Welcome. This is Ned Ferguson’s blog for Professional Land Systems surveying company in Clinton, TN. Please follow the link if you are looking for my company website. We serve the greater Knoxville area. Thank you and enjoy your stay.
The 2003 survey at left shows a significant loss of area (about 3.7 acres out of 15) compared to that called for in the deed. The loss of area is shown in red. The previous surveyor was incompetent, causing an enormous overlap with adjacent properties.
The driveway used for access has no legal easement or right-of-way. The adjacent owners could challenge its use.
The wire fence at the southern end of the property does not follow the actual boundary.
You never know what kind of problems a good survey might uncover. Would you buy this? Would you pay the same money originally offered? What if you bought without benefit of a survey?
Benjamin Banneker (1731-1806) was one of those rare humans who have exceptional talent in many fields. Banneker was born on a farm near Baltimore, Maryland, in 1731, the son of a free mother and a slave father. As a free man himself, Banneker was allowed to attend an elementary school for free Negroes. While there, he showed both an interest and skill in working with mechanical things. While still a young man, he built the first wooden clock made in America.
Banneker taught himself astronomy well enough to correctly predict a solar eclipse in 1789. From 1791 to 1802 he published the Pennsylvania, Delaware, Maryland, and Virginia Almanac and Ephemeris, which contained tide tables, future eclipses, and medicinal formulas. It is believed to be the first scientific book published by an African American. A staunch opponent of slavery, Banneker sent a copy of his first almanac to then-Secretary of State Thomas Jefferson to counter Jefferson’s belief in the intellectual inferiority of blacks.
Also a surveyor and mathematician, In 1789, Thomas Jefferson recommended Banneker for a position on the commission to survey and plan the city of Washington, D.C. Banneker, with Major Andrew Ellicott was on the commission for two years. In 1791, he returned to his home in Maryland.
Banneker died Sunday, October 9, 1806, age 74. His home was destroyed by fire 2 days after his death, while his funeral was commencing. The U.S. Postal Service issued a postage stamp in his honor in 1980.
“The color of the skin is in no way connected with the strength of the mind or intellectual powers.”
Let’s examine the possibilities, then take them one at a time:
- Title Company
- Mortgage Company/Bank
Let me say at the outset that all of these interested parties have one thing in common: If there is no closing, they do not get paid. Therefore their primary interest will typically be to see that a closing happens as easily and as quickly as possible. This causes an automatic conflict of interest with the buyer of real estate. Buying real estate is a huge investment that should entail the utmost care and performance of due diligence on the part of the buyer. Rushing the process may lead to mistakes. The buyer owes it to himself to obtain as much information as possible prior to closing. If something is missed, it is the buyer who will be harmed and the only one left holding the bag after everyone else has moved on down the road. I cannot stress this enough. I have seen example after example. If problems are uncovered prior to closing by a surveyor or home inspector for instance, the buyer still has negotiating leverage. If problems remain hidden until after closing the buyer has relinquished any leverage he or she may have had.
Real estate agents are subject to something called the ‘laws of agency.” The prevailing practice, at the time a buyer and seller come together, is for the real estate agent to become a ‘dual agent‘ representing both buyer and seller. The agent is then bound to remain neutral. Exceptions occur if the real estate agent is a close friend or has some special relationship with one party. In such a case the agent may only represent the party with whom they have the preexisting relationship. Another exception occurs if a buyer has retained a real estate agent specifically as a ‘buyer’s agent.’ Having a buyer’s agent is obviously the best case scenario for the purchaser. Many people are completely unaware of the laws of agency and choose to ‘coast’ through the process. As with any profession, some agents are better than others. It is important to choose an agent whom you trust. A responsible buyer’s agent will recommend getting a land survey, home inspection, environmental assessment, or other acts of due diligence. It is still worth remembering that, if there is no closing, neither buying nor listing agent gets paid. This fact may tend to influence partiality. Ultimately you must rely on the personal integrity of the agent. Choose wisely.
Unfortunately I have experienced countless incidents where a homeowner was upset about the actual location of property boundaries (found by survey after closing, sometimes years later) because the “Realtor told them” that the boundaries were elsewhere. This happens so often that it is a running joke among surveyors. Bluntly, if a real estate agent starts explaining to you the property boundary locations without benefit of a professional surveyor, find another agent.
2. Title Company
The title company does the deed research or ‘abstract of title’ necessary to warrant ‘good and clear title’ and to enable the title insurance company to insure against defects in the title. Remember that there are lender’s policies and buyer’s policies. You may want to consult with a title attorney to see if it is in your best interests to obtain a buyer’s policy. Otherwise it is likely that only a lender’s policy will be written.
Note that any defects found in the title are written as ‘exceptions’ to the policy. This means that those items that are defective are specifically excluded from the policy, unless they are cleared up. Also note that title insurance will not protect the buyer against adverse claims that could have been discovered as the result of a land survey. This is called the ‘survey exception.’ You are dealing with the collective knowledge of thousands of attorneys with years of experience. They are very good at protecting themselves through the use of disclaimers. The liability for these exceptions passes to THE BUYER.
I like this line: “Title insurance companies don’t assume risk; rather, they are in the risk elimination business…”
Years ago surveys were required as a part of every real estate transaction. This is no longer the case. The closing process is now ‘streamlined’ to make it easier and faster for banks and mortgage companies to maximize profits. Surveys tend to uncover problems. Problems cause delays and perhaps even kill the closing. It is far more convenient (for them) to kill the survey requirement instead.
3. Mortgage Company/Bank
See number two above. The bank or mortgage company are in the business of getting you on the hook for a long term loan. Your best interests are not the primary objective. They protect themselves by getting title insurance and using disclaimers. They too are attorney-rich.
There is not a lot to say here. Buyers instinctively know that they are in an adversarial relationship with the seller in any transaction. The seller wants to maximize his profits and the buyer wants to minimize them. This is a fact of life in the most amicable transactions.
A brief word about property lines is in order. Sellers many times advise buyers about the extents of the property they are selling. The seller is often wrong. A wise buyer will not rely on the word of the seller regarding the property boundaries. It is not that they are intentionally deceptive, rather they may be incorrectly convinced in their own minds about the boundary locations. Don’t let the seller’s incorrect assumptions become your loss.
Even the best builders make mistakes. We recently encountered a situation where a very good contractor built a wood fence with nice brick columns spaced every ten feet or so around the back yard. He make a faulty judgment about the boundaries and built part of the fence four feet over the line. We discovered it when a buyer ordered a survey after the house was completed.
The nature of the fence meant that moving even a portion of it was quite expensive. Several brick columns had to be destroyed and rebuilt. I recall the cost was about $5,000. The buyer was able to force the seller to correct the problem. Had the buyer not spent a few hundred dollars on a survey, he would have been stuck with a $5,000 liability.
It is up to the informed buyer to protect his or her own interests. Getting a survey should be considered essential due diligence. Don’t be blindsided by these problems. In most cases, if you are short on cash, the cost of the survey can be financed into the loan.
Don’t just take my word, here are some related third-party articles:
As always, this writing expresses my opinion and does not constitute legal advice. Those seeking legal advise need to get an attorney.
Few citizens realize the power wielded by local governments until they attempt to make use of their own property. A pattern of Supreme Court decisions dating back to the 1920’s has eroded property rights to an unconscionable level. (See Euclid v. Ambler, 1926 for background. This case established the precedent eventually leading to the infamous Kelo v. New London decision of 2005. The wheels of government bureaucracy grind slowly but they grind exceedingly fine.) Local city planners have power that is near absolute. Their frivolous decisions lead to your misfortune.
A client recently bought a small non-record lot in the city with plans to build a house on the property. The lot previously had a house that was removed. A nice asphalt driveway is still there. The lot has been in existence in its present dimensions since the 1930’s. Note that the lot’s existence predates the city’s zoning ordinance by over 40 years. Common sense would dictate that the lot be exempted from modern zoning restrictions since it is ‘preexisting’, but common sense rarely holds sway with bureaucracies.
The lot width is 60 feet where the current subdivision regulations for the city require 75 feet. The city zoning department and the Metropolitan Planning Commission do not accept the argument that the lot should be exempt from the regulations. Neither will they provide relief through the variance process. ‘Sorry,’ the bureaucrats shrug. We are told they will look into it and may have a solution in six months or so. Meanwhile our client is awaiting the results of our survey, investigation and meetings with the city. Nice things we get to relay to him. “Perhaps you can use your property in six months, Mr. Client, if at all.”
Think of it. A citizen buys a nice lot from a seller, both acting in good faith. The citizen ‘assumes’ he will be able to use the property just as it has been used in years past. This use is in perfect keeping with the many surrounding houses. “Not so fast,” says the city. “Nothing is that simple any more. You didn’t think that you could actually use the property, did you? You’re just the owner. Your interests must bow to those of the community” – as the city sees them. With an imperious wave of the hand and a stroke of the keyboard, city officials have rendered hundreds, if not thousands, of parcels useless. Turned from an asset to a total loss and a mere tax and maintenance liability. Who compensates these owners for the loss and the new burden of ‘ownership?’ Do you realize that this means if a house located on a ‘substandard’ lot burns to the ground that the owners will be forbade from rebuilding?
This is the dictionary definition of fascism dear readers. Assets remain in private hands while the government controls them. This is more pernicious than taking. Outright taking would be too honest. It is not just the federal government that is gunning for the citizenry, local governments are moving in lockstep.
Man has to work and produce in order to support his life. He has to support his life by his own effort and by the guidance of his own mind. If he cannot dispose of the product of his effort, he cannot dispose of his effort; if he cannot dispose of his effort, he cannot dispose of his life. Without property rights, no other rights can be practiced. – Ayn Rand, Capitalism, The Unknown Ideal, p. 18
Word to the wise: Get the survey first. Let us know your intentions. Pay a few hundred dollars up front for due diligence. It may be money well spent. Our economy is on the ropes. Thanks for the assist, City of Knoxville.
Note: We attempted to contact the City Law Director for this article since that is the office responsible for interpreting the zoning ordinance. We were able to get him on the phone, but were immediately referred back to the city zoning office. The city zoning office indicated that the consequences of this ordinance may have been inadvertant due to unfortunate wording. They may correct it in the future but have no idea when. Meanwhile building permits are denied and property owners deprived of the use of their own property. The buying public is deprived of the chance to purchase a reasonably priced home in a niche market (100k range).
The moratorium is in effect for ‘sub-standard’ lots. That is, new construction on lots deemed newly created that do not meet the current zoning ordinance.
They sure do. For the uninitiated, surveyors refer to their surveying instrument as a ‘gun’ and to taking measurements as ‘shots’ or ‘shooting.’ We use a ‘1-second gun’, meaning that the instrument accuracy is to the nearest arc-second.
Modern houses are increasingly complex. According to the National Association of Home Builders, the average home size in the United States was 2,330 square feet in 2004, up from 1,400 square feet in 1970.
Contractors used to use the old method of putting up batter-boards and pulling a tape measure to square the house by the ‘6-8-10 triangle’ method. That was not too difficult to do years ago when house layouts were usually comprised of a few simple rectangles. Today, contractors are largely abandoning the DIY method and contracting the house layout to surveyors. There are several reasons why this is a very good idea.
First, houses are just too darn complex these days to risk making mistakes. The foundation is the most important part of a house. If you mess that up, nothing else will go right thereafter. Take a look at the illustration by clicking the thumbnail at left. There are 75 individual points to locate for this house in Jefferson Park in Farragut! No contractor can achieve optimal accuracy on a house like this by pulling tapes. A good surveyor, with some patience, can achieve 1/8″ positional accuracy per point or better. This kind of accuracy makes the rest of the job go much smoother and is well worth paying for.
Second, lots are much smaller than they used to be, in turn making the building setbacks extremely tight. Builders tend to fit the most house they can get on a given lot. The risk of violating building setback lines is great. Those in the know will tell you that the last thing you want to do is violate a setback line in the Town of Farragut. Let’s just say that they are not generous with variance requests. Having to halt work or delay closing due to a variance hearing is costly in time and money.
Third, the homeowner or builder will want to maximize driveway and turnaround space. The surveyor can help with this while remaining in zoning compliance.
Start square, stay square. Best practices dictate hiring a surveyor to lay out your next home.
It is a very good idea to know where your property monuments are – specifically, not generally as in “over there
somewhere.” Ideally, a responsible property owner can go right to their property markers and point to them. The problem is that standard survey monuments have a bad habit of fading into obscurity. A standard monument is Tennessee is usually a 5/8″ or 1/2″ piece of rebar, driven flush with the ground, and topped with a plastic cap emblazoned with the surveyors name and license number. The fact that the monument is typically driven flush, so as not to interfere with mowing, brush clearing and such, also means that it is easily lost in the grass. This standard type survey monument is comparable to the old Ford Pinto: functional and low budget, it does the job. 99% of all surveys get this type of monument.
For those who prefer Cadillacs though, there are myriad other options. The ‘gold standard’ monument would be a custom made survey disk identifying the property owner, set in concrete. This is the most
expensive option due to its custom nature and the intensive labor of hauling, mixing, and pouring concrete in place. This monument is also typically set flush with the ground but is much less likely to be overgrown due to its large footprint (8-10 inches in diameter). See the Disney World survey marker pictured. One glance leaves no doubt about the identity of the owner. It is a great option for people with an unlimited budget.
For something in the medium price range (though still considerably more expensive than the ‘Pinto’) Berntsen has several drivable pipe systems with customized survey caps.
For rural and large wooded areas, Carsonite witness posts are very helpful for identifying the presence of nearby survey markers. These are tough composite posts with a permanent orange color and an identifying label warning all comers “Do not disturb nearby survey marker.” Those who are more serious about protecting and identifying their property may wish to consider these extra-ordinary options.