Originally Published: 6/8/2012

The following are excerpts of a more comprehensive article previously published by Julie A. Horstkamp, Esquire, Berlin Patten, PLLC, Member of Sarasota Association of Realtors/Sarasota County Bar Association Joint Committee, and Chair of the Florida Realtors/Florida Bar Joint Committee.

We receive a number of questions regarding the survey provision under the Florida Realtors/Florida Bar-1 and Florida Realtors/Florida Bar-ASIS-1forms.  Both contract forms indicate that a survey is defined as follows: “Buyer may, at Buyer’s expense, have the Real Property surveyed and certified by a registered Florida surveyor (“Survey”).”  Therefore, technically the Seller’s prior survey does not fall under the definition of Survey as used in both contract forms.  However, if the Seller has an existing survey of the Real Property, the Seller is required to provide it to Buyer and Closing Agent within 5 days after Effective Date.  However, there is no penalty provision for Seller failing to provide Seller’s existing survey if available.

Buyers should understand that if they rely on Seller’s prior survey along with the typical seller’s affidavit of no change, that the Buyer isn’t probably going to have any recourse against the Seller’s surveyor in the event Seller’s surveyor made a mistake since the survey was not certified to the Buyer.  Further, since Seller’s prior survey doesn’t fit within the Survey definition under the Contract, it is unlikely that the Buyer will be able to object to Seller’s prior survey.  Therefore, we strongly urge our clients to have a new survey performed and certified to the Buyer.

Under both Contracts, the Buyer has to deliver notice of any survey defects to Seller within 5 days after receipt of the new survey but no later than closing.  As a result, you need to order the survey in time for the surveyor to perform it and submit to the Closing Agent and Title Company for review.  When ordering the survey, it is best to provide the surveyor with a copy of the title insurance commitment and copies of any applicable easements, restrictions, etc. so the surveyor may locate any easements and set-backs.  The surveyor will then note this on the survey that the survey was prepared with the benefit of a title commitment and refer to the specific title commitment.  Consequently, the survey should be ordered after the title search has been completed.  When choosing the surveyor, please make sure that the surveyor carries liability insurance and doesn’t limit his/her liability to the price of the survey both of which will be reflected on the survey.

Under both Contract forms, within 5 days of receipt of the Survey, but no later than closing in the event closing is less than 5 days from Buyer’s receipt of the Survey, Buyer has to notify Seller of any Survey objections.  If Buyer fails to notify Seller within this timeframe, Buyer shall be deemed as accepting it as is.  Consequently, it is very important that the Survey is timely reviewed by the Closing Agent (preferably an attorney) and notice given to the Seller during this timeframe. If Buyer does object to the survey matters, then the survey matters will be treated as title defects under both contract forms and Seller will have 30 days to cure (“Cure Period”) the defects.  If Seller has failed to cure them within the Cure Period, Buyer may accept the defects; extend the Cure Period for a period not to exceed 120 days; or terminate the Contract.

In summary, it is very important for Buyers to obtain a new survey when purchasing real estate and have it reviewed by an attorney during the survey review period under the Contract.  In the event Buyer wants to use Seller’s prior survey, a Buyer should at least have the survey up-dated in accordance with the new title insurance commitment and recertified to Buyer, Buyer’s Closing Agent, Buyer’s Title Company and Buyer’s Lender to constitute a Survey under the Contract and have it reviewed within the survey review period by Buyer’s attorney.

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