SURVEYS CAN BE A BUYER’S BEST FRIEND

Winter Park Home, Winter, 2004

As an attorney involved in real estate closings and the issuance of title insurance, I find that clients frequently raise the issue of a property survey. The question is almost always the same. “Do I really need a survey for this property or am I just throwing money away on an unnecessary exercise?”

If a mortgage lender is involved, you probably won’t have a choice. Most banks and mortgage companies require a survey at closing. It’s for their protection…and yours. Even if it’s a cash sale, I always tell buyers to get the survey. The buyer needs to know the exact location of the property boundary lines in order to know precisely what is and what isn’t part of the property.

Over the years, the exact location of boundary lines can often become fuzzy in people’s minds. An owner may think a boundary runs to the left of an old oak tree, when it actually runs to the right. As a result, improvements made during the previous owner’s tenure may encroach on a neighbor’s property or a neighbor’s improvements may encroach onto your property.

Another common occurrence is an improvement that encroaches on a utility easement. In many cases the consequences of such an encroachment are almost nonexistent. In others, they may be catastrophic. If a house sits directly over a power easement through a lot, the power company could make the owner move the house. Fortunately, in unusual situations like this, power companies will usually agree to re-route the utility easement or (if it isn’t being used) vacate the easement entirely.

When considering a property purchase, it’s easy to assume that an existing fence or hedge accurately reflects the actual property boundaries. All too often, that’s not the case. Never assume that the owner’s recollection is accurate or that the location of greenery is related to actual legal boundaries. Even seemingly harmless encroachments can cause legal problems down the road. When that happens, the question really becomes, “who pays for the remedy?”

You want to know BEFORE the closing, that your property is clear of any significant encroachments. Even if you decide that an encroachment is acceptable to you, it could have a negative impact on your ability to sell the property in the future.

Surveys can uncover property-related problems that range from the mundane to the arcane. A good survey will not only reflect the location of all physical improvements and public utility easements, it will also delineate public right-of-ways. At the arcane end of the spectrum, a survey could point out that the property is not legally adjacent to a public street. Most of us would assume that you would be fully entitled to drive to and from your house without interference. However, that isn’t always the case. For example, if the property is located next to a dirt road, you will need to ascertain that you have a legal right to use that road to access a public street or highway. (Interestingly, a number of homes in Central Florida are, in fact, landlocked.)

Surveys also depict recorded building setbacks and the location of fences. If you plan to build a new home or addition that will extend into the building setbacks, make sure that you can get a variance to the setbacks prior to purchasing the property. Without an approved variance, the city will not issue a building permit. Even in the unlikely event that you do manage to circumvent the need for a variance and acquire a building permit, the association (in a platted subdivision) or a next door neighbor could object and bring suit to prevent construction or force you to comply with the setbacks.

If you buy an existing home that violates setbacks, the possibility of a challenge becomes increasingly unlikely and unsupportable with the passage of time. Even if the house is old, a fence extending into neighbor’s property or into a public right-of-way, may have to be removed or relocated if the city or adjacent property owner objects.

A survey can also record physical evidence that someone is using the property in a manner inconsistent with your exclusive ownership. For instance, there might be a pathway crossing through your property from a neighbor’s property. This could be evidence of a prescriptive (an unrecorded right to cross the land based on usage over time) easement by neighbors. Blocking their usage by putting up a fence may seem a reasonable solution, until they file suit to force you to take down the fence and allow continued use of the path across your land. You may legally prevail in fighting the suit, but the effort could be costly.

The survey normally becomes an integral part of an Owner’s Policy of Title Insurance that is issued as part of the property closing. Under Florida law, providing a current survey at closing will remove any generic survey language and exceptions from the title policy. The issued policy will reflect only the matters specifically appearing on the survey. This effectively insures you that there are no adverse matters, except those shown on the survey. If the survey company fails to reflect a substantive problem and that problem causes you to suffer a financial loss, you may have a claim against both the title insurance policy and the surveyor.

Surveys help you identify and understand any potential problems associated with a property. They provide useful information for deciding whether or not to complete the purchase; renegotiating the terms of the sale or requiring that all potential problems be resolved prior to closing; and, clarify the manner in which you can expect to improve and enjoy your land.

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Frank Pohl founded Pohl & Short, P.A. based upon the belief that a high quality small commercial law firm was needed in the Orlando, Florida area as an alternative to the large commercial law firms. He still believes that client responsiveness and satisfaction has a place in a fast changing legal profession. Frank has been involved in the Central Florida community for more than twenty-five years. He has been a dedicated past board member of many local organizations over the years. Frank graduated magna cum laude with a B.G.S. Degree from the University of Miami in Coral Gables, Florida; attended the University College at the University of London as an undergraduate studying British literature and British history; obtained his Juris Doctorate Degree in 1979; and obtained a Masters of Law and Letters Degree (LL.M.) from New York University School of Law in 1980. Frank is a member of The Florida Bar, the California Bar, and the District of Columbia Court of Appeals. He is also admitted to the U.S. Supreme Court. He has served on the Orange County Bar Association Real Estate Committee and is a member of the The Florida Bar’s Real Property and Corporation and Business Law Section. He has also served on the Florida Bar Grievance Committee.

WHEN A TREE FALLS IN WINTER PARK...WHO PAYS?

Winter Park Home, Fall, 2004

After the hurricanes tore through Winter Park, many homeowners found themselves poking through a mass of limbs, branches, and leaves to assess the damage to their homes, cars, and other valued possessions. Like most of us, they hadn’t really thought much about who would ultimately be responsible for the extensive damage that those normally benign shad trees can cause when they come crashing down.

Many of us assume that the owner of the property on which the tree formerly resided would be the responsible party. In most instances, that’s not the case.

According to Frank Pohl, partner at Pohl & Short, a Winter Park law firm specializing in real estate law, “In general, it doesn’t matter whose property the tree was located on prior to its collapse. Once that falling tree crosses your property line it becomes your responsibility.” You and your insurance company are responsible for removing the carcass and repairing or replacing any structures, vehicles, or other items on your property that were damaged or destroyed by the wayward tree.

However, Pohl notes that there are exceptions to the rule. If the neighbor’s tree was in obvious decline through damage or disease for a significant period of time prior to falling on your property AND you had made several attempts to notify the neighbor of your concerns in writing (preferably with copies to the city’s Forestry Division), you may have a case for suing the property owner for negligence.

Proving negligence is very difficult without a strong paper trail of prior notifications that went unheeded. So, Pohl cautions that the generally accepted premise that the falling tree becomes your responsibility upon crossing your property line is the only realistic approach in most situations.

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Frank Pohl founded Pohl & Short, P.A. based upon the belief that a high quality small commercial law firm was needed in the Orlando, Florida area as an alternative to the large commercial law firms. He still believes that client responsiveness and satisfaction has a place in a fast changing legal profession. Frank has been involved in the Central Florida community for more than twenty-five years. He has been a dedicated past board member of many local organizations over the years. Frank graduated magna cum laude with a B.G.S. Degree from the University of Miami in Coral Gables, Florida; attended the University College at the University of London as an undergraduate studying British literature and British history; obtained his Juris Doctorate Degree in 1979; and obtained a Masters of Law and Letters Degree (LL.M.) from New York University School of Law in 1980. Frank is a member of The Florida Bar, the California Bar, and the District of Columbia Court of Appeals. He is also admitted to the U.S. Supreme Court. He has served on the Orange County Bar Association Real Estate Committee and is a member of the The Florida Bar’s Real Property and Corporation and Business Law Section. He has also served on the Florida Bar Grievance Committee.