The other major portion of a land survey is the actual drawing of the boundary lines and other appropriate features. This section purposely treats this forth section, in order that the reader might address more fully and independently the previous three sections. There is often a tendency to look first to the drawing and to ignore the other portions of the survey. Because certain types of survey drawings can be extremely complex, however-particularly for improved property-the examining attorney must review the survey in a systematic manner. The first step in this review is to inspect the draw boundary lines. The labeled distances and bearings on these lines should be compared to the metes and bounds description contained in the survey. Following this, the reviewer must take the other elements of the survey one at a time and systematically review each. By using the following checklist, the examiner may review the survey without any significant oversights.
1. Point of commencement. When the property itself does not contain, within or along its boundaries, a well-known and monumented corner that is universally accepted in the community, the description generally will reference a monument laying at some distance form the property’s boundary line. This monument is the basis for describing where the property exists on the ground, and is referred to as the “point of Commencement” often, the point of commencement will be the intersection of two public rights-of –way that have been established, platted, or monumented. The survey should clearly show this point and label it as the “point of Commencement.”
2. Bearing and Distance to point of Beginning. Once the survey shows and labels the point of commencement, the surveyor should include appropriate bearings and distances to the point of beginning of the property description. If the point of commencement lies outside of the property by a great distance, the survey may need to refer to this point either out of scale or by a broken scale. In either event, the survey drawing should show all bearings and distances to the point of beginning from the point of commencement and the examining attorney should verify them. There is no purpose in having the boundary of a parcel property described by metes and bounds if its described location from an accepted monument is incorrect; this merely describes a property of the same size and configuration as that being conveyed, but locates it in a place on the ground not anticipated by the parties. Obviously, this will cause a tremendous title problem.
3. Point of Beginning. The survey drawing should show and label the point of beginning, and it should correspond to the point of beginning described in the metes and bounds description. There is no particular requirement as to where the point of beginning should be in a description. For practical purposes, however, it should be in a convenient location, usually, the closest corner to the point of commencement. Customary surveying practice usually dictates that property descriptions travel around the boundary in a clock wise direction.
4. Straight Boundary Lines. The surveyor should describe straight boundary lines by both bearing and distance. Bearings should be by direction in degrees (o), minutes (‘) and seconds (“). Note that one can correctly describe a straight boundary line by tow different bearings.
If the face a clock were oriented so that 12:00 represented due north, then one could describe a line running between 1:30 and 7:30 as either N45000’00” or S45000’00”W. As part of a boundary description, however, the legal description of this line can be accurate in only one of those two senses, depending upon the actual direction of that line in the circuit of the property description. Distances commonly are measured in feet and tenths and one-hundredths of feet. Depending upon the required degree of accuracy, the distances may also be made in more or less accurate calculation. The examining attorney should determine the required accuracy or tolerances based upon the type of property being surveyed. Obviously, rural areas generally require less stringent tolerances than urban business districts.
Curved Boundary Lines. Curved Boundary lines typically are described by arcs of circles. To define a circular arc in a metes and bounds description without ambiguity, the surveyor should provide the length of the arc (L) and either the radius (R) of the circular arc or its central angle ( or “delta”). With the arc length and one of these two other values known, a tangent circle is completely defined: all other elements may then be computed
A sample metes and bounds description incorporating calls for curved property lines appears in Appendix D. In that Example, calls for monuments (normally desirable in metes and bounds descriptions) have been eliminated form the description for clarity. Notice form the sample description that the surveyor should also state whether the curve is tangent or non-tangent to the preceding line. If a curve is non-tangential to the preceding line in the boundary, then the chord length and bearing are also required.
The practice in many parts of the country is to provide only enough elements in the metes and bounds description to define the curve without ambiguity. This practice makes the description less cluttered and eliminates curve elements that may have been copied wrong in a subsequent conveyance or computed imprecisely. In other regions of the country, attorneys prefer to see numerous curve elements listed in the metes and bounds description to allow checking for conformity among them. It is prudent practice to include on the survey drawing at least the length (L), radius (R), and central angle () for each curve. If the survey drawing of the metes and bounds description fails to provide the appropriate curve elements, the examining attorney should request that the surveyor insert them.
5. Adjoining property. Each survey should show and label the property adjoining all sides of the subject property. If the adjoining property is a road or other type of right –of-way, then the survey should show and label clearly such right-of-way along with the width of the right-of-way, the name of the road, name of the owner of the right –of way (e.g., “AT & T easement”), and any recording information that establishes the right-of-way. Adjoining properties that are subdivisions or platted property should include the name of the subdivision and the platted recording data that establish the existence and location of the boundary lines for such property. The survey should show all other property that is owned by individual owners using the name of the current record title owner and the recording data for the latest deed by which such owner took title to the property. Although there are numerous reasons for showing the ownership and use of adjacent properties, especially with respect to the access created by adjoining roads, the primary reason for showing adjacent property ownership in the survey drawing is to reflect that the boundary of the subject property and the adjacent property is one and the same line. As a general rule, the benefits of referencing adjoining properties on survey drawings far out weights the drawbacks. The use of referencing common boundary lines helps to avoid the problems of strips or gores and is useful in determining the intent and meaning of the parties in the event a boundary dispute arises.
6. Single perimeter Description. Where property is assembled in several contiguous tracts, the final survey for purposes of acquisition or financing should include a single description of the perimeter of all of the tracts of property. Use of a single perimeter description will eliminate any discrepancies arising from strips and gores or other failure of the various boundary lines of the individual tracts of property to meet or “tie” to a common boundary line.
7. Acreage. Most surveys generally include some reference to the acreage or squire footage contained within the subject property. A lender may wish to verify the approximate acreage that it is financing. With respect to purchasers, many contracts of sale establish the purchase price by reference to the net acreage contained within the subject property. In such instances, the survey drawing should clearly reflect the square footage or acreage contained within the various uses that are to be netted out. Generally these include such features as: (i) streets, alleys, railroads and other rights-of-way, (ii) easements, (iii) proposed rights-of-way and easements, (iv) flood areas, (v) lakes, streams or other surface or underground water courses, (Vi) Parks or proposed parks, and (vii) encroachments or protrusions affecting the subject property. The examining attorney should consider carefully whether the survey shows all appropriate items to be netted out; if not, the examining attorney should inquire as to whether such items exist or were overlooked. A notation to this effect on the survey should be sufficient.
8. Access. The survey drawing should reflect physical characteristics of access to public streets. While the surveyor cannot be expected to make legal determinations as to whether access is appropriate, certain physical evidence will give the examining attorney some comfort in this matter. For instance, if the boundary line of the property ties to and runs alongside one or more publicly dedicated streets, the property would appear to have access to a public right-of –way and technically would not be “land-locked.” In certain instances, however, the fact that property lies along a public thoroughfare will not itself indicate true accessibility. Property running along a limited access highway, although technically not land-locked, may not have accessibility. If a public thoroughfare is limited-access, the title documents creating such right-of-way will indicate this fact, and the examining attorney should discover this fact in reviewing the title exception documents. Therefore, the examining attorney should review carefully all documents representing public rights-of-way running alongside the subject property. This also explains the requirement the requirements that the survey include the recording information for adjoining public thoroughfares. Property lying alongside city streets and roads may have problems similar to that of limited access highways. Technically, such a parcel may not be Land-Locked, but local ordinances may not allow or may limit or restrict curb cuts in city streets and roads, there by effectively eliminating access to the property. If property is being acquired for immediate development, then the examining attorney should verify accessibility or curb cuts authorization under local ordinances. If the subject property is already improved, the survey drawing should show curb cuts or other entrances and exits form the subject property to the public streets. This type of evidence of access generally is considered acceptable and the examining attorney generally is not charged with the responsibility of investigating access any further.
9. Exception Documents. Although the receipt of all title exception documents is distinct from survey review, the examining attorney cannot review a survey acceptably without analyzing the title exception documents reflected in the survey and title commitment or report. The examining attorney must insist that legible copies of the title exception documents be furnished for review. It is useful to highlight matters that have been reviewed and approved to reduce the time and effort involved in reviewing complicated surveys. In some instances, particularly with older documents, reproduction techniques may not yield legible copes. In this case, the examining attorney must visit the recorder’s office personally to inspect the original documents. The examining attorney should match all easements and other matters reflected on the survey to the corresponding title exception document. In the event that the survey reflects certain conditions for which no title exception document is available, the examining attorney should investigate this discrepancy. This occurs most often in less developed areas and relates to utility easements and facilities such as power poles and lines. Nevertheless, the examining attorney must establish the authority for the existence of such “easements” in order to determine the extent and nature of such rights, or whether the easements arise by prescription.
10. Exceptions Located and Labeled. Each title exception document shown on the title commitment or report must be clearly located and shown on the survey drawing and should be labeled with the name of the document, type of exception, parties thereto. Or other appropriate description reflecting the nature and extent of the exception. The survey should show the dimensions of an exception as reflected in the creating instrument and the recording data pertaining to the title exception document. Where such exceptions appear by visual inspection of the surveyor and do not correspond to any title exception document, then the surveyor should include as much description of such physical evidence as is possible. Sometimes this will only be a notation of a manhole cover power pole and line, or underground pie; however, the more information obtained by the surveyor, the more likely the parities will be able to deal effectively with the matter.
11. Set-Back Lines. The survey drawing should show clearly all ‘Set-back lines affecting the subject property. As noted above, the surveyor should not be required to search local ordinances or recording records to determine the existence of set-black lines; these should be supplied to the surveyor either by the title company or another party fro appropriate location on the drawing. Once the surveyor receives the exception documents or ordinances reflecting the set-back lines, the surveyor should show these lines clearly on the drawing, and should label them as established by plat, ordinance, or restrictive covenants with a reference to the appropriate recording information or ordinance number. Generally, set-back lines will only be necessary for a survey drawing if the property includes existing improvements and the purchaser or lender wishes to verify that no encroachment of improvements exists upon the set-back line. Where property is purchased for immediate development, a boundary survey usually does not include any set-back lines; however, set-back lines may be required on a separate “footprint” plan or site plan drawing of the proposed development, which the examining attorney should review in connection with the boundary survey.
12. Off- site Matters. Often, a survey is not sufficient unless it reflects matters existing off the site. An example would be property that is land-locked except for an access easement running from the subject property to a nearby public thoroughfare. Obviously, the failure to show the existing off-site easement constitutes a failure to reflect accurately the physical characteristics and state of title applicable to the subject property. Other items may be important, including the drainage of surface water onto the subject property form an adjoining tract. To the extent that the right of surface drainage is limited to a particular area of the subject tract, the survey drawing should show and label this limitation. If the subject property is restricted by sight or light easements with respect to a physical improvement on an adjoining property, then the location of the adjoining physical improvements may be necessary for the drawing to describe adequately what is meant in the appropriate title exception documents.
13. Insured Easements. To the extent that any off- site mattes benefit the subject property, then the examining attorney should ask the title company to insure such easements or other benefits to the owner of the subject property. When easements are being insured, the easement property should be treated as if it were a survey of a separate piece of property. The survey drawing should clearly show and label such insured easements, should contain bearings and distances for all boundary lines, and should designate all title exception matters (visible exceptions and recorded instruments). The examining attorney should verify and coordinate the descriptions contained in the title commitment or report, the survey drawing, the legal description and other documents indicating or referencing an insured easement.
14. Improvements. Where improvements will be retained after acquisition of the property, the survey drawing should show such improvements clearly and should label them as to type (e.g., a two- story brick office building, a forth-story office building, or a single family residence). The drawing should show the horizontal distances around the perimeters of the structure, both at ground level and otherwise upward or downward through the structure. In many instances the vertical height and depth of a building may be necessary in order to verify compliance with certain governmental or other title restrictions on the improvements. For a condominium regime or similar matter, the survey requirements for such improvements will increase dramatically in complexity and quantity, but are outside the scope of this article. In addition, the survey should show all improvements in their relative position with appropriate distances to the nearest boundary lines, easements traversing the property, streets, set-back lines, and other improvements.
15. Encroachments. Encroachments include those occurring from existing improvements located on adjoining property over the boundary line onto the subject property, as well as existing or proposed improvements on the subject property into easement areas, set-back lines, and other types of restricted areas within the subject property. The survey drawing should show any encroachments by dimension and should label the encroaching structure. The examining attorney should inquire as to whether any written or verbal agreements or waiver exists regarding the encroachments. If not, the attorney must determine whether title should be taken subject to this condition, or whether curative action will be necessary prior to closing.
16. Protrusion. If any subject property contains improvements or other structures that protrude across the boundary line from the subject property onto the adjoining property, the survey drawing should reflect such protrusion by dimension and should label the protruding structure. The examining attorney should inquire as to whether any written or verbal agreements or waivers exist regarding the protractions. If not, the attorney must determine whether title should be taken subject to this condition, or whether curative action will be necessary prior to closing
17. Fences. In less populated areas, boundary surveys almost always show the existence of fences along or across the boundary lines of the property. Seldom does a fence completely lie on the boundary line of the property. A fence usually will deviate from the boundary line at one or more places along its course; these deviations may result in either encroachments or protrusions. The examining attorney must consider these deviations with care. If the fence protrudes into the adjoining property, the examining attorney may conclude that either (i) there will be no title dispute as to the boundary line shown as within the fenced area, or (ii) in the worst case, the adjoining property owner will require the protruding fence to be relocated onto the property line or within the subject property. If the cost of relocating the fence is not great, this may represent an acceptable title deficiency. By contrast, a fence encroaching on the subject property presents a more complicated situation. On the one hand, it may indicate a conservative land owner who did not want to fence any property that he did not won, but who also did not want to relinquish title to property outside the fenced area. On the other hand, it may represent the claim of an adjoining property owner of title to all property up to the fence. This situation may require an evaluation of the property description of the adjoining property owner and a determination of other relevant factors, such as whether the description ties or calls to the fence line or to some measured distance or who built the fence. Reference to the applicable adverse possession statures and other judicial and statutory authority may be necessary to make an adequate determination of title to land called in to question by the location of such fences.
18. Proposed Improvements or Easements. To the extent that any proposed improvements or easements are contemplated at the time of the acquisition of the property, the survey drawing should show, locate, and label them. Alternatively, a separate site plan may be acceptable. Proposed easements generally take the form of a proposed widening of an existing right- of way or the proposed location of necessary utility easements along a property’s boundary line. Proposed improvements generally are those that the owner or purchaser (and lender) contemplate to be constructed on the property in the near future. Nevertheless, the survey should indicate the source of proposed improvements or easements in order to permit verification of the accuracy of the proposal. Any proposed improvement or easement that appears on the survey invariably will find its way into either the title insurance commitment or policy and into the deeds or other instruments of conveyance. Once a proposed easement shows up in any of these sources, subsequent removal of the proposed easement becomes extremely difficult. Therefore, a balance should be sought between those proposals that are necessary to reflect adequately the state of title and physical condition of the property and those that may later constitute troublesome title exceptions. Nevertheless, a property’s boundary description should never be described excluding the area covered by a proposed easement or the like. Furthermore, the examining attorney should review the existence of a proposed improvement or easement in order to determine whether, when completed or granted, it would represent an encroachment or protrusion with respect to existing or proposed improvements or easements.
19. Utility Lines and Facilities. Sometimes purchasers or lenders will ask the surveyor to show the type and size of utility lines and their locations in relation to the subject property, in order to verify the existence and location of utility facilities necessary to service the property. The surveyor will be justified in making appropriate notations on the survey, however, that he took the information relating to such utility facilities necessary to service the property. The surveyor will be justified in making appropriate notations on the survey, however, that he took the information relating to such utility lines from some outside source rather than from his personal review and inspection. Often, designations of the type and size of utility lines is more appropriately addressed in a site plan, because the purpose of a site plan is to indicate development feasibility rather than title status.
This section is intended to explain to the attorney why a proper land survey is important for the typical real estate transaction. This section has illustrated some of the intricacies of the land surveyor’s reasoning process in the evaluation of boundary line evidence. Knowledge that the surveyor’s tasks in accomplishing a land survey may be very complex leads us to the conclusion that, in contracting with a surveyor to carry out a survey, we should perhaps resort to published surveying standards to define the extent of the work to be accomplished. However, we have also illustrated that the lawyer must use published standards of practice with caution. Even the most widely accepted standards of practice, such as the recent ALTA code, will not meet the needs of all clients at all times.
We have suggested a few additional matters of survey that may concern your clients and that may be handled through the use of appropriate certifications. These are but a few of the many surveying matters the attorney must be aware of. To better address the concerns of his client, the attorney needs an awareness of the purpose of each survey and an understanding of the proper limits of the surveyor’s evidence evaluation, research, and measurement processes.
21. Parking. To the extent the survey deals with improved property, it is almost always necessary for the drawing to include information concerning parking for such property. Almost every relevant governmental body has some restrictions regarding parking. Therefore, survey drawings should depict parking, space by space, and should indicate the number of spaces (both regular and handicapped) available on the entire property. The total number of parking spaces is more critical when there is a multi-level parking facility that the survey cannot show adequately in two dimensions. Once the survey drawing shows parking and the total number of spaces, the examining attorney should reference to appropriate zoning requirements to determine whether the property satisfies the applicable ordinances and zoning requirements.
22. Multiple Tracts. Where multiple tracts comprise the property reflected in the survey, the examining attorney should review the survey drawing and property descriptions carefully to insure that no gaps exist between the tracts and that all common boundary lines between tracts are called and tied together as being a common boundary line.
23. Street Address. Where existing improvements are the subject of the survey, it is sometimes helpful if the survey drawing notes the street address of such improvements. The address of the subject property more often appears in the survey legend.
24. Curbs, Driveways, and sidewalks. When improved property is the subject of the survey, the survey drawing should show the location of curbs, driveways, sidewalks, and other similar improvements (e.g., patios and balconies). The attorney should review these items with respect to all existing easements and set-back lines for potential encroachments and protrusions.
25. Psychical Objects. If the surveyor’s on-the ground review of the property reflects any physical objects not reflected in the title commitment, the survey drawing should show these items in their appropriate locations, with an appropriate description indicating their nature. The survey need not locate or mention every physical object, but only those that a trained professional surveyor deems appropriate for disclosure in addressing title to the property.
26. Corner Monuments. Not only do all property descriptions need to contain a reference to monumentaiton, but the survey drawing itself should reflect whether monuments exist and, if so, their type and size. Furthermore, the drawing should indicate whether the monument was found by the surveyor or placed there (usually referred to as “set”) by the surveyor. The survey drawing also should show any existing monuments, either within or outside the boundaries of the property that may call these boundaries into question or otherwise have bearing on title discrepancies.
27. Flood Areas. The survey drawing should show the boundary lines of all flood plain areas, as reflected by an independent source (such as those developed by the U.S. Department of Housing and Urban Development pursuant to the Flood Disaster Protection Act of 1973, and as shown on flood insurance rate maps, or any other generally accepted source for determining flood plains in the general location of the subject property). The flood plain information should include the zone or other qualifying information, indicating whether such property is a 100-year flood plain frequency, coastal zone, or other appropriate designation.
28. Water Bodies or Courses. If the property is subject to any surface water bodies or courses (either surface drainage, steams, standing lakes, coastline, or other bodies of water), the survey should locate and label them as such.
29. Site plan. As mentioned above, a review of a survey for property acquired for immediate development may require a concurrent review of a site plan (either in a separate print or superimposed upon the boundary survey print) showing the location of proposed easements, improvements, and other structures. If there are any title question affecting the property or the proposed improvements, or if there is any uncertainty with respect to the existence of encroachments or protrusion, it will be necessary to have the surveyor locate all such title exception matters and proposed easements and improvements on a single instrument.