Clients routinely ask, “Why do I need to obtain a new survey when purchasing a home?”
This question is especially asked when the lender is not requiring a new survey, as is customary in most residential real estate transactions today except for new construction, where a survey is always required. After all, surveys can be expensive, easily costing a thousand dollars or more depending on the size and characteristics of the land to be surveyed and how much time the surveyor must spend researching the property. However, that can be money well spent because a survey can disclose significant issues with the property that may not be visible to the buyer or seller, or even known by the parties. Once the defect is disclosed, the purchaser usually can require the seller, pursuant to the terms contained in the contract of sale, to correct the defect before the sale. If the defect cannot be corrected, the purchaser may be able to cancel the contract of sale and have the down payment returned.
For example, a common title defect disclosed by an accurate survey is a misplaced fence. By misplaced, I mean that a fence erected by a property owner “A” (the fence owner) runs over the actual boundary line and is, either entirely or partially, on adjoining property owner “B’s” lot. This is called an “encroachment.” Neither party may be aware that the fence is encroaching and is not on the fence owner’s lot because, when the fence was installed, the property owners were not exactly sure of the location of the common boundary line between their lots and the fence was erected where everyone thought the boundary line was located. (This is why many fence installation companies now require a customer to have a current survey before they agree to install a new fence.) Eventually, when one property owner obtains a new survey the mistake is then discovered. It may also be discovered when you, as the purchaser, pay for a surveyor to survey the property you have contracted to buy.
Other Questions a Property Survey Will Answer
- Where are the boundary lines of the property?
A survey will include a ‘metes and bounds’ description of the parcel and will also disclose the actual acreage of the parcel being purchased. The actual acreage of the parcel can vary from what the parties believe is being sold or what is reflected on municipal records describing the property, so a survey is the only truly accurate way to know how much land you are buying. Boundary lines in a survey provide what is known as a legal description of the property.
- Are there any rights of way, easements or abandoned roads affecting the property?
A surveyor will research any conditions imposed by law that affect the title of the parcel being surveyed. Title, when referring to real property such as a home, is a combination of all the legal elements that constitute a legal right to own, possess, use, control, enjoy and dispose of real estate. A right of way permits a third party to use a part of a piece of private property as a passageway. An easement, very generally, allows someone to use another’s property for a specific and limited purpose. Either one can greatly affect one’s ability to enjoy and eventually sell the home in the future, which is called marketability of title. However, not every easement has a harmful effect on the property. For example, utility easements, such as easements for telephone and electric wires, serve the purpose of allowing the phone or utility company to cross over, or under, your land to deliver these services to your home. There might be a drainage easement affecting a piece of property that prevents it from flooding. These easements, although they affect the property and give someone else a limited right to use your property, are needed and may not be a title issue. Your attorney can give you guidance as to whether an easement creates a situation that makes title unmarketable or uninsurable. In some cases, the mere presence of such an easement violates a condition in the contract of sale. For example, an easement that ‘causes a substantial diminution of usable land’ may give the purchaser the legal right to cancel the contract of sale.
- Are there any existing improvements, on either the property you are purchasing or on an adjoining lot, which are in violation of local zoning laws or that are encroaching onto the adjoining parcel?
A surveyor will locate any existing structures (i.e. sheds, detached garages, or fences) along with other improvements on the property and locate these structures on the survey map where they are in relation to the dwelling, other structures, and property lines. This process will easily show any violations that may related to codes that involve minimum setback distances, structure dimensions, and frontage requirements. For example, if the property has a detached garage that structure, most likely, cannot be located within a certain distance from the side and back lot lines, and also may need to be set so many feet back from the front of the parcel, which is known as a minimum frontage requirement. If a structure is too close to a lot line and does not meet minimum ‘set-back’ requirements, the seller may have to obtain a variance from the municipality to allow that structure to remain in its present location. In some cases, if the proper ‘set-back’ distance cannot be attained or a variance cannot be issued, the structure may have to be removed.
In addition to fences, sheds also commonly present issues, either by being too close to property lines and violating setback requirements or by encroaching onto another piece of property. This usually happens when a homeowner has a shed constructed without knowing where the lot line is located. Whenever you build any structures on your lot, you should always check with your local building department for any requirements. For example, some town codes prohibit an accessory structure being built closer to the road than the principal structure, and most municipalities will require a building permit if the shed is over a certain amount of square footage.
- Is there a way to access your property from a public street?
The survey should state whether there is vehicular access to the property from a public street or roadway.
A Note About Survey Monuments
Most surveyors charge an additional fee to install permanent markers, called monuments, at every angle or change in direction of the boundary line. You should consider paying for this added service, as it will make locating the boundary lines easier in the future should a dispute arise. Also, be aware that New York Education Law section 7209(9)(a) imposes a civil penalty of $500 and the cost of reestablishing the boundary marker on anyone who knowingly destroys, damages or moves a survey monument on a piece of property in which he or she has no legal interest.
If you have any questions about surveys or the home purchasing process in general, please give us a call for a free consultation.