Real Estate Tip: Hire Your Own Surveyor to Avoid a Close Call

A recent New Hampshire real estate closing was stalled at the 11th hour when the parties realized that a survey plan did not show the location of a no-build area created by private restriction in the chain of title. Since part of the existing building is located in the no-build area, the buyer nearly purchased a building it might have been required to demolish.

Was the survey plan deficient? Maybe not. The scope of the surveyor’s work is defined by a contract with the person for whom the plan was prepared. Even seemingly standard products like the American Land Title Association/American Congress on Surveying and Mapping surveys are subject to wide variations in the scope of work. More than 22 optional items appear in ALTA/ACSM’s Table A. Someone reading a plan may not know what is included and what is not.

In particular, the need to show the location of all easements affecting the premises (required by the 2011 ALTA/ACSM standards), may not be required under a particular surveying contract. This becomes important because many practitioners refer to certain types of restrictions and conditions on the use of a property as negative easements.  If a surveyor was not hired to include easement locations on the survey plan, failing to show the location of a no-build area may not be a breach of the surveying contract after all.

To guard against a close call like this and the risks associated with the limitations of a surveyor’s contract, be prepared to update survey work and engage experienced title counsel to assist you in reviewing older plans to determine the scope of work for new plans.

Today’s real estate tip is brought to you by Rick Smith, a LEED Accredited Professional and member of Bernstein Shur’s Real Estate Practice Group and Green Building Team. Stay tuned for more useful tips for real estate professionals.

For more information, contact Rick at rsmith@bernsteinshur.com or 603 623-8700 ext. 8829 or 207 774-1200.