REAL Exclusive Magazine

Why Does The Buyer Need A Survey?

By Steven R. Greenberg

Surveys are involved in almost every real estate transaction, except for transactions involving the sale of a condominium. The Contract for sale of real estate will give the Buyer a limited period of time to both obtain the survey and to put the Seller on written notice of any survey defects. A survey map depicts the shape and size of the lot and all improvements located on the lot. It should also show all setbacks, easements, and other matters observed by the surveyor. Of course, the survey map will include a legal description of the property surveyed and should be certified to the buyer, the title underwriter, the closing agent, and the buyer’s lender, if any. Finally, the survey map should include the surveyor’s signature and seal, which is a representation by the surveyor that the survey map is in compliance with the Minimum Technical Standards for Florida.

The title insurance policy includes “Survey Coverage.”  Survey coverage is provided by deleting or modifying the standard survey exceptions in the title policy. The standard survey exceptions in the title policy are as follows:

1. Rights or claims of parties in possession not shown by the public records.

2. Encroachments, overlaps, boundary disputes, and any other matters which would be disclosed by an accurate survey and inspection of the premises.

3. Easements or claims of easements not shown by the public records.

In order for the closing agent to delete the standard exceptions, there must be a careful review of the survey map. The closing agent should raise specific exceptions to individual survey defects and all parties to the transaction should be put on written notice of such defects within the time frame authorized in the Contract. It is imperative that the closing agent (attorney or title company) provide to the surveyor a copy of the title commitment so that the surveyor will be aware of such matters as easements and deed restriction setbacks. It is not the job of the surveyor to search the public records to determine matters of public record affecting title to the subject property other than those matters appearing on the plat of the subdivision.

Prior survey maps can be utilized for the current real estate transaction in certain circumstances. In order for the closing agent to rely on the prior survey map for purposes of deleting the standard exceptions (thereby saving the buyer the cost of a new survey), the seller must provide an Affidavit to the closing agent confirming that:

1. They are the owners of the property.

2. They have reviewed a copy of the survey map of the property.

3. Since the date of the survey map, there have been no additional improvements constructed on the property and there have been no modifications or additions to the improvements shown on the survey map.

4. Since the date of the survey map, there have been no improvements or fences erected on any adjacent property.

It is important that the REALTOR® find out at the onset as to whether there is an existing survey map meeting the above requirements and if so, deliver a copy of it to the closing agent. There are limitations on the use of prior survey maps including those meeting the above requirements, i.e. the survey map is too old, the buyer’s lenders require a new survey, etc.

The Buyer needs a survey map of the property being purchased in order to be protected. The Buyer’s REALTOR® should always encourage the Buyer to make sure that one is being obtained (a new survey or a prior survey map that can be utilized for the transaction). The closing agent should be carefully skilled at reviewing the survey map. The closing process is a team effort and only skilled professionals should be employed for the best results.

Steven R. Greenberg has practiced Real Estate law in Sarasota since 1986 and is a shareholder in the law firm of Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A. He is board certified by the Florida Bar in real property law and frequently lectures on matters involving real estate transactions. Steven may be reached at (941) 365-6216 or by calling Linda Witt, Director of Marketing, directly at (941) 586-4412 or by email at MzWitt@aol.com.