Property Surveys
6/05
No one should buy a home without having a property survey. In most cases, an old survey can be obtained from the Seller and an inspection of the old survey can be done by your title company. Obtaining a copy of the old survey from the Seller can save you approximately $700.00 to $1,000.00 or more, depending on the size of the lot. If a copy of the old survey is not available from the Seller, it is advisable to obtain a new survey as soon as possible. Typically it will take a surveyor three to four weeks to go to the premises, take the measurements and prepare the survey map. For persons wishing to Close quickly, the lack of a survey can lead to delays.
A property survey is a representation in a diagrammatic form of the physical layout of your property. Surveys will show the dimensions and angles of the property and will list the metes and bounds measurements on its face. Many times it will show the location of metal stakes or old trees which are considered boundary line markers. It will show the location of the street, house, decks, patios, driveway, sheds, fences, walls and other improvements. Most importantly for the new homeowner, it will show whether there are any encroachments of your property onto the property of an adjoining neighbor or whether the neighboring property has improvements which encroach onto your property.
A survey inspection of an old survey by your title company will show whether there have been any improvements made to the property since the survey was made. If the inspection reveals that an addition to the house was made or that a shed was installed in the backyard since the time of the original survey, it will raise a red flag for you and your attorney to inquire whether the proper building permits and certificates of occupancy were obtained for any such improvements.
Most surveys will show minor encroachments. Over the years hedges separating properties will grow and homeowners will install fences which are not exactly on the property line. In older neighborhoods where houses were on smaller lots and typically closer together, it is not uncommon to see stairways, retaining walls and driveways which encroach on neighboring properties. While many minor encroachments do not impose any legal issues, the danger of some encroachments is that it could lead to a claim for adverse possession. In a successful claim for adverse possession, the land of one neighbor can be taken by the other neighbor if certain elements of the adverse possession cause of action are met. For instance, if someone fences off a part of your yard or if someone builds a part of their driveway on your yard, that land can become theirs if it is a open, notorious and hostile taking of the land which occurs for a period of ten years.
Many encroachments shown on a survey can be dealt with in a non-adversarial manner. It benefits both adjoining neighbors when there are no encroachment issues because a neighbor’s encroachment onto your property or your encroachment onto a neighbor’s property will effect the ability of either of you to market and sell your property. Major encroachments must be removed. If a neighbor’s fence is six feet over the property line, it is probably a good idea to ask the neighbor to relocate the fence onto his side of the property line. If the encroachment is a matter of inches, it does not impose that much of a problem. The use of boundary affidavits is a relatively easy and non-adversarial way of dealing with minor encroachments. In a boundary affidavit, both neighbors acknowledge the encroachment and agree that it will be permitted to remain for a specified period or as long as it shall stand. The parties agree that the encroachment will not be expanded and that if it ever needs to be replaced, it will be re-located within the owner’s boundary. The boundary affidavit prevents any claim for adverse possession because the parties are acknowledging the encroachment. It also presents a friendly way for neighbors to easily resolve what can sometimes lead to a hostile dispute.