From credentials to the title of surveying documents, there’s a lot to look out for to see if the surveyor is up to snuff.
Q. When we purchased land we had a new survey done. Three months later, during our construction process, our lender required that the footprint of the house be pinned on the survey.
Our original surveying company said they could not do it because the surveyor who did the original was no longer there and they could not have someone new make adjustments to someone else’s work.
So, we hired a new survey company and the second survey came back to us quite different than our original survey. The first company missed a fence that cuts off approximately 45 feet of our property! They also missed a culvert that ended up changing the placement of the house.
Our real estate agent contacted the title company for direction and the title company contacted the surveying company but it’s been more than 30 days and no one has responded. What is our recourse and do we need to hire a lawyer?
A. You certainly can hire a lawyer, but the question you’ll need to answer is how have you been damaged by the second survey? You should also think about what you want to get from hiring a lawyer.
Let’s start with the survey. In some parts of the country, the seller is not required by custom to provide a survey to the buyer. In fact, in some places the buyer never gets a survey at all.
But if you do obtain a survey when you buy a property, you should expect that the survey would be done correctly.
Unfortunately, over the years and in some parts of the country, real estate professionals have come across “drive-by-surveys” where the surveyor does a minimal amount of work for a survey. The key is to determine what certification the surveyor gave when he performed the survey.
Surveys come in different types and forms. When you want a top notch survey, you ask the surveyor to give you an ALTA survey. This type of survey is guided by the standards developed by the American Land Title Association.
There are also survey standards developed by the American Congress of Surveying and Mapping. In either instance, a surveyor performing to those standards must abide by strict guidelines when preparing a survey.
Residential properties typically don’t reach a level where an ALTA or ACSM survey would be required, but state laws frequently have minimum guidelines before a surveyor can stamp his name on a survey.
But sometimes, to get around giving a buyer a true survey, a surveyor might call the document something else and the standards for that survey may be well below the minimum guidelines for a true survey.
In some situations, the survey may be called a mortgage survey, a spotted survey or something other than a true plat of survey and the certification will have qualifications to indicate that the survey was performed at something less than a standard that you might expect.
So we don’t know what kind of survey you received, but the good news is you seem to have purchased (or received) title insurance on your property.
Frequently, title companies will not insure fence issues, so we don’t know whether the title company will have any liability on the policy for the problem you have found.
On the culvert front, you’d think the surveyor should have noted on the survey this issue, but then again it will depend on the type the survey you received.
Given all these issues, you still need to answer the basic question: What are your damages?
If you and your neighbor are able to resolve the fence issue without further issue and the culvert didn’t cause monetary harm, you might not have damages to claim. But if either of these have become huge issues and you have thousands of dollars at stake, you might have to file a claim against the title company — and soon.
Please consult with a real estate attorney who has experience in filing title insurance claims.
Reprinted by permission. Copyright © 2001-2018 Think Glink Inc., All Rights Reserved. Ilyce Glink is an award-winning syndicated columnist, a bestselling book author, and the publisher of ThinkGlink.com. She is also the Founder/CEO of Best Money Moves.
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