Welcome
to The Legal Corner!
By
Terry Pochmurski
The
Survey
The
summer months are traditionally the busy times in the real estate
industry. The children are finished school, which makes a transition
to a new neighbourhood and a new school a little easier. Also, you’re
pretty much guaranteed good weather, albeit a little hot. In a real
estate transaction, there are many little details that must be addressed.
One of the most important details is the survey.
A survey usually consists of a plan showing the features of the
land, such as buildings, fences and natural features, and a written
report which describes any encroachments or other problems revealed
by the surveying process. Obtaining an up-to-date survey, while
not mandatory, is highly recommended when one is considering purchasing
any residential property, be it in the city or in cottage country.
This is because a survey represents the property at a specific point
in time, namely, the date the survey was prepared. Since that time,
the features of the property may have changed. Fences may have been
added, removed or moved, and buildings could have been added or
demolished.
An up-to-date survey will show you the location of the buildings
on the property and their distance from the boundaries of the property.
This is very helpful, for example, in determining whether the buildings
comply with the relevant zoning by-laws. A survey will also indicate
what land is truly your land. The fence in the backyard built by
your neighbour that supposedly runs along the property line may
in fact encroach a couple of feet over the property line onto your
land.
Generally, a vendor is supposed to provide to the purchaser all
surveys and title documents in his possession. Sometimes, where
a survey is available, the survey may have been prepared a long
time ago. Unless the property is exactly the same as it was when
the survey was prepared (and that includes your neighbour’s property
where it adjoins your property), that old survey is of little use.
Without a recent survey, the real estate transaction may close without
the purchaser or the purchaser’s client being aware of defects in
title.
The purchaser has a few options where only an old survey is available
for his review. The first is to accept a statutory declaration from
the vendor which states that the survey still accurately represents
the property and its features and that no new buildings have been
erected since the date the survey was prepared. While this is obviously
less costly than obtaining a new survey, one has to be wary of such
a declaration as it is self-serving when made by the vendor and,
moreover, the vendor may not be qualified to make such a declaration.
The second option is to hire a surveyor to prepare a new survey.
While this will disclose the extent of title to the property by
showing the lot dimensions, the location of the property relative
to adjoining property, all improvements to the property since the
date of the last survey, the location of fences on the property
and any encroachments, it usually costs several hundred dollars,
a further cost which a purchaser may not be willing to incur. Finally,
a purchaser may purchase title insurance instead of having a new
survey prepared. While this will not resolve any title problems
that would have been disclosed by a survey before the transaction
is completed, any future title problems should be covered by title
insurance.
Please note that this article is educational in nature and should
not be relied upon as one’s sole source of information regarding
surveys and real estate transactions. Please consult your solicitor
if you have questions or concerns regarding surveys.
Terry
Pochmurski, B.A., LL.B.
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