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Title Survey Affadavits

The Title Insurance Industry has succeeded in passing legislation allowing home sellers to give their perspective buyers an existing survey on their property. The seller must sign an affidavit Certifying that they have not made any “structural” changes to the property that would be reflected on a new or updated survey. This sounds like a great idea. The Buyer benefits by not having to pay for a new survey. The buyers and the sellers both benefit by not having to wait for the completion of a survey prior to closing. The Title Company and the buyers Lender must accept the survey in order for the transaction to proceed.

What are you really saving?

By providing your survey to the prospective buyer you have saved them approximately $450 or more in closing costs. The down side is that you may have opened yourself up to an unlimited liability.

If a survey has been passed on to a new homeowner, the surveyor’s liability for having performed the survey correctly has been extinguished. The surveyor probably no longer has any liability for work done improperly. The surveyor typically certifies to the parties involved in a specific transaction. In addition, Texas Surveys are subject to a 10 year limitation of liability.

Let’s look forward a year and your Buyer decides to install a pool in the back yard and an easement is found in the permitting process. The Survey did not show any easements, so whose fault is it that a permit will not be issued for the pool? Your claim is against the seller who certified the affidavit and not the surveyor who was not a party to your transaction.

Being subject to the unlimited liability in this situation is certainly not worth the value of a $450 survey.

What you can do to protect yourself

SELLER - When you list your home with a Real Estate Agent, advise them that you will not be providing an existing survey for the closing.

BUYER - When buying a home require a new survey to insure that you are not inheriting problems created by the previous owner. “Structural” changes include but are not limited to:

  1. Improvements to the property such as additional structures, rooms, garages, new fences, new swimming pool, hot tub, and decking for swimming pool or hot tub;
  2. alterations of the boundaries of fences of the property;
  3. construction projects on immediately adjoining property(ies) which construction occurred near the boundary of the property;
  4. conveyance or replatting or easement grants or easement dedications by the affiant;
  5. any other changes to the property that would be reflected by a current accurate survey.

Upgrades that are often conveniently forgotten when providing an existing survey:

Rebuilt the fence: Is it still in the same location? If the posts were replaced, probably not.

Have any wood decks been added or removed?

Has any concrete been added or removed?

Have any roof overhangs been extended to cover a porch or patio?

Have any out buildings been added, removed or replaced?

Have any tree houses/forts or playscapes been erected?

Has any significant landscaping been performed or removed?