What issues must a survey map disclose?
Many have written and opined on what is and is not required of a surveyor. Understandably there is an argument to made that a surveyor's duty to disclose is limited to the terms of her contract -- no less and no more than agreed upon with her client.
However, that narrow view may leave a professional exposed to third party liability.
Professionals have a general duty to persons (outside parties), by virtue of their professional status, to go beyond the terms of the contract (traditional privity of contract). California courts look at a variety of factors in evaluating this duty, including:
1) the extent to which the transaction was intended to affect the [third party],
2) the foreseeability of harm to [the third party],
3) the degree of certainty that the [third party] suffered injury,
4) the closeness of the connection between the [professional's] conduct and the injury suffered,
5) the moral blame attached to the [professional's] conduct, and
6) the policy of preventing future harm.
(Biakanja v. Irving (1958) 49 Cal. 2d 647; See also Kent v. Bartlett (1975) 49 Cal. App. 3d 725 (surveyor))
With this duty in mind, consider the duty of disclosure that California law imposes on another related profession, the real estate broker in disclosing the existence of past soils problems.
"[W]e hold that the duty of a real estate broker, representing the seller, to disclose facts [to the buyer], as that fundamental duty is articulated in Cooper and Lingsch, includes the affirmative duty to conduct a reasonably competent and diligent inspection of the residential property listed for sale and to disclose to prospective purchasers all facts materially affecting the value or desirability of the property that such an investigation would reveal. Easton v. Strassburger (1984) 152 Cal.App.3d 90 (emphasis added).
The Easton court cited an earlier example of professional breach of duty involving non-disclosure of an easement in Brady v. Carman (1960) 179 Cal.App.2d 63, explaining that, “[t]he defendant . . . [was] a real estate agent,and as such is supposed to possess ordinary professional knowledge concerning the . . . natural characteristics of the property he is selling . . ., it should have been apparent that the [buyers]were ignorant concerning the nature of an easement and how it could limit their use of the property. . . . [The broker] was obliged as a professional man to obtain information about the easement and make a full disclosure of the burdens it imposed on the land.”
Reasoning by analogy that a surveyor has a legislated duty to make a public record of issues when certain conditions are triggered, that surveyors are often the only professionals in a position to know and/or recognize certain material issues with respect to land boundaries and title, that surveyors often impact third parties outside of their contracted clients, and that disclosure of known issues poses no greater burden on the surveyor than that which is already implicit in practicing one's profession, I could see a judge imposing a standard of care very similar to the Easton decision affecting real estate brokers.
How to avoid this potential liability pitfall?
1) Use clear written language in the contract defining your work product, but understanding that that alone is insufficient...
2) Disclosing in writing (or graphically in case of a map) all facts materially affecting the value or desirability of the property, especially those issues such as unwritten land rights which may only be known to a professional surveyor.