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Surveys

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Surveys

Postby Pinskylaw.ca » 23 Sep 2017, 16:05

1. Introduction

A buyer in a real estate transaction wants to ensure that his or her client receives a good and marketable title to the property purchased. This is accomplished by a search of title. Title consist of two components (a) chain of title or quality, and (b) physical extent of title. A search of title, however, will not reveal the extent of the title i.e. quantity and boundaries of the land. To determine this, reference must be made to a survey which represents the surveyor's opinion as to the extent of the title.

As a preliminary point, vendor should be aware that where doubt exists as to the true location of a boundary, pursuant to the Boundaries Act, an application in the form specified by the Director of Titles may be made for a survey or to obtain confirmation of the boundaries. The application may be made by the landowner, by a surveyor with the landowner's consent, by the relevant municipal council, or by the federal or provincial Surveyor General.

In O'Brien v. Morrison [2002] O.J. No. 1162, the appellant appealed from the decision of the Deputy Director of Titles under the Boundaries Act, confirming the westerly limit of the respondent's property, and the easterly limit of the appellant's property, to be along a former fence rather than in accordance with the courses and distances in the deeds to the respondent and her predecessors. The Divisional Court dismissed the appeal, holding that the findings of fact of the Deputy Director should be accorded a high degree of difference. See also Little v. Serre, [2005] O.J. No. 57, rev'g [2002] O.J. No. 5865 for a discussion of the hierarchy of evidence that must be applied by surveyors to re-establish a boundary.

2. Re-Establishing Original Monuments and Boundaries

The surveyor's objective is to determine the boundaries of the land by obtaining the best evidence possible with respect to the location of the original monumentation. The surveyor must conduct research for the best evidence, including and examination of the title documents for the land and any adjoining lands, reviewing any previous plans of survey and accompanying notes made by the surveyor or other surveyors for the subject land and adjoining lands, and reviewing any other applicable documents. the surveyor must also attend at the property and examine any visual evidence which may be available. In this regard, the surveyor must consider the best evidence and re establish the boundary on the ground in the location where it was first established, and not where it was necessarily described, either in the deed or on a plan. Survey law has developed a hierarchy of evidence from most compelling to least compelling as follows: (1) natural boundaries; (2) original monuments; (3) fences or possession that can be related reasonably back to the time of the original survey; and (4) measurements (as shown on the plan or as stated in the metes and bounds description) Nicholson v. Halliday, [2005] O.J. No. 57.

3. Preparation of Survey

When the surveyor has completed his or her search , field work monumentation and measurement, the surveyor will prepare a plan in accordance with the requirements of the Surveys Act and Regulations, which will show the extent of the title at that point in time. the plan will be a compilation of the surveyor's research. Accompanying the drawing will be a surveyor's report pointing out any anomalies. By regulation the surveyor is obligated to point out on the survey and/or the report all problems and issues which have been revealed, including any encroachments on the property and onto adjoining properties.

Although the term "survey" is not defined by legislation, a survey is generally understood to consist of an illustration prepared by a land surveyor depicting the boundaries of a property. For a document to be called a "survey" - it must be prepared by a qualified Ontario Land Surveyor under Surveys Act, and must consist of two parts: (1) a plan showing the physical improvements on the land and any registered easements in relations to boundary lines; and (2) a written report outlining the property's details. It will be the result of the qualified land surveyor actually attending at the property, conducting through measurements, conducting a search of title, and conducting a search for registered easements and plans relating to the location of the property boundaries. The survey must be embossed with the surveyor's seal to be considered an original survey. Similarly, "cadastral surveying" has been held to include the marking of corners and the staking of property lines.

Although the Surveys Act does not contain a definition of the "survey" or plan that does not meet the requirements set out in the Act is not a survey. Older plans may not meet these requirements or may be a "plan showing", a "sketch" a site plan showing the proposed site of the building or a "compiled plan". What must be kept in mind is that not all drawings are plans, and not all plans are plans of survey. A survey may only show the boundaries of the property and not the location of any buildings thereon. Alternatively, the surveyor may prepare a building location survey, which is not required to show the monumentation of all corners of the property. The surveyor must identify the type of drawing that he or she has prepared and the land registry system in which the subject land is found on the face of the drawing. The surveyor will also show his or her name, the scale of the drawing, a legend, the bearing of the North, and will indicate the reference used for the bearing (currently astronomical bearings are used).

4. Types of Surveys and What they Disclose

The type of survey usually obtained in a purchase of a property in an urban area is a plan showing building location. Although this type of survey is not required by the regulations to include monumentation for all four corners of the property, such a survey should show the frontage, depth and area of the lot, the location of all buildings or other structures on the property and their respective setbacks, the location of any fences or hedges on the property, any encroachments onto the property or to any adjacent properties, any discrepancy between the boundary on the ground and the measurements and distances set out in the deed, any rights-of-way or easements to which the property is subject or of which the property has a benefit.

For vacant property or in rural areas, a plan of survey showing the boundaries of the property and the monumentation of all corners of the property may be of more assistance. What type of survey is obtained will depend on the purpose of which the survey will be used. A surveyor prepares various other types of surveys or plans, including plans of subdivision, reference plans, Certificate of Title plans and condominium plans. Defects that are disclosed by an updated survey allow a prospective buyer to evaluate whether or not he or she wants to conclude the deal. It is intended to supply the potential buyer with information before the deal closes.

Note that a survey is not equivalent to title insurance. The survey is a fundamental tool for informing the potential purchaser whether the deed accurately reflects the property to be purchased. The survey tells the buyer what he or she is getting and - more importantly - not getting. Title insurance may indemnify a party from defects in title, but it does not guarantee title or cure defects that would be revealed by the work of a qualified surveyor. the defects that are revealed by an updated survey allow the prospective buyer to determine whether or not to proceed with the deal.

5. Survey Clauses in Agreements of Purchase and Sale

If the purchaser consults the solicitor prior to the execution of an agreement of purchase and sale, the solicitor must suggest that a provision be added to the agreement requiring the vendor to provide at his or her own expense an up-to-date survey of the property showing location of all buildings, structures and other improvements within a specified period of time. This time period should be sufficient to allow the survey to be reviewed and submitted to the municipality for review and a response to be received prior to the date for submitting requisitions. Note that an increasing number of municipalities do not review any survey submitted to them with building and zoning inquiry.

The purchaser must appreciate the benefits of an up-to-date survey and the risks of not having a survey or of using an old survey. The ramifications can be serious: for example in Holmes v. Walker, [1998] O.J. No. 4725 the purchaser - who had not obtained an updated survey for closing - was not allowed to rescind the agreement even though almost 100% of the cottage she bought was actually located on a municipal road allowance. Note that title insurance is not a substitute for obtaining a proper survey. While title insurance may indemnify a party from defects in title, it does not guarantee title or cure defects that could have been revealed by a qualified land surveyor.

If the agreement does not obligate the vendor to provide an up-to-date survey, the first step is to determine exactly what survey will be provided, if any. The standard wording of the universal agreement of purchase and sale put out by the Ontario Real Estate Association stipulates in clause 12 only that the vendor will provide any survey in his or her "possession and control", and that any survey within the vendor's control will be delivered "if requested by purchaser" as soon as possible and prior to requisition date.

In order for the purchaser to understand the significance of his or her decision whether or not to bear the experience of an up-to-date survey, the purchaser should first understand what a survey is and what it may tell the purchaser about the property. Problems relating to encroachments, boundary disputes, the location of fences, adverse possession problems, the contravention of setback requirements or other violations of the zoning by-laws are just some of the deficiencies or problems which could be revealed by a new survey. If these problems are discovered and requisitioned within the time period for submitting requisitions, the vendor will be responsible for resolving them. However, if the purchaser only discovers the problem at a later date, either in a dispute with a neighbour over a boundary or when the purchaser sells the property, the purchaser will not have recourse to the vendor and may be required to expend monies or make application to resolve the problems or may have difficulty selling the property because of problems revealed in the survey.

An updated survey cannot necessarily be dispensed with simply because title insurance has been purchased in respect of the particular property. Although title insurance guarantees good title as of the date of closing, it does not protect the owner from damage claims resulting from misplaced border fences, party walls or retaining walls. Moreover, without a survey, a title-insured purchaser remains uninformed as to exactly how farther existing buildings are from the property lines, nor whether certain intended additions to the property (such as garages or pools) can be added after the deal has closed.

6. Review of the Survey

The survey, whether old or new, must be examined carefully by the solicitor on receipt. the solicitor should compare the survey with the description in the vendor's deed and with the dimensions set out in the agreement of purchase and sale to determine any inconsistencies. Any other problems revealed by the survey should be noted and requisitioned. The survey has to be reviewed to identify any problems with it. The location of easements and rights of way on the property may effect the purchaser's use and enjoyment of the property and therefore should be noted by the purchaser.

As the purchaser has, in most cases, inspected the property, this survey review should be used as an opportunity to verify what the purchaser is purchasing. In addition, the purchaser may be able to pint out any discrepancies between what is shown on the survey and what he or she saw on the ground. this is especially important when the purchaser is relying on an old survey together with the vendor's declaration that there have been no external additions, alterations, or improvements on the property since the date of the survey.

A careful review of the survey at an early stage may enable the parties to arrive at a mutually satisfactory solution to any problems which may arise. The survey may reveal an encroachment onto neighbouring property, over a right of way, onto the street, or on public utilities easements. An encroachment onto neighbouring property or by the neighbouring property owner onto subject property may signify that the vendor or the neighbour, as the case may be, has acquired possessory title to the strip of land on which the encroachment exists by "adverse possession". Adverse possession may have been obtained where the encroachment has existed for ten years or more with the knowledge of but without the permission of the actual titleholder and where the possessor has used the land exclusively with the intention of excluding the title holder.
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