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Why Survey?

Why Survey?

I don’t know how many times I can write about the importance of getting a survey of your property before closing, whether commercial or residential.  A survey can tell us many things and identify so many problems that buyers, and even the current owners, are not aware of.  In residential transactions, we almost always see little things on the survey, like driveways encroaching over utility easements or over the property line to the street.  Why is this a problem?  Because the owner of the easement, or the city controlling the right of way could, in the future, require the property owner to remove the driveway, at the owner’s cost, to allow the easement holder to repair underground pipes.  Or, the city might want to widen a street, and the driveway could be removed without compensation.

Let me give you two real life examples that I have encountered in the last two months where a survey played an important role.  First, a potential client called me because the local Drainage District was requiring him and all of his neighbors to remove thirteen feet of fence that extends over each owner’s boundary line into Drainage District owned property.  These fences have been there since the houses were built some 25 plus years ago.  “Let me see your survey and title policy,” I said to the potential client.  Sure enough, the survey showed the fence extending thirteen feet over the property line with a surveyor note identifying the encroachment and other minor issues.  The title policy took specific exception to the fence encroachment.  While there might be an Adverse Possession Claim, the potential client would not be able to pursue a claim for diminution in value of the property for losing thirteen feet of property due to some wrongful taking.  He had full knowledge of the issue when he bought the property.  All he had to do was look at his survey.

The second example is a commercial deal involving two contiguous parcels used for retail.  We received the survey and it showed a small gap between the parcels even though the property had been operating as one parcel for many years.  The prior survey did not show the gap nor did the prior title policy make exception for the gap.  Our title examiner was not able to identify that any other party owned the gap parcel.  But this was a problem.  No lender would make a loan on this property with a gap.  But what caused the gap?  Did our surveyor make a mistake?  No.  But someone did in a legal description for one of the parcels several years prior.  This caused a mistake to be made when a legal right of way was created thereafter.  This is why, when our surveyor was doing the analysis, the legals for the two parcels didn’t match.

Survey problems can range in size from these two examples.  Sometimes, like in the first example regarding the fence encroachment, the survey simply gives a buyer/owner knowledge of an issue that may or may not be used later.  Other times, the information should stop a closing until the issue is resolved and some issues must even be litigated so that a judge issues a Declarative Order.  In all cases, a survey is a must when buying a property.

David Blattner

David Blattner

dblattner@beckerlawyers.com

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JoAnn Nesta Burnett

jburnett@beckerlawyers.com

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