ILLINOIS SURVEYS AND REGULATION OF LAND SURVEYORS
by Amy Bullock, ATG Law Clerk

Introduction

Accurately determining and recording physical boundaries is a complicated task requiring the specialized skills of a professional land surveyor. Because the plats and legal descriptions prepared by surveyors are relied upon as an accurate representation of "the acts and wishes of landowners," land surveying is a regulated profession in the State of Illinois. 225 ILCS 330/1. Illinois began regulating the practice of land surveying between 1937 and 1938 and the profession is currently governed by the Illinois Professional Land Surveyor Act of 1989. In November 2000, the Illinois Department of Professional Regulation (Department) adopted new rules establishing minimum standards of practice and rules of professional conduct for all professional land surveyors. This article will discuss general licensing requirements and the newly adopted standards of practice and conduct for professional land surveyors in Illinois.

Licenses and Qualifications

Under Illinois law, it is unlawful to practice land surveying or to advertise as a "Professional Land Surveyor" without a valid license. 225 ILCS 330/16. The Illinois Department of Professional Regulation is responsible for issuing licenses, promulgating rules and regulations, conducting disciplinary hearings, and determining the licensing requirements. See 225 ILCS 330/6. The Land Surveyors Licensing Board (Board) is appointed by the Department and is made up of six Professional Land Surveyors and one member of the public. 225 ILCS 330/7. The Board determines the eligibility of prospective licensees, conducts disciplinary hearings, and submits recommendations to the Department concerning rules and regulations. 225 ILCS 330/8.

To qualify to become a licensed Land Surveyor-in-Training, a person must submit a written application, have a baccalaureate degree in Land Surveying or a related science, be of good moral character, and pass an examination given by the Department. 225 ILCS 330/12-13. Once licensed as a Land Surveyor-in-Training a person may practice land surveying only "when in responsible charge under the overall supervision of a Professional Land Surveyor." 225 ILCS 330/17. A licensed Land Surveyor-in-Training can qualify to become a Professional Land Surveyor after four years of "responsible charge experience" and passage of the required examination. 225 ILCS 330/12.

Minimum Standards of Practice

As of January 1, 2000, the Department was also granted the ability to "promulgate rules for a Code of Ethics and Standards of Practice to be followed by persons licensed under this Act" and to consider the Board's recommendations in creating such rules. 225 ILCS 330/6 (8)(a-5). Subsequently, the Department added minimum standards of practice and professional conduct applicable to anyone practicing land surveying in Illinois. 68 Ill Adm Code 1270.56-57.

The minimum standards of practice are designed to "insur[e] that surveying services . . . are completed in accordance with prevailing professional practices and current technological methods, and to provide a means by which professional performance of the individual practitioner can be assessed." 68 Ill Adm Code 1270.56. The standards of practice apply to land title surveys, boundary surveys, condominium surveys, subdivision surveys and mortgage inspections.

ALTA/ACSM Land Title Surveys
Title surveys are specialized surveys that allow title insurance companies to insure title to land without any exceptions for survey matters. 68 Ill Adm Code 1270.56(a)(1). New Illinois regulations require that such surveys must comply with the "Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys." 68 Ill Adm Code 1270.56(a). These standards are promulgated by the American Land Title Association (ALTA), the American Congress on Surveying and Mapping (ACSM), and the National Society of Professional Surveyors (NSPS) and are designed to balance the needs and concerns of all parties in a real estate transaction. Patrick M. Zabrowski, Title Insurers Favor Recent Land Surveys, 19 The National Law Journal B9 (April 21, 1997). The ALTA standards also require land title surveys to comply with current "Accuracy Standards for Land Title Surveys" as adopted by ACSM, NSPS, and ALTA.

Boundary Surveys
There are also minimum standards for conducting surveys, with the purpose of locating or relocating the boundary lines of a certain piece of real estate. The new rules establish what documents shall be included with a boundary survey, what information is required to perform the survey, and what are acceptable monuments. See 68 Ill Adm Code 1270.56(b). Land surveyors also must conform with detailed requirements concerning completing plats and conducting field work. 68 Ill Adm Code 1270.56(b)(6)-(7). When conducting a boundary survey, land surveyors have an obligation "to monitor his/her work and that of those working under his/her supervision, so that the methods used to perform the survey and produce the plat and/or report will be of such quality that the accuracy, precision and positional tolerance of the final product delivered to his/her client will equal or exceed that which would be provided by another competent surveyor under similar circumstances." 68 Ill Adm Code 1270.56(b)(8).

Condominium Surveys
The Department rules provide that condominium surveys are to be governed by the Condominium Property Act 765 ILCS 605.

Subdivision Surveys
The Plat Act 765 ILCS 205 mandates monumentation of all subdivision surveys.

Mortgage Inspection
Due to the limited purpose of a mortgage inspection, the rules provide less stringent guidelines concerning the information to be obtained, monuments, tolerances, field procedures, and drawings. "A mortgage inspection includes field investigation, measurements, and graphic representation of improvements . . . [it] is intended for use by a mortgage lender and/or title insurer and is only a professional opinion of the relationship of improvements with respect to the deed lines and the existence, location and type of building on the property, the intent of which is to assist in the determination of the property's suitability to serve as collateral for a mortgage." 68 Ill Adm Code 1270.56(e).

Despite the more lenient standards, mortgage inspections still must be performed by or under the direct control of an Illinois Professional Land Surveyor. 68 Ill Adm Code 1270.56(e). Department rules require mortgage inspection drawings contain the statement "This does not constitute a boundary survey," near the title, legal description and signature. 68 Ill Adm Code 1270.56(e)(7). A mortgage inspection drawing also should not contain the word "survey." 68 Ill Adm Code 1270.56 (e)(7)(H).

Standards of Professional Conduct

The Department adopted twenty-two ethical standards for land surveyors in order "to safeguard life, health and property, to promote the public welfare, and to establish and maintain a high standard of integrity in the practice of professional land surveying." 68 Ill Adm Code 1270.57.

"The land surveyor shall at all times recognize the primary obligation to protect the safety, health, and welfare of the public in the performance of professional duties." 68 Ill Adm Code 1270.57(a). When the public's health and safety overrules a surveyor's professional judgment, the surveyor should contact the employer and proper authorities. 68 Ill Adm Code 1270.57(a).

The code of conduct prohibits surveyors from attaching a seal to documents or completing entire assignments or specific phases of assignments outside of the specific technical field in which they are educated and experienced. 68 Ill Adm Code 1270.57(b)-(c). Surveyors also have a duty to "be completely objective and truthful in all professional reports, statements or testimony." 68 Ill Adm Code 1270.57(e). An opinion given by a land surveyor, who is acting as an expert witness must be "founded upon adequate knowledge of the facts in issue, upon background of technical competence in the subject matter, and upon honest conviction of the accuracy and propriety of the land surveyor's testimony." 68 Ill Adm Code 1270.57(f).

When making a statement on public policy matters related to land surveying, that is "inspired or paid for by and interested party," the surveyor must disclose the identity of such a party and "reveal any pecuniary interest the land surveyor may have in the instant matters." 68 Ill Adm Code 1270.57(g). Land surveyors also "shall conscientiously avoid conflicts of interest with an employer or client." 68 Ill Adm Code 1270.57(h). If there are known conflicts of interest that cannot be avoided they must inform an employer or client "of any business association, interest, or circumstances that could influence judgement or quality of services." 68 Ill Adm Code 1270.57(i). A surveyor may be compensated by multiple parties for the same project, only when all parties are aware and agree to such circumstances. 68 Ill Adm Code 1270.57(j).

Land surveyors are also prohibited from accepting "gratuities" or "valuable considerations" from contractors or suppliers. 68 Ill Adm Code 1270.57(k)-(l). When serving as a member of a governmental body, a land surveyor shall not participate in activities concerning "services provided by the land surveyor or the land surveyor's organizations in private land surveying practices." 68 Ill Adm Code 1270.57(m). If a principle member of a land surveying organization is a member of a governmental body that organization may not solicit contracts from that governmental body. 68 Ill Adm Code 1270.57(n).

A land surveyor should seek work based only on qualifications and competence and may not try to secure work through paying any commission, political contribution, gift, or other consideration. 68 Ill Adm Code 1270.57(o)-(p). Also, when soliciting employment land surveyors shall not falsify or misrepresent their academic or professional qualifications. 68 Ill Adm Code 1270.57(q).

Land surveyors have an obligation not to associate with individuals who are "engaging in business or professional practices of a fraudulent or dishonest nature." 68 Ill Adm Code 1270.57(r). They also have a duty to report any violations of the Act to the Department of Professional Regulation. 68 Ill Adm Code 1270.57(s).

"Conviction of a crime shall be deemed incompetent practice if the acts that resulted in the conviction have a direct bearing on whether the applicant should be entrusted to serve the public as a licensed land surveyor." 68 Ill Adm Code 1270.57(t). When a land surveyor's license to survey in another jurisdiction is suspended or revoked, there are grounds to charge the surveyor with a violation in Illinois only if the actions for which the surveyor was suspended is also a violation under Illinois' rules. 68 Ill Adm Code 1270.57(u). Finally, businesses offering land surveying services to the public must have a licensed land surveyor employed full-time at each location where such services are offered. 68 Ill Adm Code 1270.57(v).

Professional Liability

Land surveyors may also be held liable to buyers, sellers or lenders who suffer losses due to survey errors. Actions may be brought based on breach of contractual duties, negligence and for statutory violations.

Surveyors can be found negligent for failing to perform duties expressly required by a contract. In a negligence action based on failure to perform an act allegedly required by a contract, a surveyor's duty is defined by the contract's terms. Barnes v Rakow, 78 Ill App 3d 404, 405, 396 NE2d 1168, 1170, 33 Ill Dec 444, 446 (1st D 1979). In Barnes, a buyer purchased three tracts that were to be partitioned form a larger tract. The buyer orally contracted with a licensed land surveyor to survey the property to be purchased and supplied the surveyor the original survey of the larger tract. After purchasing the remainder, the buyer discovered that the original survey overstated the area of the larger tract and brought a negligence suit against the surveyor for not discovering the error. The buyer argued that Illinois Land Survey Standards were an implied condition of the contract and that such standards provided that when only a portion of a recorded lot is surveyed the remainder should also be indicated. The court held there was no evidence that these standards "necessarily defined the duties of a licensed land surveyor." Id at 409, 396 NE2d at 1173, 33 Ill Dec at 449. However, at the time that Barnes was decided these standards were not officially adopted as part of the Department's regulations and there is no case law addressing whether a surveyor who violates department regulations may be liable for such violations.

Surveyors may also be held liable under the tort action of negligent misrepresentation. A surveyor was found to be liable for tortious misrepresentation when a subsequent purchaser relied on an inaccurate survey prepared by the surveyor, in the construction of a garage and driveway. Rozny v Marnul, 43 Ill 2d 54, 250 NE2d 656 (1969). As a result of the erroneous survey the driveway and garage encroached upon the adjacent property. The survey included an "absolute guarantee for accuracy." Even though there was no contractual relationship between the parties, the court found it was foreseeable that a subsequent owner would rely on the survey and therefore recovery was allowed. Id at 67. Subsequently, the Illinois Supreme Court cited Rozny for the proposition that "economic loss is recoverable . . . where one who is in the business of supplying information for the guidance of others in their business transactions makes negligent representations." Moorman Manufacturing Co v Natl Tank Co, 91 Ill 2d 69, 88-89, 435 NE2d 443, 452, 61 Ill Dec 746, 755 (1982).

Land surveyors may also be liable under the Consumer Fraud & Deceptive Business Practices Act, 815 ILCS 505/2, when they engage in "unfair or deceptive acts or practices" in the course of trade or commerce, intending for others to rely on the deception. Id. An example of "deceptive acts or practices" includes concealment or omission of material facts. Id. Though, the statute is applicable, there is no case law in Illinois where an action was brought against a surveyor under the Consumer Fraud & Deceptive Business Practices Act.

Conclusion

Establishing standards of practice and conduct for professional land surveyors ensures that those who draft important documents that enter the public record and affect property interests are competent in their abilities. Most surveyors probably already follow such standards, but the codification of these rules helps administrators enforce rules and maintain the quality and integrity professional land surveying in Illinois.

EDITOR'S NOTE: Most residential real estate contracts require that a survey be provided. Providing only a mortgage inspection may violate the contract. To comply with the contract and to obtain details of lot lines, set backs, easements, and encroachments, ATG strongly recommends that you always request a survey and not accept a mortgage inspection. This will avoid potential problems at closing and help reduce title insurance claims.

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