09/13/2013

The Importance of Surveys

By J. Dirk Schwenk, Baylaw, LLC

I've been spending the summer on boundary disputes in real estate cases and post-purchase damage issues in marine matters.  In those kinds of cases, the survey (or the surveyor) is of great importance, so I put together some thoughts on land surveys and vessel/hull surveys.  

Anatomy of a Boundary Dispute
Maryland's highest court, the Court of Appeals released a decision in August, concerning boundary disputes.  As is typical of such a dispute, the two deeds contained contradictory information about the property boundaries.  In Webb v. Nowak, the recent case, it was whether a measurement "340 feet" or a call to an "existing fence" was controlling.  The fence in question was a wooden fence more than 80 years old at the time of the survey.  The result?  Where there was some evidence to establish the location of the fence, the fence controlled over the measurement.  Details here: http://www.md-homeownerlaw.com/land-surveyors-and-boundary-disputes/

Types of Land Surveys
It is very typical for a purchaser to receive a Location Drawing showing where improvements are located on the property.  Surprisingly, it is also mandatory for the homeowner to sign a paper that says "A LOCATION DRAWING IS NOT A BOUNDARY SURVEY AND CANNOT BE RELIED ON BY ANYONE TO SHOW WHERE THE PROPERTY’S BOUNDARIES ARE." If the purchaser wants to have a "real" boundary survey, they will have to contact for that separately. Maryland's regulations actually provide for 8 different types of surveys. I comment on those in this article: http://www.md-homeownerlaw.com/surveyors-and-land-surveys/

Brokerage Boats and Pre-purchase Surveys
New boats are protected by manufacturer's warranties, but brokerage and previously owned boats are generally without warranty.  The purchaser's primary protection is a high quality pre-purchase survey.  Most surveyors, however, include language in their contract that limits their liability in the event that something is missed and also disclaims liability for mechanical issues and hidden defects.  In the event of a dispute, brokers, sellers and surveyors typically have significant protections built into the language of the deal -- buyers, therefore, need to be particularly diligent.  More here: http://baylawllc.com/surveys-and-boat-purchase/

Mr. Schwenk is a member of the Maryland Bar and bar of the Federal Court for the District of Maryland.  He is a Certified Marine Investigator through the International Association of Marine Investigators, a member of the Mid-Atlantic Mariners Club, Marine Trades Association of Maryland and the Severn Sailing Association, where he sails J-24s and Jet-14s with his wife Stefanie. He is a past President of the Jet 14 Class Association, and the 6 time Chesapeake High Point champion in that class. In his remaining free time he is the father of two sons, plays basketball and writes and records acoustic music.