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No Survey Leads To Big Problems

Ask the Real Estate Lawyer: Real Estate Law Q&A

REM #LAW 711

By Ilyce R. Glink and Samuel J. Tamkin

Summary: A home owner purchased his new home without getting a survey. Now it appears that the sellers were deceptive about the property lines. Ilyce and Sam explain that the disclosure document should explain the discrepancy.

Q: We purchased a home but did not pay for a survey because the prior owners had supposedly just surveyed it and showed us a map. We figured it would be a waste of money to do another survey.
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We just found out that our driveway does not connect to the road, a large shed we thought was ours is not even on our land and our boundaries are not where we were told they were.

We have developers moving in and they want us to move the shed and take over our driveway. The Realtor for the seller claims this was disclosed to us, but we don’t have a copy of the disclosure. What can we do?

A: You’ve now discovered what can happen when you take shortcuts in the home buying process. Leaving things like a survey to chance can cause huge problems in the future.

First of all, you should demand a copy of the disclosure document that the real estate agent claims you signed. This won’t fix your problem, but at least you will find out what the form said. Whenever you sign legal documents, you’ve got to make sure to know what you’re signing.

If the information was not disclosed to you, that doesn’t mean you are in the right. There might not have been a duty on the seller to disclose these issues to you. Some states may require this information to be disclosed to you but others may not. In some states, seller disclosure laws relate to the structure and defects in construction. The seller disclosure laws leave it to the buyer to determine the status of title and things that would pop up with a proper survey.

If you had obtained a survey, you should have been able to determine that the shed was not within your property lines and that the access road to your home did not connect to the street.

You said you saw a survey of the property that the seller’s had obtained. Did you look it over and review it with your attorney? A map of the property is different from a plat of survey. The map may have been a sketch of the property without regard to the actual property lines. A plat of survey should have followed the actual property lines on the basis of the legal description for the property.

Each property has its own unique legal description. This description can then be shown on a piece of paper by a surveyor and would indicate the location of all improvements on that particular piece of property.

If your state’s seller disclosure laws required your seller to disclose these matters to you and they did, you may be out of luck. If they did not disclose it to you and they should have, you may be able to sue the sellers for their failure to disclose. You will have to spend some time (and perhaps money) with an attorney to go over your documentation to determine whether you have a case or not.

If the seller disclosure laws did not require the seller to disclose this information to you and the contract does not address this issue, it’s “buyer beware.” You buy something and take the risks that are associated with that purchase. If you fail to take advantage of the resources that are available to you in making your decision to purchase the home, you run the risk that if something goes wrong, you will have to suffer the consequences.

You need to seek competent help to find a solution to this significant problem. Please consult an attorney as soon as possible.

Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce R. Glink’s latest book is 50 Simple Steps You Can Take To Sell Your Home Faster and For More Money In Any Market. If you have questions for them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022 or contact them through Ilyce’s website




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