Information and Advice About Buying
Southwest Florida Real Estate

Since 1996, real estate attorney Raymond J. Bowie has published a regular real estate column in the Naples Daily News giving readers information and advice. A selection of Mr. Bowie’s columns is provided as a public service by the links below.

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  • Surveys Important for Good Title

The Survey: World's Second Oldest Profession
By: Raymond J. Bowie, Esq.

It's been called the world's second oldest profession. It originated in ancient Egypt; the Romans held sacrifices as it was done; and George Washington, Thomas Jefferson, and Abe Lincoln, among other prominent Americans, made their living doing it. This is the profession of Land Surveying.

Land surveying still seems to many to be an arcane ritual, but it's what makes it possible for us to convey real estate. To convey a parcel of real estate, we must be able to describe it accurately. And to describe something that large, we must be able to describe it by its measurements. Measuring and hence describing real estate is what surveying does.

Most everyone has seen land surveyors at work or at least noticed the signs of their handiwork: the flagged stakes that mark property corners and boundaries whenever land is to be sold, developed or financed. For these and other land transactions, surveys provide the means to objectively measure the size, shape and location of a parcel of real estate - which is what gives the parcel its essential legal description.

Florida statutes and rules of the Board of Land Surveyors strictly regulate surveys and the practices of surveyors. Surveys must meet the minimum technical standards set forth in the Florida Administrative Code. These require that all land surveys must be done by Florida Registered Professional Land Surveyors; be signed, dated and sealed by the surveyor; reflect an accurate legal description that agrees with the property's deed; and show all boundary lines, locations of buildings and other improvements, utility lines, setbacks, easements and rights of way that are visible or shown on recorded plats, as well as any visible encroachments from or onto the surveyed parcel.

There are several different survey methods. The survey method used for any particular parcel depends largely upon where the parcel is located and how properties in that area were originally surveyed. It is the survey method that determines the type of legal description assigned to a property used in subsequent deeds and other documents.

Land surveys in the original thirteen colonies were done by the metes and bounds method brought over from England. This survey method starts from a fixed monument in the ground called the point of beginning, and then proceeds clockwise with a series of distance lines measured in feet and directions measured in compass degree angles, until the boundary line returns back to the point of beginning. Perhaps you've seen examples of metes and bounds surveys. They read something like this: Beginning at a point X, thence North 89 degrees East 125.4 feet; thence North 01 degrees West 210.04 feet; thence South 89 degrees West 124.3 feet; thence direct to the original point of beginning. This method is great for surveying the boundaries of large or irregular parcels of land, and it is still commonly used today including in Florida.

However, with the American Revolution there came some revolutionary changes in survey methods as well. In 1785, Thomas Jefferson and the Continental Congress, faced with the task of surveying the vast western lands of the new nation, established the U.S. Public Lands Survey System for that purpose. Other than for the original 13 states and several others, all states including Florida now officially use this government land survey system.

This system uses series of parallel lines running both north/south and east/west to divide land into squares called townships, subdivided into smaller squares called sections, and then into parcels expressed as fractions of sections. Like most things in Florida, the township lines are all measured from a point in Tallahassee and assigned sequential numbers. Inside each township, there are 36 sections also numbered. Individual parcels of land inside a section are described as fractional portions of the section. Hence, you might see a particular parcel in Florida described as The Southeast ¼ of the Northwest ¼ of Section 20, Township 10 South, Range 10 East.

However, in many areas of Florida this official governmental survey system has been superceded by what is called the plat method or lot and block method. This method of surveying occurs when a land developer wishes to carve up a larger parcel into smaller lots for sale. This method usually begins with a metes-and-bounds survey of a parcel and then imposes upon the land a detailed map carving up the larger parcel into roads, easements, community facilities and smaller lots. When a land developer records this plat map in a county's public land records, a subdivision is created, and the parcel is divided into numbered or lettered blocks and individual lots. Thereafter, surveys will be based upon this recorded subdivision plat and show the various parcels as, for example, Lot 8, Block A, Happy Acres Subdivision, according to the Plat thereof.

With the exception of condominium or cooperative units, every parcel of real property is susceptible to being surveyed and legally described using either the metes-and-bounds, governmental survey or plat method. Condominium or cooperative units are a bit different. Since cooperative unit owners do not own the land upon which their units sit, because this land is owned by the cooperative association, the only survey that ever exists will be of the entire land comprising the cooperative community. With condominiums, a survey is initially done for the entire parcel on which the condominium will be built. But once the condominium is created by the recording of a Declaration of Condominium, the Declaration then takes the place of the survey to provide the location, boundaries and legal description of each of the individual condominium units, and no separate survey is thereafter done for any of the units. The land shown on the original survey for the condominium parcel is, in fact, thereafter jointly owned by all of the condominium unit owners as tenants in common.

Just as there are different survey methodologies, there are also several different types of surveys employed for different purposes. The type of survey commonly required for residential real estate conveyances or mortgage financing is called a boundary survey. This survey shows the legal boundaries of the real estate parcel, the location of any physical improvements within the parcel's boundaries such as buildings, fences and paved areas, and the location of any recorded easements upon the parcel for matters such as utilities, drainage or roadways.

If the surveyed property lies in a flood hazard area zoned either A or E on Federal flood insurance rate maps, the surveyor may also be required, especially where mortgage financing is involved, to provide along with the survey a flood elevation certificate showing the area's minimum or base flood elevation and the actual elevation of the lowest livable floor level of the home. This certificate is critical in determining flood insurance requirements and the insurance premium to be charged the property owner.

Sometimes, things that are physically shown on a survey are not legally guaranteed to be there. One such troublesome item may be legal access to and from the surveyed property. Just because there is a road or driveway shown on a property survey does not mean that the property owner has a right to use it for access. In fact, that road may be an easement someone else is entitled to use to cross the property. Or a road shown adjacent to the property may, in fact, lie on someone else's land, its use being subject to the other owner's permission. Whether or not there exists a right of access from the property to a public right of way is actually a legal issue not determined by the survey itself.

Another potential trouble area on a survey has to do with submerged sovereignty lands where a surveyed property borders a navigable body of water. This is because title to submerged navigable lands continues to rest with the state of Florida, unless the submerged land was properly filled or bulkheaded and the title conveyed to a previous owner of the property. A survey will show the parcel as it currently exists bordering an adjacent body of water, but it will not reveal if any of the parcel lies on previously submerged sovereignty lands or whether the property owner actually holds title to any filled portion. This can only be done by comparing the current survey to the original government survey and reviewing when and how any filling of submerged lands was done.

Surveys obviously play an important role in the process of buying and selling real estate. If a purchaser is securing mortgage financing, rest assured that the mortgage lender will, in order to protect the security of its lien on the property, require that a survey be done or that title insurance be issued based upon an acceptable prior owner's survey. Even if a purchaser is paying all cash for a property, ordering a survey is advisable as the only way to assure that the property physically meets the terms of the sales contract's description and that there are no encroachment problems. Furthermore, securing an accurate survey is the only way the buyer will be able to obtain an owner's title insurance policy without a survey exception, which otherwise will not insure the owner against any facts that would have been disclosed by a proper survey.

Real estate sales contracts typically provide the buyer with the opportunity to order a survey and the right to terminate the contract if the survey reveals certain defects beyond the seller's ability to correct, such as encroachments from or onto the property, lack of legal access, or violations of governmental use restrictions or recorded covenants or easements.

In other situations, such as where a buyer is purchasing a large parcel or one with indefinite boundaries, it may be wise for the buyer to make the purchase contract contingent upon a survey that locates the property boundaries and improvements to the buyer's satisfaction. The same type of survey contingency should be used when the buyer intends to build upon a vacant parcel or make some special purpose use of the property, in order to make sure the property can physically accommodate the intended use. Reviewing a survey should, however, be left to an experienced real estate attorney.

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