Our clients often ask this question when they are purchasing residential property. You can only rely on the prior survey if the Seller has an existing survey accurately depicting the property and the Seller can sign an affidavit at closing that there have been no changes to the property since the date of the survey. However, there are two (2) things to think about before relying on the Seller’s prior survey. First, the survey is certified to the Seller not the Buyer. Consequently, in the event the surveyor made a mistake, the Buyer has no recourse against the Surveyor. Second, since the Seller’s prior survey doesn’t fit within the Survey definition used under the Florida Realtors/Florida Bar Contract, it is unlikely that a Buyer may object to Seller’s prior survey under the Contract. Therefore, Buyers should obtain a new property survey.
When ordering a new survey, make sure you provide your surveyor with a copy of the title insurance commitment, any applicable easements and restrictions for your surveyor to locate any easements and set-backs on the survey. Also, make sure your surveyor carries liability insurance and does not limit his/her liability to the survey cost. Upon receipt of your new survey, consult with a real estate attorney to review the new survey to determine if there are any survey defects that your attorney should object to under your contract. The survey should be certified to you, your title company, your closing agent and your lender. You want any set-back violation, major easement encroachment, or any other survey defect to be the Seller’s responsibility to correct prior to closing, not your responsibility after closing when you go to sell the property or get financing.
In summary, when purchasing property, paying approximately $350 to $500 (depending on the property) for a new survey is a small price to pay when making such a major investment. However, it is amazing how many individuals elect to forego obtaining a new survey when making such an important investment decision.
As always, should you have any questions regarding any of the foregoing, please do not hesitate to contact a member of the Berlin Patten team.
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.
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