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
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
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 www.thinkglink.com