You should always make sure that a new survey is on file with the Register of Deeds before purchasing any home or piece of land. People often assume they know where a property’s boundaries are, but fences can be deceiving. The location of a fence or driveway or hedge or line of trees—these features cannot be counted on as reliable boundary markers. There is no way to know exactly what you are buying unless a survey has been conducted recently. If a piece of property has not been surveyed in the last two years, then you cannot assume you know exactly where its boundaries lie.
I routinely see older legal descriptions that reference shrubs and other types of landscaping or hardscaping that was removed years, even decades before. If trees and shrubs that have been cut down are noted in an old survey—the boundary line cannot be known unless a new survey is performed. I regularly see clients who are surprised when they find out where the actual boundary lines lie. A homeowner may discover that their fence actually lies on their neighbor’s property—and that a chunk of land they assumed was theirs is not included in the legal description of their property.
Below, you’ll find a few other reasons why I strongly urge all of my clients who are purchasing real estate to make sure the property has been surveyed recently, and a few other tips that can make the closing process run more smoothly and on time.
Title Insurance Requires a New Survey
If there is no valid survey on file, your title insurance will not cover any problems that would have been revealed by a survey. So if you have a boundary dispute with a neighbor, then there is no insurance you can tap to pay that claim. If you do have a survey and there is a dispute with a neighbor about a boundary, or a fence, or landscaping, or a waterline or anything, then title insurance will cover the cost of that dispute—but only if you have a survey. If you don’t have a survey—title insurance makes a specific exception. Their documentation will clearly state that in such circumstances they will not litigate any boundary dispute on your behalf.
Surveys Can Prevent Costly Boundary Disputes
Boundary disputes are the most common types of legal disputes between neighbors. Neighbors commonly often end up in costly litigation over disagreements about the location of fences, trees, and driveways. Neighbors with shared driveways are especially prone to end up in legal disputes over boundary issues—suing over who owns which portion and therefore who has to pay for the upkeep, or people putting fences up and the person whose land is being encroached wants the fence moved and the person putting the fence up doesn’t want to pay for that. I had one case that had to do with whether or not a tree was on someone’s land because a branch fell and damaged a house. If the tree was on the neighboring property—then the neighbor would be liable for the damage on the house. If not then they aren’t.
Surveys Reveal Eminent Domain Takings
If you are buying a property and there has been a taking through the process of eminent domain anywhere in the vicinity, it is of the utmost importance to get a survey. When the DOT takes land through eminent domain they are not required to file a new survey with the register of deeds. You will need to have one completed in order to know for certain the boundaries of your property. Surveys will reveal eminent domain takings that may not be reflected in your legal description of your land. A taking may have happened decades ago and at no point did the owners get an updated legal description or survey.
Surveys can also come in handy when it comes to water and sewer lines. In a recent case a client was purchasing a piece of property for which the most recent survey had been completed in 1947. The way the legal description read was wrong because the DOT and Asheville City had taken land surrounding the property through eminent domain. So they had to get a survey done to show what actually was done. The actual shape of the land, according to its correct current boundaries, was completely different from the shape described in the legal description.
Surveys Become Outdated
Mapping technology for surveys is updated regularly. A survey done in the 1990s is no longer considered valid. Even the original surveyor from that time period won’t validate their own past work because mapping technology has changed so many times.
Get a Survey Even if Your Bank Does Not Require It
Surveys are often overlooked because banks do not require them. If you are taking out a mortgage on a piece of property—the bank will require an appraisal or an inspection, but not a survey. The bank is relying upon the attorney and the title insurance company to ensure that the legal description of the property accurately matches the boundaries of the property that the purchaser is buying. A bank or mortgage company may make it seem that a survey is an add-on that is not necessary. From a bank’s perspective it isn’t necessary. If a boundary dispute happened it wouldn’t affect them at all.
Surveys Inform the Legal Description of the Property
A recorded survey strengthens the legal description of the property because it provides another check—a cross reference on what the tax office has. Often, an attorney who is representing the buyer in a real estate transaction will compare the shape of the property in the legal description with the drawing of the property on file with the tax office and with the shape of the property from the most recent survey.
Older surveys are also marked off in antiquated “metes and bounds.” Without something recent to compare the shape to there is no real way to know if the platted image is correct. We’ve had cases where the legal description was so old that we couldn’t close without a survey because there was no way to get enough information to describe the land.
Once I had a case in which a very large chunk of land had been pieced to many different parcels that had been passed to different owners over the years--family members had passed it down through inheritance to successive generations in various ways. So a bank had never looked at the property—it had never passed a bank’s scrutiny. So we had to tell them early on that if they did not get a survey there would be no way to know where the boundary line actually was.
New Surveys Should Be Recorded with the Register of Deeds
Record your survey. All too often I see deeds that reference surveys that have not been recorded at the Register of Deeds office. If the survey is unrecorded—prospective buyers and their attorneys cannot readily find that information. If a survey is not recorded at the Registry of Deeds office, it is not considered to be legitimate. If I have a legal description that references an unrecorded survey, then a prospective buyer of that property will have to order a new survey anyway—even if the property has been surveyed within the previous year or two.
Surveyors do typically charge an additional fee to record the survey. Many people often opt out to avoid paying the recording fee—without realizing that an unrecorded survey doesn’t help any subsequent purchaser or owner.
Depending on how big the land is a survey can be quite costly. The cost of a survey of a very large parcel of land can run up to thousands of dollars. Why have multiple people pay to have the same information? Record the survey.
Hire a Surveyor Right After Going Under Contract
To anyone who is purchasing residential property in Buncombe County—keep in mind that surveyors are very busy in our area and they stay constantly booked. A survey will often take longer than any other action that must be completed before a real estate closing can take place. It may take weeks for a surveyor to make it out to your property to complete the survey.
The average length of the entire residential property buying process, from the signing of the contract until the date of the closing, is about 45 days. If a survey is necessary, you will need to arrange a survey at the very beginning of the process if you want to close on time without any delays. It is very common to see closings delayed because of surveys.
Bottom line: if you are purchasing a piece of property and there is not a recent survey on record with the Register of Deeds — be prepared to pay for a survey, and begin the process of securing the services of a surveyor immediately following the signing of the purchase contract.
Clement Law Firm, Asheville, NC 828-281-8160 www.eclementlaw.com