundary, or property surveying or other
similar professional practices. The Act establishes the Board and qualifications to
become a registered public surveyor. The Act, however, initially did not provide for
surveying standards. Initially, it was felt that, as a profession, the surveying industry
should establish its own minimum standards, rather than have them imposed by law. In
fact, in 1977, the Texas Surveyors Association (now known as the Texas Society of
Professional Surveyors) did promulgate minimum survey standards for professional
surveyors. The standards are in the Manual of Practice for Land Surveying in the State of
Texas, Comprised of Standards for Land Surveys, Specifications for Categories of
Surveying and ALTA/ACSM Surveying Standards (herein referred to as the “Manual of
Practice”). The current version of the Manual of Practice is the 1991 Revised Eighth
Edition approved November 23, 1991.
The Manual of Practice is composed of two parts, (i) an introduction with general
statement regarding standards and definitions and applications of terminology and (ii)
specifications for Categories of Surveying. The categories are numbered 1 through 9. A
general summary of the categories is as follows:
Category 1A: Land Title Survey. A comprehensive investigation and evaluation of
significant factors affecting and influencing the location of the boundaries, ownership
lines, rights of way and easements within or immediately surrounding a particular parcel
of real estate. The focus is directly on the purpose of insuring title.
Category 1B: Standard Land Survey. Boundary survey which is not for insuring
purposes. Does not attempt to locate improvements and internal features.
Category 2: Route Survey. Used to establish location of lineral projects such as roads,
canals, utility transmission lines, frequently described in terms of a center line.
Category 3: Locative Survey. Sometimes called a lay-out survey or site plan survey, it is
used prior to construction to establish the location of buildings and other structures in
relation to the boundaries of the parcel.
Category 4: Deleted. At one time it was called a mortgage loan inspection survey. This
category was deleted when Category 1 was bifrucated to include 1A and 1B.
Category 5: Construction Survey. This survey typically is a follow-up from a locative
survey. It may be conducted during or at the conclusion of construction. It is sometimes
known as an “as built” survey.
Category 6: Topographic Survey. This survey is intended to disclose the elevations and
configurations of the land and improvements. It usually includes cross sections and
contour profiles.
Category 7: Horizontal Control Survey. This survey type is a master survey designed
precisely to coordinate horizontal position data into a framework to which other surveys
are referenced. These very accurate surveys are needed for construction of water and
sewer systems, pipelines, highways, bridges, tunnels and dams.
Category 8: Vertical Control Survey. This is also a master survey which establishes
particular control points of elevation measured against mean seal level. Vertical Control
Surveys are used for dam or lake construction, tidal and subsidence studies.
Category 9: Investigative Survey. Surveys used to conduct investigations on very specific
physical properties. Examples would include litigation matters, encroachments, checking
the work of others. In addition to dividing survey types into 9 categories, the Manual of
Practice divides each category into 4 separate “conditions”. The conditions describe the
primary land uses of the area being surveyed and set corresponding measurement
precision criteria. A suburban condition, for example, does not have as stringent
measurement tolerances as does an urban condition. The four conditions are:
Condition I: “Urban Business District” is the downtown business district of any city,
town or village.
Condition II: “Urban” is all land within the corporate limits of a city, town or village
lying outside the downtown business district.
Condition III: “Suburban” is land used primarily for residential, commercial or industrial
purposes lying outside the corporate limits of any city, town or village.
Condition IV: “Rural” is land outside urban and suburban conditions which is unused or
is used for production of crops, livestock or minerals.
Nearly all surveys reviewed by attorneys and legal assistants are Category 1A, Condition
I, II or III, as usually a title policy will be issued to the owner, the lender or both.
In September, 1992, the Texas Board of Professional Land Surveying issued
administrative rules regarding standards of practice. These standards are not nearly as
extensive as those contained in the Manual of Practice. The standards cover required
precision in measurement, surveyor due diligence in determining boundaries,
construction of boundary monuments, certification requirements and required contents of
surveys. The standards set forth in the Manual of Practice and the administrative rules,
together are the Texas registered professional land surveyor’s standard professional
practices guidelines.
In addition to the above standards, the America Land Title Association, in conjunction
with the American Congress on Surveying and Mapping, has promulgated Minimum
Standard Detail Requirements and Classifications for ALTA/ACSM Land Title Surveys
(herein referred to as the “ALTA/ACSM Minimum Standards”). The title insurance
industry has taken the position that because title companies are expected to insure the
existence or nonexistence of certain physical conditions on the ground which cannot be
ascertained except from a survey or inspection, the title insurance industry has an interest
in setting forth minimum standards for surveys used for title insurance purposes.
ALTA/ACSM Land Title Surveys are classified as Urban, Suburban, Rural or Mountain
and Marshland. The ALTA/ACSM Minimum Standards contain a very specific
certification requirement on the survey and specific tolerances for accuracy of
measurement.
IV. Selecting and Hiring A Surveyor
Most real estate purchase contracts contain provisions requiring that a survey be
undertaken. The following is a standard survey provision found in a widely used
residential real estate purchase contract form:
“[_] B. SURVEY REQUIRED: (Check one box only)
[_] (1) Within days after Buyer’s receipt of a survey plat furnished to a third-party lender
at Buyer’s expense, Buyer may object in writing to any matter shown on the plat which
constitutes a defect or encumbrance to title.
[_](2) Within days after the effective date of this contract, Buyer may object in writing to
any matter whichconstitutes a defect or encumbrance to title shown on a survey plat
obtained by Buyer at Buyer’s expense. The survey shall be made by a Registered
Professional Land Surveyor acceptable to the title company and any lender.
The plat shall: (a) identify the Property by metes and bounds or platted lot description;
(b) show that the survey was made and staked on the ground with corners permanently
marked; © set forth the dimensions of the property; (d) show the location of all
improvements, highways, streets, roads, railroads, rivers, creeks or others waterways,
fences, easements and rights of way on the Property; (e) show any discrepancies or
conflicts in boundaries, any visible encroachments, and any portion of the Property lying
within the 100 year flood plain as shown on the current Federal Emergency Management
Agency map; and (f) contain the surveyor’s certificate that the survey as shown by the
plat is true and correct. Utility easements created by the dedication deed and plat of the
subdivision in which the Property is located shall not be a basis for objection.
Buyer’s failure to object under Paragraph 6A or 6B within the time allowed shall
constitute a waiver of Buyer’s right to object; except that the requirements in Schedule C
of the Commitment shall not be deemed to have been waived. If objections are made by
Buyer or any third party lender, Seller shall cure the objections within 15 days from the
date Seller receives them and the Closing Date shall be extended as necessary. If
objections are not cured by the extended Closing Date, this contract shall terminate and
the Earnest Money shall be refunded to Buyer unless Buyer elects to waive the
objections.”
The following provision is typical of a survey provision contained in a commercial real
estate purchase contract:
“Seller, at Seller’s cost and expense, shall furnish Purchaser within fifteen (15) days after
the Effective Date of this Contract a survey or a recertification of an existing survey (and
at least three (3) copies thereof) of the Property made on the ground for Purchaser by a
registered professional land surveyor acceptable to Purchaser and Title Company, which
survey shall set forth the total area contained within the boundaries of the Property and
shall show and locate all boundaries, existing fences, (and location of previous fences
where there is evidence thereof on the ground), and shall also show and locate all
building set-back lines, easements, rights-of-way and roads which are of record, affect
the Property, or are visible on the ground, and all improvements and other objects which
are visible on the ground. All easements and rights-of way, if not located and defined on
the ground by the terms of a recorded instrument shall be so located and defined by Seller
prior to Closing. Such survey shall indicate it is made for Purchaser, shall be dated
subsequent to the date hereof, shall be signed by the surveyor and shall bear his official
seal. Such survey shall be sufficient to enable the Title Company to delete from the title
policy furnished to Seller, as mortgagee, the area and boundaries exception (except for
shortages in area). Such survey shall contain the certification of the surveyor of the date
of the survey, that it was made by him (or under his supervision) on the ground, that it is
accurate and correct, that there are no encroachments or disputed areas except as shown
thereon, that the area of the Property is accurately computed, that no portion of the land is
within the 100-year Flood Plain, as established by (or for) the National Insurance
Administration, that there are no intervening strips of land owned by others, or any gaps
between the boundary lines of any portion of the Property and any road frontage abutting
the same, except as shown thereon and that the survey was prepared in accordance with
the requirements for a Category 1A, Condition II Survey under the most current edition
of the Manual of Practice for Land Surveying in Texas. For purposes of the property
description to be included in the Deed to be delivered pursuant to Article IV hereof, the
field notes prepared by the surveyor shall control, and such field notes shall supercede the
legal description set forth herein, and shall be incorporated herein by reference upon its
completion.”
As indicated before, most commercial real estate contracts will provide that the
prospective purchase will have a specified period of time to object to certain matters
affecting the legal and physical status of the property, based on review of both the title
commitment and the survey. If the prospective purchaser objects timely to one or more
matters relating to the title commitment or the survey, the seller will have a period of
time to cure the objection, failing which, the prospective purchaser will have the option
of terminating the contract.
In a residential transaction, it is common for the prospective purchaser to rely on either
the title company to the real estate agent to recommend and arrange for the services of a
surveyor. In a commercial transaction, the selection, hiring and compensation of the
surveyor is a part of the contract negotiation process. It has been the author’s experience
that, in more cases than not, the seller has undertaken the obligation to select the
surveyor, to pay for the survey, and to be responsible for timely delivery to the
prospective purchaser; but the prospective purchaser typically has the right to investigate
and consent to the named surveyor. Many times the seller agrees to pay for the survey
unless the prospective purchaser elects to terminate the contract under the feasibility
study termination right, in which event the cost of the survey is paid out of proceeds of
the earnest money held by the title company. In many transactions, the seller will suggest
that the surveyor who has surveyed the property and thus, is familiar with the property,
be retained to perform the new survey required under the contract. Typically, this is an
appropriate practice and will save the parties on surveying costs and on the time
necessary to complete the survey. One concern which should be investigated, however, is
whether the surveyor has an ongoing relationship with the seller (e.g. numerous ongoing
projects) which would affect the professional judgment and independence of the
surveyor. In such instances the prospective purchaser should consider requiring another
surveyor. Another situation might exist where the surveyor has assisted in clearing
boundary line disputes for the seller. Although it may be quicker and less costly to use
the same surveyor, the practitioner may consider hiring a surveyor with no experience
regarding the boundary dispute, to provide a second opinion on the conclusions of the
first surveyor. The surveyor selected should have ample and recent experience of the type
of surveying being requested. For example, if the survey to be performed is for a high rise
office building in a central business district of a large city, it would not be appropriate to
select a surveyor who primarily does residential surveys. Likewise, if a surveyor has
little experience in “as built” construction surveys, you would not want to use the
surveyor to prepare a survey for the permanent loan on a large apartment complex.
The existence of professional liability insurance may also be an important factor in
selecting a surveyor. It is not unreasonable for a prospective purchaser of a mixed use
development tract to request information on the professional liability insurance coverage
of the surveyor. It is also important on large transactions to get approval of the choice of
the surveyor from the title company involved in the transaction. The primary reason is
that the title company is going to be requested to make deletions of exceptions to title on
the title commitment and title policies, and the title company will be relying on the
survey. If the survey (or surveyor) is not accepted by the title company for these
purposes, a new survey (or surveyor) will be required, at the cost of the parties to the
transaction. This situation need not arise if the title company is consulted prior to
selection of the surveyor. The title company is also a good place to obtain
recommendations of competent, qualified surveyors.
If the contemplated survey assignment will be complicated or time-consuming, it is
imperative that the surveyor be questioned as to whether the surveyor’s work schedule
will allow adequate time for the timely completion of the survey project. It is also
suggested that the surveyor be interviewed to verify that the surveyor’s communication
skills are adequate to allow for a discussion of the results of the survey in nontechnical
terms.
It is not typical for a written contract to be executed for the services of a surveyor. On
large projects it would be appropriate to do so. On most projects it is appropriate to
communicate in writing to the surveyor as to what the expectations are with regard to the
final product. Many law firms and lending institutions have detailed instructions as to
how the survey is to be undertaken and what the finished product will look like.
Instructions may incorporate the Manual of Practice or the ALTA/ACSM Minimum
Standards. Some instructions include very specific and numerous details and then include
the Manual of Practice appropriate category and condition as a “belts and suspenders”
approach. Care should be taken that the specific instructions are not in conflict with the
incorporation of the general standards. Also care should be taken that the surveyor is not
asked to perform a survey and make warranties which are clearly outside the area of the
surveyor’s competence. An example would be a request that the survey warrant that there
are no other easements except as shown on the survey (it would be fair to require the
surveyor to warrant there are no visible or apparent easements except as shown). This
article does not include a recommended set of standard survey instructions. It is
recommended that any instructions incorporate by reference the standards set out in the
applicable category and condition of the Manual of Practice. It is important that the
practitioner consult with the client to determine any special needs of the client, which
should then be communicated to the surveyor.
After the surveyor is hired, it is imperative that he be provided all information necessary
to do his job. This will include the following:
1. Copy of the title commitment and all title instruments of record which are described on
the commitment.
2. Copy of the recorded deed into seller with a full legal description of the property.
3. Copy of the purchase contract for the anticipated conveyance.
4. Copy of all easements and rights of way which burden or benefit the tract.
5. Copy of any preliminary plats, site plans and any investigative work done on the
property which might be relevant to the surveyor.
V. Review of Survey
The most comprehensive yet readable article on a practical approach to reviewing and
analyzing surveys is “Survey Checklist: A Practical Guide to Review and Analysis of
Land Surveys”. This article, written by J. Richard White, an attorney in Dallas and
Harlan J. Onsrud, an engineer at the University of Maine, is an excellent primer on all
aspects of reviewing a survey. The article also contains a survey review checklist, which
has been reproduced at the end of this article for your convenience. The specific areas in
reviewing a survey include the legend, the legal description, the map, the north arrow, the
general notes and symbols, access and the certificate.
A. The Legend.
The legend contains descriptive information which allows for the unique identification of
the survey. The legend block should be located in the lower right hand corner of the first
page of a survey; if the survey is properly folded, this location allows the legend to show
for easy identification in the owner’s files. The legend should contain the surveyor’s
name, address, telephone and telecopier number, the job identification number, the date
of the survey (the date the field work was completed), and any revision dates. The legend
should also contain a general description of the property which is the subject of the
survey. On a property in a platted subdivision, this information would be a complete legal
description, with lot, block, subdivision name and phase information and plat recording
information. On a nonplatted property, the information would include the approximate
acreage or square footage, survey tract name, and the county and state in which the
property is located. The scale to which the survey is drawn is usually contained in the
legend area of the survey; occasionally it will be found in the general notes section or
near the north arrow.
B. The Legal Description.
As noted above, in the case of a whole lot or reserve in a platted subdivision, the entire
legal description will be contained in the legend. An example would be: “Lot One (1),
Block One (1) of BLACKACRE SUBDIVISION, SECTION ONE, a subdivision in
Harris County, Texas according to the map or plat thereof recorded in Volume 193, Page
76 of the Map Records of Harris County, Texas.”
If the legal description is a portion of a platted lot or reserve, or the tract is not within a
platted subdivision, the survey will typically include a legal description composed of
courses and bearings, known in the legal business as a “metes and bounds” description.
This description should be included on the survey map itself. Most surveyors will also
include separate copies of the legal description on 8 ½ x 11 paper, to be copied for use
with the transaction documents. It is a good practice to use a copy of the original,
surveyor-provided legal description whenever possible (rather than retyping), to avoid
errors in the legal description from data entry. It is also very useful to make an extra copy
of the surveyor’s legal description to use to check off each course and distance call as you
tract the surveyor’s map of the property to ensure that each call on the map coincides
with each call in the legal description. The legal description may run for several pages; it
nearly always will begin with a caption specifying the state, county, city (if applicable)
and the general survey tract out of which the surveyed tract is located. Many times the
survey will include a vicinity map inset to show the location of the surveyed tract with
respect to cities, towns or villages and major thoroughfare intersections. After the lead-in
caption, the legal description will note the point of commencement, which describes the
monument at which the surveyor began the field measurements. The description will then
specify the courses and distances used by the surveyor to get to the point of beginning,
which is the initial monument on the surveyed tract. The survey will also indicate the
basis of the bearings used in the field measurements, whether such bearings use true
north, grid north or assumed north. From the first monument of the surveyed tract, the
point of beginning, the calls will usually proceed clockwise around the perimeter of the
surveyed tract and will always return to the “point of beginning”, and will usually
describe the acreage or square footage contained in the tract, qualified by “more or less”.
The sides of the property should be described by giving the courses and distances of each
side. Curved sides should be described by using length of arc, central angle (usually
designated by the delta symbol), the radius of the circle for the arc and chord distance and
the bearing.
In addition to the legal description of the surveyed tract, if there is an easement or rightof-way which provides vehicular, pedestrian or utility access to the property, the legal
description of the easement or right-of-way should be provided as part of the survey (this
legal description should also be made part of the legal description shown on Schedule A
of the title policies as part of the insured tract).
In addition to the courses and distances, it is essential that the legal description indicate
that all corners of the surveyed tract are clearly monumented by either a natural or
manmade marker. The legal description should be a single continuous perimeter
description of the entire property; it should include reference to all streets and rights-ofways that abut the surveyed tract.
C. The Map.
The map is the portion of the survey which depicts the aerial view of the tract and
includes a representation of the physical matters discovered by the surveyor. The map
also depicts the boundary lines with the course and distance calls. The map will also
show fences, easements, set-back lines, drillsites, improvements, all recorded title
exception matters and physical aspects not shown in the title exceptions. The map will
also show the names of the owners of record of adjoining tracts and will refer to
applicable recording information and adjoining public and private streets and roadways.
The map of a nonplatted tract will usually show the gross and net acreage or square
footage. The map will show any areas within the 100 year flood plain or in a flood way.
If the survey shows any encroachment of improvements onto easements or set-back lines,
the dimensions of the encroachment will be specified. Likewise for protrusions of the
improvements across property boundary lines. The map will also delineate any conflicts
in boundaries, or strips or gores. If the property is made up of multiple tracts, the survey
will indicate that no gaps exist and that a common boundary line is commonly called.
D. The North Arrow.
The survey should always contain a north arrow and should indicate what it represents,
whether true north, magnetic north, grid north, or assumed north.
E. General Notes and Symbols.
Notes are items which the surveyor wants to point out to the parties. The surveyor may
include a note about the basis of bearings. The surveyor may want to disclaim certain
matters the survey does not cover, such as wetlands, fault lines, hazardous waste and like
matters. The surveyor may want to qualify the title examination to indicate the surveyor
is relying on a certain title commitment in preparation of the survey. The surveyor may
want to note existing physical matters not shown in recorded documents, such as a
prescriptive easement or a pylon sign. Most surveyors will include the F.E.M.A.
Insurance Rate map information and flood zone in a separate note. If there are any
potential discrepancies between prior legal descriptions and the results of the current field
work, these conflicts will be addressed in the notes. All notes should be read and
analyzed carefully to determine the probable impact on the proposed use of the land.
The surveyor’s symbols are special abbreviations or legends which the surveyor uses to
depict physical matters on the map and in the legal description. This is very typical of
surveys for improved property. Examples include P.P. for power pole, I.P. for iron pipe,
and I.R. for iron rod.
F. Access.
One of the most important sticks in the “bundle of rights” is adequate access of the tract
to one or more dedicated public streets. Both the map and the legal description should
show that the tract abuts a dedicated public street, or has access via private easement or
roadway. Please note that there is a difference between street dedication, which is
typically done by plat or deed, and acceptance by the governmental authority for
maintenance. The surveyor typically will warrant to the former but not the latter. Once a
street is dedicated to the public, anyone may use the street; however, the governmental
authority is not responsible for its maintenance until after its political body has formally
accepted the street for maintenance. This distinction may be important for your client. If
access is by private easement, the practitioner must review the easement documents to
ensure that the right runs with the surveyed tract and is perpetual. Such rights in an
easement tract should be covered by the contract, the deed of conveyance, and should be
insured under the title policy. In a platted subdivision with private streets, the law implies
that all owners of land in the subdivision have the right to use the private streets.
G. The Certificate.
This is the portion of the survey wherein the surveyor makes legally binding
representations and warranties as to what the scope of the survey covers, and the degree
of precision of measurement used in the survey, and various other matters on which third
parties are going to rely. The certificate basically is the measure of the duty of care of the
surveyor and the standard of liability which may be imposed upon the surveyor. This is
the most negotiated aspect of the survey. Surveyors do not want to warrant matters
outside of the scope of their expertise and the scope of their employment (and
compensation) on a particular survey. Attorneys and title companies would like the
certificate to be as broad as possible.
There are two basic forms of certificates: one which attempts to list all matters on which
the parties are relying; and the other is one which incorporates by reference a set of
criteria or standards, most commonly, one of the categories and conditions of the Manual
of Practice.
In addition to the matters warranted in the certification, surveyors are also bound by the
standards established by the professional associations to which the surveyor is a member
and by state statutes and regulations. Despite the wide variety in form and content of
surveyor’s certificates, the following areas should always be addressed in the certificate:
1. Addressee: The survey should be addressed to all parties on which their reliance on the
survey is contemplated. This would include the purchaser, the lender and the title
company.
2. “On the Ground”: A representation should be made in the certificate that the survey is
the result of an on-the-ground staked survey.
3. Signature and Seal: It is imperative that the certificate be signed and the surveyor’s
seal be attached. These are now required by the Texas Board of Professional Land
Surveying administrative rules.
4. Access: The certificate should warrant access to a dedicated public street and contain
any qualifications to such warranty.
5. Encroachments: The certificate should warrant that there are no conflicts, shortages in
area, encroachments, overlapping of improvements, set-back lines, easements or
roadways, except as otherwise shown.
6. Boundaries True and Correct: The certificate should warrant that all monuments shown
actually exist and the location and size shown are true and correct.
An example of an actual certificate on a land development project follows:
“The undersigned does hereby certify that an inspection was made on January 8, 1996 on
the ground of the 730.069 acre tract of land as shown hereon and that (i) the undersigned
Surveyor is a Registered Professional Land Surveyor, licensed by and in good standing in
the State of Texas; (ii) the survey was conducted by the undersigned Surveyor or under
such Surveyor’s supervision; (iii) this survey and the property description set forth hereon
are true, correct and accurate and were prepared from an actual on-the-ground staked
survey of the real property (the “Subject Property”) shown hereon; (iv) this survey and
the property description set forth hereon was made for the benefit of and reliance by
[Bank], [Developer], and the [Title Company] with respect to GF No. [ ]; (v) the property
has access to and from a dedicated roadway as shown hereon and the distance of the
Subject Property from the nearest intersecting street or road is shown hereon; (vi) except
as shown hereon, there are no discrepancies, conflicts, shortages in area, encroachments,
improvements, overlapping of improvements, set-back lines, easements or roadways;
(vii) all monuments shown hereon actually exist and the location, size and type of
material thereof are correctly shown; (viii) the size, location and type of improvements
are shown hereon and all are located within the boundaries of the Subject Property and
are set back from the Subject Property boundary lines the distance indicated; (ix) the
boundaries, dimensions, other details and the number of gross acres and gross square feet
shown hereon are true and correct; (x) the location of the subject tract on the F.E.M.A.
Flood Insurance Rate maps, Community Panel No.’s 48157C0100 J, 48157C0210 J and
48157C0230 J, effective date of January 3, 1997 indicates that the subject tract lies with
(“shaded”) Zone “X” defined as areas of the 500-year flood; Zone “A” (35 acres) and
“AE” (53 acres) defined as special Flood Hazard areas inundated by the 100-year flood;
(xi) there is no physical evidence of possession of the Subject Property by any party
except as shown hereon and (xii) this Survey was prepared in accordance with the
requirements for a Category 1A, Condition III Survey under the most current edition of
the Manual of Practice for Land Surveying in Texas (Texas Society of Professional
Surveyors)”.
Surveyed: July 23, 1990.........................______________________________(Seal)
Updated: January 8, 1996......................[Surveyor]
Revised: January 18, 1996.....................Registered Professional Land Surveyor
Revised: February 19, 1997...................Number [________]
Revised: June 12, 1997
Revised: July 10, 1997
Revised: July 24, 1997”
VI. Conclusion
This presentation is intended to assist the practitioner in understanding the importance of
preparation and review of a survey as part of the due diligence process in purchase and
finance transactions of real property. The survey is a fundamental component of the due
diligence process in allowing the practitioner to assess the legal and physical
impediments to the client’s intended use of the property.