Why bother with a survey?

Land surveys, especially for suburban houses in established suburbs are old hat, aren’t they? Surely, “what you see is what you get” – or conversely what you have owned for years you will be able to sell when you want to as it stands – no?

For many decades – until fairly recently – anyone thinking of selling a house had to have a survey of it, showing where the house, the garage and all other structures on the property stood – and also showing where the fences were and whether there were any irregularities in the fencing or easements or covenants which affected the legal use of the property as it appeared to the naked eye.

However, with the comodification of conveyancing in recent times where conveyancers and lenders do everything “by the numbers” in order to keep the “administration fees” as low as the market wants, the inclusion of surveys in Contracts for Sale has become less and less. Vendors do not want to pay for a new survey and purchasers are being persuaded that they don’t need a survey – they will “own the property” anyway.

If only that were true.

The war stories

What many people, contemplating selling their own property or buying a new property, never hear about, are all of the instances in which sales or purchases go horribly wrong, because of substantial survey defects – e.g. that rear fence is in fact 2 metres onto the old rear lane or the backyard of the adjoining property but no one has bothered to worry about paying to move it/that “shared driveway” that both properties have used has never been made legally secure by cross-easements or cross-rights of way/that new side fence, erected a year ago is in fact up to 300mm on the adjoining property/that wonderful new front privacy wall, with cheerful flower beds in between its pillars, has in fact been built 200 millimetres on to the footpath. The list goes on.

What you think you own and what you may have enjoyed blissfully for decades may not be entirely yours to sell and conversely what the real estate agent and that agent’s glossy brochures and plans portray to you as available for purchase may not in fact be entirely available if you bought the property.

What’s the problem – surely people are going to be reasonable?

No. Many people aren’t reasonable. Many people are unreasonable. Those neighbours that you haven’t got along with for years, and whose recent Development Application to renovate their own property you objected to, can insist on the shared driveway arrangement being terminated/the rear or side fence returned to where the true legal boundary line is or can report your lovely encroaching front privacy wall to the local Council, which will insist that you get it off their footpath area pronto.

Alternatively if you signed a contract as Vendor and the Real Estate market has dropped significantly in recent weeks, your purchasers may be looking for an excuse to get out of that Contract or looking for a substantial adjustment in the Contract Price to account for all of these Survey defects which you or your selling agent didn’t tell them about before they signed the Contract.

Or you have just signed a Contract to buy this property with all of these Survey defects – if you complete that Purchase you are going to eventually have to move that back fence and lose two metres of your backyard/pay for the removal and rebuilding of that encroaching side fence/pay for the demolition of that front privacy wall and garden so that it can be rebuilt inside the front boundary/you are going to lose a large portion of that shared driveway which means that what is left is not going to be enough for you to park your car in the rear carport on this property – you won’t have any off street parking.

This is all fanciful isn’t it? This isn’t what happens in reality – it’s just academic isn’t it? Sorry – it is real and these circumstances arise more often than most of the public ever know about because they don’t watch the court lists every week to see what court cases are running in those courts, because the real estate agents are only interested in “maximising” the sale price irrespective of the consequences, because banks and conveyancers have little or no interest in surveys, and because many people who have been caught in such a dilemma are so ashamed of their stupidity and what it has cost them, that they don’t tell anybody except their very closest family and friends.

What to do?

The answer is simple – if you are thinking of selling a property get an up-to-date survey to make sure that what you think you can sell is actually all yours to sell – without any defects, with all necessary cross-easements, without any unknown covenants on it etc. – it is a simple mode of insurance – an up-to-date survey is your insurance policy against unwanted, time consuming and expensive mistakes.

If you are looking at buying a property then either insist on the vendors providing a survey as part of the Contract, or if not get a survey of your own and ensure that there is a special condition in the Contract to protect you if it turns out that that new Survey discloses any Survey defects in the property. Yes, it is a lot of extra money to pay – sometimes $1,000 or more – but when you are paying $1 million for a house property or even $600,000, $1,000 worth of survey insurance is worth every cent.

And then what?

If you are in any doubts about what survey problems exist on the property that you are about to sell, or are thinking of buying – see an experienced conveyancing solicitor and talk the problems through with her or him. Yes, that advice, from an expert, will cost you some fees, but like the Survey itself, you will save a lot more money, time and energy getting it right the first time.

Rights of beneficiaries

Beneficiaries should obtain independent legal advice concerning their rights and entitlements in a deceased estate. The estate’s solicitor acts for the executor and not for the beneficiaries. The estate’s solicitor cannot provide beneficiaries with advice due to a conflict of interest.

Beneficiaries are entitled to a copy of the will. Sometimes, beneficiaries require the assistance of a solicitor to enforce that right.

Beneficiaries are also entitled to be kept informed about the administration of the estate. This is typically where problems arise and beneficiaries see the need to engage a solicitor. All too often the executor neglects or refuses to talk to the beneficiaries about what is in the estate, what is being done and when distributions can be made. Beneficiaries may also require advice concerning debts owed to or from the estate.

Best Practice Lawyers are often engaged by beneficiaries to find out what is going on and to protect their rights. If an executor refuses to fulfil his or her obligations, then it may be necessary to have them removed from office. After all, executors are accountable to beneficiaries who have a right to ensure the proper administration of the estate.