What Dictates Whether We Need A Survey Affidavit Or No Survey At All On A Particular Case?

Typical of most residential real estate settlements in Maryland is a review of a survey of the property by both the settlement attorney and mortgage lender. The primary purpose of the survey review is to enable the attorney to confirm that the home and any related improvements lie within the established property lines. The survey is, typically, ordered by the settlement attorney several weeks before settlement. The attorney will be concerned primarily about the following items:

• The legal description and address of the property designated on the survey should match that which is set forth in the deed vesting title in the current owner.
• No part of the home and no related structures such as sheds, garages or surrounding fences should “encroach” beyond the property lines.
• No part of the home, sheds or other structures, though located within the designated property lines, should lie beyond the “minimum building restriction lines” located upon the property. Typically, these lines are established to guarantee that there exists a minimum amount of clear space between one home and other.
• No fence or structure owned by a neighbor should be found to encroach upon the property which is the subject of sale.
• No unusual easement or right of way should exist which may prevent an owner from typical use and enjoyment of the property.

The settlement attorney’s review of the survey is a very important component of his title examination. For example, a neighbor’s fence which encroaches upon the subject property may indicate a title problem: if the neighbor has been treating that area of the subject property up to the fence as his own, he may have thereby acquired ownership. This is but one of the many types of title problems which would be disclosed through the survey review.

The good news is that, with respect to a refinance settlement, an owner of property may be able to use the survey he acquired at the time he purchased the home and thereby avoid the cost of a new survey. Typically, the settlement attorney and mortgage lender will accept the old survey provided, however, that the survey is not more than a specified age. In addition, the owner will have to sign an affidavit to the effect that no changes (i.e. any new decks, patios, fences, etc.) have occurred since the time of the last survey.