Clients often ask when purchasing a home, “Do I really need a new survey?” My reply ninety-nine percent of the time is, “Yes!” Clients are purchasing what is most likely to be their largest asset and the survey is the blueprint of what they are purchasing. It is the way in which the title company confirms and ultimately insures the property’s boundary lines. The title company will defend the purchaser’s clear title and ownership of the property as of the date of closing.
Title companies will accept an old survey as long as it is guaranteed to a title company, even a different company than the one being used. In that instance, the title company will conduct a survey inspection before closing and compare what is physically noted at the property as against the old survey. If there is something new – for example, a fence – the title company’s survey reading will note the fence, but state that it “is not located.” That means the location of the fence is an exception to the property description on the title policy. If it turns out that the fence is not on the correct property line and creates what is know as an “out-of-possession,” there is the potential for an adverse possession claim by a neighbor.
Last year, a gentleman came to me after his real estate sale fell apart because of a neighbor whose fence encroached by six feet all along his entire backyard. The encroachment was discovered because the gentleman’s purchaser in 2014 obtained a new survey. When the gentleman purchased back in 2008, he did not obtain a new survey and used one that his seller provided from 2000. Sometime in 2002, the neighbor erected the fence, which gave that neighbor six additional feet of property all along their common boundary line. Because the gentleman didn’t get a new survey when he purchased, he never discovered that the fence encroached because he never knew exactly where the fence was located in relation to the boundary line separating the two pieces of land.
In 2014, when the gentleman wanted to sell, the neighbor’s fence had been in place for more than a decade, making it a ripe adverse possession claim. In addition, the gentleman’s title company would not have to defend his ownership of that six-foot parcel, because the location of the fence was excepted in the title policy.
Had the gentleman done a new survey in 2008 when he purchased, the location of the fence would have been known. It could have easily been addressed by removal, relocation, or getting a boundary line agreement from the neighbor. The neighbor would have no choice but to cooperate if he wanted it to keep the fence in its existing location. There would be no adverse possession claim because the fence had only been in place for six years, not the requisite ten years.