Mortgage Survey, an Encroachment, and a Request to Backdate
A real estate agent calls you on Tuesday. A lender needs a 'mortgage survey' by Friday for a $410,000 closing on a 0.35-acre lot in Kalamazoo. The agent says the title company will accept a survey that shows the house and garage, but 'nobody needs to see' the neighbor's garage that encroaches 1.8 ft over the east lot line. The agent offers a $500 rush bonus if you omit the encroachment. Your field technician, who is unlicensed but experienced, can do the fieldwork Thursday; you are scheduled to be in court all day Thursday and cannot be on site. The agent also asks you to backdate the survey to Wednesday so the lender's file looks complete. You have sealed surveys for this agent before, and he is a good source of work.
1. Identify the ethical and legal issues in the agent's request.
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Issues: (1) Omitting the 1.8-ft encroachment would misrepresent a known condition and could mislead the lender and buyer; a surveyor may not conceal material facts. (2) Backdating the survey is falsification of a professional record and is prohibited. (3) The $500 rush bonus tied to omitting the encroachment creates a conflict of interest and could be seen as a bribe. (4) An unlicensed technician may perform field work only under the responsible charge of a licensed surveyor; if you cannot supervise, you cannot seal the work. (5) The seal and signature certify your personal review and judgment. (6) Michigan's Occupational Code and Board rules prohibit fraud, deceit, and unprofessional conduct. (7) The agent's prior business does not justify compromising the survey.
2. What should you do about the fieldwork and the Friday deadline?
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You may use the unlicensed technician only if you can exercise responsible charge: provide written procedures, review the field data, and verify the critical elements. If you are in court all day Thursday and cannot supervise, arrange for another licensed surveyor to oversee the fieldwork, reschedule the fieldwork, or decline the Friday deadline. Do not seal a survey you did not adequately supervise. A mortgage survey can be limited in scope, but it must state its limitations and must not omit a known encroachment. If the lender needs a quick product, offer a records-only report clearly labeled as not a boundary survey, but only if that meets the lender's actual requirement. Do not backdate.
3. How should you respond to the agent, and what documentation should you create?
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Tell the agent in writing that you will show the encroachment, date the survey accurately, and cannot accept a bonus conditioned on omission. Provide a written agreement that defines scope, fee, schedule, and limitations. Document the request and your refusal; keep field notes and communications. If the agent insists, withdraw from the assignment and return any fee for unperformed work. If the agent threatens to take the work elsewhere, that is not a reason to violate the rules. If you believe the agent intends to defraud the lender, consult legal counsel; you may have a duty to avoid participating, but do not make false statements. The survey should show the encroachment, the record line, and a note that the improvement crosses the line.