By Steve Tytler
Question: Over a year ago, I purchased a piece of property listed at 5.5 acres. The legal description has no measurements and says basically, this property lies from the road to the section line. I signed a form that says the real estate people are not responsible for the amount of acreage. The seller walked the property line with me, “as he knew it,” and as it was presented to him when he purchased the same 5.5 acres. After the deal was done, I had it surveyed and discovered that I own only 3.5 acres. I hired a lawyer who has worked on the problem for a year and essentially all parties involved say they are not responsible for the 2-acre discrepancy. This ruins my plans for the property. What else can I do?
Answer: I’m afraid I can’t give you much encouragement, but your unfortunate predicament does serve as a valuable lesson for property buyers who may find themselves in a similar situation.
I know this is easy to say in hindsight, but it is now obvious that you should have had the property surveyed before you closed the deal. Many real estate buyers are reluctant to pay for a survey because they are relatively expensive, but since you apparently had the money to pay for one after the sale closed I don’t understand why you waited.
Of course, it would seem reasonable to assume that the seller would know his own property line, so it is understandable how you may have been lulled into a false sense of security. Most people are honest, but in a real estate transaction you can’t afford to assume that. Far too much money is at risk to hope that you have the correct information. Sometimes you will get bad information, either because the sellers don’t know the correct answer or because they are deliberately trying to deceive you.
To paraphrase President Ronald Reagan, “Trust, but verify.” In other words, don’t just take a seller’s word, hire a third party to check it out. For home buyers, that means hiring a professional building inspector. For purchasers of rural land, that means hiring a surveyor.
When you buy a home on a lot in an established city or suburban housing development, it’s pretty easy to see the property line. The fences may be a couple feet off the actual lot lines, but home buyers rarely bother to pay for a survey. They just accept the backyard boundaries as they exist in practical use.
That’s not the case when purchasing property in rural and semi-rural areas. When you start talking about parcels of 2-, 5- and 10-acres, the margin for error in boundary disputes increases dramatically. Furthermore, there are often no fence lines or obvious demarcations of the lot line.
For example, in your letter, you said the legal description of the property ran “from the road to the section line.” How in the world would you know where the “section line” is without a professional survey?
It would seem that you might have a case against the seller for misrepresentation, but you would probably have to demonstrate that the seller knew that the property line he walked with you was incorrect. However, your letter indicates that your attorney has already ruled out negligence on the part of the seller.
Most real estate companies use forms loaded with disclaimers such as, “buyers are advised to seek legal counsel” and “lot size according to county records, not guaranteed.” Buyers should take these warnings seriously and seek independent advice and verification.
The standard owner’s title insurance policy is no help in a boundary dispute. A standard policy only protects you from title risks such as forged documents or undisclosed heirs.
You need to purchase an extended coverage title policy for protection against risks such as lot line disputes. An extended coverage title policy costs about 30 percent more than a standard title policy, and the buyers typically have to pay for a survey to establish the lot lines before the extended policy is issued. Unless you can afford an expensive surprise, like finding out you own only 3.5 acres instead of the 5.5 acres you thought you were buying, I strongly encourage all rural property buyers to pay the extra money for a survey and extended title coverage.
Mail your questions to Steve Tytler, The Herald, P.O. Box, Everett, WA 98206, or e-mail him at email@example.com.