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Importance Of Land Surveys

by | Dec 18, 2020 | Title Issues

Today I’m going to talk about some of the reasons why real property surveys are often so crucial. Now, like legal services, professional surveys typically do not come cheaply. Surveyors have to obtain education and training to become licensed and maintain their licenses, and also need to keep up with developments in survey equipment and technology. That drives costs, and as a result some people balk at having survey work done.

However, the outcome of neglecting survey work before buying a property or building something on the property can be many multiples of the cost of a survey if a legal dispute arises. I’m going to discuss a couple of examples from my practice where this was the case. First, there was a case in which someone believed the boundary of her property to be located at a certain place based on what she understood her father (the previous owner of the property) and the next-door neighbor had agreed to decades before. Agreements like that can be enforceable if there is evidence that the owners have treated a certain location as the boundary for a long enough time period. The problem is that such agreements (especially if only verbal) can be virtually impossible to prove in court—especially if the neighbor says there wasn’t an agreement, or if the former owners are gone.

And in this case, the next-door neighbor adamantly denied ever agreeing to a boundary location. Nevertheless, this person built some additions to her house without a boundary survey to find out if the additions would encroach on the next-door property. The next-door neighbor was preparing the property to be devised to his children. In the course of that process, he had a boundary survey done of his property. And lo and behold, the survey found that the additions to the house were encroaching on his property. Now, the woman who built the additions fiercely maintained that there had been an agreement in the past between her father and the neighbor. But there was no evidence of that beyond her own say-so. She got her own boundary survey, which reached essentially the same result as the original survey. In other words, she was left without evidence that the boundary was any different from what the survey had said.

A lawsuit ensued, and both sides incurred significant legal fees. Ultimately, an agreement was reached to resolve the dispute before trial, but not before she had spent far more than it would have cost to get a boundary survey before building the additions to her house. I’ve used this case ever since as a cautionary tale to clients and potential clients about the perils of building without knowing as precisely as possible where the boundaries are located. Another issue that comes up in this context is with setback requirements issued by cities and counties. If you have a property that hasn’t been surveyed, then unless you’ve got acreage and are building far from where the boundaries could possibly be, you’re at risk of violating a setback ordinance. That could require you to either apply for a variance or move the structure—both of which could carry a hefty price tag. The lesson: if you don’t know (not believe, but know) where your boundaries are, strongly consider a survey before building any improvements on the land.

The second case may be a bit less common, but it is no less troublesome. Some folks had owned property for five years. They bought the property believing it was a certain acreage. They paid property taxes to the County on that acreage the whole time they owned the property. No one had any reason to believe the acreage was any different.

They then sold the property to an out-of-State buyer. For various reasons, this buyer had the property surveyed after he closed the purchase. The property had not been surveyed previously. The survey revealed that the property was actually half an acre less than what the sellers had believed. Now, I’m not certain how people had believed previously that the property had more acreage. But the survey conclusively showed what people believed was incorrect.

So what happened? The buyer of the property filed a lawsuit against the sellers. The lawsuit alleged that the sellers breached the purchase-and-sale agreement by selling less acreage than the parties had understood the property to have. The lawsuit also asked the Court to find that, even if there was no breach of the purchase-and-sale agreement, the price of the transaction should be retroactively changed to account for the lower acreage.

It’s important to note the buyer did not allege that the seller had intentionally lied about the acreage. The seller believed in good faith that the acreage was what they believed. However, that good-faith belief about the acreage did not prevent the seller from getting sued. A buyer of property can potentially take a seller to court even when the seller did not intend to do anything wrong.

Eventually, the parties agreed to modify the price remaining on the transaction and resolve the issue without going through trial in Court. But both parties had to incur legal fees as a result—fees that certainly exceeded what a survey would have cost.

Now, the lesson here isn’t necessarily that every seller has to have a survey done to confirm their acreage before they sell. Many properties are in subdivisions that are expressly created to have each lot be a certain uniform size—say, an acre or half an acre. Property owners in subdivisions can typically have reasonable confidence that their lots are the size that the subdivision plat says. But that’s not always the case, especially in more rural areas where properties can be oddly shaped to begin with and might have had boundary-line adjustments that make it more difficult to determine the acreage without a survey.

Overall, then, property owners will find many times that upfront survey work before a building project or a sale can save them—and their bank accounts—quite a bit of heartache.

At Timely Contract, our primary legal services include: real estate contract review, real estate contract drafting, legal opinions for title insurance exceptions, and research, due diligence, and legal opinions for properties.

At Timely Contract we have local real estate attorneys who have experience throughout Idaho, including: Boise, Post Falls, Coeur d’Alene, Lewiston, Moscow, and Sandpoint.

We also have local real estate attorneys who have experience throughout Montana, including: Missoula, Billings, Bozeman, and Kalispell.

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