In a prior post, I wrote about the need for surveys in real estate transactions (see post HERE). I can’t emphasize this need enough.  I started that post, however, with the premise that clients look for ways to save money, sometimes, and I emphasize sometimes, there is a way to save money on the cost of the survey by updating and recertifying the prior or an existing survey.  To do this, you need to first obtain a prior survey from the seller.  This is not always an easy task.  In residential transactions, for example, sellers aren’t usually very good about keeping their paper work together in one place.  Finding old commercial surveys is easier.

But just because you have a prior survey doesn’t mean you can have it updated or that an update will be cost efficient. If the prior survey is relatively new, the surveyor should be able to go back to the property to confirm the boundaries and that there are no new improvements.  The surveyor will review the new title work and re-certify the survey at a cost which is less than the cost of a new survey.  Keep in mind that this cost may be nominal for residential surveys as residential surveys aren’t terribly expensive.  But on larger, commercial surveys, the cost difference could be significant.

If the survey is several years old of if you know or suspect there have been new improvements to the property since the date of the prior survey, then a new survey will be required. The surveyor will have to do field work to confirm the boundaries and locate the improvements.  If a full ALTA survey is required, monuments and corners must be located and set so it is unlikely that an update will be possible.

Survey updates can also save time. This is important in those instances when you have to close on short notice.  But if a new survey is required, delaying closing to allow time to obtain the survey is the better course.

Survey updates are useful and great tools in the right circumstances. When you can use them, the cost saving is an added benefit.

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How many times do clients, looking for ways to save money at closing, ask whether they really need a survey? Hopefully, not too often because a survey, and in particular, an ALTA survey, is required to satisfy the title insurance requirements to delete the survey exceptions and to issue a comprehensive endorsement (in Florida, a Form 9). In addition, surveys are necessary to identify and locate easements, reservations, rights of way, boundaries and encroachments which might affect the use of the property.

In some cases, the survey will be essential in identifying and resolving title problems that the parties, including the title company, didn’t know existed. I was recently involved in one such closing where 2 issues arose that, without the survey, problems might not have been identified. We were selling a 20 plus acre tract that was comprised of 10 parcels. The first issue arose when the lender requested a contiguity endorsement. This should have been easy because the parcels were obviously contiguous. However, the legal descriptions for 4 of the 10 parcels contained 30 foot reservations for a road way running north and south on the east portion of the overall property. The surveyor identified the road and listed is as “vacated per ordinance recorded at…” He executed a surveyor’s affidavit to enable the title company to issue the contiguity endorsement.

While the title company was aware of the ordinance vacating the reservations, the surveyor’s note and the survey itself also showed that the road extended into land to the south of the property to be conveyed. A search of the public records showed that the State of Florida owned that land and therefore, had an interest in the road. To properly vacate the road, everyone having an interest in the road would have to execute a deed. While the Seller could certainly do so, a second deed from the state would be required. Therefore, unless the State provided a deed, the contiguity endorsement could not be issued and exception would be taken for the reservation of the road.

The second issue was similar but even bigger. A second public road existed behind the property. At least, that is what the survey showed. The survey showed the property line to be at the road’s right of way line. The Buyer believed that it was to acquire the 60 foot road based on the same ordinance, which also vacated that road and created a replacement road for access (to I-75). The vacated road was adjacent to the right of way for I-75. The adjacent right of way is used only for dry retention. The surveyor re-drew the survey based on the ordinance and vacation. While that could solve the problem, the title documents did not match this solution because the ordinance alone did not re-convey the property to the Seller. No document of record did and, by statute, the road would go back to the condemning authority, the last owner of record, FDOT.

The survey caused a detailed search of ownership of the vacated road. The title company found a Stipulation between FDOT and the Seller pursuant to which FDOT agreed that if the City vacated the road, FDOT would deed title to Seller while retaining an easement over the road until Seller provided the replacement road. FDOT would confirm this in writing to City upon request. We found a copy of the letter FDOT wrote to the City supporting the vacation and acknowledging its easement interest, but, the deed must not have ever been executed and delivered.

These issues might not have been spotted without a survey and title insurance might have been improperly issued opening up significant exposure on the policy. However, the survey alone could not solve the problem. Surveys work in conjunction with good title examinations and strong lawyers. Don’t forget to survey.

A Business Men Climbing a Pile of Papers

Starting tomorrow, October 2nd, the selection of a closing and title agent for residential closings will become a treasure hunt. As a result of the Great Real Estate Meltdown of 2008 through 2011, Congress decided to micromanage the residential closing process. The Dodd-Frank Act created the Consumer Financial Protection Bureau (CFPB) to address increased disclosures and oversight for lenders, settlement agents and others who may handle consumer funds in any way.

The CFPB published extensive regulations that require greater oversight of residential lenders and mandate more detailed disclosures to their borrowers (see our previous post Questions About the Simplification to Real Estate Closing Documentation to be Implemented Nationally on October 3, 2015 – September 17, 2015). The long-standing HUD-1 Settlement Statement and Truth in Lending Act disclosures that have become fixtures at the closing table are a thing of the past. New closing statements and disclosures will become the standard when loans are closed starting Monday, October 5th. Will these new forms be more easily understood by borrowers and closing agents? Probably not. Even if the new forms prove to be less confusing to consumers, the wholesale replacement of the loan closing documentation and closing process will result, at least in the short term, in mass confusion, busted deals and more disputes between sellers and buyers when a loan closing is delayed or cancelled. As residential lenders are subject to strict liability for violations of Dodd-Frank and the CFPB’s new rules, borrowers and closing agents should expect zero flexibility on the part of lenders in closing any loan, regardless of amount or the relationship with the borrower.

While standard residential purchase and sale contracts in use are being modified by groups such as the Florida Bar and the Florida Association of Realtors, attorneys and brokers must take extra care in addressing the rights of sellers and buyers when the confusion inevitably results in loans not being closed. The not atypical “simultaneously close a sale and then close a purchase” will be a thing of the past if loans are involved on both ends of the transactions.

A key consideration for a seller, buyer or lender in the selection of a closing and title agent will be whether that agent, whether a title company or an attorney agent, has timely registered with the CFPB and implemented the “Best Practices” initiative of the American Land Title Association (ALTA). The Best Practices procedures are intended to assist settlement service providers in complying with this new stricter environment. Lenders will insist that each closing agent be properly and timely registered and have completed and be in compliance with a detailed, phonebook thick manual of compliance with the Best Practices. The manual must address procedures for and regular tracking of agent licensing, trust account maintenance and management, data privacy and security, background checks, settlement procedures, title policies and production, consumer complaints and other requirements of the Best Practices rules.

Even a seller must be concerned if the seller is contractually obligated to provide title evidence and insurance to a buyer/borrower. If the seller’s designated agent is not registered and compliance with Best Practices, the agent will not be approved by the buyer’s lender. This will cost both parties additional expense and will delay closings. Whether the transaction involves a single home sale or refinancing or volume unit closings for a developer of condominiums, condo-hotel units, or homes, the lender’s closing mandate will not be forgiving or allow any exception to having a compliant closing agent. These stricter requirements on closing and title agents will likely result in many companies and attorneys leaving the residential closing market entirely.

The lawyers of Assouline & Berlowe, P.A. have invested significant time and resources to ensure that the firm has been registered and is Best Practices compliant in order to serve our clients, whether developers, lenders, buyers or sellers. More information on our Best Practices may be obtained through any of our offices.

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    Welcome to Assouline & Berlowe’s Florida Real Estate Law and Investment Blog with news, insights, and commentary for investors, developers, and their advisors.


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