Category Archives: property issues

Is it Important to Get a Survey?

Oh, you bet it is….how do you know where that new fence will go?  Is there a sewer line running under your new house? These and plenty of other potential problems can be headed off or at least discovered prior to causing you a problem.  Here’s a great article about surveys from the always great Kati Heller at McManamy, McLeod and Heller telling you all the reasons you need one;

A survey of the property marks the corners and sets out the boundary lines of the property. It also shows easements, utility pipes, fences, walls and other potential encroachments, which may affect the property or the dwelling. A survey will also show whether driveways are located completely within the boundary lines of the property. A survey will show whether the structures on the property encroach upon building lines or neighboring properties. Most lenders no longer require a survey to be purchased as a part of the loan transaction as their risk from matters disclosed by a survey are now covered under the Lenders Title Insurance Policy. Because Lenders no longer require a survey, many purchasers do not think they need a survey.

 

The reason that Lenders no longer require surveys is due to the fact that the lender’s title insurance policy now insures over survey risks to the Lender; therefore any problem a survey would have shown is covered in a lender’s policy. This is not true of the owner’s title insurance. The enhanced owner’s policy does provide some survey coverage but is subject to a deductible and a maximum loss limit of $25,000. With a survey, there are no limits on coverage.

 

Often, a purchaser may think that a title exam would reveal any problems and a survey is just redundant. This is not true. For example, a title exam may show the existence of a sewer easement, but it would not show that the easement runs directly through the house. Also, title examinations do not reveal fences, walls, and improvements that might sit on or over the property line or violations of building lines or encroachments onto neighboring property.

 

Generally, a purchaser buying property should always request a survey on the property being purchased. Knowing the property lines will assist a purchaser in making sure future improvements like fences are located on the purchaser’s property. If a survey is obtained as part of the purchase and later a next door neighbor puts up a fence on the purchaser’s property, then the Owner’s title policy would cover this because the property lines were conclusively established by the survey at closing.

 

It is to the buyer’s benefit to find out about problems before the property closes when it is still the seller’s problem rather than after closing when the seller no longer has an interest in the property

 

Think before you Frack !

gas well    Fracking has been all over the news lately because of energy and environmental issues.   But our focus here is real estate and we just found a great read about how drilling (really any drilling) or mining can affect your property.  In Pennsylvania they’re starting to deal with those issues now.  For instance some sellers are finding it hard to sell because lenders won’t give them a mortgage.  Why?  Simply because their neighbors have a well!  At first it seems crazy but remember that banks give mortgages for single family homes.  They really don’t like anything out of the ordinary like having a business or farming on the property, etc.  So once you or your neighbor start drilling the question of whether it’s a single family home or a business gets muddled.  Not only that but if you’re on a well the well can become contaminated.  The bank wants the value of your home to stay the same or increase to protect their investment.  If your water is contaminated you’ll have a tough time selling your house.  Lastly, your insurance company will not cover any problems you have caused by mining or drilling.

So if someone comes knocking on your door saying, ‘there’s gold in them that hills!’ or want to drill or mine on your property make sure you check your insurance and your mortgage to make sure you aren’t harming yourself in the long run.  And if you’d like to read the original story from Atlantic Cities click here.

My neighbors fence is on my property. Now what ?

What do I do if my neighbors fence is on my property?  We run into problems like this all the time in real estate.  Fortunately my closing attorney, Kati Heller of McManamy, McLeod and Heller has provided us with some great information when dealing with these issues.

    
Implications of Building Line Encroachments
 
 
Information to Consider:

* Extent of Violation  (more or less than 10%)

* Age of Structure (more than 2 years?)

* Was a Variance Issued at time of Construction
 
Extent of Violation

Most title insurers will issue a lender’s title policy without exception if the violation is not extensive (i.e., not more than 10% encroachment). This is imperative for the loan to close.

Title insurers will NOT cover building line encroachments on owner’s title policies.  The violation/encroachment is a special exception from coverage if a current survey reveals the encroachment.
 
Age of Structure

Georgia law sets out a two-year statute of limitations on the enforcement of building line violations. So, if the violation has been in existence for more than two years, the owner can feel safe that no one will make them move their house. HOWEVER, if the house is destroyed (e.g., fire or tornado), then it would have to be rebuilt in compliance with the building setback line.
 
Was a Variance Issued

If a variance can be produced, the building setback line on the survey can be changed.  It is very difficult to find a variance unless a copy was kept when it was issued. There is no index or filing system for variances at the courthouse. Suggestions for finding a variance:

1. Call the builder and see if one was kept in the original file.

2. Call planning and zoning at the county Courthouse-sometimes a helpful clerk will be able to find one. 

3. Check the Seller’s original file to see if a copy was included at closing.

4. Look to see if the Seller’s owner’s title policy mentions the building line or the encroachment.