Get a survey even if your agent says no

Bob Aaron in Legal, Home Buying

Land Survey post

With cottage-buying season now underway, it’s important to remember that a land survey is the single most important document in the whole purchase process.

If the cottage building is sitting on land owned by the Crown, or a local municipality, or a neighbour, the otherwise proud owner is going to be extremely unhappy and will soon be seeing a litigation lawyer.

It is dangerous to assume that any cottage is built exactly where it should be located. Only a survey prepared by an Ontario land surveyor can confirm that the cottage is situated inside the appropriate land boundaries, that the land it sits on is where it should be and is the correct size, and, if appropriate, the lot has private lake frontage.

Sadly, some industry stakeholders still have not gotten the message that the survey is of critical importance.

I was reminded of this when I saw a recent Facebook posting by an experienced and successful agent in Ontario cottage country. The post reads:

“Just lost another deal because a Toronto lawyer said buyers cannot purchase without an up-to-date survey. That’s funny . . . I sold three last week without a survey. I wonder if I can start using a clause, “the buyer and seller agree that they are obligated to use a lawyer local to the subject property.”

The post set off a torrent of responses on both sides of the survey fence.

One of my favourite responses was from Nicole Gagnon-Bafaro, an agent with Sutton Group Heritage in Ajax. She wrote, “We had a new survey done on our cottage . . . we now own half our neighbour’s living room and his driveway.”

Barry Lebow, a veteran realtor with ReMax Ultimate in Toronto, wrote a post about a Toronto buyer who paid $2 million for a house in Toronto. His agent (not Lebow) told him that a survey was a waste of money. It turned out that the driveway was actually a wide city sidewalk and it was illegal to park there. He sued and settled with the title insurer, but still has nowhere to park his Mercedes.

On his Facebook post, Lebow wrote, “A survey is one of the single most important documents a homeowner can have — period. Title insurance does not replace a survey. It may pay for a mistake but it will not give you a driveway you thought you had, or move fence lines.”

A sobering 1989 court decision about a cottage and its property remains one of the best reminders: Dorothy Holmes paid $170,000 for a cottage on Georgian Bay. There was no survey. The cottage was built in the 1930s, but unfortunately more than 95 per cent of the building was sitting on the 66-foot shoreline road allowance owned by the township. She had no title to the land underneath most of the building and was unable to purchase it. She sued and lost at trial and at the Court of Appeal.

The law books are full of court cases involving a swimming pool or septic bed built on the land next door; where the new house was constructed on the wrong lot; where a buyer had to pay $129,000 to get a right-of-way to the property; and where fences and retaining walls were built some distance from the actual lot boundary.

The moral of the story: if your real estate agent says you don’t need a survey — in the city or in cottage country — get one anyway. Or get another agent.

If you buy without a survey, make sure you understand the huge risks you are taking.

And it doesn’t matter whether the lawyer is in cottage country or Toronto. Our standards are the same everywhere.

Bob Aaron is Toronto real estate lawyer. His Title Page column appears on this blog, Move Smartly, and in The Toronto Star. You can follow Bob on Twitter @bobaaron2 and at his website Email Bob

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