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ALTA/ACSM Land Title Surveys – Table A, Zoning

by Gary on June 30, 2014

Of all the concerns that lenders have related to ALTA/ACSM Land Title Surveys, zoning compliance is near the top.  As a result, the National Society of Professional Surveyors (NSPS), and the American Land Title Association (ALTA) have, for the last few versions of the standards, included an option in Table A whereby the client can request certain zoning information.
 
Table A Item 6a is a request for “Current zoning classification” with the caveat that it be “provided by the insurer.”   This item requires only that the current zoning classification of the property being surveyed by shown the face of the plat or map. 
 
Item 6b is a more detailed request that has the surveyor providing not only the zoning classification, but also the setbacks, height and floor space area restrictions for that zone.  Again the information is to be provided by the title company.
 
Surveyors should take particular note that item 6b does not require nor contemplate that the setback lines actually be drawn on the face of the plat or map; in fact doing so is strongly discouraged. 
 
When dealing with items 6a and 6b, surveyors need to be very careful; and clients and lenders need to understand that surveyors cannot provide statements or certifications as to compliance with, or violations of, zoning restrictions.  Such determinations amount to legal opinions, not matters of survey, and surveyors providing such opinions are very likely violating the laws of their state (and doing so without any protection for such statements from their professional liability insurers).
 
The best and only safe way for a surveyor to address zoning on a Land Title Survey is to report exactly what the ordinance says for that zone - and give no opinion as to compliance, violations or even applicability to the surveyed property.  If the lender or client wants more information, they will have to request a zoning letter from the jurisdiction and/or pay for a zoning endorsement from the title company.
 
When working on the 2011 standards, the joint ALTA/NSPS committee felt it was logical and appropriate that the information required pursuant to Table A item 6 be provided to the surveyor by the title company.  This was because it was understood that the title company would have already completed the related research due to an accompanying request by the client/lender for 3.0 (unimproved property) or 3.1 (completed structure) zoning endorsements.
 
Unfortunately, the joint committee did not anticipate that title companies would often refuse to provide this information.  After looking into this issue, we found that (1) title companies are concerned about the liability of giving such information to the surveyor, and (2) sometimes the surveyor is requested to provide Table A items 6a or 6b, yet the lender has not requested an endorsement from the title company, so it had no reason to do the research. 
 
It is, therefore, safe to assume that title companies will not provide zoning information to surveyors, and surveyors need to decide how to address a request for Items 6a or 6b when it is first made.  No one wants surprises as the survey is completed or at the closing table.  There are a number of options that can be discussed (drop the request, pay the surveyor to do the research, pay the surveyor to hire someone to do the research and provide a letter, etc), but whatever is decided, surveyors need to be sure to have the conversation earlier rather than later.