Can Buyer Object to an Encroachment on Prior Survey?

Question: Can the Buyer object to an encroachment shown in Seller’s prior survey, or does the Buyer need to obtain a new survey?

The Buyer really needs to get a new survey. Under Paragraph 9(d) of both, the Regular and As-Is Florida Realtors/Florida Bar (“FR/BAR”) contract forms, survey is defined as: “Buyer may, at Buyer’s expense, have the Real Property surveyed and certified by a registered Florida Surveyor (“Survey”).”  The contract further provides if the Survey discloses any encroachments on the property, setback lines, easements, other lands, or violates any restriction, Buyer shall notify Seller of such matters which shall constitute a title defect.   Note the survey review provision refers to the defined Survey term which doesn’t include Seller’s prior survey. 

As a result, if there is an encroachment or survey issue that the Buyer needs to object to under the Contract, the Buyer should have the property surveyed at least 5 days prior to closing.  The survey should be certified to Buyer, Closing Agent, Title Company, and Buyer’s Lender, if applicable. Buyer should then have the survey reviewed by an attorney within 5 days of receipt so the attorney can notify Seller in accordance with the contract, in which event, Seller will have 30 days to correct the survey issue.  The Buyer wants any set-back violation, major encroachment, or any other survey defect, to be the Seller’s responsibility to correct prior to Closing, not Buyer’s responsibility after Closing when the Buyer sells the property or when trying to obtain financing.   

Regardless, whether Seller’s prior survey reveals any survey issue, it is always a good idea for the Buyer to have the property surveyed by a licensed surveyor and certified to Buyer rather than relying on Seller’s prior survey.  The surveyor should be provided with a copy of the title insurance commitment, any applicable easements, and restrictions to locate on the survey.  Down the road, if it turns out the surveyor made a mistake, Buyer has recourse against the surveyor since the survey was certified to Buyer.  In contrast, Buyer does not have any recourse against Seller’s prior surveyor unless Buyer paid Seller’s prior surveyor to have the prior survey up-dated and re-certified to Buyer.         

As always, if you have any questions concerning the foregoing, we urge you to consult with your real estate attorney.

Sincerely,

Berlin-Patten, PLLC

 

This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.

All rights reserved. This copyrighted material may not be re-published without permission. Links are encouraged.

www.berlinpatten.com 

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