Q: A seller sells his property using his survey. His survey is 5 months old. It is certified only to himself and not the
title company. The title company deletes the standard exceptions and in lieu of complying with fs627.7842 has the seller sign a seller's survey affidavit where by the seller indemnifies the title company for using his survey and the seller accepts liability for damages resulting from the title company using his survey. The title company issues a policy insuring the sale based upon the land borders of the survey. The buyer pays for the land based upon the survey. He puts improvement on the land. When the buyer finds out the survey is wrong, he files for damages against the title insurer for the improvement he put on the neighbors land that were within the land borders of the survey. He also files for damages for the land he paid for within the survey but it belongs to the neighbor. The insurance company refuses the claim. The buyer has no recourse to the seller or the surveyor who made the mistake. Should the buyer sue the insurance company for his damages?
A:
Your fact scenario is very detailedh however there is a variety of factors to consider on deciding whether to file a lawsuit.
I recommend that you consult with a real estate attorney as to these facts to see if you have a case.
A:
The landowner has no claim for the value of the improvements.
The title insurance insures only title as the title was at the time of the issuance of the policy. Future acts by the owner are not covered. Also it only insures the title to the property and improvements on the property. An addition to the property is not insured. As to the type of claim to be made - it is a claim on title including the boundaries unless excepted in the policy. They also insure only the property in the legal description and not additional lands that may be on the survey.
Consider claims against the seller for selling land not his. And also the surveyor if you can find that he was sufficiently negligent (like reading the legal description wrong or making gross measurement errors in the field).
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