I strongly believe that a Buyer should receive a new survey of the property they are buying to be sure of what is on the land. I know that it is legal in Texas for the Seller to provide an existing survey and sign an Affidavit that says "that to the best of their actual knowledge" they are unaware of any changes. But in my mind this would be similar to accepting the Sellers previous inspection and having them sign that nothing has changed. It is just a due diligence point for the Buyer to do their own work.
New surveys turn up lots of issues previous surveys have not found. The technology is much more accurate. If there's a flaw in the new survey, the buyer can sue the surveyor for the issue. If there's a problem with an Existing Survey given by the seller, the buyer has to sue the seller, not the surveyor. Additionally, if a new survey is purchased the title company can be asked to remove the survey deletions off the Title Policy and additionally protect the buyer and seller from confusion.
Today's Scenario
I represent the Buyer in a contract set to close next week. The contract clearly states that as part of the contract the Seller will provide a new contract for the Buyer. Both sides agreed to it and the contract was proceeding normally.
On Friday the Title Company sent the lender a copy of the Seller's Existing Survey with a signed Affidavit and told the lender it was Acceptable and to use it. I reminded them that the contract called for a new survey and I politely explained why. I thought the matter was handled.
I few hours later the Seller's agent emailed me asking why we wanted a new survey. In his email he forwarded a snarky email from the Title Company implying that I was trying to cost his client extra money by holding to the terms of the contract.
I looked up the Title company employee on Facebook and she and the Seller's agent are great friends and their brokerage is the only brokerage she and her boss have LIKED. I was suddenly aware that they were trying to change the terms of the contract to favor their friend's client.
I copied her boss on my response to the agent again explaining the benefits to both of our clients having a new survey. I explained that I was uncomfortable with the actions of the Title company.
I got the response today from the boss who stated:
* "the survey has also been reviewed by our title plant for accuracy"
* "The purchase of the new survey is really unnecessary."
* "There is virtually no risk for your client in regards to the survey"
* "This is another expense that we deem unnecessary for the seller or buyer."
My jaw is on the floor. Then I called my friends at my favorite title company and had a conversation with their attorney who also had his jaws on the floor.
* The title company doesn't do a survey and thus can't review it for accuracy. They have no idea what's changed or if the surveyor got it right.
* The title company isn't a party to the contract so they can't determine what is "unnecessary" or what is an "unnecessary expense".
* And as for being "virtually no risk"...I have to wonder if the risk is that low, why won't the title company insure the existing survey. If they really feel it's that good of a survey, insure it. But they won't.
In the end we ordered a new survey per the contract. The more I work in Real Estate the more I learn to appreciate the relationships I have with strong ethical lenders and title companies. I get reminded from time to time by events like these how bad some companies can really be.
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