Thank you for sharing!

Your article was successfully shared with the contacts you provided.
With the dramatic rise in the value of real estate over the past several years, accompanied by extensive development and redevelopment, there is a need for heightened scrutiny when determining the exact dimensions of a parcel of real estate and how the location of improvements on the property and adjoining properties relate to the property lines. The answers come in the form of a survey. A survey is the process by which a parcel of land is measured determining the courses and distances of the real property. It is an opinion by a surveyor that represents the physical findings concerning the real property. A survey map is used to mark the boundaries and existence of property; to ascertain the relationship of the adjoining parcels of land; to determine the boundary lines of possession as recorded in the legal metes and bounds description conveyed to a purchaser; and to identify all physical improvements and alterations made to the property. The role the survey plays changes based on the type of property involved as well as the type of transaction. Consider a transaction of residential real property. A purchaser will want to know the current state of facts affecting the property and will want said state of facts insured under his or her owner’s title insurance policy. The title company will require a survey. This requirement may be fulfilled by either a new survey, a survey inspection of an existing survey or a survey endorsement. A new survey will accurately show the property as described in the deed. It visibly refers to the measurement of the lot lines and the size of the lot, thereby providing the buyer with a form of protection and identification of the parcel detailing any encroachments, easements or irregularities. Although a new survey can be costly, it provides protection of the investment and is critical for a new homebuyer unfamiliar with the property. An accurate survey will give the appropriate measurement that corresponds to a metes and bounds description (Schedule A) in the title report. It will also describe the premises being sold and will precisely detail most attributes of the land. Another important reason to obtain a new survey on a purchase transaction is that a new survey should be guaranteed to the title company, the lender and the new owner. The surveyor’s responsibility applies only to those to whom the survey is certified. Keep in mind, however, that a new survey shows the current improvements to the land and therefore may not effectively distinguish changes and improvements to the property such as an extension or an addition made after the original construction of the dwelling or after the preparation of a prior survey. It will clearly show what exists at the date of the new map. Survey inspections In lieu of a new survey, a survey inspection of an existing survey may be done. A survey inspection provides a more informal description of improvements on the property since the original survey was performed. It is a visual inspection of the property usually done without the benefit of a surveyor’s measuring devices. It is most often done by a title company representative but occasionally by a licensed surveyor. The inspection will generally provide information regarding any additions or changes to the footprint of the existing structure. It would pick up changes in the parcel such as the installation of a deck or swimming pool that could have an effect on the certificate of occupancy and required permits for the municipality. The purpose of an inspection is to reveal changes such as physical encroachments, evidence of adverse use and monuments from the currently existing survey. Unfortunately, without the help of measuring devices, the exact location of boundary line items, most typically fences, cannot be determined. As a result, boundary-line disputes can arise. In addition, a survey inspection may reveal changes in the footprint of structures on the property but will not address whether said structures are within the setback requirements of the municipality. Finally, a survey inspection may not show changes to adjoining properties that may encroach onto the subject property. As a result of the potential pitfalls, the survey inspection is most suitable to a refinancing, rather than a purchase. As long as the existing survey is not too old, most lenders will accept an inspection. In contrast, where no acceptable survey is available, a survey endorsement gives affirmative coverage for the benefit of the mortgage lender only and provides no protection or insurance for an owner or purchaser. It replaces the need for a survey and an inspection but does not reveal actual or physical placement of structures on the lot. It simply insures the lender against loss resulting from variations, encroachments or unfavorable conditions that would have been revealed by an accurate survey. As with a survey inspection, a survey endorsement is used primarily in a refinance transaction involving residential property. Commercial property transactions bring a separate set of standards to the survey. The title company and lender will likely require a new or redated/updated survey. An update will verify whether the structure has changed, and the surveyor will redate and certify to the owner, lender and title company. Neither survey inspections nor survey endorsements are available for commercial properties. An American Land Title Association (ALTA) survey is sometimes used in commercial transactions as it provides more detailed information with standardized specifications. In contrast to the standard title survey, an ALTA survey will itemize the location of encroachments and fences as well as the placement of easements such as electrical wire and gas lines and any covenants or restrictions associated with the parcel. Surveys are particularly critical in commercial transactions, where sales prices and mortgage amounts are high. Failure to obtain an accurate survey can result in substantial monetary losses, including construction delays. For example, without an accurate survey, the owner may not be aware of gaps or encroachments affecting the lot. As a result, construction may not go as planned. Regardless of the problems that may arise, the certification of a new survey protects the property owner and provides recourse against the title company and/or surveyor. Although certain mistakes can be corrected without an owner suffering a loss, it is clearly not worth the risk. If a survey fails to depict accurately the lines of title and/or other physical matters affecting the property such as encroachments, a person to whom the survey is certified has recourse against the surveyor. If a title company utilized the inaccurate survey as part of its title policy, the insured may have a claim for losses covered by the policy. While the role a survey may play in any given real estate transaction varies widely, it affects all transactions. It is essential not only to understand the different alternatives available, but to recognize when a particular alternative is most appropriate. In the end, a successful analysis of the options will go a long way in ensuring a smooth transaction. James E. Cantanno is one of the partners in charge of the closings and banking litigation department at Forchelli, Curto, Schwartz, Mineo, Carlino & Cohn in Mineola, N.Y. Mary O. Moran insures residential, commercial and industrial properties for Chicago Title Insurance Co. in Mineola.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.