I am considering buying 10 acres of rural land. The boundary of this land has changed in the past year. It was 11 acres but one boundary was moved, making the land 10 acres. I know where all the land's boundaries are within a few feet. If I fence the land, I may go over or under a foot or so, but that's about all. The seller is recommending I get the land surveyed, which will cost me $900 or $1000. According to the already-signed contract I am responsible for the expense of any survey made.

Here's my question, in a situation in which a survey is not a legal requirement for buying the land, should I pay for the survey? What all will the benefits be of having the survey done?

-- Rick #7 (rick7@postmark.net), July 30, 2001

Answers

Rick here in our area a survey is very important. The company is bonded so that if the land lines are questioned in the future, they would have to pay for any expense that it costs you. Say you fence the property, then I move in next door, and find through my survey that your fences are on my property. Legally I can make you move your fences, and then with set back laws, if you built then to close to the new fences, you could have to move a house, a barn a pond :) Did you cut down any of my valuable trees? etc. etc. The grandfather clause that the fence has been her for 7 years so it marks the boundry is an old wives tale, told over and over in our area. Vicki

-- Vicki McGaugh TX (vickilonesomedoe@hotmail.com), July 30, 2001.

I would get the survey too, and in the future, make sure the sellers pay for the survey, here in Ohio, the seller almost always pays for the survey, I know we made sure of that when we bought our farm!

-- Annie Miller in SE OH (annie@1st.net), July 30, 2001.

The bit about a fence being in place for seven years is NOT an old wive's tale. It's called adverse possession. It is likely different in different states. I got involved in a land purchase where the house was bisected by the property line, but the house's owner had done the adverse possession deal, and was able to avoid moving the house, plus a small yard area around the house. As I understood the (Calif) law at the time, this only worked if the house, or fence, or road, or whatever, was placed in the wrong place in good faith. If the property had ever been surveyed, it wouldn't work, as the law assumed the person who built the house, road, fence, etc. SHOULD have been able to figure out where the line was, since it had been surveyed.

I know that here in Oregon there is an adverse possession law as well, as it's been used by a few people around here. But I don't know any more than that.

As far as the survey, figure out if it's worth the 900 or $1000 to you. If you are clever enough, you can figure out pretty darn close where the line is; just make sure you are WELL back from the line, so no one can complain later. Obviously, this is a bigger risk if you want to build your home close to the line than it is just putting in a fence.

By the way, just getting the survey done won't assure you that your fence, house etc is on your property UNLESS you make sure the surveyor puts pins (or at least marks the line) where you want to build the fence--the complete lenght. Lots of surveys only mark the corners.

If you do survey it, I recommend that you install, deeply, some steel tee stake fence posts every so often. These will stay in place a lot longer than the surveyor's wood stakes, as he/she's likely to place in between the corners, and putting them NEAR the corners will help you find the corners in the future. The plastic caps on the corner markers get eaten off pretty quick by bears, at least where I live. Also, the pins often get buried by leaves, etc. in a few months/years. Then you have to get a surveyor in AGAIN, if you can't find them!

JOJ

-- jumpoff joe (jumpoff@ecoweb.net), July 30, 2001.

Rick. It would be helpful to know what state you are in. A properly executed and recorded survey is cheap insurance for one of the biggest investments you will ever make. All states in the Union now require the licensure of land surveyors and also require that they record a map of the survey with the County Auditor's or Recorder's office. Adverse possession is not an old wive's tale. It is a centuries old boundary doctrine which has been upheld in the courts over and over. If you just throw up fences or other improvements (hedges, etc.) in the vicinty of the property line without regard for accuracy you are only creating potential headaches and possible legal battles for yourself and your neighbors. Fencing is not cheap either. Think about the consequences when someone buys the ten acres next door in three years, has a survey done and discovers your fence three feet over the line? He'll likely come knocking on your door telling you to move your fence. That can take both time and money which you may not be prepared to spend right then. The statutory time limit for adverse possession in most states is seven years, but the action has to be confirmed in court. Title Insurance Companies generally will not honor claims related to boundary disputes.

Another thing that a survey will do is let you know if there are any conflicts between your deed and the deeds of adjoining property owners. You can also have the acreage verified. Another benefit is that when a neighbor challenges your fence location, all you have to do is point out the survey marker and pull out your map, stamped and signed by the Professional Land Surveyer, and tell him you are right on the line and if he doesn't agree, to go hire his own surveyor and prove you wrong. Most reasonable people will shut up at that point. It takes all the burden off you and puts it on the surveyor. I agree that it is important to have line stakes set that are inter-visible. That is, you can stand at one and see the next. I don't know of any area where land surveyors only set wood stakes for the corners. Nearly every state has requirements that when a land surveyor establishes a corner, he monuments the position with a permanent metal stake that is marked somehow with his registration number. Most surveyors use 24" long pieces of 1/2" rebar with a durable plastic cap that is inscribed with his number. These are driven flush with the ground. A wood stake is set within several inches as a "witness" to the corner stake so it can be found easily. At the company I am with now, we use 24" long 3/4" galvanized iron pipe. It is still a good idea to be there while the survey is being conducted and drive heavy duty 7' long T-posts in alongside the stakes set by the survey crew. Drive them to refusal and if someone tries to pull them out, you will know it. When you build your fence, put it as exactly on the survey line as you possibly can. Generally in agricultural areas, the wire should be on the line. The posts can be on one side or the other depending on how the wire pulls. (Always place the wire on the outside of the post at corners so that it will not pull away from the post.) That means that if your boundary line has an angle point that points in toward your property, the post would be on your neighbor's side of the line, but the wire would be right on the line. Most people are reasonable enough to not quibble over the 1/2 square foot of land for a heavy duty fence post. I hear people say that they will put the fence several feet inside the line "just to be safe". That's nonsense. In seven years title to that several feet will effectively pass to the neighbor. Land is too valuable to be giving it away. Put it on the line and keep what you paid for.

We Professional Land Surveyors have a high degree of liability for the accuracy of our work. Here in Washington State, the statute of limitations falls under the "discovery rule". That means that if someone discovers an error in my work thirty years from now, they can sue me for damages relative to the value of the property and improvements at that time. (That's why I'm covered with hefty errors and omissions insurance.) $1000 is pretty inexpensive for a survey of ten acres. In my neck of the woods it would run you closer to $5000. Sounds like a real bargain to me.

-- Skip in Western WA (sundaycreek@gnrac.net), July 30, 2001.

The seller is right. He was also clever to have you paying for a survey to see what he's selling you. That's over now, but something to remember for the next time around.

I agree with others that a survey is one of the most important aspects to any real estate transaction. Title insurance is also crucial. An attorney YOU pay is important, too. You even cite one good reason for a survey. You said a boundary changed reducing the property size by a full acre. A survey done a year ago might well still have you with eleven acres. Without a survey it's very difficult to establish a legal description of the property, too. Without a good legal description you are leaving yourself open to claims of others. Even if you're right, defending the claim can eat up more than the cost of a survey and title insurance. Title insurance will pay to defend your rights in the land if you have it. That's why they require a good legal description.

As to the price, I paid $750.00 eighteen months ago for a survey of just under eleven acres and got a tremendous price break at that. The price is well within reason for my area, at least. I hope this helps.

-- Gary in Indiana (gk6854@aol.com), July 30, 2001.

Looks like good advice, all of it.

Thanks a million.

-- Rick#7 (rick7@postmark.net), July 31, 2001.

Get The survey. Adverse possession is very mis-understood. Adverse means you where told no and did it any way and after 10 years.... If you put up your fence in the wrong place and were not told NO!! it is not adverse. Also look up your states laws on partition fences. You may only have to pay half the cost of both the survey and fence.

-- L.A. (lromsa1@state.wy.us), July 31, 2001.

Of course national laws may vary but it is my understanding that if my neighbour puts up a fence on my side of the boundary it just means he has given me a fence. I suppose I could pull it down, sell the materials then charge him half the cost of a new fence on the boundary.

-- john hill (john@cnd.co.nz), July 31, 2001.

Adverse Possession is a boundary doctrine that was brought to America from England. You will find extremely little information about it in state codes or laws and nothing in federal law. That's because it is all built on case law. Adverse Possession cases are always decided in court and transcend state and regional interpretations. The only thing that may vary from state to state is the period of time required to perfect an adverse possession claim. It is almost universally seven years, although there is another, though not commonly used, statute that allows for transfer of title if you can show that you have been paying the taxes on it. That is called "color of title" and takes ten years.

The conditions that must be met to satisfy an adverse possession claim are much understood. The terms that are used are legal terms and should not be interpreted in their common meaning. One most commonly misunderstood test is the requirment for "hostile". You don't literally need to be hostile. This means that you act like it is really your land and you would be "hostile" to a trespasser on that land like anyone else would be on their own property. Other conditions include: "claim of right", "in good faith", "exclusive", "continuous" "open", and "notorious". Putting a fence up on your neighbor's land, maintaining the land within the fence and maintaining the fence for seven years will meet all those conditions. You have to go to court to acquire "marketable title". The judge will affirm that after seven years title automatically passed to you, but if you sell your property, you can't give insurable title to the buyer without a court decision. After seven years you will in fact have title, but you need a judge to declare it so before you have marketable title and before a title insurance company will insure title to the fence. This almost always requires a survey to quantify and document the exact area being possessed. Adverse possession can also tack from one owner to the next. It runs with the land. If you bought the property two years ago and the fence was there six years before you bought the place, you now own to the fence. It's yours. If the neighbor has a survey and then tries to take the fence down, you can sue him for trespass and damages. Only a judge completely ignorant on adverse possession case law will decide for the neighbor.

As a land surveyor I have to understand the rules and application of adverse possession so that I can recognize potential boundary disputes and properly locate and document lines of occupation when I conduct a survey. One of my most basic responsibilities is to locate anything in the vicinity of the boundary that may indicate lines of possession or occupation and to note the apparent age and character of those features so that I can provide accurate and reliable testimony should the boundary dispute ever end up in court.

-- Skip in Western WA (sundaycreek@gnrac.net), August 02, 2001.

I know of a situation in our neighborhood where the seller thought he was selling 10 acres with 330 feet of frontage, but the deed was for 10 acres with 1320 feet of frontage. No survey was made before the sale, and someone had written the deed description incorrectly. The seller was left with 30 acres with no frontage.

I also know of two other property buyers who built new homes that "overhung" the boundary line. One by 3 feet and the other by 15 feet. Each thought they knew where the line was, and each had to buy additional property at the neighbors "price".

It's a fact that many property sellers don't actually know where the lines are located and will point to field/wood lines and other natural marks with an authority that will convince a prospective buyer. I once noticed a group of people in the edge of our alfalfa field and discovered that the lady who owned the adjoining property was telling them that the boundary line of the property that she was selling was over 150 feet south of her actual boundary. Those folks would have been sadly disappointed if they had bought it without a survey.

-- Paul (hoyt@egyptian.net), August 05, 2001.

Perhaps Skip will be so kind as to answer this question here, since it kind of applies to this discussion:

What does "so many acres, + or - " mean, and how much deviation is considered acceptable before one should consider legal action over it? For example tax records showing 4.75 acres?

I would add that we helped our neighbor, who is trying to sell his house, to stake out the property line with green fence poles painted white on the top--no fence--from survey post to survey post. Less expensive and less obtrusive than a fence, yet you still know where the property ends, and can still put up a fence later if desired.

-- GT (nospam@nospam.com), August 12, 2001.

I bought a piece of property in Mississippi. It was suppose to be 221 acres according to the property description. When I checked on taxes from the tax assessment office, i noticed that taxes were based on 190 acres. Now when i initially signed a purchase agreement with the buyer, it was to be based at a per acre price depending upon a survey. You can imagine the previous owners face when he was told that the acreage was "only 190 acres". Anyway the lesson learned is no matter what someone claims to be the size of the property--always get a survey.

-- Todd Perilloux (toddpasap@hotmail.com), January 29, 2002.

I actually cancelled buying a piece of property because the seller refused to have either show me the surveyed corners (because they were in heavy brush) or to do a survey again (since he didn't want to pay for it.) He also would not have the well tested & the septic cleaned out/certified. It seemed to me that he was selling me a box of uncertain dimensions and unknown contents. I felt he was insulting my intelligence and disrespecting me as a buyer. I went and found instead a piece of raw land with locatable surveyed corners. Next time Rick... Get the survey -- if only so YOU know what you bought.

-- snoozy (bunny@northsound.net), January 29, 2002.

Oh please pay for the darned survey so you won't get screwed later on. I worked for attorneys for years and one of the things we saw a lot of was inaccurate deed descriptions, misunderstandings such as "well the seller told me that the line ran from the plastic stake set ten feet from the corner of the barn". Did it ever occur to anyone that stakes can be moved? Topography changes, creek beds change, rocks get covered up, fence lines (especially my first ones) are usually crooked?

Never rely on "from the center of the creek" or "from the tall rock at the corner". And NEVER rely on the seller. The seller wants to sell and a realtor is acting "generally" for the seller. So if the seller points out the general direction of the line and you see a plastic stake or a ribbon tied to a tree, but the land hasn't been surveyed, call your local surveryor. Many times, and Skip, correct me if I'm wrong, the land was previously surveyed and the surveyor can update the survey. I'm sure our local surveryor told me that they do limited surveys based on previous surveys.

Anyway, the survey is done to protect YOU. AFter you've bought the land, what if you try to sell it and the new purchaser insists on a survey? You have no plat to show him/her. You may lose a sale that way.

A great resolution though - the seller wants to sell and you want to buy - ask the seller to split the cost down the middle with you. Some will. Around here in Georgia is is par for the course for the seller to pay for the survey. So if you have one that is accurate when you bought the property, you can get an update from your surveryor when you get ready to sell.

Please don't make the mistake of trusting the seller (who may be the most trustworthy saint in the country). The seller may have forgot over time that the property line was really moved four feet this way and he adjusted two feet that way so the other neighbor could build his barn.

Just pay the money and then you are safe. You might find out that you aren't really getting ten acres after all, or in my case, you might find out that that you are getting MORE property than you thought. All in all, it is money well spent, just as title insurance is. I found out that there was an old mortgage which had never been cancelled on my farm through a title search. After much legal finagaling (is this a word?) we got it straightened out. But I was told by my attorney that technically, had I not gotten it straightened out, my land could still be tied up (hence no present mortgage cause one pre-existed the sale).

Good luck!

-- Cindy (colawson@mindspring.com), January 29, 2002.

Well if the professional answers you received haven't sold you on the idea of getting a survey, perhaps this current story will.

We found our piece and set about a contract. The negoiation turned out that the land is sold at a good price and we pick up the survey costs...no problem..

until the survey finds that the neighbor bought and then built and addition onto his house, cut down 10 acres of trees and put up a fence...all on the property we want to buy.

Having a clean title helps with loans, homestead exemptions, setbacks, required endangered species setbacks, zoning and code allowances, our future ability to sell any of the land or God forbid if we ever had to declare bankruptcy...this blimish on the land could force us to sell it instead of having it protected by law.

And the neighbor NEVER NEVER once had a survey done...however this neighbor isn't stupid...well educated, world traveled, writes, sits on Governors boards, etc. He knew enough to have a "benchmark" survey for his addition he added since the Feds, State, and County could make his life miserable if he did not elevate above the 100 year flood..but NO BOUNDARY SURVEY EVER...

So now we see if he squeals Adverse Possession...

You see...Cons are the most believeable and likeable folks.

And I used to complain about not wanting to buy land where Spanish Law prevailed, Squatting and squatters get it FREE....little did I know we have the same laws here...Adverse Possession and there are people who use this law to steal others properties...one guy in CA even set up a business putting others on Adverse Possession properties for a fee!

-- BC (katnip364@aol.com), February 19, 2002.