To Survey Or Not To Survey

Do I need a survey?

Well, answer to that question is, “it depends”. There is a standard exception in all title insurance policies that excludes from coverage encroachments, overlaps, boundary line disputes and other matters which could be disclosed by a current survey. A title agent is permitted to remove this exception if a survey is provided to the title agent for their review. In some instances, a prospective purchaser may be familiar with the property and desire not to incur the extra cost of procuring a survey; This is okay. However, if the purchase is going to be financed by an institutional lender, the institutional lender will insist on a specialized endorsement referred to as a “Florida Form 9”. A title agent may not issue a Form 9 endorsement without reviewing a current survey. Now you are aware of a potential conflict between the desire of the purchaser and a requirement of the lender. Guess who’s going to get their way!

What’s considered a current survey? Most Title insurance underwriters consider a survey to be current if the survey is procured within 90 days of closing. In some instances, an older survey may be relied upon provided the owners certify that no improvements have been constructed on the subject property since the date of the survey. What do you take away from this? In short, if you’re receiving financing from an institutional lender, then a current survey will need to be provided; unless the current owner can demonstrate to title agent that an older survey may be relied upon.

What’s our position on surveys? We believe that purchasing a new survey will serve the purchaser better than relying on a survey that maybe older than 15 years. There have been significant advancements in technology, and surveys now are more accurate than ever. Having a new survey today will save you from significant expense tomorrow should you discover an encroachment.

I. General Requirements For Surveys

When used for removing the survey exception in a title policy, the survey should comply with the minimum requirements adopted by the Florida Department of Professional Regulation, Board of Land Surveyors. See Ch. 61, G17-6, F.A.C. On surveys prepared prior to September 1, 1997, the certificate of the surveyor can be relied on as evidence that the technical requirements of the rule have been satisfied. After September 1, 1997, a certificate of the surveyor is not necessary, and it may be assumed that the survey meets the minimum technical standards unless otherwise stated on the survey. Ch. 61, G17-6.003(1), F.A.C. Reliance upon a survey is dependent upon the following:

  1. The survey was made by a Florida Registered Surveyor and Mapper
  2. The drawing of the survey is signed and dated. If the date is not a recent date, the drawing of the survey should be recertified to a recent date. The seal of the surveyor must be affixed as required by Sec. 472.025, F.S.
  3. The drawing of the survey contains accurate legal description that mirrors the legal contained in the deed or mortgage. If the survey is of acreage, the drawing should tie to at least one identifiable real property corner such as a section or quarter corner. See 61. G17-6.004(2)(a) 8.a., F.A.C. If the survey is of a recorded subdivision, the drawing should tie to the nearest street intersection, right of way intersection or other identifiable reference point. See Ch. 61. G17-6.004(2)(a) 7.a., F.A.C.
  4. For visible boundary lines, locations and dimensions of improvements, locations of utilities, easements, rights-of-way, and natural and manufactured objects affecting the property. The location of nonvisible easements of record, other than those on recorded plats will not be shown on the drawing unless that information was furnished to the surveyor.
  5. For any encroachments or discrepancies between the description in the recorded instrument and any markers on the ground designating the boundary as actually used and occupied.

II. Survey Requirements For Refinance Transaction

When a mortgage policy is issued in a refinance, most underwriters will waive the requirement for a current survey (within 90 days of closing) and rely on an older survey if there have been no changes since the date of the last survey and an affidavit is obtained from the owner of the property. The affidavit from the current owner must state that:

  1. No improvements have been constructed on the subject property since the date of the survey,
  2. No improvements to adjoining land have been constructed that would encroach on to the subject property, and
  3. State that it is given to induce the named title insurance underwriter to rely on the described survey

III. Surveys For Platted, Single-Family Residential Lots

If the real property is a platted, single-family residential lot, most underwriters will not require either a current or an older survey to insure a refinance if the Title Agent is provided with a prior owner’s mortgage policy for the property in which the standard survey exception has been removed or deleted. However, as to any Schedule B exceptions on the prior policy, the Title Agent must carry forward such exceptions to the new mortgagee policy. The Borrower (mortgagor) must execute an affidavit stating that no improvements have been constructed on the insured property or on the adjoining property that would encroach onto the insured property since the date of the prior policy. Likewise, the affidavit must also state that it is given to induce the named title insurance underwriter to issue a policy.

IV. When issuing an Owner’s Policy

When issuing an Owner’s Policy some underwriters will waive the requirement for a current survey (within 90 days of closing) and rely upon an older survey, provided that the following conditions are met:

  1. The subject property must be platted, single family residential; and
  2. A satisfactory, prior survey of the subject property is submitted for review that illustrates the boundaries of the platted land and the location of all improvements situated thereon; and
  3. The prior survey is certified by the surveyor to any prior or current owner, mortgage lender or title insurer; and
  4. The seller must furnish a satisfactory affidavit setting forth the following facts that must be based upon the personal knowledge of the affiant:
    • There are no improvements currently located on the subject property that are not shown on the survey.
    • There are no improvements to adjoining lands that encroach upon the subject property.
    • The affiant must state that the affidavit is being given to induce the named title insurance underwriter to rely on the described survey.

The guidelines set forth in items II, III and IV also apply to issuing the Florida Form 9 Endorsements.