Jose "Tony" Trevino

I've been asked why research is so important, mainly because it's not cheap at $75/hr., but it can make an incredible difference for a commercial real estate project. In some cases this can mean the difference between the project occurring or coming to a screaming halt. This is why I strongly believe in my phased/billing consultation method, which I will blog about at a later date.

I recently met with the City of San Antonio departments of Planning and Zoning and Development Services, on behalf of a client whose tract I was surveying. The tract in question was indicated on various official maps as having an existing street bisecting the tract. The City was demanding a 60 foot right-of-way for the street they believed existed and a zoning redefinition based the existence of the street, which meant more fees and effective loss of over half an acre of land for my client.

The Research Scenario:
A Texas Department of Transportation (TxDOT) map dated 1934 tipped me off that there was an issue because it lacked an intersection and therefore the street in question was no longer present. Multiple deeds, nearby subdivision plats, and utility maps indicated the street as being abandoned. The street had been created by a plat in 1916, but the 1934 TxDOT map indicated the street no longer present, which meant this was the window of time when the street was abandoned. A two week search of records for all land owners associated with the site revealed a district court action defining my client's property by metes and bounds. Also attached to the district court action was a commissioner's court order defining the abandonment of that portion of the street, which included my client's property.

Research Results:
Had my research not revealed the court order this would have significantly jeopardized the client's planned project and their preferred zoning. The research proved to the city that the maps were inaccurate. On a side note it is important to remember that maps, GIS (thematic) maps, zoning maps, appraisal district maps are not survey boundary instruments and as such can mislead users.

Update: I revised the format to clearly indicate the results of the research.

The seal of a Registered Professional Land Surveyor (RPLS) means a lot for a client. It says that the surveyor will stand behind the land survey for up to 10 years; including defending the survey in court. It offers a level of assurance to a client by allowing them to know what it is they might be getting into with a particular land deal. Imagine finding easements, encroachments, or that the property is not actually the size represented. A land surveyor uses science and professional judgment to develop a picture of real property, and if a picture is worth a thousand words then imagine what a survey is worth. Whether you are a property buyer or seller, title company, Realtor, or financial lending institution having a land survey offers you a level of assurance that you can not easily obtain through any other means.

I am not an attorney so this is not legal advice nor is it even surveying advice. It is a topic to make real estate agents, buyers, and sellers of real property to take pause. One of the rather interesting actions that I've seen occur in land survey is the allowance of an affidavit in lieu of a survey. This is an affidavit that the seller signs and agrees that there have been no changes since the last survey and the buyer, lender, and title company accept the affidavit. So the seller and buyer are no longer on the hook for the cost of a survey. You saved your client money. Sounds great right? Wrong. It's a mess of convoluted problems waiting to bite you, your buyer, and the seller. But wait there's more; the title company gets a pass! How's this you might ask? If an affidavit is used instead of a recent survey they will likely have an exception clause in the title commitment excluding anything dealing with the survey. If the title company does not use an exception clause against the affidavit and uses the previous survey this opens up a whole other set of issues, but that's for another day.

So what does that mean? It means the seller is holding the liability once held by the surveyor. This could mean that the buyer might look to the seller, lawyer, or the real estate agents involved in the transaction to financially resolve any issues. Let me explain. Here is a theoretical scenario: lets say Mr. Beard comes along and buys a property. Lets say 15 years later you and your buyers, Mr. and Ms. Gomez, come by when Mr. Beard wants to sell. Well Mr. Beard signs off on an affidavit of survey, at the advice of his real estate agent, saying nothing has changed since he bought the property, which is accepted by Mr. and Ms. Gomez. This saves the seller and buyer the cost of a survey. The title company issues their title commitment with an exception to the affidavit and everyone goes on their way. Well that is until Mr. and Ms. Gomez discover some issues. It appears that Mr. Beard failed to mention that he installed a fence along the back side of the property that encroaches upon the neighbors property; well not to big a deal since the fence can be moved for nominal costs or annoyance. However a second more significant issue is discovered when the Gomez's go to move the fence; an easement was introduced in the front yard along the street right of way that restricted use of a 25 x 80 foot strip.

They get mad and hire an attorney who hires a surveyor that tells them that his research shows the easement came into existence shortly after Mr. Beard purchased the property. So now Mr. Beard is on the hook for this issue. But Mr. Beard sold his property via a real estate agent who said he could save his seller money by simply signing an affidavit that said no changes had occurred. Mr. Beard hires an attorney to sue his agent. I'm not a lawyer but there are a who lot of possible convoluted legal arguments against the agent; even if they did not suggest such an affidavit and one was used.

The point here is to think and exercise extreme caution before jumping into a supposed freebie or savings. Nothing is free and someone is always responsible. In this case the seller, agents, or lawyer (if property is transacted with a lawyer instead of real estate agents), might end up being responsible. Notice I as the surveyor am not held responsible as the survey is well past the 10 year mark. The title company's exception clause protects it, limiting it's liability against potentially significant claims such as in this situation and passes such liability back to the seller. Just think had either Mr. Beard or Mr. and Ms. Gomez hired a surveyor they would not be in the situation. All because it was a good idea to save a whopping $450.00 on a residential survey for a property worth about $300,000.

The above scenario uses fictitious names, but is based on real observations in my field.