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Using an "Old Survey" is not new, it's dangerous!

Derek G. Graham OLS (Cadastral) OLIP

Derek G. Graham OLS (Cadastral) OLIP

Well-informed consumers who have bought and sold real estate have the highest comfort level with their purchase or sale as they have obtained a current professional opinion of title from both a lawyer and an Ontario Land Surveyor. The surveyor's opinion on the extent of title (ownership) is in the form of a Canada-wide, provincially standardised Surveyor's Real Property Report (SRPR).

There is no such thing in law (in Ontario) as "a survey", old or new. By not understanding the difference between an old and new surveyor’s opinion, some people miss an opportunity to add value to their real estate asset.

Consumers, who are well educated about how to protect one of the largest financial decisions of their lives, not only add value to their own assets, but also contribute significantly to the orderliness of our land use planning and land registry systems. An opportunity now exists for consumers to permanently correct a common practice that is damaging the quality of all our Province's clear title (ownership) records.

The Standard Agreement of Purchase and Sale of real estate contains a purported obligation of the seller (vendor) to provide any title deed, abstract or survey which is/are already in the seller’s possession. To provide information that may or may not be accurate if an "old survey" is involved may be seriously misleading. By offering outdated, 'non-current to the time' information, all parties concerned may be taking a course down the road to expensive litigation. The obligation in the Agreement, which once signed is binding on the parties, to provide "a survey", begs an answer to the question; what is an up-to-date "survey". In Ontario law, however, there is no such thing as "a survey". What we do have in law are surveyors’ opinions.

It is necessary to look into history to determine the origin of the use of the word 'survey' as a noun alone when dealing with real estate. The provision in the Standard Agreement of Purchase and Sale for "a survey" appears to originate in English real estate practice, from where Ontario practice has evolved. In England and Wales, until the mid 1980s, it was not a statutory requirement for the registration of a transfer of interest in land.

The mechanism for a transfer of interest was the physical transfer (between vendor and purchaser) of the deed that was attached to a copy of a portion of the Ordnance Survey Map. This is the origin of the word “survey” in the context of real property transactions. A transfer of property document in England would be both a heavily outlined graphic drawing of the particular parcel under consideration (with no dimensions) attached to the deed or transfer document. Such a drawing merely shows the shape and relationship in the block of land that the subject land bears to that surrounding it. It is in no way a cadastral (legal) survey confirming the current extent of title and reflecting the improvements thereon. The Ordnance Survey does not show the variety of consistencies or inconsistencies with the title boundaries, as does a surveyor's opinion represented by a typical SRPR in Ontario. The Ordnance Survey is not an up-to-date surveyor’s opinion of the extent of title, even in the UK!

(Please see http://www1.landregistry.gov.uk/assets/library/documents/public_guide_019.pdf )

There are many different types of surveyor’s opinions including ones prepared as SRPRs. Section 19 of the Association of Ontario Land Surveyors (AOLS) Interpretative Guide and Supplements to O. Reg. 42/96 under the Surveyors Act states:

An existing plan of survey may be deemed to be 'up-to-date' if,

(a) both the plan and the survey on which it is based comply with the applicable requirements of the statutes and regulations of Ontario;

(b) upon a field inspection, it can be determined that no changes have taken place to the property or to the monumentation since the plan was signed that would necessitate a change in the plan;

(c) an up-to-date search for documentary evidence has been made, as required by clause 3(a) of the Performance Standards Regulation, and no changes have occurred that would necessitate a change in the plan.

Only an Ontario Land Surveyor, as the "eyes of the title", can so confirm these requirements.

It has been an unfortunate common practice in the past for a lawyer, acting on behalf of a lending institution or real estate agent to call a surveyor and ask for a copy of a plan of an "old survey."

In the writer's opinion, no responsible professional would wish to mislead the public by using information that is not current to the time of the transaction. A lawyer, immediately before closing in the Land Registry Office, will do a sub-search of the title to be right up-to-date on the quality of the title. Should not the consumer also have the same comfort of a current, up-to-date opinion in the form of a SRPR of the extent of title? Or should the consumer be satisfied with half an opinion?

It is doubtful that a lawyer, as a responsible professional, would re-use the old legal opinion from the time when the vendor purchased. The Law Society may take a dim view of relying on the old legal opinion, too.

Documents, which were never surveyor’s opinions of the extent of title, are fortunately less used but are still misleading the public as opinions of the extent of title. The old “mortgage sketches”, building permit sketches and Land Division/Committee of Adjustment sketches used in variance applications are not suitable to be used for the certification of the extent of title.

The practice by some has been to have the owner/vendor take an old plan of survey and sign a declaration that the plan, which may have been prepared anywhere from 5 to 90 years ago or beyond, is accurate and up-to-date. The average owner is unlikely to know the potentially dangerous legal ramifications of such an undertaking, and furthermore is not legally qualified to do so. By so swearing or deposing using the old, out-of-date material, the vendor is liable to mislead an unsuspecting or unknowing person, or the lawyer.

A recent Ontario Court of Appeal case, Zambri http://www.canlii.org/en/on/onca/doc/2010/2010onca780/2010onca780.html outlines why any use of a drawing that appears to have been prepared by a professional surveyor that does not have the surveyor’s embossed seal on the paper ‘hard copy’ may be considered fraudulent. It appears that Grammelhofer utilized and uttered a forged document, being a copy of a drawing signed by a professional surveyor, in trying to prove he owned land that he did not.

Provision within the Regulations of Ontario provide for the surveyor’s embossed seal as a mechanism for public protection per: O.Reg. 1026 Section 29. (3)

(3)  A print of a plan of survey is not a valid copy unless it bears the embossed seal the licensed member who signed the plan or the embossed seal of a licensed member employed by the corporation or public agency responsible for the plan's preparation or the corporate seal of the corporation holding a certificate of authorization that was responsible for the plan's preparation. R.R.O. 1990, Reg. 1026, s. 29 (3).

Standard Agreements of Purchase and Sale that call for the seller to provide a "survey" already in the seller’s possession are very dangerous and misleading to the public, as the general public may believe it is getting a professional opinion current with the matter at hand. Could anything be further from the truth?

'The land stays the same, but the matters that affect the land change'.

A current Surveyor’s Real Property Report confirms the extent of title and reflects the current status of its extent. It gives the best possible professional comfort level that - What You See Is What You Get or WYSIWYG !


© 2012 Derek G. Graham Limited.