By Jonathan R. Mehl, Esq.
The easiest answer to this question is: “because the lender told me so.”
Yet, there are so many other reasons to obtain a survey of the property when a new property is purchased.
A survey is a drawing of the land, structure(s) on it, fences, driveways, pathways, easements, etc. Measurements are taken by a licensed surveyor, and then the drawing is made which importantly shows the boundary lines of the property. A survey should show if there are encroachments to or from the property. For example, a fence may or driveway may cross over the property line.
The surveyor will do some research as to the property prior to going there to take the measurements. This will include a review of items which are of record or part of the commitment for title insurance, including deeds, easements, or items on a map filed with the municipality when the area was developed. The survey will then show these. Common situations include the rights of the telephone company for wires to cross over the property, or a drainage easement.
After the measurements are taken, a description with the metes, bounds and measurements is drafted. Generally, this is the same as part of the deed and other items already of record. At times there are minor variations. When the surveyor measures between two points, this is called the metes. The measurement descriptions use feet, and then small increments called minutes and seconds. The term bounds is just what it sounds like: it describes a property’s boundary line. Very often monuments (pins) are put in the ground so that the surveyor and future surveyors of the area can have reference points.
It is actually the metes and bounds description which is the legal description of the property; that is, describing what is being purchased and mortgaged, and also which is being insured by the title insurance company. While most of us refer to a street address, that is just a reference and what is mostly for the post office. The block and lot(s) are what is used for real estate tax purposes. Yet, it is the metes and bounds which is the most important and designates what is actually being purchased.
While this may sound simple, it is an important part of due diligence when purchasing real property to not only have, but to review the survey. Many purchasers and their attorneys just put the survey in the file and rely upon the title insurance company insuring the title to review it. A good attorney will read the metes and bounds description and compare it to the survey to make sure that it is accurate.
More importantly, the survey should be reviewed by a purchaser and the attorney to see what is on the property, and who it belongs to. A purchaser for example wants to know that the house or a shed does not encroach onto a neighboring property, or the other way around. Fences are not necessarily directly on a property line and could slightly go back and forth between the neighbors. An alley way may be considered “common,” but it is good to know exactly where it sits as between neighboring properties. If there is an easement, one needs to know if it interferes with the use or potential future use of the property. Depending upon the nature of the property, and if there is an intention to add to the structure or to develop the property, the purchase contract should properly contemplate different scenarios and the rights of the parties.
After the title abstract company reviews the survey, it will issue a survey endorsement. This will list variations which title insurance will not cover in the event of a claim. If a fence goes slightly over the property line and there is a claim between neighbors as to repairing or removing it, should this is listed as an exception in the survey endorsement, there will not be title insurance for the claim.
There may also be a situation where along the rear or side of the property there are certain setback lines. Perhaps a fence or a playset cannot be installed within a certain number of feet of the property line. For some properties there may be easements for drainage, rights of way, utilities, etc. It is always important therefore to review with your attorney the survey, survey endorsement, and other matters of record which may affect the use of the property.
A question that often arises is whether or not to have corner markers installed. In New Jersey, when a survey order is placed, the licensed surveyor is required to advise the purchaser of the right to have corner markers installed, and to have a written signature waiving installation if the purchaser does not want corner markers. The markers can add $125.00 or more per marker to the cost of a survey. The choice of whether to get corner markers is personal, and often depends upon the size and configuration of a lot. If the lot is very large and/or in a rural area, the owner may want a marker installed to designate exactly where the property ends. Similarly, if the lot is not a typical rectangle or square, in order to know where certain boundary lines are located, an owner may want corner markers installed.
Some lenders may not require a new survey if there is a new purchase or refinance. For this to occur, generally there must be a copy of an existing survey that is not too old (the age depends upon the lender; typically less than 5 years or so). This must be accompanied by an affidavit signed that there have been no changes to the property (that is, no additions to the building, and changing of the size or direction of sidewalks or driveway, etc).
The bottom line is that a survey shows what is actually being purchased. It is very important to review the survey with your attorney and to understand it.
Jonathan R. Mehl, Esq. is recognized in the community as an ethical and highly skilled attorney, who is dedicated in effectively getting to the bottom line in achieving the client’s goals. Jonathan R. Mehl graduated Seton Hall University School of Law, Newark, New Jersey, in 1991. He earned his undergraduate degree from The George Washington University, Washington, D.C., in 1987. Jonathan R. Mehl is admitted to practice law in New Jersey, New York, and the District of Columbia. He has served on a New Jersey District Legal Ethics Committee, and the New Jersey Supreme Court Rules Committee for the Special Civil Part.Since 1996 Jonathan R. Mehl, P.C. has maintained the law firm in Rutherford, New Jersey. He can be reached at (201) 804-0040 or via email at Jonathan@mehllegal.com