Does the buyer have to pay for a new survey when the seller can’t find his?

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A woman in a orange shirt signing a check.

07/10/2015 | Author: Editorial Staff

My buyer client checked Paragraph 6C(1) in the One to Four Family Residential Contract, agreeing to pay for a new survey if the existing survey isn’t approved by the title company or the buyer’s lender. The seller’s agent told me the seller can’t find his existing survey, so my client will have to pay for a new one. Does my client have to pay for a new survey in this instance?

No. A seller who cannot find the existing survey isn’t exempt from furnishing it. If the seller agreed to deliver the existing survey to the buyer, he is required to deliver the survey and the affidavit within the specified time.

Paragraph 6C(1) says, in bold, "If Seller fails to furnish the existing survey or affidavit within the time prescribed, Buyer shall obtain a new survey at Seller's expense no later than 3 days prior to Closing Date." This means the seller will be responsible for the cost of a new survey if he can’t find the existing survey. Any party to the contract who doesn’t perform a "shall" obligation under the contract would probably be found in default by a court unless otherwise excused from performance by the terms of the contract.

The seller could try to obtain another copy from the surveyor or title company he used when purchasing the property so that he can fulfill his contractual obligations. To avoid this situation, sellers should only agree to provide an existing survey if they have it readily available.

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Categories: Legal
Tags: legal faq, sellers, buyers, survey


David Davis on 10/07/2016

Pam Wiggins,
You’re not giving us enough information to intelligently answer your question without seeing the contract. However you should contact your agent for the answer to this question.

Pam Wiggins on 10/07/2016

We agreed to provide Buyer existing survey but it doesn’t exist - never done. Contract states if we don’t provide it,  Buyer will pay for it. Our agent told us we have to pay for new one. Are we breaching contract if we don’t pay for new one?

Larry Powell on 02/22/2016

I find it a little odd that you say you are a practicing attorney, yet you offer no suggestions as to where to read information on such laws, only such an admittedly generic reply. Again, thanks for your time. No further response on your part will be necessary. I am capable of looking elsewhere.

Mickey Fox on 02/22/2016

And citing statute would constitute the practice of law in this situation. I know this because I am also a practicing attorney.

Mickey Fox on 02/22/2016

Yes sir. That IS a very generic response. And it is all that can be given by a licensed real estate agent who is not allowed to practice law.

Again, please contact an attorney. Have a nice evening.

Larry Powell on 02/22/2016

Mickey Fox,  I appreciate your time in attempting to offer a response. With due respect, that seems to me to be a very generic response to a fairly simple question that isn’t asking for legal advice. My question was where to find a law governing a situation as described in my post. I am still searching via Google myself. I just had hoped that someone here could point me in the right direction to find such a written law. I know that there must be one. Again, thank you for responding, Sir, but perhaps rather than just nipping my question in the bud, may we please agree that someone, if not yourself, may be able to provide me with a link to such a law or list of laws which may be pertinent? God’s blessings to you and your family.

Mickey Fox on 02/22/2016

Larry Powell, I’m sorry but that is a legal question for which you will need an attorney to answer as REALTORS cannot give legal advice.

Larry Powell on 02/22/2016

Here’s a question for any of you who have the expertise to answer it. I bought 1.25 acres of land last year. It was split off as half of the tract of land of 2.50 acres which was “gifted” to a parent of the previous owner. I bought it from the parent. I received, in due time, the title or deed, survey and all pertinent documentation reflecting my name as owner. The original owner then decided to sell the other half (1.25 acres). Title company made an error and wrote up that sale for the full 2.50 acres. The new buyer is adamant that he should have the full 2.50 acres because, according to him, the original seller misled him to think the whole tract was what he was buying although he was told that it was 1.25 acres. Survey company surveyed the full 2.50 acres. Neither the new buyer nor the seller would come to terms to correct the paperwork. The buyer claims that his “six attorneys” have assured him that the last survey written is legally binding and that I am “out of luck”, the property is his legally. I don’t believe that for a second. Common sense dictates that any errors made by others in a situation where I wasn’t even involved isn’t going to strip me of my rights of ownership for a property that I paid cash for. My question is this: Where can I find proof in Texas Real Estate Law to establish, indisputably, my rights of possession to the property in question?

Mickey Fox on 07/30/2015

Steve: If material changes have been made (i.e. a fence has been erected or altered, a deck has been built, a renovation has taken place, etc.,) the title co/bank will PROBABLY require a new survey to ensure that none of these improvements violates any setback, etc. This is a determination solely at the discretion of the underwriter and sometimes, you just can’t foresee where they are going.

Another problem that we have is the delay in making these determinations of who does and who does not have a valid survey with respect to how much lead-time we need in order to get a new survey completed. There are times when things have been modified that I might just tell the client that it’s more expeditious to order a new survey, spend the $500/600, and know that things will go more smoothly with fewer delays.

Steve Reddin on 07/20/2015

In a few of the posts, it talks about other options. If the seller cannot produce the survey, there are two other boxes on the 1-4 Family which could be used (6c2 and 6c3) and these indicate which party pays, correct? So if the seller and the listing agent know up front there is not a survey available, this can be negotiated between the buyer and the seller and one of the two boxes checked.

Another point which was made is having it filed. Not a bad idea but if the current owner makes changes, then would the title company/lender accept this filed copy or would a new survey be needed? I would think a new survey would be needed, and again, this would be negotiable between the buyer and seller.

David Davis on 07/19/2015

@ Darlene, The T47 has nothing to do with who the surveyor is obligated to.  In most cases the surveyor is obligated only to the person(s) who purchased the survey.  I am not familiar with a surveyor who “re-certifies” a survey.  This phrase makes it sound like you (or whomever is requesting this re-certification) is trying to get the surveyor to do two jobs for one money.  In theory the surveyor was paid when they provided the survey.  Whomever the survey was prepared for is who the surveyor is “responsible to”.  The use of a T47 or anything else for that matter does not change that fact.  If someone want a survey “re-certified” I would imagine they should have another survey performed.  Am I missing the point or meaning of “re-certified”?  We as REALTORS® wouldn’t sale the same house twice for one commission, why should a surveyor, or anyone else for that matter, be expected to do two jobs for one money?

Darlene Hello on 07/17/2015

I took an MCE class on surveys taught by a surveyor.  Years ago, everyone got a new survey when a house was sold. A few years back title companies started accepting the existing survey (if the Seller had one) as long as it was approved by the title company. Some surveyors weren’t pleased about this policy, and they wouldn’t agree to re-certify the existing one.  It would cost the surveyor about $400 each time they did this.  That class also talked about the risks of accepting the survey and T-47 form from a Seller.  I believe the T-47 releases the surveyor from responsibility and puts it on the Seller when they use an existing survey. And if there happened to be an error on that survey, the T-47 takes it off the surveyor who did the work.  That said, most of us are choosing to take the risk (I guess until we get burned on a boundary issue that costs us some money).  I always assume that if a buyer doesn’t use the Seller’s existing survey, then the Buyer should pick up the tab for a new survey. After all, it is the Buyer’s lender requiring the survey as a condition of their loan. I think it would be helpful if the contract offered some different options than the ones we have.

Jorge Loredo on 07/17/2015

I recently purchased a lot and received the existing survey(from the seller/developer).  The copy was a really bad copy, that had been reduced, it was barely legible and very hard to read.  I called the title company and they said it was acceptable to them.  I ended up getting a survey from the original surveyor at my expense.  I called the TAR legal hotline about the matter and I am still not sure what is acceptable.  Mr. Kern, I would love to take your class and get more information on it.

Adolfo Reyes on 07/16/2015

Let’s keep in mind that it would seem surveys are copyrighted documents and can not be used so freely by the general public without the surveyor’s consent and/or compensation.

Larry Lester on 07/16/2015

Using old surveys run the risk of “saving nickels, spending dollars”.
the survey can be thought of as an exhaustive inventory of the features that pertain to the property including but not limited to easements, setbacks, structures and their locations, all accurately depicted on a certified drawing. 
For a buyer to rely on a seller remembering all that was there before seller’s purchase compared to all that is there as of date of closing, or that the previous surveyor accurately depicted all on the property, is a bit of faith that might not be justifiable…especially when compared to the cost of a new survey with all the benefits that the new owner will enjoy.

Angie Williams on 07/16/2015

The language here is pretty black and white, if you know what your contracts say.
That being said, if you are a listing agent, it is good practice to never accept an offer with this combination in it.  In my opinion you should never obligate your seller to produce a survey unless you have it in hand.
It would be great to see this paragraph/section rewritten to be similar in language to the Farm and Ranch or Commercial contracts, giving more options.

Donald Croucher on 07/16/2015

I agree with Steve P; most title companies have digital copies of Closed Transactions and have assisted multiple Seller’s obtaining a Copy of the Survey. It would be beneficial if the Survey was filed in the county docs along with the Deed to make it available to all Buyers and Sellers. Just a thought…

Steve Presti on 07/16/2015

Since most title companies put there files in archives, a good practice would be for the listing agent to assist the seller in acquiring their survey from the previous title company BEFORE it goes under contract. That will eliminate this issue altogether.

Steve Presti on 07/16/2015

Since most title companies put there files in archives, a good practice would be for the listing agent to assist the seller in acquiring their survey from the previous title company BEFORE it goes user contract. That will eliminate this issue altogether.

Jean Pasvar on 07/16/2015

I think it is nice if a Seller has an old Survey that can be re-used by a Buyer.  But,  having said that a Survey is usually a requirement of loan approval and in my opinion should be a cost paid for by the Buyer.  Perhaps some of the verbiage in Paragraph 6c1 should be changed to take the Survey responsibility off of the Seller. 

I don’t really remember when old Surveys became OK to re-use and in turn became a cost for a Seller to assume.  For many years the cost of the Survey was the Buyer’s responsibility.

By the way I do know that all items in a contract are negotiable (just in case there is an Agent out there that wants to point that out to me).

Stephen Williams on 07/16/2015

If the “Buyer’s Expense” box is checked in 6.C.(1) regarding “not acceptable surveys”, I wonder if it is considered “practicing law” to strike through the “Seller’s expense” in the bold sentence (regarding Seller’s failure to deliver) and substitute “Buyer’s expense”?  The reason I ask is, often if the Seller doesn’t have the existing survey in hand, it’s too easy for them to dismiss it to the Buyer to obtain a new one at Buyer’s expense, instead of assuming the exposure of the expense of a new one, in the event an existing survey can’t be delivered timely.  All the while, an existing survey existed that could have been used.  As we know, Sellers often claim they will produce an existing survey, and half the time one doesn’t exist, but just as often, the agent picks up the ball, and eventually procures an existing survey.

Matthew Kern on 07/16/2015

Yes. Any new improvement must be shown in the survey. Also. If your existing survey is very old the flood statement may not reflect new release revisions to the FEMA map. And did you know that when a existing survey is handed down to the new buyer the Surveyor is no longer responsible for the survey since the new buyer did not pay for the service and the survey is certified to the old GF number.

Jeaney Morgan on 07/16/2015

Is it true that if any fences have been put up or taken down. New buildings constructed or moved on the property there has to be a new survey. No matter who pays for it.

Debbie Russell on 07/16/2015

If seller can’t find survey by the time the seller’s disclosure is complete it’s best to not check the box that says they have attached survey to seller’s disclosure and it’s best they not commit via sales contract that they will provide survey - otherwise they will likely wind up paying for buyer’s survey.

Matthew Kern on 07/16/2015

I teach a MCE class called The Survey 6c1.
we discuss this issues with using, not using existing surveys in title closing transaction s. There is a lot more to using an existing survey depending what is really disclosed on the T-47 affidavit l. Who really benefits from using it? And where do you want the liability to be on?

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The material provided here is for informational purposes only and is not intended and should not be considered as legal advice for your particular matter. You should contact your attorney to obtain advice with respect to any particular issue or problem. Applicability of the legal principles discussed in this material may differ substantially in individual situations.

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