ALTA Survey with a Floating Sewer Easement and an Unrecorded Driveway
Your firm is performing an ALTA/NSPS Land Title Survey on a 12.4-acre commercial parcel scheduled to close in 10 days. The title commitment lists a 60-ft-wide sanitary sewer easement 'centered on the centerline of the existing 24-inch interceptor.' A records search and field locating show the sewer's actual centerline is 8 ft south of the record centerline for the entire frontage. The commitment also includes a recorded 20-ft public utility easement along the south 330 ft of frontage. During fieldwork you observe a gravel driveway serving the adjoining restaurant crossing the subject property for about 0.35 acre; the neighbor's manager states the driveway has been used 'since before we bought the place in 2003,' and a former owner recalls it being there in the 1990s. The client emails: 'Please don't show the driveway - it will kill the deal. Just show what's in the title commitment.'
1. How must the sewer easement and the driveway be depicted on the ALTA survey, and why?
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An ALTA/NSPS Land Title Survey is a boundary survey with title-related content; it is not a clean-up drawing for a closing. Both items must appear.
Sewer easement. The title commitment describes a 60-ft easement centered on the existing interceptor. That is a floating description, so the survey should show the record 60-ft corridor as described and also show the located sewer centerline, with a note that the located line is 8 ft south of the record centerline. Do not silently shift the easement to fit the pipe; the recorded document controls the title interest until it is corrected or vacated. If the easement was originally located by the pipe as built, the note lets the title company and the parties evaluate it.
Driveway. The visible driveway is evidence of use by the adjoining owner. ALTA standards require showing evidence of possession and matters that may affect title, even when no recorded instrument exists. Show the driveway limits and label it as observed use, not as an adjudicated prescriptive easement. The surveyor locates and discloses; the title insurer and attorneys decide the legal status.
Omitting either item would mislead the client and any lender relying on the survey.
2. How do you respond to the client's instruction to omit the driveway?
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Decline the instruction, but do it as a professional explanation rather than a lecture. The client is asking you to omit observable evidence that a title insurer, lender, and purchaser will rely on. That is not a scope choice; it is a misrepresentation and a breach of the ALTA standards and the profession's ethical obligations.
Response points:
- The survey must show the recorded easement and the observed driveway; I can note that the driveway use is unrecorded and its legal status is undetermined.
- I cannot certify a survey that hides a visible use that may ripen into a right.
- The practical path is to give the title company the facts early: a quitclaim, an easement agreement, a title exception, or a boundary line agreement may resolve the deal. Ten days is tight, but discovering it after closing is worse.
- If the client insists on deletion, I will withdraw from the engagement rather than sign a false survey.
Put the advice in writing, copy your supervisor, and keep the field evidence. The surveyor's signature is a professional certification, not a customer-service gesture.
3. What additional evidence would you gather, and how would you word the notes?
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Before finalizing, build a record that supports the notes:
- Search for any recorded driveway or access easement, prior surveys, subdivision plats, and utility records for the sewer.
- Interview the neighboring owner or manager and the subject owner about when the driveway was built, who maintained it, whether permission was given, and whether it has been used by the public or only by the restaurant.
- Review historical aerial imagery and tax records to corroborate the 1990s recollection.
- Locate the driveway centerline and edges, culverts, and any improvements, and tie them to the boundary.
- Check whether the driveway lies within the recorded utility easement or another recorded servitude.
Wording should be factual: 'Observed gravel driveway serving adjoining parcel; no recorded easement found in the documents reviewed; use reported by adjoining manager since before 2003; legal status not determined by this survey.' Avoid conclusory labels such as 'prescriptive easement' unless an attorney or court has established it.