Survey question

Question

A lawyer contacts you indicating an interest in retaining you as an expert witness in a awsuit. She wants you to define the word “survey” as expressed within the context of an agreement of purchase and sale with the clause that the Vendors provide an up-to-date survey. She acts for the purchasers; and the problem is that the “survey” provided is a plan that was attached to a conveyance document, and it does not include any buildings or improvements; hence, her clients are suing for breach of contract. The vendors have owned and occupied the specific property since its creation, and acquired the property with the plan. Although there had been mortgage transactions, there had not been any survey activity on the specific property snce its creation.

a) Write a letter of response to the awyer, setting out your professional opinion in the matter, and your professional advice in the matter.

NOTE: Do not sign the letter.

b) Provide reasons to support your views.

Answer 1

[Your Company Letterhead]

[Date]

[Lawyer’s Name]
[Lawyer’s Firm]
[Address]
[City, State, ZIP Code]

Dear [Lawyer’s Name],

Re: Definition of "Survey" in the Context of an Agreement of Purchase and Sale

Thank you for contacting me regarding your clients' lawsuit concerning the definition of the word “survey” as expressed within the context of their agreement of purchase and sale, which requires the vendors to provide an up-to-date survey.

Based on the information you provided, the vendors have supplied a plan attached to a conveyance document that does not include any buildings or improvements. My professional opinion and advice on this matter are outlined below.

Professional Opinion

In the context of an agreement of purchase and sale, the term “survey” generally refers to a detailed and current plan of the property. This plan typically includes not only the boundaries and dimensions of the property but also the location of any buildings, structures, and improvements on the land. An up-to-date survey serves to inform the purchasers of the exact physical condition of the property, including any potential encroachments, easements, or zoning compliance issues.

The plan provided by the vendors, which only outlines the property boundaries without depicting buildings or improvements, does not meet the standard definition of an up-to-date survey. Given the vendors' long-term ownership and the absence of recent survey activity, the provided plan likely reflects the original subdivision layout rather than the current physical state of the property.

Professional Advice

I advise that your clients have a legitimate basis for their claim of breach of contract, as the provided document does not fulfill the typical requirements of an up-to-date survey. I recommend the following steps:

1. Clarify the Definition: Review the agreement of purchase and sale to determine if it includes a specific definition or description of what constitutes an “up-to-date survey.” If the agreement is ambiguous, industry standards and typical expectations for real estate transactions should be considered.

2. Request a Proper Survey: Formally request that the vendors provide a current survey that includes all buildings, structures, and improvements on the property. This survey should be conducted by a licensed surveyor and meet the requirements of a comprehensive property survey.

3. Consult Additional Experts: Consider consulting additional real estate professionals or surveyors who can provide further expert opinions supporting the need for a detailed and up-to-date survey as per the terms of the agreement.

4. Document All Communications: Ensure that all requests and communications with the vendors regarding the survey are documented in writing. This documentation will be crucial in supporting your clients' position should the matter proceed to court.

Please feel free to contact me if you require further clarification or additional assistance. I am available to discuss this matter in more detail and provide any necessary expert testimony.

Sincerely,

[Your Name]
[Your Title]
[Your Company]
[Contact Information]

Reasons Supporting the Views Expressed

1. Industry Standards: An up-to-date survey is expected to provide comprehensive information about the property, including boundary lines, structures, and improvements. This is a standard requirement in real estate transactions to ensure buyers are fully informed about the property they are purchasing.

2. Legal Precedents: Previous court cases involving disputes over property surveys often support the need for detailed and current information. A plan that only shows boundaries without structures is insufficient for most real estate transactions.

3. Risk Mitigation: An accurate and current survey helps to identify any potential issues, such as encroachments or zoning violations, that could affect the property's value or the buyer's ability to use the property as intended. This aligns with the purchasers' right to receive full disclosure of the property's condition.

4. Contractual Obligations: If the agreement of purchase and sale specifies that an up-to-date survey is required, the vendors are contractually obligated to provide a document that meets this standard. Failure to do so constitutes a breach of contract.

These points support the view that the vendors' provided plan does not satisfy the requirement for an up-to-date survey and that your clients are justified in their claim.