From time to time the governing authorities discover the need to amend the rules because of the changing ways that industry professionals conduct business or the need to make adjustments to those rules so they may result in a more clearly defined understanding. That is now the case for procuring land title surveys. As projects move through the commercial due diligence process, real estate professionals need to be aware that there is a new standard set of requirements. This new standard is the 2021 “Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys”. Below, there is a summary of the changes from 2016 to the 2021 ALTA Requirements.
This is an introduction to help industry professionals understand the expectations that the new title surveys will provide. The intent is only to familiarize the reader with the new and upcoming changes. It will be helpful for those with a working understanding of the 2016 ALTA guidelines, and in general, the purpose of the ALTA Survey. This supplemental should never replace in any way the 2021 ALTA Requirements. The 2021 ALTA Requirements will become effective on Tuesday, February 23, 2021. These new requirements will supersede all prior versions. Any prior surveys using the 2016 standards or earlier versions requiring updates, will need to satisfy these requirements. In order to satisfy the update requirements, a new field date on or after February 23 will have to be added to the survey. The 2021 ALTA Standards show the nine parts of a complete 2021 ALTA Survey in an outline format. These headings are 1. Purpose, 2. Request for Survey, 3. Surveying Standards and Standard of Care, 4. Records Research, 5. Fieldwork, 6. Plat or Map, 7. Certification, 8. Deliverables, and Table A – Optional Survey Responsibilities and Specifications. The changes to these parts will be outlined below. The 2016 ALTA requirements modified the internal structure to be in the format of an outline and it detailed what records were to be provided to the surveyor. The structure change made it easy for all to determine what records are to be specifically provided.
There were no significant changes to the wording in this section from the 2016 requirements.
2. Request for Survey
There were no significant changes to the wording in this section from the 2016 requirements.
3. Surveying Standards and Standards of Care
E. Measurement Standards: This requirement pertains only to the surveyor’s fieldwork measurements for locating evidence of property corner monuments called Relative Positional Precision. The change from the 2016 standards is in the definition of Relative Positional Precision. The definition is modified to only apply to a located boundary corner evidence monument relative in position to an immediately adjacent boundary corner evidence monument and not any other boundary evidence monument corner.
4. Records Research
The 2021 ALTA Standards changed the outline of the content in this section so that the information contained therein presents a clearer understanding. However, there is no significant change from the 2016 requirements to what is still required in this section.
C. Lines of Possession, and Improvements along the Boundaries: The 2016 requirements in part include the location of improvements within 5 feet of each side of the boundary lines. The 2021 ALTA Standards now also include the extended location of utility poles within 10 feet of any surveyed property line per the instructions below in easements and servitudes.
E. Easements and Servitudes: The surveyor is still required to locate evidence of easements and servitudes in the 2021 ALTA Requirements as was noted in the 2016 standards. However, there is a new inclusion for utility location markings (ex. paint markings) if observed in the field, and the surveyor is to include a note as to the source of such markings or to indicate if the source is unknown. As noted above, utility poles are to be located within 10 feet of the surveyed property. The surveyor is to note any potential encroachments of these utility poles, cross member, or overhangs but is excluded to indicate a legal opinion as to who may own or the nature of the encroachment.
6. Plat or Map
C. Easements, Servitudes, Rights of Way, Access and Documents: New to the 2021 ALTA Standards, when a surveyor makes notes on the survey regarding easements and servitudes, the surveyor may now provide additional information regarding the easements and servitudes, etc. for example to note that they touch or are on the surveyed premises. The 2021 ALTA Standards also allow the surveyor, if they wish, to provide an opinion as to the effect of these matters but are limited to the effect being based solely on the provided description of the document. Also new to the 2021 ALTA Standards is that the survey will need to include tax parcel numbers for adjoining lands (if available) only for non-platted lands. For platted adjoining lands, tax parcel numbers are not included, but the survey is to include recording data of the subdivision which is the same as the 2016 standards. If a surveyor is aware of a recorded easement not listed in the title commitment, a note on the survey is to be provided to indicate the existence of the easement and that it was not included in the title evidence provided.
There are tweaks in wording to the certification section. The changes referenced in the 2021 ALTA Requirements have no major differences from that of 2016. Please refer to the exact wording to be used in the requirements.
Table A – Optional Survey Responsibilities and Specifications There are only 19 optional items to choose from in the 2021 ALTA requirements as opposed to 20 optional items in the 2016 version (plus a blank option for additional scopes not included in the minimum standard or Table A options). In the 2021 ALTA Standards, the client now clearly has the option to negotiate with the surveyor (prior to the authorization of the survey) the exact wording of any of the optional table A items. The negotiation of such wording should not be settled after any fieldwork is complete, since the wording may have the intent to compromise the survey certification. If such wording changes take place the survey must include notes to explain and define the wording.
Table A optional item 6a and 6b of the 2021 ALTA requirements now list the specific information (the current zoning classification, setback requirements, the height, and floor space area restrictions, and parking requirements specific to the surveyed premises) that need to be included in a zoning report or letter provided to the surveyor by the client.
Table A optional item 10b regarding the plumbness of party walls with respect to adjoining properties has been eliminated. Optional item 10a has changed numbering to just item 10.
Table A optional item 11 has been modified to only allow two choices for the client. As in the 2016 requirements, observed evidence of utilities is a requirement in section 5.E iv and is not an optional requirement. This optional item should not be selected if observed evidence of utilities (above ground and visible items) are all that is needed. The first choice for the client, Optional Table A item 11a can be selected if the client has existing plans of the utility locations and they are provided to the surveyor for their plotting on the survey. The second choice, Optional Table A item 11b, is if the client wants the surveyor to coordinate with a private utility locating company to mark the existence of underground utilities, and then show these markings and utilities on the survey plat. Please note that 11b would likely be an expensive item to complete and typically would benefit a design survey (a survey used by a civil engineer or architect to provide design drawings for changes to the property). The 2021 ALTA Standards Optional Table A item 11a and b now remove the choice for the client to ask the surveyor to contact the 811 locate requests. These requests were determined to be erratic in responsiveness and not helpful in providing utility information.
Optional Table A item 18 about wetland flagging in the 2016 requirements has been eliminated. In 2016 standards, this item required the surveyor to locate evidence of wetland flagging as was previously conducted by a wetlands expert, hired by the client, and to indicate the perimeter of the flagging on the survey. It was determined that clients and lenders tended to wrongly interpret that the item meant for the surveyor to be the field expert identifying and locating wetlands on the surveyed premises, which is not something professional surveyors are trained to do (a wetlands expert should do this). This item was also not typically a title issue.
Optional Table A item 18 in the 2021 ALTA Requirements was formerly Table A item 19 in 2016 requirements. This item was re-written to clarify that if selected, appurtenant easements (offsite the surveyed premises, but benefitting the surveyed premises) typically shown in the title legal description would be surveyed as if it was a part of the fee parcel. If selected these offsite benefitting easements would have all of the improvements located on them and shown on the survey pursuant to all of the current ALTA Standards. Clients often misunderstood the scope of this item – often they only want the boundaries of these appurtenant easements depicted, which is already required as part of the minimum standards, rather than also the improvements within the easements which is the purpose of this Table A item. Please note that the surveyor cannot provide a quote to complete this item without the knowledge of the existence of such an appurtenant easement. Typically, if this item is requested, a title commitment would have to be available and provided to the surveyor at the time of quoting. Please also be aware that this item could significantly increase the scope and cost of the survey if the said easement is large in the area as some reciprocal easements are.
Optional Table A item 19 in 2021 ALTA Standards was formerly Table A item 20 in 2016 standards and contains no changes.
Please scrutinize the 2021 ALTA/NSPS Land Title Survey Requirements as a commercial real estate industry professional. This revision has clarified many issues and will likely be the brunt of causing some unforeseen ones. The path is again re-paved, same as it was in direction, but with a bright new surface.