the real/estate blog

A road to nowhere

Posted in Real Estate by Cesia Green on July 5, 2013
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In 1985, Veikko KivikRoadangas subdivided a parcel of waterfront land he owned in Sudbury into three lots. One had direct road access; the others were given a right-of-way over each of the other pieces in order to access their lands. There had long been a gravel road over the properties, and Kivikangas instructed his surveyor to show the right-of-way in the same place as the gravel road. Unfortunately, the surveyor made an error and put the right-of-way over a rock outcrop; where it actually would have been on the ground would be unusable, making the two back pieces landlocked.

When this all came to light, naturally because of a neighbour dispute, the owners of the two back lots sued to have the right-of-way description legally changed to match what was on the ground. After a long court case, and an appeal, the court released its decision in February of this year and corrected the survey.

The decision was the right one to make, but the court made an unusual statement in coming to it: there is no guarantee of boundaries under the Land Titles System. When you buy a property, you buy something, but there is no guarantee that what is on the ground is actually what you thought you were buying. The lesson to take away is that surveys are once again very valuable; whether they come back into favour before the closing remains to be seen, but a new survey showing what is actually there to compare with what is on paper is the only way to be sure you are buying what you think you are.


Survey says

Posted in Real Estate by Cesia Green on January 25, 2013
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Almost all real estate deals will come into my office with a provision for the seller to provide a survey. If you are selling, be careful: you don’t want to offer more than you have.

First, to be a survey, it must have a proper mark on it from a licenced surveyor. Many people produce plans of subdivision or reference plans, believing these to be surveys. They are not.

Second, be careful about what kind of survey you are agreeing to provide. “A survey that shows the current location of all structures on the property” means that you have to provide a survey that shows the deck, pool, shed, and house. A pre-build survey that only shows the foundation will not do.

Third, be careful about providing a “legible” survey. Often, you received a copy of a copy when you bought. If all of the numbers cannot be read, then you can’t provide what you have agreed to do.

Getting a new survey done can be quite expensive. Even if there is a record online where you could order a survey that was previously done, in order to provide a legible copy, could cost you several hundred dollars, depending on where it is ordered from. Before you sign on the line, be sure that you can actually provide what you are agreeing to. A real estate agreement is a binding contract, and what it says, rules.

Toeing the line

Posted in Real Estate by Cesia Green on October 26, 2012
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In Ontario, most purchases close without an up-to-date survey, because most buyers purchase a title insurance policy at the same time that they buy the house. What happens if you find out after the fact that your neighbour’s property encroaches onto yours?

Generally speaking, this is covered by your title insurance policy, if you bought one. There would likely be a new survey ordered, and then the title insurer would have the option of choosing between compensating you and attempting to have the encroachment moved.

Survey says

Posted in Real Estate by Cesia Green on May 4, 2012
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Someone asked me an interesting question the other day: what happens if there is a mistake in the survey and I don’t find out until after closing?

20 years ago, when you bought property in Ontario, your lawyer would have done a full certification of title. There would have been a dozen searches and probably a brand-new survey commissioned that showed the exact location of the house and any accessory structures (sheds, decks, etc.) so that your lawyer could, with some certainty, tell you exactly what was there.

The thing was, though, that in the the vast majority of cases, everything is exactly where it is supposed to be and those searches were becoming somewhat of an extra and not completely necessary expense. Enter title insurance, which protects against defects in title from certain searches not being done as well as from the lack of an up-to-date survey. When you purchase title insurance, which is required by most lenders if there is not an up-to-date survey, fewer searches are required. Most notably, as lawyers, we are able to rely on older surveys.

If, after closing, you discover that something is in the wrong place, and you have title insurance, you are protected. Whether it involves moving an accessory structure, or compensation for the property not being what you thought it was, your title insurer will take care of it. It’s an excellent, economical product that neatly does what it is supposed to do: save buyers money and time.