survey

What is An Easement and How Did I Wind Up With One?

August 24, 2016 by khproperties 1 Comment

We’ve had a lot of discussion over on our post about surveys, “What If Your Property Survey is Incorrect?,” so we thought we’d take a moment to discuss easements since they are a common issue that crop up on surveys. The word easement often pops up during the title search on the property you’re buying and can cover a wide array of items. There are two main types of easements and things can get a little technical when talking about them, so we’ll try and keep it simple. As with anything of this nature, if you do discover easements on your property and have questions about them, it’s best to turn to the source materials and people involved – your survey, your agent, the title company, and the owner of the property. Often it is hard to interpret much without all the facts, so you may need to discuss with each party before getting a true picture of what is happening and how it affects you and your home purchase (or sale).

Simply put, an easement is an allowance for someone else to use a portion of your property. If an easement exists, you still own the land, but someone else can use it for the purposes designated by the easement.

Two Common Types of Easements

In our line of work, we often see two types of easements on a regular basis, so we’ll use those to demonstrate. The first is a utility easement and the second is an access easement.

If you own a home in the suburbs, your home more than likely has a utility easement attached to it. These easements allow the utility companies (water, sewer, gas, electric, telephone, and cable) access to your land in order to provide these services to you and the community at large. This strip of land, typically across the back and along the sides of the property, is where the utility companies bury their cables, wiring, and pipes through neighborhoods to connect everyone to their particular service. Many of these easements are laid out in the neighborhood when they are first platted and designed by the developers, so you will often find them in the covenants, conditions, and restrictions documents (also know as CCRs and usually part of the HOA docs you receive when you buy a home) filed for that neighborhood. Some of these can be viewed online depending on your local county’s set up (you can find Bexar County information through the County Clerk’s website). Your property survey will also demarcate these lines if they were created in the original subdivision plats.

The second common easement is a right of access easement. Imagine you buy a large piece of acreage that is surrounded on all sides by other large tracts of land. How do you get to your land without crossing through someone else’s land? This is where easements come in. Since you have the right to access your land, you can be granted an easement across someone else’s property. These easements have a lot of legal implications with them and are a bit more complex. If you’re interested in reading up on these, we suggest The Real Estate Center at Texas A&M University’s in depth look at “Easements in Texas” (PDF).

Is the Easement Tied to the Land?

Easements can be tied to the land (utility easements like the ones we mentioned above often are), but they can also be tied to a person or business entity. If attached to the land, they are known as appurtenant. As easement that is tied to an individual or business entity is known as in gross. This type of easement terminates upon the death of the individual or end of the business entity. Most of the common easements we see in our area are appurtenant and therefore transfer with the sale of the property.

Easement Advice

The biggest mistake we see homeowners make when it comes to easements is when they obstruct them in some way. Placing permanent structures like detached garages, sheds, or pools on top of these easements can cause a lot of trouble down the line. We’ve seen quite a few of these cases and when the owner goes to sell and these items are discovered, they open up a new can of worms where the owners have to seek a variance in order to allow the structure to be left in place. If the owner fails to be granted the variance, the structure has to go. If you know you have easements, avoid building anything on them. It is also advisable to not plant any large trees or shrubs in these areas as if and when someone needs to use their easement, they do have the ability to remove those items. One can pop over to this site to find professionals that can help with the same. Imagine the electric company coming through your back yard with a backhoe to dig up their easement and lay some new cables – would you want them digging up that tree you planted when you kids were born? A little forethought goes a long way when designing your landscaping and building any permanent structures on your land.

image courtesy of dno1967b

What’s a T-47 and Why Do I Need One?

January 28, 2016 by khproperties 14 Comments

The T-47 Residential Real Property Affidavit (also known simply as the T-47) is a notarized form that complements a survey in a real estate transaction. It is used when both parties to the transaction want to use an older survey from when the seller bought the home and is used to attest the correctness of the survey from the sellers point of view. As a seller, you’ll need to fill out this form correctly and fully and give it to your real estate agent for their files. We’ll break down the form to help you fill it out accurately, but first, let’s talk about when to use the form. In order to do that, we’re going to need to take a look at Paragraph 6.C. in the One to Four Family Residential Contract (Resale), which is the most common contract form when buying a home in San Antonio.

Paragraph 6.C. Survey

Paragraph 6.C. SURVEY: The survey must be made by a registered professional land surveyor acceptable to the Title Company and Buyer’s lender(s). (Check one box only)

(1) Within ___ days after the effective date of this contract, Seller shall furnish to Buyer and Title Company Seller’s existing survey of the Property and a Residential Real Property Affidavit promulgated by the Texas Department of Insurance (T-47 Affidavit). If Seller fails to furnish the existing survey or affidavit within the time prescribed, Buyer shall obtain a new survey at Seller’s expense no later than 3 days prior to Closing Date. If the existing survey or affidavit is not acceptable to Title Company or Buyer’s lender(s), Buyer shall obtain a new survey at Seller’s Buyer’s expense no later than 3 days prior to Closing Date.

(2) Within ___ days after the effective date of this contract, Buyer shall obtain a new survey at Buyer’s expense. Buyer is deemed to receive the survey on the date of actual receipt or the date specified in this paragraph, whichever is earlier.

(3) Within ___ days after the effective date of this contract, Seller, at Seller’s expense shall furnish a new survey to Buyer.

Checkboxes (2) and (3) do not apply to this conversation, as a T-47 is not required when using a new survey. The T-47 is only used when you check Paragraph 6.C.(1), which allows the seller to use an existing survey. The survey and T-47 must meet the requirements of the lender and the title company, but as long as they do that, an older survey may be used (typically the one provided to the seller when they originally bought the house). It is important to note the sentence in bold (it is in bold on the contract) – the seller has a specific amount of days (first blank line in the section) to deliver both the survey and the T-47 to the buyer. If the seller fails to do so, the buyer may order a new survey and the seller will be required to pay for it regardless of which box is checked later in the section. Those two checkboxes define who will pay for the survey in the event that the survey and T-47 are not accepted by the title company or lender.

The T-47 Affidavit

The first section of the T-47 Residential Real Property Affidavit form is for basic information: date, name, address, legal description of the property, and what county it is in. There is also a blank where the notary needs to fill in what state they are a notary in (we see this missed quite often).

The bulk of the T-47 is based in the six items that follow. Some require you to fill in some information. Let’s take a look at them separately…

1. We are the owners of the Property. (Or state other basis for knowledge by Affiant(s) of the Property, such as lease, management, neighbor, etc. For example, “Affiant is the manager of the Property for the record title owners.”):

If you are the owner of the property and filling out this form, you do not need to fill this section out. If you are acting on behalf of the property owner, you would need to explain who you are and your relationship to the property. There is an excellent example in the section, if you are the property manager, you would write “Affiant is the manager of the Property for the record title owners.”

2. We are familiar with the property and the improvements located on the Property.

3.We are closing a transaction requiring title insurance and the proposed insured owner or lender has requested area and boundary coverage in the title insurance policy(ies) to be issued in this transaction. We understand that the Title Company may make exceptions to the coverage of the title insurance as Title Company may deem appropriate. We understand that the owner of the property, if the current transaction is a sale, may request a similar amendment to the area and boundary coverage in the Owner’s Policy of Title Insurance upon payment of the promulgated premium.

By signing this form, you are affirming these two statements – first, that you are familiar with the property (and improvements) and second, that you are involved in a transaction with that property and that transaction involves area and boundary coverage in the title policy. Section 3 also goes on to further clarify exceptions and amendments to area and boundary coverage in the title policy. We’ll cover some of these in a future post, but you can read up on title policies to get a general overview.

4. To the best of our actual knowledge and belief, since ____________ there have been no:
a. construction projects such as new structures, additional buildings, rooms, garages, swimming pools or other permanent improvements or fixtures;
b. changes in the location of boundary fences or boundary walls;
c. construction projects on immediately adjoining property(ies) which encroach on the Property;
d. conveyances, replattings, easement grants and/or easement dedications (such as a utility line) by any party affecting the Property;
EXCEPT for the following (If None, Insert “None” Below:)

In Section 4 there are two important details that need to be filled in. The first blank requires a date. This date must match the date of the survey that is being used. A lot of sellers will enter the date they bought the house, but this is incorrect. The sellers, by using this form and the old survey, are affirming that to their knowledge, none of the items listed (a. through d.) have occurred. This includes knowledge that the (now) sellers would have obtained from the (former) sellers of the home when they bought it. This section states that no changes have been made (and gives specifics) to the property that would affect the survey and the boundaries set forth in it. If changes have been made, the last line allows you to state exactly what has been changed. They leave a rather large blank section for this and you should fill in any items that would apply. What applies? Look back to items a. through d. for guidance. If any of those things changed, you should state them here and be specific. If there have been no changes, the form states that you should write “None” in the space provided. We see this missed often as well.

5. We understand that Title Company is relying on the truthfulness of the statements made in this affidavit to provide the area and boundary coverage and upon the evidence of the existing real property survey of the Property. This Affidavit is not made for the benefit of any other parties and this Affidavit does not constitute a warranty or guarantee of the location of improvements.

6. We understand that we have no liability to Title Company that will issue the policy(ies) should the information in this Affidavit be incorrect other than information that we personally know to be incorrect and which we do not disclose to the Title Company.

More statements that you are affirming by signing this document in Section 5 and 6. The first, is acknowledging that the title company will rely on the statements contained on this form to be truthful and will compare it to the items on the survey. It also states it does not warranty or guarantee the location of the improvements to the property. The second, states that the seller understands that they have no liability to the title company if the information is incorrect unless they have failed to disclose something.

Wrapping up the form is the section for the notary. You’ll need to take this form to a notary and sign it in their presence. Once notarized, the T-47 should be delivered along with the survey within the time allowed in the contract. Many agents will upload these documents into the MLS to ensure that any agent representing a potential buyer can quickly pull them and deliver them to their client (although it should be noted that having the documents in the MLS does not constitute delivery and the listing agent should ensure that they are given to the buyer’s agent).

We hope that helps explain the T-47 Affidavit and give you a better understanding of its use and function. As always, if you have more questions, you should contact your agent, who can help explain the details of the forms in depth and apply them to your specific transaction and situation.

image courtesy of Metsu Design Studios (and credit to anyone who understands why we chose this photo)

Zero Lot Lines

January 26, 2016 by khproperties 16 Comments

You may have heard the phrase “zero lot line” while shopping for a new home, particularly if you’re looking at homes classified as garden homes (also known as patio homes). What exactly is a zero lot line and why is it important to understand what they are and what they mean to you? You will see them discussed in relationship to your property boundaries (and on your survey). Property boundaries and lines can be tricky business and we’re here to help you understand a bit more about different setups found on a property survey, and why it matters in construction. First of all, a property survey is a document that outlines the exact boundaries of your piece of land and the location of any improvements built on it. It contains several features.

Outline of a home or building. It is not a colorful drawing of your house (this is often called a rendering), but really just an outline, so that the shape and size of the structure are clear and drawn exactly where they sit on this parcel of land. Is it right up on the front of it by the street? Nestled somewhere in the exact middle? The survey shows you where the home sits relative to the whole property.
Man made additions such as decks, pools, sheds, driveways, and fences should also appear, and their exact dimensions and location relative to everything else is measured and drawn.
Building setbacks are imaginary boundaries created by developers when the neighborhood is first created. They are rules about how far away from the edges of the property that something must be constructed. A good example of this is a neighborhood that might have a 30′ building setback line so that all of the houses along the street are in a perfect line. You don’t find one that is right up on the curb with no front yard and another way back down the street with no backyard. It’s all about uniformity. These are also what allow you to have space between houses, as they typically are described and applied to all edges of the property boundary.
In order to have utility services at your house, the utility companies have to get their lines or pipes to your house from the street or public access point. When the electric company runs wires from the meter at the street up to your foundation, that wire still belongs to them. If there is a system outage, they need to have access to that wire, even if it means stepping on or digging up your yard. Utility easements are rules filed with the county that give the utility company the right to access specific parts of your property – where their lines, pipes, wires, etc. lie for the purpose of providing you with their service. By default they have the right to access these areas without your explicit permission. They are similar to building setback lines in that you don’t want to build in these areas of your property because if something happens and the utility company needs to access the underground equipment, they do have the right to tear up whatever structures lie in these areas so that they can access their equipment.

Zero Lot Lines

While we have described some details of property surveys in a previous post, there is a very special home type that has what we call a zero lot line. In this style, we ask you to first think of a row of houses in a neighborhood. Each one has a small side yard on each side of it with a fence running along serving as the property line. Basically between each house you have two side yards (the right hand side yard of the first house, then the fence, then the left hand side yard of the second house). Ok, now picture one of those side yards being squeezed out of the picture. In a zero lot line building style, your buffer zone between houses gets reduced. Instead of having two side yards meeting at a fenceline, one of the houses actually becomes that fenceline.

In the illustration above, the first house (House #1) has a left hand side yard and one on the right. Their neighbor (House #2) has a left side yard, but none on the right. So instead of two yards meeting at the fence, the house itself actually becomes the boundary line. Because the boundary of the lot is actually the side wall of the home, is is said that they have a zero lot line. This can create some complicated situations between neighbors.

What if the owner (House #2) wants to paint the outside of their home? In order to repair or update any element of their own house, House #2 would have to get permission to be on the property of their neighbor (House #3). They cannot make any changes to anything except their own structure and any paint or debris from the work would have to be removed from House #3’s yard with the help of a commercial trash removal company. Homeowner’s associations or deed restrictions may clarify the first owner’s right to access if there is a dispute.

What if the owners of House #3 want to put up a wrought iron fence along their left side yard? They should be able to do that (always wise to check with the HOA and any deed restrictions before tackling such a project) and they have unrestricted use of all of the yard and space up to a few millimeters from their neighbor’s house (House #2). There is literally zero space between the space they own and the neighbor’s house. Because there is zero space, we get the name zero lot line. It’s important to note though, that they can’t touch the house itself. If the act of putting up the iron fencing damages the house on the left (House #2), the owner on the right (House #3) would have to pay for that damage.

In the above scenario, if the owner of House #3 puts up this fence and then the owner of House #2 decides they want to paint the outside of their house, but can’t access their house due to the fencing, what happens then? In this case, if something is obstructing the owner of House #2’s ability to access their property, they could pay to have that fence removed, but then would have to pay to have it put back exactly as it was prior to that.

image courtesy of cogdogblog

What If Your Property Survey is Incorrect?

March 7, 2014 by khproperties 95 Comments

What to Do if There’s a Problem with Your Survey

Yesterday, we covered the basics of what a survey is and what information they contain, so today let’s talk about what to do when there are problems or issues with your survey. After you have looked over the survey of a property and realize there may be a problem, there are some steps you can take to get those items corrected. You can also look into this website bonniebuyshousesfast.com to get more details.

First thing’s first – call the survey company that conducted the survey to verify that what you’re seeing as a problem is correct. On rare occasions survey companies do make mistakes. If they have indeed made a mistake, you have several options.

If the lender or title company has an issue with a fence line or similar issue, they may call exception to it on the title policy. What this means is that it becomes akin to a “pre-existing condition” in health insurance (the way they used to be handled) and it won’t get covered if there’s ever an issue or dispute over the matter. All parties sign accepting that exception as a part of their closing documents.
You can contact the seller and ask for the fence or violating structure to be moved. Sometimes this is an easy fix and other times it can be very complicated. The seller may also need to contact neighbors to make the adjustment.
If the issue is an utility easement, you can apply for a variance. This is basically a waiving of the utility company’s right to access a certain portion of the easement area. It can be time consuming, so the sooner you can begin to address these issues the better.
Back out of the deal. If your concerns over an improper building, property line, etc. are not something that you feel you are willing to live with or something that cannot be properly corrected, the buyer may have the right to terminate the contract. As always, we recommend consulting a legal professional before terminating a real estate contract because there could be complicating factors.

A fun story in terms of dealing with this type of issue: Our company once represented a buyer who contracted to purchase one end unit in a newer townhome complex. When they went to get a survey of the property, it was discovered that the actual walls of the townhome extended a few inches into the property line of the neighboring unit. In theory, the neighbors could tear down the wall on one side (let’s say it was a living room) and there would be nothing the owner of that unit could do about it. Because it was a townhome where all of the units had shared walls, basically the whole structure had been built a few inches out of line and every single unit in that building was impacted with the same problem, right on down the row.

Eventually, with a lot of phone calls, door knocking, and paperwork, the issue was resolved. Basically everyone in that entire row of townhomes signed documentation giving those few inches of property back over to their neighbors in keeping with the building lines (not the property ones). As you can imagine, a situation like this could easily turn into potential for disaster. Luckily, all the owners were able to work it out with a bit of compromise and the problem was resolved.

image courtesy of edillalo

Property Survey – What is it and Do You Need One?

March 6, 2014 by khproperties 2 Comments

What is a Property Survey?

A property survey is a professional drawing of the boundaries of a specific piece of real estate and it includes the property lines, easements, and any structures that were built upon that designated lot. A surveyor will use the metes and bounds and legal description of a property to measure and map out where the property begins and ends. They will do research on any restrictions, setbacks, and easements that have been recorded in the deed history of the property and make sure that those are also accurately measured and drawn into the survey as well.

Many times buyers and sellers overlook the importance of a survey in a real estate transaction, even though it is a requirement of lenders and title companies alike. Here are some key things to look over when reviewing a survey.

Property lines vs. fence lines. Believe it or not, fences don’t always line up exactly with the official boundaries of a property. Sometimes it is by a few inches and other times it is a few feet. If the fence crosses into a neighbor’s property, that neighbor may technically have the right to remove the fence without your permission, so you can imagine where conflicts arise. You may need to take on a fence repair project or even install a whole new fence if there are disputes regarding property lines.
Building setback lines. These are lines designated by a developer and recorded with the county that specify how far from a street or from the property line any structures must lie. The purpose is to keep a more uniform neighborhood look and to prevent overcrowding and access to all sides of a structure.
Easements. An easement is like a setback line, but it is a designated zone in which another party is given right of access to a property. Most commonly these are utility easements and would designate areas in which a utility company could legally enter, access, and use your property for purposes of utility lines or repairs. These areas should remain clear of buildings or structures. If there were a fence or a part of a structure that crossed over into an easement and a utility company at some point needed to dig up the lines, they would have the right to tear down a portion of that structure in order to gain access. Remember, many of these utilities are buried underground and you should always call 811 (in Texas) before you dig.
Structures and improvements. If the home you are looking to buy has a pool, but the survey about us which is provided by a seller does not show the pool, it will need to be updated to reflect this permanent structure. Pools are a common improvement that would impact a survey, but you will also want to note decks, permanent patios, and storage sheds that sit on a concrete slab with the help of foundation repair bloomington or other concrete workers (not necessarily the plastic, moveable ones).

Come back tomorrow to learn what to do if there is a problem with your survey…

image courtesy of edillalo

Who pays for the survey?

January 28, 2013 by khproperties 20 Comments

What is a Survey?

First let’s get the concept of what a survey is out of the way. Merriam-Webster defines survey as “2: to determine and delineate the form, extent, and position of (as a tract of land) by taking linear and angular measurements and by applying the principles of geometry and trigonometry.” Think of it as a map of your property marking property lines, easements, buildings, and setbacks. It shows the truest picture of what the layout of your land is and defines what you actually own when it comes to a piece of land.

Alright, So Who’s Paying For It?

Like most things in a Texas contract to purchase a one to four family residence, the cost of a survey is determined during the offer and negotiations on a new home. There are several checkboxes that determine who pays for the survey. On more than one occasion I have seen an experienced agent check a box incorrectly which later cost their client money.

Paragraph 6. C (2) and (3).

Let’s cover (2) and (3) first as they are very simple. The blank spot in both is for a number – the number of days after the effective date of the contract with which a buyer or seller must obtain a new survey. ; Pretty straightforward. (2) is for the buyer paying for the new survey and (3) is for the seller paying for the new survey (told you it was simple).

Paragraph 6. C (1).

This is where I see mistakes most often. This section lays out the rules and is typically used when a survey already exists on the home and both parties would prefer to use the older survey for some cost savings. Your agent and you (the buyer) should be looking at the existing survey though, if any major changes have been made (new pool, deck, shed, fence lines, etc.) you’ll want a new survey. This will help you when you sell the house someday and also make sure that you know the official layout of your land and home.

If both parties are going to try to use the older survey, caution should be taken by the agents (as I said I see a lot of mistakes made here). The first section of (1) is for the number of days for the seller to present the survey to the the buyer and the title company. The set of checkboxes who (buyer or seller) will pay for the survey if it is deemed not acceptable by the title company or the buyer’s lender. It clearly spells out that they (buyer or seller) must obtain it no later than three days prior to the closing date.

Here’s where the mistake is made. The section in bold (in the contract, bold below indicates my emphasis) that reads:

If Seller fails to furnish the existing survey or Affidavit within the time prescribed, Buyer shall obtain a new survey at Seller’s expense no later than 3 days prior to the Closing Date.

I have seen several times where we thought there was a survey and checked off C (1) and asked for the seller to pay for the survey. During negotiations, the seller’s agent suggested the buyer pay for the survey and we agreed. However, when we received the signed contract back, they had merely crossed off the seller’s checkbox and checked the buyer’s checkbox. This is fine, if the seller does indeed have a survey, but if they do not or forget to supply one in the prescribed time, the sentence in bold (described above) becomes the most important one in C (1). Because the seller failed to provide a survey (whether they didn’t have one or didn’t perform their duties in a timely manner), the buyer now has the right to order one and have it conducted – and the seller has to pay for it.

Your agent should be aware of this, but as I’ve said previously, I have seen it happen more than once (when I was on the buyer’s side of the transaction – it didn’t make the seller very happy with their agent, but my buyer loved me for it). Knowing your contracts can really pay off for your clients and really should be a no-brainer for an agent.

image courtesy of blmurch