Do I Need a Survey?
Property lines and property corners are things that some people take for granted. Common sense dictates that we should be able to understand our property boundaries if we can read a map and identify colored ribbon. Unfortunately, assumptions about property lines are what lead to most boundary disputes, setback violations, encroachments, and trespassing cases. Here are a few little known facts that will help you decide if you need a survey.
- My seller has a survey, so I don't need a new one, right? No: Surveys performed for previous owners do not protect new owners. The basics of contract laws typically exclude a third party from liability. So, the previous owner, or seller, may have recourse if he or she is the party that ordered the survey, but you, as the new owner, do not since you weren't part of the transaction. Additionally, the statute of limitations for surveying errors is 6 years, so even the original client wouldn't have recourse on older surveys.
- I found a point in the ground with ribbon on it, that's the corner, right? Not necessarily. Reference points are used for line of sight measurements by surveyors and often have nothing to do with property lines. Many problems have erupted by mistaking a reference point (or "traverse point") for property line markers. Property corner monuments should be clearly identified on both the survey and on the ground.
- There is a ribbon tied in a tree, that's my corner isn't it? Not necessarily. Ribbons can be tied to trees and even wooden stakes for many reasons, such as to mark reference points, buried utilities, well and springs, proposed power lines, soil borings, clearing limits for construction, hunting spots, bee nests, and even flowers. Many driveways have been built on the assumption that the flagging or ribbon tied in a tree was the property line, only to have to move the driveway later.
- If the real estate agent or seller show me the property corners, I'm covered right, can't I always go back on them if there's a problem? No. Although there may be exceptions in the instances of intentional fraud, there are no laws to protect buyers of real estate from the incorrect good faith efforts of those involved with the process of buying and selling real estate. In fact, many forms and closing documents state that the buyer is accepting the property "as is" and will not hold anyone responsible for such errors. Only a registered land surveyor that is working on your behalf can be held responsible for property lines.
- Well, if all else fails, that's where title insurance will save me, right? No again. Without a current survey done for you the buyer, there will be an exclusion in the policy such that the policy will not cover "any situations that would be revealed by a current survey". So, encroachments over the property line, adverse possession by adjacent owners, errors in acreage calculations in older surveys, undocumented driveways over the property, etc. will not be covered under the title insurance policy. At best, title insurance covers the real property on the deed, not the structures on it. If part of a house is over the property line, it is not covered by title insurance!
- Since the bank is loaning the money to buy the property, they will make sure that everything is in place, right? No yet again. Until the late 1990s, all lending institutions required new or updated surveys in the buyers name, to protect all parties from the problems listed above. However, in order to be more competitive with each other by lowering closing costs, they dropped this requirement. They have special insurance that protects them in case they take the loan back and it is devalued due to a matter that a new survey would have alerted them to, but there is no protection for the property owner.