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Official Opinion 94-10

Official Opinion 94-10

March 14, 1994
To: 

Joint Secretary
State Examining Boards

Re: 

A person who, as part of a refinancing transaction, signs a land survey affidavit in which the person makes certain affirmations about an existing survey of property owned by that person in order to induce a title insurance company to issue a title insurance policy to the lender is not practicing as a land surveyor in violation of O.C.G.A. § 43-15-7(b).

You have asked this office for an official opinion as to whether an individual who, as part of a real property transaction, signs a land survey affidavit in which the person makes certain affirmations about an existing survey of property owned by that person is practicing as a land surveyor in violation of O.C.G.A. § 43-15-7(b). Based on the information which you provided to me, it is my understanding that some title insurance companies in Georgia are allowing property owners in refinancing situations to make such affirmations in lieu of obtaining a new survey of the property. Further, it is my understanding that these affidavits are then used to induce the title insurance company to issue a title insurance policy to the lender.

As part of such affidavit, the property owner is apparently asked to certify as follows: (1) That he is the owner of the property; (2) that, to the best of his knowledge and belief, the existing survey is accurate and reveals all improvements on

the property; (3) that, since the date of the survey, there have been no additional improvements or alterations to improvements on the property; and, (4) that, since the date of the survey, there have been no additional improvements or alterations to improvements on the adjoining property which might encroach on the owner's property. It is also my understanding that this type of affidavit may include an indemnity agreement which provides that the property owner will indemnify the title insurer, the lender, and the closing attorney for any loss which may be incurred as a result of reliance on the representations made by the property owner in the affidavit.

Land surveying involves the application of mathematics, related physical and applied sciences, and the requirements of relevant law in the evaluation and location of property rights. It includes such activities as measuring and locating boundary lines and features, both natural and man made, and preparing and perpetuating record plats. O.C.G.A. § 43-15-2(6). It is unlawful for any person other than a registered land surveyor to practice or offer to practice land surveying in Georgia. O.C.G.A. § 43-15-7(b). An individual practicing land surveying on his own property, however, is not required to be registered as a land surveyor provided that such activity does not involve the public safety or public health. O.C.G.A. § 43-15-29(c).

If the activity which you describe does not constitute land surveying under O.C.G.A. § 43-15-2(6), then obviously the property owner would not be required to have a license as a land surveyor. If, on the other hand, it does constitute land surveying, then the question would become whether the property owner is exempt from the requirement of licensure pursuant to the exception contained in O.C.G.A. § 43-15-29(c).

In the situation which you describe, it is clear that the person signing the survey affidavit is the owner of the property about which the averments are being made. Further, it appears that the public safety and public health are not jeopardized by this practice. Certainly the property owner may be taking a risk by agreeing to indemnify the title insurer and the lender in exchange for being spared the expense of obtaining a current survey and thereby lowering the total cost of refinancing. Similarly, the title insurer and the lender may be increasing their risks by not demanding a current survey as a prerequisite to issuing a policy or a loan. In the limited context described above, however, these risks, which the affected parties have chosen to accept, do not rise to the level of endangering the public safety or health. Therefore, even assuming, without deciding, that the averments described above constitute the practice of land surveying, the property owner would be exempt from the requirement of licensure pursuant to O.C.G.A. § 43-15-29(c).

For the reasons stated above, it is my official opinion that an individual who, as part of a refinancing transaction, signs a land survey affidavit in which the person makes certain affirmations about an existing survey of property owned by that person in order to induce a title insurance company to issue a title insurance policy to the lender is not practicing as a land surveyor in violation of O.C.G.A. § 43-15-7(b).

Prepared by:

THOMAS K. BOND
Assistant Attorney General