Q: When we purchased land we had a new survey done. Three months later, during our construction process, our lender required that the footprint of the house be pinned on the survey.
Our original surveying company said they could not do it because the surveyor who did the original survey was no longer there, and they could not have someone new make adjustments to someone else’s work.
So, we hired a new survey company, and the second survey came back to us quite different from our original survey. The first company missed a fence that cuts off approximately 45 feet of our property! They also missed a culvert that ended up changing the placement of the house.
Our real estate agent contacted the title company for direction, and the title company contacted the surveying company, but it has been more than 30 days and no one has responded. What is our recourse? Do we need to hire a lawyer?
A: You certainly can hire a lawyer, but the question you will need to answer is how have you been damaged by the second survey? You should also think about what you want to get from hiring a lawyer.
Let’s start with the survey. In some parts of the country, the seller is not required by custom to provide a survey to the buyer. In fact, in some places, the buyer never gets a survey at all.
But if you do obtain a survey when you buy a property, you should expect the survey would be done correctly. Unfortunately, over the years and in some parts of the country, real estate professionals have come across “drive-by-surveys” where the surveyor does a minimal amount of work for a survey. The key is to determine what certification the surveyor gave when he performed the survey.
Surveys come in different types and forms. When you want a top-notch survey, you ask the surveyor to give you an ALTA survey. This type of survey is guided by the standards developed by the American Land Title Association. There are also survey standards developed by the American Congress of Surveying and Mapping. In either instance, a surveyor performing to those standards must abide by strict guidelines when preparing a survey.
Residential properties typically do not reach a level where an ALTA or ACSM survey would be required, but state laws frequently have minimum guidelines before a surveyor can stamp his or her name on a survey.
Sometimes, to get around giving a buyer a true survey, a surveyor might call the document something else, and the standards for that survey may be well below the minimum guidelines for a true survey. In some situations, the survey may be called a mortgage survey, a spotted survey or something other than a true plat of survey, and the certification will have qualifications to indicate the survey was performed at something less than a standard you might expect.
So we do not know what kind of survey you received, but the good news is you seem to have purchased (or received) title insurance on your property.
Frequently, title companies will not insure fence issues, so we do not know whether the title company will have any liability on the policy for the problem you have found. On the culvert front, you would think the surveyor should have noted this issue on the survey, but then again it will depend on the type the survey you received.
Given all these issues, you still need to answer the basic question: What are your damages? If you and your neighbor are able to resolve the fence issue without further issue, and the culvert did not cause monetary harm, you might not have damages to claim. But if either has become huge issues and you have thousands of dollars at stake, you might have to file a claim against the title company — and soon. Please consult with a real estate attorney who has experience in filing title insurance claims.
Ilyce Glink is the author of “100 Questions Every First-Time Home Buyer Should Ask” (4th Edition). She is also the CEO of Best Money Moves, an app that employers provide to employees to measure and dial down financial stress. Samuel J. Tamkin is a Chicago-based real estate attorney. Contact them through her website, ThinkGlink.com.