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To Survey or Not to Survey, That is the Question
Do I really need a survey?” During the 33 years I have been advising clients buying real property, this is one of the most frequently asked questions. It is usually followed with, “You and the title insurance company are examining title. Isn’t that enough?”
Even the most sophisticated real estate professionals seem surprised by the answers. You do need a survey. And no, a thorough title examination is not enough to fully protect you in the purchase of real property.
The owner of a particular parcel of real property is determined by an examination of the land records in the town in which the property is located. An abstract is produced by a title examiner and reviewed by a lawyer or a title insurance company underwriter, and a determination is then made as to title ownership of the property and any matters of title that may affect the property.
When my client asks about the building on the property, I explain that neither I nor the title insurance company can give any assurance on the location of any structure on the parcel without a current survey. Only a surveyor can determine what is located on the property and where, whether there are any encroachments, any uses by abutting owners, if the driveway is wholly on the parcel, and the location of any easements. These issues are not resolved by a title examination.
Lending institutions have created a market in which title insurance companies have agreed to give survey coverage without the benefit of a survey. Through coverage under its loan title insurance policy, the title company insures the lender against any loss or damage as a result of any state of facts an accurate survey may disclose. Thus, if a portion of the building is subsequently found to be located on an abutting parcel, resulting in a loss to the lender, the title insurer will be called upon to pay the loss under the policy, even though a survey was never prepared. Is the owner similarly protected? The answer is an emphatic NO! Unless the buyer purchases an owner’s title policy and a current certified survey is used in underwriting the policy, survey coverage is not available to the owner, a fact far too often not fully explained to the buyer.
Once a prospective owner is convinced of the need to get a survey, the real estate lawyer can rely on two valuable tools to determine the type of survey required. The first, “Standards for Surveys and Maps in the State of Connecticut” prepared by The Connecticut Association of Land Surveyors, Inc., September 26, 1996, describes the types of surveys available and the wording for certifications. It is a helpful document that the real estate lawyer and professional land surveyor can use to determine the best survey to fit a given situation.
The ALTA/ACSM Land Title Survey is being requested on a more frequent basis by both State and National lenders in real estate transactions. The second tool, “Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys” adopted by the American Land Title Association, the National Society of Professional Surveyors and the American Congress on Surveying & Mapping in 1999, recognizes that local variations may be required to suit local needs and are used in conjunction with the Connecticut Regulations. Surveys prepared in accordance with these requirements generally contain more extensive information, such as a zoning data table, and incorporate additional technical procedures.
Both documents should be used by the lawyer, the title insurer and the surveyor as members of a coordinated team of real estate professionals working together in the best interests of their client.
(Reprinted, in part, with permission of The Connecticut Law Tribune.)
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