Matters of Survey
Matter
From The
(Reprinted
from the March 2004 Real Estate Bulletin)
There is a school
of thought that it is not necessary to obtain a current survey when purchasing
real estate--that title insurance and affidavits from sellers sufficiently
protect the purchaser’s interests or that the purchaser can simply rely upon a
previous survey. However, real estate agents should be aware that purchasers
face potential problems typically referred to as “matters of survey” when a
current field survey of property is not performed.
Matters of survey
relate to anything that could negatively affect the use of property being
purchased. These include,
encroachments across property lines or building restriction lines;
fences/walls, landscaping features, wells, swimming pool decks; the location of
utilities, access ways, etc., relative to easements, property lines or
buildings; the existence of flood zones; and other similar matters.
It is possible
that matters of survey may be covered in title insurance policies. But coverage
that protects the purchaser=s
interests is unlikely to be included unless a survey is performed prior to
issuance of the policy. ALender=s
policies@ may cover matters of survey without requiring a current
survey, but they do not protect the purchaser. The risk associated with lenders= policies is often acceptable to the title insurer
because claims from a lender are not likely to occur until the purchaser
defaults on the loan.
In recent years,
it has become popular to have the seller sign an affidavit effectively
guaranteeing that no matters of survey negatively affect the property. However,
in doing so, the seller may be unwittingly accepting some unwarranted risks of
liability. The buyer may also be tempted to simply rely upon a survey document
from a previous transaction, but such survey may not contemplate changes to the
property since the earlier survey was performed.
Many people choose
not to obtain a current survey because they believe it will delay closing the
transaction. This may be true if it is not ordered from the surveyor until
closing of the transaction is assured. However, if the purchaser decides that a
current survey is desired, it can be ordered early enough so as not to delay the
closing date.
An
informed purchaser knows that an accurate, current survey will provide peace of
mind that cannot be obtained from any other source.