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.