Vacant land offers are used when excited young families purchase the lot where they plan to build their ideal home, when the developer with plans for a major resort project puts his best business judgment to the test, when the avid hunter fulfills his dream of owning his own hunting land, or when a farmer has the opportunity to add another field to his farm. In each situation, there will be a WB-13 Vacant Land Offer to Purchase in play as these buyers pursue their objectives. One of the important considerations that may be addressed in the offer is whether the buyers want — or need — a map of the land they are buying, and if so, what kind of map and map features will address any pertinent concerns and requirements. 

Why have a survey conducted when the title policy will protect me?

Unfortunately there seems to be a general perception that a survey is unnecessary in most real estate transactions. Buyers may ask why would they want or need to have a survey of the property they are purchasing.

1. The number one reason, from the REALTOR^® point of view, is that it is exponentially preferable to have a qualified land surveyor prepare a map that indicates the property boundaries and shows any potential encroachments or adverse possession concerns rather than have the REALTOR^® or seller attempt to show the buyer. A seller or a REALTOR^® who endeavors to point out property boundaries or corners is asking for trouble!
2. Sometimes the owner doesn’t really know the precise location of the lot lines — the hedges or the fence may not sit on the actual property line(s). A survey map will reveal if the neighbor’s garage, garden, fence, shed or other improvements intrude over the lot line. A survey map can go a long way in avoiding costly litigation and ugly feuds with neighbors.
3. Many times the buyer’s lender will require a survey for the mortgage or construction loan. 
4. The buyer may intend to erect a fence once the new property is acquired to establish boundaries, create privacy or even keep trespassers off that hunting land.
5. The belief that a title insurance policy will “protect” the buyer from boundary line disputes and other encroachment problems is erroneous. Actually title policies exclude, as a standard coverage exception, all facts that would be disclosed by a current, comprehensive survey of the premises. In other words, title policies do not cover easements not shown in the public records, encroachments and boundary disputes unless a current map is provided.

A survey by any other name

In Wisconsin, all property surveys must be performed by a land surveyor registered with the Department of Safety and Professional Services (DSPS). The surveyor signs and seals the survey map and certifies that the survey is correct. There are numerous kinds of survey maps that a registered land surveyor can provide.

A surveyor can provide a property line survey, a site plan or a plat of survey. With a plat of survey, the owner can decide whether to include or exclude improvements such as buildings, driveways and fences. This map will show the exact boundary of the property per the legal description and any encroachments or discrepancies. 

Topographical surveys show elevations using spot elevations and contour lines and are useful to architects and engineers. Elevations also play a role in a Flood Plain Map or FEMA Certification used to certify that a building or entire property is or is not located in the flood plain. Surveyors may also be able to provide a Wetland Location Survey to locate and mark the wetlands.

An ALTA/ACSM Survey is often required for commercial transactions but may be required for other properties as well. ALTA surveys follow the standards of the American Land Title Association and the American Congress of Surveying and Mapping, and may be necessary if the buyer wants to have certain coverage exceptions removed from the owner’s title insurance policy.

Map of the Property Contingency

The Map of the Property Contingency on lines 351-364 of the vacant land offer allows the buyer to select desired map components. The contingency starts with an important choice: whether the buyer will obtain or whether the seller will provide the map for the transaction. If the buyer obtains the map, the buyer will have more control over timing and will be able to keep tabs on the surveyor’s progress and ensure the desired detail is included. This may be particularly true if the buyer is paying for the survey map.

However, the default provisions in the map contingency has the seller provide and pay for the map, presumably because this is the seller’s property and the seller may wish to minimize outside intrusions or be available to point out corner monuments or other relevant factors.

The map contingency also specifies that the map will be dated after the seller’s acceptance of the offer. This generally will be necessary if the lender and/or title company plans to rely on the map, but this may be lined out if the buyer is only interested in an informational copy of a prior map the seller already has. There also is a blank line in the Map of Property Contingency for setting the deadline for provision of the survey map, stated in terms of a number of days after acceptance. Survey maps can take a bit of time to complete so it may be wise to be generous when establishing this time frame. 

There are blanks in the map contingency for insertion of minimum or maximum acreage. These are important if the precise acreage is uncertain or a specific acreage is needed. If the survey map shows the acreage to be over the maximum or under the minimum, the buyer will have the opportunity to provide written notice and end the transaction. The contingency fails if the buyer delivers a copy of the map and written notice identifying any encroachment, material inconsistency or failure to meet the map contingency requirements to the seller within the five days of the deadline for the map or the buyer’s receipt of the map, whichever comes first. Upon delivery of buyer’s notice, the offer is null and void. 

The contingency also states that the map must include the legal description of the property, the property boundaries and dimensions, visible encroachments, the location of improvements and any other features written in on the blank line. The buyer may ask for staking of all property corners, identification of streets and easements, and other features. The buyer is invited to customize the map contingency by striking unwanted items and writing in additional information that the buyer wants.

Removing title insurance exceptions

Standard title policies exclude coverage for easements not shown in the public records, encroachments and boundary disputes. These exclusions may be removed, however, if the buyer provides that title insurance company with a survey map conforming to certain specifications established by the title company. Often the ALTA/ACSM standards may be required. The buyer also may have to pay an additional fee to obtain the “extended coverage” that will remove these exceptions. 

One classic example of this is illustrated in First American Title Insurance Company v. Dahlmann, 2006 WI 65. The survey and encroachment exceptions had been removed from the policy when Dahlmann purchased the Madison Inn in January 1999. In this case, the Wisconsin Supreme Court held that a substantial encroachment onto the adjacent property was covered by Dahlmann’s title insurance policy, which wouldn’t have happened if those exceptions had not been removed. To read more about this case, see pages 9-10 of the March 2007 Legal Update at www.wra.org/LU0703.

REALTORS^® may be wise to encourage the buyer to have the title insurance company clarify the survey standards needed to remove the lot line, boundary dispute and any other exceptions listed in the title commitment that may be removed by submission of a current survey map.

Debbi Conrad is Senior Attorney and Director of Legal Affairs for the WRA.