Does title insurance cover this?

What is the name of your state? MN. In 2000 I built my house after buying the lot from my mother. I had a title search done and purchased title insurance. I paid to have a plat drawing done and was told that someone would go out to check for any encroachments (driveways, garages, sheds, etc...). In 2004 I discovered that my one neighbor had 10' of his shed on my property and the other neighbors' driveway is almost entirely on my property. Title insurance says that I should have had a survey done showing the location of these; a survey was done in 1985 but it did not show any of this. I located all of my property pins and also have a satellite photo that shows the driveway. The title insurance company says that I have no claim. I have been told that I should pursue this in civil court but don't want to lose any additional money on this issue unless I have a very good chance of collecting in return. I was never given a copy of the policy (to my knowledge) or a copy of the plat drawing by the closer so I don't know what the policy says and the title company will not give me one. Is the closing company responsible for notifying me of encroachments? Should I pursue this farther?

A plat of survey is NOT the same thing as an "as built" survey which shows the location of all improvements in relation to lot lines and set backs. In order for a title insurer to remove the general exception that exists in the owner's policy for claims resulting from survey issues, one must provide a CURRENT survey (which locates improvements on the lot) to the title company and request that exception be deleted. On occassion, an older full survey will be accepted by the title insurer for clearance of the survey exception IF the owner is a customer in whom they have a comfort level AND that party signs a notarized "Affidavit of No Change", certifying that no improvements have been done subsequent to that survey that would change anything shown.

Now, in our area, most parties building a new home on their lot pay a title company to handle the contsruction draws from first hole to occupancy permit. As a part of the draw process, the title company, acting as escrow agent for construction funds, reviews the foundation survey at first draw, and the recertified survey at completion, to assure compliance. They look for location of the foundation in relation to easements and setback lines. And to verify the construction is occuring on the correct lot! IF you had the draws professionally handled by the title company, review of surveys MAY have been an included service.

If not, and you never obtained and supplied a CURRENT survey showing improvements prior to closing to the title company and asked for owners survey coverage, then they are not likely not liable. Position of all improvements is NOT reliably shown in the public record, therefore title insurers are not in a position to automatically provide survey coverage. They need the current survey to do this.

I'm not too hopeful, but go pull your owner's policy of title insurance and see if there is exception language for claims resulting from survey matters.

stevet said:

I was never given a copy of the policy (to my knowledge) or a copy of the plat drawing by the closer so I don't know what the policy says and the title company will not give me one. Is the closing company responsible for notifying me of encroachments? Should I pursue this farther?

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And the closer has no way of knowing of any encroachments. YOU were physically at the property- they were not. The seller did not disclose it. If you had a concern, or anything appeared to potentially encroach, you should have required a survey at that time.

I was going to say that the seller may have some liability for witholding information that the encroachment existed, but I'm sure you don't want to take legal action against Mom for failing to disclose this.

Anyway, it was other parties improvements that are now encroaching, so get an attorney and take action against THEM to remove the encroachments!

Title Insurance

I have a Fidelity National Title Policy, and I was just notified by my abutter they have a boundary line dispute with me. My policy contains the standard survey exception clause of "shown by an accurate survey".

The Seller I purchased from had the property surveyed just before I bought it and that Plan was recorded by the licensed surveyor.

Even though I never was aware I could remove that typical survey clause, because the Plan was recorded just before I bought the land, I am under the assumptiion I have survey protection anyway. Esssentially, the prerecorded survey is part of the record and the title.

Now, if the abutter's claim is valid, and if my seller's surveyor had followed standard practice and his survey contained no obvious mistakes, I feel I have survey protection, even if my seller's survey is found to be incorrect.

Consumers must be able to rely on a licensed surveyor's recorded Plan and title companies can not disclaim my survey saying "we only insure accurate surveys, and yours was not". Don't you agree.

blackdog69 said:

I have a Fidelity National Title Policy, and I was just notified by my abutter they have a boundary line dispute with me. My policy contains the standard survey exception clause of "shown by an accurate survey".

The Seller I purchased from had the property surveyed just before I bought it and that Plan was recorded by the licensed surveyor.

Even though I never was aware I could remove that typical survey clause, because the Plan was recorded just before I bought the land, I am under the assumptiion I have survey protection anyway. Esssentially, the prerecorded survey is part of the record and the title.

Now, if the abutter's claim is valid, and if my seller's surveyor had followed standard practice and his survey contained no obvious mistakes, I feel I have survey protection, even if my seller's survey is found to be incorrect.

Consumers must be able to rely on a licensed surveyor's recorded Plan and title companies can not disclaim my survey saying "we only insure accurate surveys, and yours was not". Don't you agree.

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Stop necroposting.

Start your own thread and we will get back to you.


(I know the answers to your questions.)

necroposting

Wow-never been accussed of necroposting...a new word for me!

SeniorJudge, I posted on my own LINK.

OK, what do you know.

Thanks

Boundary Dispute

If your title company accepted the survey, accurate or not, then it would be my presumption that they would have to make good on their agreement. However, there is a less painful way to mitigate all this. If your surveyor made an error perhaps he will be willing to work with you and you neighbor in resolving a boundary dispute. One way is to file a plat with the county that will relocate the boundary line that would be equitable to both of you. You and your neighbor have the force of law in deciding in concert with each other where the line should be. The line cannot cause any zoning violations, that is, causing one property area to be less than required for your zone, reduce the required street frontage required by zone, or cause any structure to violate setback regulations. I, during the course of my services as a Land Surveyor in Virginia, do what ever it takes to help the neighbors keep peace. Also, I tell them, if you want a judge to decide, litigation can be very expensive. Judges also like this stuff to be resolved outside the courtroom if possible. Normally judges are all or nothing if it goes to trial. That is to say, he will decide fully in favor of one party and fully agains the other party.

lizjimbo said:

If your title company accepted the survey, accurate or not, then it would be my presumption that they would have to make good on their agreement. However, there is a less painful way to mitigate all this. If your surveyor made an error perhaps he will be willing to work with you and you neighbor in resolving a boundary dispute. One way is to file a plat with the county that will relocate the boundary line that would be equitable to both of you. You and your neighbor have the force of law in deciding in concert with each other where the line should be. The line cannot cause any zoning violations, that is, causing one property area to be less than required for your zone, reduce the required street frontage required by zone, or cause any structure to violate setback regulations. I, during the course of my services as a Land Surveyor in Virginia, do what ever it takes to help the neighbors keep peace. Also, I tell them, if you want a judge to decide, litigation can be very expensive. Judges also like this stuff to be resolved outside the courtroom if possible. Normally judges are all or nothing if it goes to trial. That is to say, he will decide fully in favor of one party and fully agains the other party.

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Please do not encourage thread hijacking!

nextwife said:

Please do not encourage thread hijacking!

Click to expand...

Especially when the thread that was resurrected from the dead (I know its Easter, but come on) is 2 years old.

I like your answer-lizjimbo

You said, if title company accepts the pre-recorded survey, then I am all set. I agree. They are currently silent on this.

My surveyor and the abutters surveyor both feel they are each right. Also, if I loose just 2000 sq ft. as a result of a boundary line compromise, my lot is less than minimum zoning. There is 8000 sq ft at issue.

As long as I have title insurance, I feel fine.

Have an equal area adjustment done

Normally what can occur is the surveyors can decide they are both correct but they can do a plat showing a lot line adjustment as long as you don't create a conditon unacceptable to the governing juristiction. What you do is agree to to swap an equal area with your neighbor so that when the new line is drawn all encroachment issues are resolved. Going about it the title insurance route can be time consuming and confusing. If you can avoid that course, avoid it. You should try to get it resolved because you now have a cloud on the title and refinancing or selling will be more difficult.