Misrepresentation of the Tree Species – an Errors & Omissions Claim
Submitted By Gina O’Hara, ANCO Insurance
Opinion by Tim Soejfe, Seltzer Chadwick Soefje, PLLC
Whether a land surveyor performing a routine land title survey falls below the standard of care when the surveyor incorrectly identifies the correct species of a tree identified on the land title survey.
Yes. Although the standard of care would not otherwise require the species of a tree to be identified on a land title survey, the misrepresentation of the tree species subjects the land surveyor to liability if the owner reasonably relied on the misrepresentation of the tree’s species to his detriment.
Whether a land surveyor fails to meet the duty of care depends on the type of survey performed. The reasonable degree of care about the identification of the species of a tree required for a “land title survey” varies from the reasonable degree of care required for a “tree survey.”
The violation of the standard of care is a question of fact for the trier of fact (ie., jury, judge, arbitrator, etc.). Two surveys of the same parcel of land can have great variations and inconsistencies between them, but this does not conclusively prove one land surveyor failed to exercise the requisite degree of reasonable care.
Land surveyors may be held liable for damages resulting from inaccurate surveys if they fail to perform their services with a reasonable degree of care and skill. Dennison, Mark S., Surveyor’s Liability for Negligent Performance of Land Survey, 59 Am. Jur. Proof of Facts 3d 375 (Originally published in 2000). See, Smith v. Herco, Inc., 900 S.W.2d 852 (Tex.App.—Corpus Christi 1995), writ denied, (Oct. 5, 1995) and reh'g of writ of error overruled, (Nov. 2, 1995).
The common-law duty of care imposed on a land surveyor requires a surveyor to “exercise a reasonable degree of care in the performance of their work . . . [and] may generally be defined as the level of care that a surveyor of ordinary skill and prudence would exercise under the same or similar circumstances.” Id.
The standard of care for a “land title survey” requires only that the land surveyor locate trees on lines of possession and boundaries. Minimum Standards Detail Requirements For ALTA/NSPS Land Title Surveys Minimum Standards Detail Requirements For ALTA/NSPS Land Title (Effective February 23, 2016).1 Land title surveys do not require a land surveyor to identify trees on a survey unless “specified in the contract . . . [or] deemed by the surveyor to be evidence of possession . . .” Id.
In contrast, “tree surveys” require data on “tree locations, trunk diameter and species.” Austin, Texas – Environmental Criteria Manual, §3.3.2 (A)(1)-(3).2 A tree survey should correctly identify the tree at the species level; however, it is also acceptable to identify the tree by its common name. Id. A land surveyor must do more than locate a tree to satisfy the standard of care for a “tree survey” because such survey requires identification of tree species or type.
The best practice for a land surveyor performing a “land title survey,” therefore, is to avoid identifying the species of tree unless specified in the contract or deemed by the surveyor to be evidence of possession. If the land surveyor chooses to exceed what is required by the minimum standard of care and identify a tree’s species, and does so incorrectly, the land surveyor likely is subject to liability for negligent misrepresentation if the owner reasonably relied on the identification. In a “tree survey,” the species must be accurate, or the land surveyor likely falls below the standard of care.
1 See, http://c.ymcdn.com/sites/www.nsps.us.com/resource/resmgr/ALTA_Standards/2016_Standards.pdf
2 See, https://library.municode.com/TX/Austin/codes/environmental_criteria_manual?nodeId=