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Don’t Forget to Survey

Don’t Forget to Survey

How many times do clients, looking for ways to save money at closing, ask whether they really need a survey? Hopefully, not too often because a survey, and in particular, an ALTA survey, is required to satisfy the title insurance requirements to delete the survey exceptions and to issue a comprehensive endorsement (in Florida, a Form 9). In addition, surveys are necessary to identify and locate easements, reservations, rights of way, boundaries and encroachments which might affect the use of the property.

In some cases, the survey will be essential in identifying and resolving title problems that the parties, including the title company, didn’t know existed. I was recently involved in one such closing where 2 issues arose that, without the survey, problems might not have been identified. We were selling a 20 plus acre tract that was comprised of 10 parcels. The first issue arose when the lender requested a contiguity endorsement. This should have been easy because the parcels were obviously contiguous. However, the legal descriptions for 4 of the 10 parcels contained 30 foot reservations for a road way running north and south on the east portion of the overall property. The surveyor identified the road and listed is as “vacated per ordinance recorded at…” He executed a surveyor’s affidavit to enable the title company to issue the contiguity endorsement.

While the title company was aware of the ordinance vacating the reservations, the surveyor’s note and the survey itself also showed that the road extended into land to the south of the property to be conveyed. A search of the public records showed that the State of Florida owned that land and therefore, had an interest in the road. To properly vacate the road, everyone having an interest in the road would have to execute a deed. While the Seller could certainly do so, a second deed from the state would be required. Therefore, unless the State provided a deed, the contiguity endorsement could not be issued and exception would be taken for the reservation of the road.

The second issue was similar but even bigger. A second public road existed behind the property. At least, that is what the survey showed. The survey showed the property line to be at the road’s right of way line. The Buyer believed that it was to acquire the 60 foot road based on the same ordinance, which also vacated that road and created a replacement road for access (to I-75). The vacated road was adjacent to the right of way for I-75. The adjacent right of way is used only for dry retention. The surveyor re-drew the survey based on the ordinance and vacation. While that could solve the problem, the title documents did not match this solution because the ordinance alone did not re-convey the property to the Seller. No document of record did and, by statute, the road would go back to the condemning authority, the last owner of record, FDOT.

The survey caused a detailed search of ownership of the vacated road. The title company found a Stipulation between FDOT and the Seller pursuant to which FDOT agreed that if the City vacated the road, FDOT would deed title to Seller while retaining an easement over the road until Seller provided the replacement road. FDOT would confirm this in writing to City upon request. We found a copy of the letter FDOT wrote to the City supporting the vacation and acknowledging its easement interest, but, the deed must not have ever been executed and delivered.

These issues might not have been spotted without a survey and title insurance might have been improperly issued opening up significant exposure on the policy. However, the survey alone could not solve the problem. Surveys work in conjunction with good title examinations and strong lawyers. Don’t forget to survey.

David Blattner

David Blattner

dblattner@beckerlawyers.com

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JoAnn Nesta Burnett

jburnett@beckerlawyers.com

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