SURVEYS: Are They Actually Important?

In today’s real estate market, understanding the nature of your boundaries and the extent of your property lines is essential. If you have bought or sold property in the Greater Toronto Area, you may have noticed that a “survey” or “Plan of Survey” was included in the Agreement of Purchase and Sale. What is more likely though is that you did not notice any such thing because it was removed at some point before the transaction closed, due to the cost of obtaining one, which can be anywhere between $700 to $1,600, depending on a number of a different factors.

People usually are not interested in the boundaries of the properties they are purchasing and there are so many other preferred alternatives for the use of the money that a survey may cost. Consumers simply cannot be faulted for wanting a brand new 4K television or stainless-steel kitchen appliances because in terms of perception of relative value, it is difficult to sell someone the need for a survey.

Boundaries

A boundary can generally be understood to be “marked” by some tangible object or feature on the ground like a fence or a line of trees. The structures will have width and could be owned by your neighbour. Some features, such as trees that straddle a boundary, may be in the common ownership of both you and your neighbours. The important thing is that once this structure, whether it be a line of trees or a fence, is removed, one would naturally then wonder where the boundary is. The monuments that have been set in the ground serve as the “markers” of a boundary for land surveyors but people often assume that all the different parcels of land fit together in a perfect jig-saw puzzle, and the reality is that they do not. Few people ask the important questions with respect to where the boundaries are.

Some lawyers will simply argue that title insurance will insure over the risks of not obtaining a survey, and in some ways, this may be true. Practically speaking, however, title insurance, can only address problems which are related to you having to remove part or all of a structure on your property. In other words, strictly boundary issues are usually not responded to positively by title insurers, and the general attitude towards these type of cases is that if you do not spend the money to obtain an up-to-date survey, and you can anticipate that some sort of issue may arise, you may need to bring a court application to get any type of relief.

What Could Possibly Go Wrong?

  1. In rural areas of Ontario, land is typically severed from a farm or larger holding of land. This is also becoming more common in urban areas, and the problem that could arise is that when an owner assumes that piece of land after it has been severed, they assume that’s it and that nothing else needs to be done about understanding where the newly created boundaries are located. If a home is then constructed based on the assumptions of where the boundaries are, and a fence or line of trees of is used to place a boundary that does not actually have anything to do with the boundaries of the newly severed property, you can see the potential disaster that is waiting to happen in the months that follow once the encroachment becomes clear.
  2. If you as a purchaser of a property refuse to authorize the obtaining of an up-to-date Plan of Survey, you are, in a way, forcing yourself to become blind to a multitude of potential issues, and unless your lawyer has a survey, they cannot identify issues involving things like, for example, access to a public road. A more practical example is where friendly neighbours agree to allow the use of a driveway to get to the other’s backyard garage. The issue is that once one of those properties is sold to a new person, the new owners will realize that they do not actually have any legal right to use that driveway, and access that garage. For a lawyer to simply tell you that you have to go to court to find a solution to this problem is, at best, unhelpful. As Izaak de Rijcke aptly puts it, this is exactly the risk and expense which you would want to avoid. In this scenario, the cost of a survey at the outset in order to allow for the identification of potential access issues will end up being significantly less than going to court.
  3. The reliability of a survey plan needs to be measured against the amount of time that has elapsed since it was prepared. To use an example, you would not place much weight on an appraisal of a property that you are buying in 2017, that was prepared 5 years ago. You would expect to have an up-to-date appraisal, which is the same view you should take when it comes to surveys because they reflect the conditions on the ground at a particular point in time. It is not uncommon for real estate lawyers to come across surveys that are more than 20 years old, and the reality is that since the time those surveys were conducted, the property owners may have added extra rooms, decks, garages, and swimming pools. You could assume all is well, but the issues will always be there waiting to turn into real problems. There is little benefit to using an outdated survey plan as a tool for anything.
  4. Another thing that sellers often do is present a sketch or a copy of a block map as a survey, but these are simply used to apply for building permits. Usually the biggest giveaway here is that these sketches or maps will have large disclaimers stating that they are not plans of survey.

By: Nabeel Naqvi

Naqvi Law

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