Often, with a real estate closing, the buyer’s mortgage company or the title insurance company may require a survey as part of their underwriting requirements. However, if the seller has a prior survey, many times the underwriters will only require what is called an “Affidavit of No Change” or “Survey Affidavit” from the seller. This affidavit is essentially a sworn promise by the seller that no changes have been made to the property since the prior survey was completed and that no other parties have any easements or other rights to use the property. More and more often, buyers opt for the affidavit of no change in order to avoid the cost of a survey. For several reasons, we do not encourage this practice, for both buyers and sellers.
Sellers should not sign a survey affidavit because it essentially shifts liability from the surveyor to the seller. The prior survey is certified to the seller, not the buyer. So, if the buyer discovers an encroachment or other survey issue after closing, the buyer has no recourse against the surveyor. The buyer’s only recourse is to sue the seller for signing a false affidavit. Further, most surveys are protected under federal copyright laws. So, a seller who provides an unauthorized copy of an old survey to a buyer could possibly be sued for copyright infringement by the surveyor.
Buyers should not rely on survey affidavits for some of the same reasons. As stated above, a buyer has no recourse against the surveyor of a prior survey. Additionally, the cost to correct an encroachment or boundary line dispute discovered post-closing would far exceed the rather minimal cost to obtain a new survey.
As such, we do not advise any party to advise a buyer or seller to rely upon an old survey for a closing. Buyers should have a new land survey conducted by a licensed land surveyor. As always, should you have any questions, please contact your real estate attorney.
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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