- Purchase Agreement/Lender Requirements. First, you will want to check to see if the form of the Survey meets the requirements of the purchase agreement, if any, and any lender/loan document requirements. (i.e., is it an ALTA/NSPS survey and does it include the requested Table A items?).
- Legal Description. Next, you should review the legal description on the Survey and confirm that it conforms to the legal description in the title commitment and in the purchase agreement/vesting deed. If it is a metes and bounds legal description, you should attempt to track each of the calls in the description to the calls on the Survey and note any discrepancies to bring to the attention of the client and/or your supervising attorney. If it is a platted legal description, make sure the plat, lot and block names and numbers are accurate and match the title documents. You may also want to review the survey alongside the recorded plat to see if you can see any discrepancies between the two.
- Encroachments. An encroachment is an overlap of a fence, improvement, or overhang over the land of another. You should review the Survey to identify any items that cross over any boundary line of the property, including any identified easement boundaries. The review should include looking for items that encroach onto the subject property from adjoining lands, as well as encroachments of improvements from the subject property onto adjoining lands. The surveyor will often call out any encroachments specifically, although not always, especially if the encroachments are into an easement area. If you identify any encroachments, the next step will be to determine if they are permitted by any recorded document or agreement, or by ordinance, or if you need to require an easement or encroachment agreement.
- Evidence of Unauthorized Use. In addition to encroachments, you should be on the lookout for any evidence that the property is being used in a manner that is not permitted by law or by recorded agreements. Examples are evidence of trails or paths that are shown crossing the property, utility lines that are not located in a dedicated easement area, or piles of debris or refuse that is not in a designated area. You will need to bring these items to the attention of your supervising attorney and the title company, so that the client can determine whether to require the property owner to remedy these items or provide title insurance over them at closing.
- Setback/Building Envelope. A setback is a buffer zone from a public street or the property boundary and is often required by local law or ordinance. The surveyor should be instructed to show any required setbacks on the property so that you can determine if any existing or future improvements violate any required setbacks.
- Title Exceptions. A full review of the Survey will also require that you confirm that each title exception that is shown on the title commitment is located on the Survey, if locatable, or otherwise stated to be either blanket in nature (affecting all of the property) or not a survey item (not something that could be physically shown on a survey, such as a reservation of mineral interests). Any easements that are recorded against the property should be shown in relation to the property so that an attorney or client can confirm that the easements are adequate for their intended purpose if they benefit the property, and do not materially interfere with any proposed or existing use of the property if they burden the property. Are there easements or other matters shown on the Survey but not shown in the title search? These should also be brought to your client's attention.
- Parking Areas/Access. The Survey should also show any parking areas serving the property, including labeling in some manner the individually striped spaces and any ADA spaces. Then you will be able to determine if the property complies with any specified parking requirements. Also confirm that adequate access to a public street is shown, or, if the property has not yet been developed, make sure any required dedications of right-of-way or private access easements are shown.
- Utilities. You should request that the surveyor show the location of all utilities, including overhead utilities. Overhead utilities can encroach into building areas or create hazards with respect to future improvements or maintenance and repair of existing improvements.
- Evidence of Recent Earth Moving. The Survey will typically show if there is any evidence of recent earth moving on the property. This is important because it can indicate: recent construction; illegal dumping; grading activities that could trigger mechanics lien claims; or environmental issues.
- Certification/Notes/Legend. The Survey certification is an important part of the Survey and should be reviewed for accuracy and completeness, including proper spelling. The Survey should be certified to your client, the title company, and any lender. The certification statement should conform to the ALTA/NSPS requirements and any requirements of your client's lender. Be sure to review all "Notes" on the Survey and communicate with the Surveyor regarding any items of concern that the Surveyor calls to your attention here. Also contact the Surveyor if there are any notes that are unclear or symbols used that are not included in the Legend.
Stacie L. Gollata is an attorney with Gorrell Giles Gollata Means PC. She has been practicing commercial real estate law for more than 17 years. Prior to joining Gorrell Giles Gollata Means PC in 2005, Ms. Gollata practiced with two major law firms in two states. Her real estate practice focuses on the acquisition, finance, development, sale and lease of improved and unimproved real property for medical, commercial, retail, industrial and residential purposes. In addition, Ms. Gollata represents both landlords and tenants in the negotiation of ground lease development, as well as office, commercial, retail and industrial space leases. Ms. Gollata earned her B.A. degree, magna cum laude, from the University of Wisconsin Eau Claire, and her J.D. degree from the University of California Davis School of Law, where she was Order of the Coif.
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