My client has a contract to purchase a home. The One to Four Family Residential Contract has Paragraph 6C(1) checked regarding the survey, with the buyer agreeing to pay for a new survey if the existing survey is not approved by the title company or the buyer’s lender. The seller's agent just told me that the seller can't find his existing survey, so my buyer will have to pay for a new survey. Is this right?
No. The first sentence of Paragraph 6C(1) states: "Seller shall furnish to Buyer and Title Company Seller's existing survey." This doesn’t mean that the seller only has to furnish the existing survey if he can find it. Any party to the contract who doesn’t perform a "shall" obligation under the contract would probably be held by a court to be in default unless otherwise excused from performance by the terms of the contract.
The paragraph also states, 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.
To avoid this situation, sellers should only agree to provide an existing survey if they have it readily available. 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. Be aware that 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.
TAR please Reword language in contract would be helpful. Many have misinterpted what has been said in 6C1.
First of all, it is a TREC contract, not TAR. Second, just because licensees can’t figure out what the contract says doesn’t mean it has to be redone. Maybe it simply means consumers should be more diligent in the agent they choose to hire and find someone who knows what they are doing.
Agreed! I’ve seen confusion over 6.A.8 i and ii But if an agent can’t handle the survey section, they should not be doing this for a living.
I don’t know about the need to “reword” but couldn’t TREC give the option of who pays if the Seller doesn’t provide? Also, until then, can a broker simply line through “seller” and put “buyer” expense, or is this somehow practicing law? I agree that ideally, the seller has the existing survey in hand at the time of contracting, but that’s not always practical.
That is what the other two paragraphs regarding the survey are for. If the Sellers do not have a survey then the first paragraph should not be used at all.
Not sure, as a buyer’s agent, we would be able to gather enough information to completely skip paragraph 1 from the get-go? Plus, the whole “If” line at the bottom of p1 covers a survey that isn’t acceptable or missing (since a missing survey would be considered “not acceptable to title company or lender).
In order to determine if the survey is not acceptable the title company must examine the survey and affidavit. First the seller must provide the survey if the paragraph is checked. As agents we can’t interpret the contract. We are not attorneys. However we should be schooled in following the contract and advising the client. The listing agent should have obtained the survey at listing along with the affidavit. Or advised the client to counter the contract with another option for the survey.
That’s all well and good, but there’s still no getting around the original question contained in the article. In this particular case, the agent that submitted the question doesn’t have the experience or knowledge to be conducting business as a licensed real estate agent. In the verbiage of their question, they have already outlined the errors and mistakes of the situation.
I thought that’s what C.2 and C.3 did?
The contract also states that if seller fails to furnish existing survey OR T-47, the buyer shall obtain survey at seller’s expense. So the way I’m reading the contract, seller could produce T-47 only with no existing survey and be in compliance with the contract terms. This is why we have so many issues with getting the notarized T-47 from listing agents who are not diligent in getting their sellers to provide this when they first take the listing.
How can they produce only a T-47 and still be in compliance? There’s an “AND” between “Existing Survey of Property “AND” Residential Real Property Affidavit” (T-47) It can’t possibly be in compliance without both documents being provided.
This is one of the most self-explanatory paragraphs in the contract. Not wanting to look like a jerk, but if an agent is having trouble with this area, they need more training. Title would be all over the selling agent in regards to this item not being made available.
What good would a “reword” do if the Agents are not reading the paragraph in the first place??!!??
Maybe some remedial reading classes AND some remedial Contract Classes might help to alleviate confusion.
Depending on how long the seller has owned the property in question, often contacting the title company that closed the last sale will have a copy of the survey and send at no charge via e-mail, again depending on the time lapse of the last sale in question.
Wow, so many comments on a very concise paragraph. It would seem that an agent who messes this part up will likely be reimbursing their seller for a survey. That’s the kind of mistake that is only made one time, and never forgotten. Anyone who cannot understand what is in a contract needs to find another line of work.
I agree … maybe it’s the simple things that are so hard for some to understand.
oh wow Jared. You’re so smart!!!
So if you change that to buyer will pay for it and the seller can’t find the survey is now the buyer responsible
My seller has not given me the survey and it’s been over 20 days now he actually canceled the survey on Monday. I’m In over $4,300 with inspections and title money. It was all going great until the VA appraisal came back then seller was refusing to make the repairs initially now that addendum got signed for repairs but he canceled the survey all of a sudden. Any guidance and assistance would be greatly appreciated. I think they are trying to get out of my contract and raise the price of the house once our contract gets voided as the… Read more »
This question is well and good but as the buyer, do I have any recourse if the seller doesn’t provide the original survey or have a new survey done with 72 hours of closing? As the buyer, how am I to know if I’m am truly getting what I am about to pay for?