Jeff Lucas, PLS, Esq. has had the idea of creating an insurance company to insure boundaries for some time. He explains the history of the creation of the insurance industry in his recent POB article. [1] Jeff also gives an overview of the arc of the audiences he has approached on the subject as expressed immediately below:

One of the ideas that I have been talking about for several years now — in one-on-one conversations with surveyors, in committee meetings, at conferences, in my presentations at conferences, and even on Curt Sumner’s NSPS Radio Hour — is the idea of land surveyors offering location insurance relative to boundaries similar to the way title companies offer title insurance.

In the article, Jeff spills a couple of pithy paragraphs of ink explaining the history of the title insurance industry. While this may be old hat for those within it (as someone who is not), I think Jeff’s words bear repeating as provided again immediately below … 

Once upon a time, in a process analogous to the present-day methodology for hiring a land surveyor to survey property, a lawyer sitting in his office would get a request from a would-be purchaser of property to inspect the title and render an opinion on the quality of the title (good, bad, liens, etc.) before the conveyance. However, equally analogous to present-day surveying, that opinion was as good as the lawyer who rendered it, and if there were, in fact, a problem with the title, recovering damages on a bad or negligent opinion of title depended largely on the resources of the attorney. That legal service has all but been replaced by the title insurance policy.

Back in the late 1860s, in Philadelphia, there was in fact a particularly egregious case where a purchaser lost title to certain properties due to a prior lien that was deemed invalid in the title opinion given by a title attorney. Long story short, the attorney was found to have not been negligent because he did not fall below the standard of care in rendering his opinion. As we know, a mistake or even a wrong opinion does not necessarily constitute negligence. However, the case got the attention of the title community and prompted other prominent title attorneys in Philadelphia to form an insurance company for the express purpose of insuring title. This was the birth of title insurance. The rest, as they say, is history.

… Jeff then clearly identifies in the article that boundary lines are a mixed question of law and fact and notes that there is great is considerable confusion in both the legal and the survey community as to what that means. BUT, Jeff then sets the record straight with the following …

The 2011 ALTA standards do not confuse the two. As a matter of fact, the standards explain the difference. First, the ALTA standards tell us their purpose:

For a survey of real property, and the plat, map or record of such survey, to be acceptable to a title insurance company for the purpose of insuring title to said real property free and clear of survey matters … certain specific and pertinent information must be presented for the distinct and clear understanding between the insured, the client …, the title insurance company …, the lender, and the surveyor professionally responsible for the survey.

In order to meet such needs, clients, insurers, insureds and lenders are entitled to rely on surveyors to conduct surveys and prepare associated plats or maps that are of a professional quality and appropriately uniform, complete and accurate. [2] [Emphasis added (in Jeff’s original article).]

What this says is that the surveyor is professionally responsible for a complete and accurate survey of the real property being surveyed. So, what is the test for this accurate survey? How precisely I made my measurements? No. The test is how well you applied the appropriate boundary law principles.

Boundary Resolution: The boundary lines and corners of any property being surveyed as part of an ALTA/American Congress on Surveying and Mapping (ACSM) Land Title Survey shall be established and/or retraced in accordance with appropriate boundary law principles governed by the set of facts and evidence found in the course of performing the research and survey.[3][Emphasis added (again in Jeff’s original article).]

Not only surveyors, but insurers too should go and read how Jeff concludes the article. Jeff appears to imply that surveyors are already in the insurance industry, but are just not getting paid for it.

Or, if they aren’t at least they might as well be if they are doing their job properly instead of stirring up trouble where none exists.’ 

So, what’s really going on here. I think that this is another attempt to separate the wheat from the chaff. But, instead of a ‘good money driving out the bad’ (i.e. Gresham’s law) [4], by insuring that surveys accurately identify the boundaries. This means that instead of identifying recorded title lines, Jeff wants to assure if not insure that all surveys be done in a proper fashion so as to actually identify the true boundary lines.

That after all is what insurers, mortgagors, realtors, and of course neighbors are really wanting. It is only when unknowledgable – or much worse uncaring and/or unethical lawyers – are given the opportunity to take the matter and run with it, that so do the unreasonable costs.

These are costs, whether they be insurance or social escalate, which run far beyond any reasonable level comparable to the small turf of land which the whole damned war is being fought.

There are a lot of follow on questions which need to be addressed to make Jeff’s not fully formed vision a viable reality. But, I for one don’t think it is at all half-baked. Instead, I think that Jeff is on to something very important.

Something important not just for the survey community, but for all the other communities – even I dare to include the legal community. I look forward to sharing my thoughts and hearing your own going forward.

Please take a moment to go over and read Jeff’s article in it’s entirety. [HERE]. I believe it to be very well presented and do not expect anyone will think the effort exert will not be to their benefit. Cheers!

[1] Find Jeff Lucas’ most recent Point of Beginning article: Traversing the Law: Why Can’t Surveyors Offer Insurance? [HERE].

[2] As identified in Jeff’s original article, “Minimum Standard Detail Requirements for Alta/ACSM Land Title Surveys (Effective February 23, 2011, (a.k.a. 2011 ALTA Standars), Sec. 1.

[3] Id. at Sec. 3.D.

[3] See a wikipedia entry explaining Gresham’s Law [HERE] and my previous article which explains the two types of surveys which are produced – one type generally good and one type generally bad [HERE].