A recent New Hampshire real estate closing was stalled at the 11th hour when the parties realized that a survey plan did not show the location of a no-build area created by private restriction in the chain of title. Since part of the existing building is located in the no-build area, the buyer nearly purchased a building it might have been required to demolish.
Was the survey plan deficient? Maybe not. The scope of the surveyor’s work is defined by a contract with the person for whom the plan was prepared. Even seemingly standard products like the American Land Title Association/American Congress on Surveying and Mapping surveys are subject to wide variations in the scope of work. More than 22 optional items appear in ALTA/ACSM’s Table A. Someone reading a plan may not know what is included and what is not.
In particular, the need to show the location of all easements affecting the premises (required by the 2011 ALTA/ACSM standards), may not be required under a particular surveying contract. This becomes important because many practitioners refer to certain types of restrictions and conditions on the use of a property as negative easements. If a surveyor was not hired to include easement locations on the survey plan, failing to show the location of a no-build area may not be a breach of the surveying contract after all.
To guard against a close call like this and the risks associated with the limitations of a surveyor’s contract, be prepared to update survey work and engage experienced title counsel to assist you in reviewing older plans to determine the scope of work for new plans.