good article on surveys

"The original surveyor did an incomplete recording the topography of the site. The house was built and the driveway as designed was found to be much steeper than the code allowed.  In addition, the surveyor neglected to include space for a 4% maximum grade at the garage to prevent cars from “bottoming out.”  Since the house was already constructed, the owner had no choice but to install a serpentine driveway that took up a large and unsightly portion of the front yard.  Could the owner have sued the surveyor?  Yes, but the original surveyor had no insurance.  The owner’s chances of recouping anything were slim and he was left with an unattractive and devalued property."   

In another example Hoffman cites, an inaccurate survey was used to build a house.  It was later found that the property lines were placed incorrectly and a corner of the site was located in the middle of a public roadway.  The owner wanted to take out a mortgage on his property but no bank would accept him as a result.  The owner had the option to wait for 3 years for the boundary lines to qualify as “pre-existing non-conforming” (something usually applicable to older properties), but the long wait wouldn’t guarantee he could still obtain favorable mortgage rates.  

http://www.godfreyhoffman.com/Civil-Engineering-Blog/bid/261316/?utm_campaign=Engineering&utm_source=linkedin&utm_medium=social&utm_content=49f37f2b-a7de-4a4f-8e16-82dabe9f481e

We all have storied we can share about issues discovered by consumers when they have a survey done.  I wouldn't buy property without one and I would be careful when choosing a surveyor. Make certain you set expectations for the job before getting a price quote.  

For instance, in our region we have two competing surveyors.  One gives the consumer a full report including rights of way, setback lines, and even draws shrubs and trees.  The other does the outside boundary and locates the building but draws nothing else unless you ask him to and HE charges more than the thorough surveyor.

d

abandoned road ownership dispute

Hi Diane,
We own a property that sits on an abandoned town road in Connecticut. In the original deed dated 1947, the owner of the land from which our property was originally subdivided, transfered all right, title, and interest to the center line of the road to our property boundary as extends along the length of the boundary along the road. This language is consistent throughout our title lineage. Our neighbor who is the grandson of the woman who was the original seller on the deed in 1947 and shares the same sir name, inherited a very large remaining land plot, previously a farm, in 1963 when this seller died. In his probate deed, he does not acknowledge the sale of this portion of the road and adjoining property and refers exclusively to the co-ordinates on a newly created subdivision map which he ordered dated 1963 excluding any language in his deed as to his boundary as the center of the road  and makes it appear that the road is an "easement" vs. abandoned road that he created to run through "his property".  In past history, he has tried unsuccessfully to relocate this road to afford him enough land acreage to secure a building lot which the road is preventing him from procuring as it stands. Recently he decided to build on a portion of land on the other side of our road (he has enough land for one lot) and submitted a map to the zoning department claiming ownership of the entire road and adjacent property to our property line...this map was certified by the zoning department with no reference to the language of our deed or our stated boundary as the center of the road and is subsequently he is claiming all the property from the center of the line of the road to our boundary which is about 15 feet from the road and 250 ft along our boundary.  Our attorney has requested that the surveyor acknowledge our deed, and revise the map accordingly but the owner and surveyor who are friends, are ignoring our request. My attorney is advising us to do a "quiet title action" to clarify the language in our deed but this will cost us a lot of money and put our deed up for question before a judge. My attorney asserts that there is a "cloud" over our deed due to this situation. My question is....will our current mortgage lender's (major bank) title insurance have their attorney fight to clarify this for us, or will our title insurance pay their attorney to defend our title to remove this cloud over our deed. Because we are still under mortgage for 18 years, do we have the right to defend this title that the bank technically still owns? 
Thanks,
J


Hi, J:  I would suggest doing two things:


1.  The surveyor is working for the other landowner.  You need to get help in another direction.  Have your attorney send a letter to the municipality advising them of the boundary line dispute - include the evidence you have in your chain of title.  Your attorney should warn them to delay approval due to pending legal action and suggest that they may be at risk of a lawsuit should they proceed with approval of your neighbor's application after having received constructive notice of the dispute. I suggest this be sent via certified mail.  You could also write this letter yourself if you prefer.  Remember I am not an attorney but I think this approach will be helpful because most municipalities are afraid of lawsuits and most try to treat citizens fairly.  If they show favoritism to this other landowner, you could recruit assistance from the local media to shed light on that.


2.  The loan policy does not cover you and would not cover the lender in this case unless they were foreclosing.  ASAP open a claim with YOUR owner title insurance company.  Their legal department will look at the situation and make a determination whether to defend your title.  Key to this is to review your owner policy and look at the legal description - often on Schedule C.  Does it include the disputed area?  If it does, then they have insured that you own this land and you have standing to expect coverage.  If you do not see this disputed land in the legal description, there is likelihood that you won't be covered.  In either case, open the claim and let them review your case.


There may be state law which specifies how abandoned town roads move in ownership.  Be sure that your attorney has researched this angle because recitation of such a law, if it is in your favor, might help resolve the matter favorably for you.


Hope this helps.  Good luck!
Diane

hey the neighbor is digging up my yard!

Hi Diane,
 
I ran across your blogspot while trying to research about my title insurance problem.
 
I bought my house in Sept 2009 my neigbor bought his house Apr 2010.  When I purchased my house I was told and assumed we had a common driveway, because the begining of the driveway is completly on my neigbors property.  A portion of the driveway in front of the neigbors house is on my property.  There have been multiple surveys with no major disagreement other than an inch or two.  It doesn't look like there is an easement for either of us to use each others property.   The neighbor has been verbally abusive and taking pictures of us working in our yard.  He even dug up a portion of our yard in front of his house (adverse posession) ?  A week or so ago, he sent a letter via an attorney for us to stop trespassing on his property (the beginning of the driveway giving us access to garage and house).  Now to my question.  Should the title company have caught this?  Can the title company say we negotiated an easement for you, take it or leave it?  At this point, I do not want an easment, I would rather have my own driveway because my stress level will only continue due to the neighbor.  Will the title company ask what I want or my opinion?
 
Thanks
R

Hi, R:  

First and without delay, open a claim with your title insurance company.  Go directly to the company on your policy and not to the agent who did your closing.  They may or may not cover access to your driveway but it doesn't cost anything to get a response.  Every state is a bit different in how they handle matters such as property line disputes.  In PA it would likely not be covered but I understand that many other states include this type of coverage for owners and so the second part of your claim is the section of your land that the neighbor is trying to use.  They may help you here.

When you look at your title insurance policy, look at the legal description of the property.  If it included a clause that says "together with" and then talks about your driveway, there is a good chance that they have insured your use of the driveway.

You should also review Schedule B as this will show exceptions to your coverage.

I would not expect them to do anything about changing the driveway to one solely on your lot.   

If title insurance does not cover the matter, then you'll need to hire an attorney to sort things out with your neighbor.

I guess the bottom line is that your best bet for help will be a property line dispute and unless you see the "together with" clause, you are unlikely to get help with the driveway.

Hope this helps.  Good luck!

Diane

the case of the revised subdivision

This isn't a matter which has been resolved but I thought I'd mention it as an example of how things can get royally confused in a real estate title.  ;)

In early 1979 a developer got formal planning authority approval for and recorded a subdivision.  Later that year, the developer revised the subdivision.  I can't tell why.  I can't tell whether the developer submitted the revision for formal planning authority approval and was rejected.  All I can tell you is that the revised subdivision was not recorded.  

So, for reasons which remain clouded, the developer seems to have deeded some lots based upon the original recorded plan and at least one lot, if not more, based upon the unrecorded revised plan.

What makes this case especially irksome is that many - if not most - of the recorded documents in the two chains I reviewed reference the recorded plan, but also use the word revised.  I think it's just all screwed up.

Now my insured buyer has a neighbor who recognizes the lot lines described in the original approved plan.  My insured buyer wants to use the lot lines as revised.

It's a classic boundary line dispute and I post it just to show how a sloppy developer is causing grief even close to 20 years later.

Our insured buyer will find no relief in title insurance for this dispute.  In PA there is no boundary line dispute coverage in an owner policy.  We did recommend that he get a survey and he chose not to.  A survey may have raised the issue.  I have reason to believe that the neighbor did approach the buyer and raised the issue prior to closing so I do not think he went into the transaction without a heads up.  Also, the owner policy does not insure subdivision approval.

If the dispute ever goes to court, it will be interesting to see if the unrecorded revised plan has standing.