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Question DetailsAsked on 11/21/2014

Is it the responsibility of the surveyor to record his findings with the county records office?

We bought this house and had a survey done and it shows the neighbors carport is 3/4 over the line
and 1/2 of his driveway.

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NOTE - I am not an attorney nor a land surveyor registered to practice in your state, so the following is general public knowlege and personal experience being passed on, NOT legal or professional advice.

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Not normally, unless specifically noted in the scope of work - typically about $50-100 additional labor charge for that, plus any filing/recording fee.


In most states, as I recall my licensing regs, only Cadastral benchmarking, easement/buried utility, and subdivision plat surveys normally HAVE to be recorded by the surveyor - those that either establish permanent survey control points (high order than just property corners and lines) like if they are reestablishing a destroyed recorded benchmark, those establishing easements or locations of buried hazardous utilities, and those that define the locations of original property corners and boundaries when an area is subdivided into smaller plots. Oh - and burial plot locations in many states.


Otherwise, property line surveys like yours, which normally are done prior to closing, are recorded as part of the property transfer documents if at all, or are just included in the Title Insurance package, which is really what they are primarily for. Otherwise, you have to request he record them officially, and generally he has to know that in advance because the boundary survey accuracy for a simple transfer line survey is not high enough precision to generally be used as a definitive boundary survey for legal purposes - it is only done to give the title company some confidence that the property is not infringed on by neighbors. Hence, to be recordable as a survey (rather than just as a recorded document) it may have to be redone in greater detail, which for a "conflicts survey" generally involves going back to primary control points for the subdivision and rechecking the property corner locations (which he likely used for his survey) for accuracy, then carefully and more fully surveying the exact location of possibly infringing fences, easements, structures, etc. Typically more like $400-700 range for that to be done in developed areas, up to potentially far, far more in remote areas where several survey lines may have to be reconstructed (and maybe brushed and trees on the line felled) for possibly miles to get "survey control" brought back in to your property.


When you bought the property there should have been a survey done, and (unless that is the survey you are talking about here) at that time any issues of infringement should have been brought up - BEFORE closing, because the Seller is supposed to transfear title free and clear of any undisclosed liens, mortgages or other encumerances, or infringements.


Now, after the closing, you are probably limited to a trespass action against the neighbor to try to force him to remove the infringements, which legal costs the title company MIGHT pay for depending on what type of insurance was paid for. The mortage / deed of trust lender almost always requires you buy one type of title insurance which protects THEM against property being infringed on or against it not actually being legally owned by or legally transferrable by the seller. Another type (names of policies and types vary by state), which is generally optional and not all buyers purchase (or are even told about by their realtor or closing agent) protects YOU, as the buyer, against bad title or infringements - that is the second one to hope YOU bought as part of your closing expenses. You need both, because if the lender is not protected, they generally have a clause in the mortgage contract that is a lien or encumberance is filed or found to exist agaisnt the property, they can immediately demand repayment in full of the loan - nasty situation.


I would say time to get your attorney, Realtor, and closing agent into a sit-down about this, because it severely puts your mortgage/loan (assuming you had one) or your equity at risk, and should be resolved ASAP. There is also the issue of possible action against the Seller if he knew of the infringemetnt and did not disclose it in the property disclosure form. You may also have cause for a professional liability claim against the original properly surveyor for the sale if the survey you are talking about was not that one AND it failed to disclose these infringements, as well as possibly claims against the closing agent depending on the contractual scope of work.


One other bad piece of news - if this infringement has been there for a number of years, the neighbor may be able to claim "right of ownership by adverse possession" - meaning if he maintained the carport and drive as an infringing use for a certain fairly lone time (typically from 3 to 21 years depending on state) and without express permission of the owner of YOUR property, he may be able to claim ownership of it. A nasty piece of law that should be abolished - causes issues with fences commonly, and with trails and roads and public access to fishing holes and beaches and such in beach, remote cabin, and recreational areas. I have even seen airstrips and docks and hunting stands that people have claimed as the basis for adverse possession claims of the adjacent waters and land.


Definitely time for an attorney to protect your interest, and be prepared for the news to be bad - both with respect to $ to resolve it, the years it takes to hash this kind of case out in many cases, and possibly loss of some of your property, which can get even nastier if the lost edge results in your lot size then being smaller than legal for the area, hence the city pulls the occupancy certificate for the house. Hopefully it will not get to that, but do not take this situation lightly. This is one of the more serious property ownership issues you can have happen to you, and the sooner resolved the better because you may be working against an upcoming statute of limitations on the possession period or on your right to contest it. Also, you may need the testimony of prior owner(s) to solve it, and prior owners have a way of fading away or dying when you most need them.

Answered 5 years ago by LCD




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