A buyer of real property normally is required to procure a survey due to a lender’s requirements. This is not so when a buyer is purchasing real property using cash or private financing. We often see the preceding buyers attempt to reduce their costs by forgoing the cost of a new survey and rely on an old seller’s survey for closing (or no survey at all!). What appears to be an axiomatic savings tool will often have the opposite effect because the buyer’s short-term savings will be potentially erased by a large, but foreseeable future expense.
So what foreseeable and common issues can be identified? A very common issue is an old survey failing to include new structural items. Specifically, an old survey will often fail to identify the proper placements of replaced or newly installed structures on the property. We see these types of problems arise when a homeowner replaces a shed or installs a new fence along the property line in an inexact nature causing said structure to meander into an easement, a publicly dedicated right of way or into the neighbor’s yard. A new survey would have identified the issue early on in the sale process and would have allowed the buyer and the seller to negotiate on the costs of the rectifying the situation prior to closing. Once the parties consummate the sales contract, the buyer will likely be without recourse against the seller (unless the seller had actual knowledge of the problem and failed to disclose!) and may be forced to undergo significant expense to move a fence, tear up a driveway in an easement or move a shed to comply with his local community’s setbacks. The worst-case scenario is when the old survey is incorrect and certain actions impact the marketability of the real property’s title. A buyer may be forced to apply for a property variance concerning certain structures or watch his neighbor trim and/or remove beautiful trees and other privacy vegetation on what the buyer thought was the buyer’s property line!
Notwithstanding the forgoing, an updated survey using GPS and other up-to-date technology marking systems will ensure that a buyer’s property shows all encroachments (new and old), easements, setbacks, utilities and other related boundary parameters to ensure upon the purchase of your property that title insurance will provide coverage in the event of a title claim. If the property is purchased without a survey, the title insurance will not cover any issue that should have been discovered had a survey been completed by the buyer. Remember, in Florida, it is normal and customary to purchase title insurance. Why would you spend several thousands of dollars for title insurance only to potentially lose coverage due to your failure to procure a new or updated survey for a nominal cost?
While skipping the cost of the survey and using a prior survey or no survey at all may seem like a good idea at the time, penny pinching Honest Abe often leads to costly unforeseen expenses and/or the dreaded L-word…litigation. Remember, the cheapest of intentions do lead to the nearest office of your local litigator. It is important that a thorough review of the survey has been conducted by your closing agent and your real estate attorney prior to the purchase of any real property in Florida. As always, if you have any questions about surveys or a similar issue, Berlin Patten Ebling always does encourage you to contact your local real estate attorney.
Sincerely,
Berlin Patten Ebling, PLLC
Article Authored by Michael Schuchat, Esq., mschuchat@berlinpatten.com
This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.
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