ALTA / ACSM Long-form Certifications

I was reading posts on the POB-rpls message board today when I came upon this excellent post by Peter Lazio, a land surveyor from New York.  Peter gave his permission for readers to copy, and I have re-posted it here so that it can be easily found.

Each of has had our day in dealing with attorneys in ALTA/ACSM negotiations, and this letter can certainly be useful tool to make our point that we cannot make changes to the certification.  Peter’s entire post on rpls.com follows:

ALTA / ACSM Long-form Certifications
Posted By Peter Lazio on 5/9/2007 at 8:22 PM

We won a battle in the long form certification wars today. The lender wanted a typical long form certification on an ALTA / ACSM survey. It has been a while since I have had to argue over one of these certifications. Here is a copy of the letter I sent the attorney representing the client.

Dear Mr. Xxxxx:

We regret the misunderstanding regarding the certification to be made on the face of the ALTA Land Title Survey. We appreciate your comment "that whether a survey conforms to ALTA / ACSM standards is based on what is shown on the survey itself, not on the content of the surveyor’s certification." However, the specifications contained in the 2005 Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys, includes the prescribed certification language. Paragraph eight of the Minimum Standard Detail Requirements states:

When the surveyor has met all of the minimum standard detail requirements for an ALTA / ACSM Land Title Survey, the following certification shall be made on the plat:

To (name of client), (name of lender, if known), (name of title insurance company, if known), (name of others as instructed by client):

This is to certify that this map or plat and the survey on which it is based were made in accordance with the "Minimum Standard Detail Requirements for ALTA / ACSM Land Title Surveys jointly established and adopted by ALTA and NSPS in 2005, and includes Items ___ of Table A thereof. Pursuant to the Accuracy Standards as adopted by ALTA and NSPS and in effect on the date of this certification,, undersigned further certifies that in my professional opinion, as a land surveyor registered in the State of ____, the Relative Positional Accuracy of this survey does not exceed that which is specified therein.

In the August 2006 issue of the ACSM Bulletin, an official publication of the American Congress on Surveying and Mapping, Gary Kent, L.S. who chairs the ACSM / NSPS committee on ALTA / ACSM Land Title Survey Standards, stated "ALTA and NSPS agree that a survey that does not use the required short-form ALTA / ACSM certification specified in the standards cannot even be called an ALTA / ACSM Land Title Survey!" This is the certification that was intended by the statement, "The Standard and Required Surveyor’s Certificate will be provided," in the contract signed by Xxxxx on April 5,2007.

Nevertheless, it is our intention to satisfy the requirements of The Lender. We believe the standard certification, specified in the Minimum Standard Detail Requirements for ALTA / ACSM Land Title Survey, and the contents of the specification meet all the lender’s requirements. Long form certifications, such as the certification requested by The Lender, typically contain language that can invalidate the surveyor’s errors and omissions insurance with respect to those certifications. Using the standard certification specifically called for in the 2005 Minimum Standard Detail Requirements for ALTA / ACSM Land Title Surveys allows the surveyor to certify that the survey was performed in accordance with a defensible standard of care. The standard and required certification affirms that the survey conforms to all the specifications detailed within the Minimum Standard Detail Requirements for ALTA / ACSM Land Title Surveys.

The ALTA / ACSM standards are a nationally recognized criterion that was developed to address the specific needs, peculiar to title insurance matters, which require particular information for acceptance by title insurance companies when said companies are asked to insure title to land without exceptions as to the many matters which might be discovered by a land survey. As you will see these standards are comprehensive and meet all your concerns in a way that we can honestly certify. Please read the Minimum Standard Details and let us know why this standard of practice would not meet your requirements.

We understand it is the lender raising the objections not you so please forward this to the lender’s attorney for his review and comment.

Yours truly,

There are several key points in this letter that increase your chance of winning these battles.

1. Be firm but not confrontational. Winning an argument means bringing two minds together not a triumph of one over the other.

2. Explain why you cannot use the certification in the form it was provided to you. Don’t just say no but rather present the standard certification as being in everyone’s interest. Offer the standard certification as the solution and ask the people objecting to explain why it is not a good solution.

3. Get to the lender. This is really important. The lender wrote the certification you are objecting to. The client could care less about the certification. The client’s attorney just wants to get to the closing and thinks the certification is holding up the closing. If the lender is convinced everyone is happy.

Be patient. Time is on your side. These arguments often come up after the survey has been completed and reviewed by the attorneys. The attorneys know the survey is complete and ready to go to closing and they want to close the deal. They usually will not want to find another surveyor with all the associated delays. If you present the standard ALTA / ACSM certification as a solution that will facilitate the deal then they will usually go for it.

Gary Kent’s statement that "ALTA and NSPS agree that a survey that does not use the required short- form ALTA / ACSM certification specified in the standards cannot even be called an ALTA / ACSM Land Title Survey!" Is a real powerful tool in these arguments. When I saw that in the ACSM Bulletin I could not wait to use it.

We had a contract that stated, "The Standard and Required Surveyor’s Certificate will be provided." Evidently the client’s attorney thought this meant the certification he provided or did not read the contract before signing it.

Peter Lazio
Modified By Peter Lazio on 5/9/2007 at 8:28 PM