Colorado Engineering & Surveying, Inc

In recent years, few and fewer property buyers are getting a professional land survey done. This is due, in large part, from advice from real estate professionals, mortgage companies, and title insurance companies. Simply because a mortgage company or title insurance company does not require a survey for their underwriting requirements, that doesn’t mean they are looking out for the best interest of the buyer of the property or the seller for that matter. Buyers and sellers should be aware of matters that could adversely effect the title, marketability, or value of their property.

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Many new home-buyers are relying upon old outdated surveys to evaluate survey matters. This is unwise. An old survey is certified to the seller, not to the buyer. Therefore, the new buyer should not rely on the old survey for obvious reasons of assurance and liability. A new survey should be conducted and certified to the buyer. A new survey will address encroachments onto and off of the property, access to and from a public right-of-way. A current survey will identify and locate new structures, fences, walls and additions. A new land survey will also identify recent, missing, destroyed and erroneous property corners. Flood hazard areas will also be delineated, as they relate to the subject property and the improvements.

A recent development has property owners signing a “survey affidavit” as a substitute for a survey for the new buyer. This practice puts the homeowner (or seller) in an awkward position of certifying an old survey, and stating that there have not been any changes since the date of the old land survey. These homeowners have been persuaded into signing the so-called affidavit do not have any way to determine if the old survey is correct, much less a way to identify any changes or if there was an error. Nor do the sellers know what matters and to what standards a survey should be conducted for a survey to be correct. This practice might also put the seller in a position of covering up and not disclosing issues in order to save some money.

The request for the survey affidavit usually comes from a title insurance company for their motivation of shedding liability. The seller, by signing the affidavit, assumes the survey related responsibility. The buyer, in turn has no assurance or recourse if there are survey related matters that adversely affects the marketability and value of the property. The buyer cannot seek recourse from the title company, because they usually take exception to survey related matters and any matters that a “correct” survey would disclose. The only course of action would be to seek damages from the past seller of the property.

All parties should also be aware is that a survey is an original creation and is protected under the federal copyright laws. Any unauthorized reproduction of an old survey can result in a lawsuit. The original survey is certified to the original homeowner and is not transferable. A third party cannot rely upon an old survey. A new survey should be conducted and specifically certified to the new buyer. Also the Tennessee Real Estate Commission recently noted, “if the surveys given to prospects are not accurate, a court could hold (real estate) licensees liable for providing a party with misinformation.”

In conclusion, buyers of real property should have a new survey conducted. Those buyers who do not have a new land survey will be purchasing property without reliable information as to encroachments, overlaps, boundary line disputes and other matters that might be disclosed by an accurate survey of the property by a registered professional land surveyor.

Cliff Daniels
Realtor
Active Properties
Boulder Colorado
720 434 1418
cliff@actprop.com