November 27, 2009

Mark Weisleder

SPECIAL TO THE STAR 

Many buyers think that if they have title insurance, they don't need a survey when they purchase a home. In order to properly understand this issue, we first need to look at the advantages to a buyer of having an up-to-date survey when they purchase any property.

Buyers have faced all kinds of difficulties over the years when they purchased a property without a survey froma licensed surveyor. These include:

building a house on the wrong lot;

building a swimming pool on part of a neighbour's property;

building a cottage on land owned by someone else; and

discovering major easements after closing.

It is always preferable to have a current survey before you buy a property: you'll know about fence lines, encroachments, and easements before you complete the transaction. Encroachments include your neighbour's garage that is partly on the land you are buying. In addition, surveyors carry their own errors and omissions insurance coverage. If they make a mistake, their insurance may provide more protection than your title insurance policy.

Sellers can provide different types of surveys to buyers. The most desirable is a survey plan and report signed and sealed by a registered land surveyor. You can compare this survey to the title described in the deeds and other documents registered against title, to make sure all is in order. Most sellers don't have this type of survey, but they may have other types of surveys that can provide a similar level of comfort. This would include an older survey that still shows the current location of all structures, fence lines and easements on the property.

Whatever type of survey you receive, be sure to walk the property and compare what you see with your own eyes to what is on the survey.

For example, are all fences and backyard sheds you see included on the survey? Are all hedges that separate the boundary lines accurately represented? Has the deck in the backyard been expanded?

Look for survey monuments – metal or iron stakes that are found on many boundary lines, sometimes with orange or red paint at the top, to help you find them.

These monuments clearly identify the boundary lines between neighbours, as well as cities, municipalities, and counties, and indicate that a surveyor has conducted a historical review of the title to your property.

It is a criminal offence in Canada to knowingly remove a survey monument.

Take a measuring tape with you, as well. If the survey states that the distance from one fence line to the other is 40 feet, measure it yourself. If the survey says it is 40 feet from fence to fence, and you look at the fence lines and the area between the fences, you may not be able to complain later about a one or two-foot difference between survey and reality. Case law is not on your side. Take the time to measure as you walk the property.

The date on the survey is less important than the information it contains.

For example, if a survey was prepared six months ago but the seller built an addition onto the home three months ago, the survey is not up-to-date.

Often a 10-year-old survey will show all current structures and boundary lines. You can rely on that 10-year-old survey to demonstrate the soundness of your title.

In summary, buyers should always request an up to date survey from their sellers, to have more certainty as to the quality of their title.

Yet they should still walk the property with their survey, to measure distances and compare what is written with what can be seen on the ground.

Over the coming weeks, we will examine the impact that title defects can have on closing as well as whether title insurance will correct these claims after closing.