Legal FAQs for REALTORS®
— Contracts and Forms
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? (updated July 9, 2015)
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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