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COMMERCIAL FINANCE 701 — Land surveys: More than just a sketch

EDITOR’S NOTE: Commercial Finance 701 is a continuing series on commercial loans written exclusively for the Mississippi Business Journal. This series is geared to lenders, developers, investors and transactional attorneys.
MOLLY MOODY & BEN WILLIAMS

MOLLY MOODY & BEN WILLIAMS

We suspect that most licensed surveyors never seriously considered careers in law.  Surveying is a precise business that deals in excruciating exactness.  Lawyers are masters of gray areas and debate, repeatedly uttering the tiresome phrase “on the other hand.”  Surveyors utilize relative positional precision and standard deviations in their efforts to pin down the facts.  Facts are something lawyers prefer to twist.

Still, as a land survey is often a condition precedent to a large commercial real estate closing, members of the two professions have to interact.  This article provides a general overview of surveys.

What is a Land Survey?
A land survey is a drawing that depicts the boundaries of a property, including distances, measurements, and references to well-defined permanent monuments or points.   The survey will contain a legal description for use in legal documents, the date field work was completed, and a certification by a licensed surveyor.  The survey will generally locate any improvements on a property.

Types of Surveys
The Mississippi Board of Licensure for Professional Engineers and Surveyors has established four classes of surveys, creatively designated A, B, C and D.  Class A, the most detailed – and expensive — of the classes, uses “maximum surveying accuracy” for extensively developed properties.  Class B includes “commercial properties … located outside urban business districts and highly developed commercial areas.”  Classes C and D aren’t applicable to commercial properties.

Notwithstanding Mississippi classifications, lenders and title insurance companies frequently require an “ALTA/ACSM Land Title Survey” (an “ALTA survey”) for high-end commercial projects.  An ALTA survey must meet exacting requirements, replete with property information, including easements, utilities, setbacks, zoning classifications, parking space designations, improvement dimensions, and references to title and title insurance documents.  Additionally, the parties can choose from “Table A” options for add-on information that may be helpful and/or required by certain lenders.

Mention is often made of “boundary,” “foundation,” and “as built” surveys.  As typically used, a “boundary” survey includes minimal information, and, as the name would suggest, merely reflects the boundaries of the property.  In a construction project, a party might request an initial survey be updated as a “foundation” survey following the foundation’s pouring.  An “as built” survey can refer to a survey reflecting any stage of construction, but most commonly denotes a survey provided after completion of all intended improvements to evidence the completed project.

Why get one?
Occasionally, a buyer wants a survey bad enough to buy one.  People who own hunting camps like surveys for framing at the camp.  Most surveys, however, are ordered because a lender in the transaction requires it.   But even if a lender isn’t involved, a purchaser of land should obtain a survey.  Otherwise, what is the buyer actually buying?  Surveys often reveal factual matters not discernible from the land records and sometimes not obvious from a casual — or even involved — inspection by a layperson.  Encroachments.  Fences off the boundary lines.  Unrecorded easements.  Setback violations.  Inadequate parking.   Zoning Issues.

Another reason to obtain a survey is to enhance the title insurance coverage.  A title insurance company will insure title without a survey, but the coverage will, naturally, be limited to matters of record.  If a current survey is obtained, the survey exceptions in the title policy may be removed and insurance coverage provided to insure against any undiscovered encroachments, overlaps, variation in area or measurements, boundary line disputes, and roadways, unless specifically excepted from coverage as being shown on the survey.  Lenders routinely require the removal of the survey exceptions in a lender’s title insurance policy.

Costs and Timing
Cost and timing are functions of the type of survey.  The ALTA Survey is the gold standard with associated prices and timing.  A new ALTA survey (with the typical Table A items) on a 180 unit/ 10-building apartment complex (which is more complicated than the run-of-the-mill office building) could run over $10,000 and take several weeks.  The Class A survey could cost somewhat less depending on the requested scope.  The Class B survey might run a few thousand dollars.  Bells and whistles cost more and take more time.

It behooves the parties to find the most recent survey – even if years old – rather than start from scratch.  Starting from scratch on a complex project is expensive.  While all lenders are justifiably picky, permanent lenders are notorious for focusing on the minutiae – often requiring additional work and/or curative work that a traditional lender might accept.  Plan ahead by at least 90 days.

Recurring Headaches
Aside from the language barrier mentioned at the introduction of this article, the main practical issue is that the surveyor wants to describe, using the latest newfangled technology, exactly where a piece of property is located.  In doing so, the surveyor often creates a brand NEW legal description.  The attorney, to the contrary, wants to know where the 1903 warranty deed’s “record” legal description (admittedly hoary and by reference to the “big oak tree”) says the property is located.  Very often, these are two different, overlapping descriptions, with different calls, distances and acreage.  Notwithstanding the precision of the newly prepared legal description, the attorney will quickly note that the land records (including deeds going back 100+ years) use different language.  This issue is sometimes satisfied with “same as survey” certifications and title policy endorsements.  This comedy – involving little laughter – is played out every week in offices all over the state.

Descriptions that don’t close, gaps, gores, poorly defined easements, encroachments, estate problems, title defects, and suits to clear title defects are such frequently discussed issues as to each be deserving of an entire article – and thus reserved for another day.
In the words of the Frenchman Paul de Gondi, “in a major matter no details are small.”   And, as to real property, the devil is in the details.

» Ben Williams and Molly Jeffcoat Moody are attorneys in a commercial law practice at Watkins & Eager PLLC (watkinseager.com).   Ben is recognized by Chambers USA and Best Lawyers in America and was selected as Best Lawyer’s 2014 Commercial Finance Lawyer of the Year in Jackson.   Molly is recognized by Chambers USA in the area of Real Estate Law.

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5 comments

  1. “A land survey is a drawing that depicts…” Nope. A survey is a survey. The drawing is a drawing or plat of the surveyed area. Just one of those technical details lawyers like to skip.

  2. I liked how you explained why anyone buying some land should buy a land survey. Getting information about a property you’re about to buy that isn’t shown in land records seems really important for the buyer. I would want to know about things like zoning issues and encroachments, so buying a land survey seems beneficial to avoid these problems.

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