Jun 23, 2011

Tip 26-2011: Survey Affidavits

(Survey Affidavits)  One of the issues with each purchase of a home is whether or not the Purchaser needs a physical survey showing all improvements.  The lenders do not usually require a survey unless the title insurance company requires it for the lenders title policy.  Unless the property is new construction, most title insurance companies will provide lenders title insurance without a physical survey.

Most real estate attorneys believe that a physical survey is very important to protect the Purchaser from such things as fence encroachments, setback issues, etc.  At the very least, the Purchaser will know exactly where the house, driveway, etc. are relative to the boundary lines.

Even though a new physical survey is the best protection for the Purchaser, there are many instances where a prior existing physical survey will be sufficient.  The current Seller may have had a survey prepared when they bought the property and there have been no changes since.  Most title insurance companies will accept a survey affidavit from the Seller that the existing survey is accurate.

Accordingly, it is recommended that the Sales Contract contain a clause that “the Seller will provide any existing physical surveys, and if requested will sign a survey affidavit.”  (There have been several instances lately where the Seller will not voluntarily sign a survey affidavit even when an existing survey is accurate.)

PS – It is also recommended that the Sales Contract contain a clause that states “the Seller will provide any prior title insurance policies.”  (Tucker’s Tip 39-2010 &13-2009)

Please contact our firm if you have questions or need legal advice.

Senior Partner
William D. Tucker, III
Tucker Griffin Barnes P.C.
Charlottesville, Virginia


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