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the dreaded T-47 affidavit

Discussion in 'General Land Surveying' started by David Bowden, Apr 13, 2012.

  1. David Bowden

    David Bowden 4-Year Member

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    [​IMG][​IMG]

    This form keeps raising it's ugly head again and again, so I thought I would post and see how other surveyor's feel about it and the way it is used.
     
  2. Stephen Johnson

    Stephen Johnson 5-Year Member

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    AZ, CA, KS, NM, OK, TX
    sarcasm Firstest one I eber see'd. I heered of dem but I neber befo see'd one.


    I honestly think they are not quite as useful as a legal document as they are for emergency toilet paper.

    No sarcasm intended on these last two sentences.
     
  3. David Bowden

    David Bowden 4-Year Member

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    The first thing that bugs me is the header "residential form...may be modified for commercial use"

    Well what else can they steal from us?
     
  4. paden cash

    paden cash 5-Year Member

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    Kind of reminds me of the form you see when you buy a used car..."we think this is the mileage"...

    I wouldn't get to ruffled over it. Attorneys will always do something to justify their existance.
     
  5. Bob Port

    Bob Port 4-Year Member

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    These have caused many a surveyor to lose his job.
    These affidavits restrict trade and is a violation of copyrights


    [​IMG]

    .
     
  6. David Bowden

    David Bowden 4-Year Member

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    You are exactly correct Bob, but nevermind the copyright they just plain don't care
    about copyrights.

    They just care about getting the premium for the Boundary and Acreage coverage based on your survey. By the way the coverage is only for the lender but for an additional
    fee they will sell you the same coverage.

    Double dipping Bass Turds!
     
  7. David Bowden

    David Bowden 4-Year Member

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    Copyrights

    They may not care about your copyrights but they damn sure care about theirs[​IMG]
     
  8. dmyhill

    dmyhill 4-Year Member

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    Considering parol agreements (aka oral boundary line agreements), acquiescence, and all other practical location doctrines, this type of form seems like a valuable thing for any purchaser.

    "Oh, you told the guy that he could put the fence there, and that if a survey proved a wrong position, we would move it." VS "Oh, you told the guy you think that that is the boundary, and you both built a fence there." Same fence, same location, big difference when you get the info.

    What I wonder is whether this type of notice, (since it is not on the Statutory Warranty Deed)increases the liability of the seller, if it was part of the deed, it would seem to limit what the seller was warranting/selling. Also, I wonder how it interacts with the Statute of Frauds. If the seller knows that there is an encroachment, and hasn't corrected it, aren't they selling something that they may not own? Couldn't that invalidate a deed?

    The document does seem to be designed to protect the title company, and the loan company. I do not see how it takes away from surveyors, though. Even with this form, wouldn't there still be an exception to any encroachments that would be found by a survey?
     
  9. dmyhill

    dmyhill 4-Year Member

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    Now this form...

    Now this second form...

    I would think that any seller reading this form would think that a bit of money spent on a survey would be a valuable thing. On the other hand, I wonder at what this form really does, it seems worthless. The seller is liable anyway, he signed a statutory warranty deed, and has sworn to defend the purchasers title as described...
     
  10. A Harris

    A Harris 5-Year Member

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    TX
    I would not sign one of those unless the title company, client and mortgage company are willing to sign the same type of document releasing me from any liability.

    Our State BOR lays out all the rules for us to live by and those are all that is required when we sign and seal our product.

    :gammon:
     
  11. dmyhill

    dmyhill 4-Year Member

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    > These have caused many a surveyor to lose his job.
    > These affidavits restrict trade and is a violation of copyrights
    >
    >
    > .

    Not trying to start a flame here, but an honest question. If these surveys are public record, how would referring to that ROS be a copyright infringement? Even if the plat of the survey is not public record, I still don't get it.

    What if the guy walked out and showed the pins in the ground to the future owners, and they relied on them? Is that significantly different from making copies of a plat, and future owners relying on what is shown on that plat?

    (I am asking an honest question here. Maybe it is different in different states. In WA it seems part of the very reason for the Record of Survey requirement is to encourage the reference to that ROS, and to enable surveyors to follow in the footsteps, come up with the same answers, and not have to reinvent the wheel each time. This would increase the public good by increasing the public's confidence in the surveyor, and should decrease the cost obtaining a survey, thereby encouraging more surveys, more ROS's, and a better cadastre.)
     
  12. Bob Port

    Bob Port 4-Year Member

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    > If these surveys are public record, how would referring to that ROS be a copyright infringement? Even if the plat of the survey is not public record, I still don't get it.
    >
    > What if the guy walked out and showed the pins in the ground to the future owners, and they relied on them? Is that significantly different from making copies of a plat, and future owners relying on what is shown on that plat?
    >
    > (I am asking an honest question here. Maybe it is different in different states. In WA it seems part of the very reason for the Record of Survey requirement is to encourage the reference to that ROS, and to enable surveyors to follow in the footsteps, come up with the same answers, and not have to reinvent the wheel each time. This would increase the public good by increasing the public's confidence in the surveyor, and should decrease the cost obtaining a survey, thereby encouraging more surveys, more ROS's, and a better cadastre.)

    Recording a survey or depositing a survey in a public depository does not relinquish copyright anymore than does a book being in a library, a painting in a gallery, a photo on a web site or a music file in your itunes directory.
     
  13. Tommy Young

    Tommy Young 4-Year Member

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    For alot of years, alot of surveyors have been making a living because something, whether it's a bank, or some government agency, has been forcing people to get surveys. Those days are coming to an end.
     
  14. Guest

    Guest Guest

    It seems just like telling a life insurance company that there have been no changes in your health since your last physical in 1982.
     
  15. Jeff Opperman

    Jeff Opperman 4-Year Member

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    Location:
    Nacogdoches, Texas
    MY LONG EXPLANATION

    Many of us over the years have tried to explain why we are opposed to the Survey Waiver, Survey Exclusion, T-47 Residential Real Estate Affidavit or whatever they are being called this week, being used by the title industry. It seems that surveyors who work in states which require them to file a Record of Survey (ROS) have a difficult time understanding our position.

    In Texas where I work, there is not a recording law and therefore, a ROS is not required. I do not fully understand the ROS, but I have been led to believe in the past that improvements on the property were not required or maybe even allowed on the ROS. In my state, the field notes or legal description of the parcel is almost always on file in the County Clerks office, so a description of the property corners does exist in the public records. However, it is the plat of the survey which actually shows improvements that is desired by the lending institute - they want to see what is on the parcel and be assured that the loan is secure.

    In years past, it was a general practice that before a bank, mortgage company or other type of lending institute would loan money on a home, business or piece of land, they would require a survey to be performed on the parcel which would produce a plat which showed the acreage amount, visible easements, encroachments or protrusions, improvements on the property or any other number of items which might negatively affect to value of the property. Texas does not allow the ILS or windshield surveys which many other states do allow, therefore a mortgage loan survey had the same requirement of accuracy and thoroughness as any other type survey.

    Since changes in fences, easements and home improvements can occur over time, if a home was sold or refinanced, the lending institute would usually require a new or updated survey to be made to make sure that everything was still in order and the loan was secure. This was done not only to check the mortgaged property, but also to check the adjoining parcels to be certain that they had not changed over that time and encroached or made claims contrary to good of the mortgaged property.

    Since this practice was in place for so many years, many of the problems in the mortgage loan survey world were cleared up and many future problems were headed off by the survey requirement.

    Supposedly, in an effort to lower the closing costs and make home ownership possible for more people, the title industry came up with the Survey Waiver or T-47 Form whereby the survey requirement could be waived if there had been no changes made to the property since the last survey. Few people objected to the new idea and most surveyors did not object too much at first either.

    When the Survey Waiver first began, some title companies required that the original surveys be dated within 3 to 5 years to be acceptable and that soon became 8 years and then 15 years and then the time requirement seems to have been dropped altogether. I saw a survey earlier this week that was going to be accepted that was 46 years old and would have been accepted if the attorney could have figured out one distance that would have proved that there was not a 20 foot overlap. This survey description did not have the first bearing recited other than Northwardly, Easterly, etc. and was missing the distance of one line completely.

    While I agree that a new survey doesn’t always need to be required on every parcel, it is not generally something that can be determined from behind an office desk or by a layman homeowner and certainly should not made by anyone with a vested interest in the closing.

    Today, the usual scenario for selling a home unfolds this way:
    A person will list their home with a real estate agent who will ask the homeowner for a copy of their old survey plat. If they have a copy of the survey, they explain, the new buyer of the property will not have to spend money on a new survey and it will be an incentive for the new buyer to purchase their home. After all, the real estate agent will remind them, he (the seller) has already paid the surveyor to survey the property once, why should the buyer have to pay the surveyor to survey the property again? If the seller says that they don’t have or can’t find a copy of the old survey, the real estate agent will tell him to just get a copy of the old survey from the surveyor. By now the real estate agent knows the surveyor will not release a copy of the old survey to himself, so why not let the seller attempt to get a copy from the surveyor? Besides, let the surveyor be the one that tells the seller no - if the surveyor gets put on the spot often enough for not releasing the old copies, maybe he will buckle under the pressure and give in.

    What the vast majority of real estate agents will not tell the seller, is that if the seller can provide a copy of the old survey, the buyer will still have to pay the title company a fee for supplying the Survey Waiver or T-47 Form and that the title company will then place an exception in the title policy that releases the title company from any problems or claims that might occur in the future that a new survey of the property might have found. They will also not tell the seller that when they sign the form, they (the seller) will be the first one held liable for any error which comes to light with the parcel they just sold, whether the fault is their own or from an adjoining owner. The original surveyor may eventually be held liable if the Statute of Limitations has not run out and it was his fault in the first place, but that usually will not happen until after the seller had to deal with the problem on his own.

    Most of the time, the real estate agent will not tell the seller anything at all about the Survey Waiver or T-47. They will generally not tell the seller that they will have to sign the form and the seller will not find out anything about the form until they are literally seated at the closing table waiting to get their check from the sale. If the seller is savvy enough to realize at that point, that signing the form is not in their best interest and is unwilling to sign, it will be explained to them that the closing will have to be postponed for several weeks until a surveyor can be hired to survey the parcel. It will be further explained that the buyer will probably be unwilling to wait any additional amount of time to close and even if they are willing to wait for the new survey, if the buyer is unwilling to pay for the new survey, the deal could be jeopardized unless he (the seller) is willing to pay for the survey himself. Savvy or not, the seller is now on the hook and will not likely be selling his parcel if he doesn’t sign.

    And while all this still may not seem to some people like a valid reason for surveyors to oppose this practice of using old surveys for new closings and refuse to provide the old copies, consider that most states require that any copy of a survey document leaving a surveyor’s office have a signature and stamp. Many attorneys will tell you that if you sign, stamp or allow any copy of an old survey to leave your office, you have just reset the statutes of limitations on that survey.

    Even if the old survey only shows what was present on the ground on the date it was created, who would want to be included in any future problem or lawsuit that might arise from something that you might have prevented by performing a new survey of the property? Lastly, who would want to be in the center of that problem for FREE?

    In the spirit of fairness though, when the real estate agents resell the same houses again and waive their commissions and the title companies reissue their old title commitments for free, then I will reconsider my position of not providing old copies for new closings. I will admit though, that my position will still probably not change.

    Flame on
     
  16. R.J. Schneider

    R.J. Schneider 5-Year Member

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    MY LONG EXPLANATION

    Excellent post, Jeff.
     
  17. paulplatano

    paulplatano 4-Year Member

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    MY LONG EXPLANATION

    With so many properties today being 'under water' ie short of equity,
    most owners will say or sign anything aka affadavits in order to unload
    the property. Who wants to sue an owner who leaves the closing with
    no money?
     
  18. dmyhill

    dmyhill 4-Year Member

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    >
    > Recording a survey or depositing a survey in a public depository does not relinquish copyright anymore than does a book being in a library, a painting in a gallery, a photo on a web site or a music file in your itunes directory.

    So, every time that one of our plats gets included in a title report it is copyright infringement? Still asking an honest question here.
     
  19. dmyhill

    dmyhill 4-Year Member

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    MY LONG EXPLANATION

    Thanks for the explanation. It is indeed different in a recording state. Anyone that wants a copy of an old plat (including a record of survey)can simply pull it offline, or go down to the county office and get a copy.

    It is a little scary to think that when a survey is recorded, your liability essentially is spread to anyone that uses that survey, even if you do not know them. This is argued a lot, but it appears there are court cases that at least make this possible.
     

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