Hi folks, Timothy Patrick, of www.brooklinlaw.ca, your Durham and GTA real estate lawyer here. Well, the short answer to the above question is – wait for it because it is a lawyer answer – it depends.
Perhaps it is easier to tell you what title insurance (a wonderful product otherwise) does not cover. I am not aware of any current title insurance provider that offers coverage for fence line disputes. In other words, any dispute you may have with your neighbour about the location of a pre-existing fence (which may be in the wrong place by several feet) is NOT covered and title insurance will not rectify these issues.
So, in those circumstances it would be extremely helpful to have an up to date survey. I consider a survey to be up to date if it is less than five years old – subject to your own observations with regard to new fences on the subject property. Lawyers, generally, do not visit properties and do measurements to confirm that the fence is in accord with the survey. You should do these measurements, most people do not, and it can come back to haunt you.
Okay, so what is a survey? Legally a survey consists of two documents a letter from the surveyor discussing the drawing and any easements related thereto and a copy of the actual survey drawing – it must be signed and dated by the surveyor. A “sketch of plan” or a “plan of subdivision” or a drawing that does not include the above information, none of these are surveys. In the last decade I have seen one actual legal survey provided to me by a seller. Even when you purchase a new home you will likely only be provided with the drawing part of the survey and not the report – however you are likely receiving “absolute” title from the builder so you will not be concerned with a survey until fences start going up.
A survey can be extremely useful in determining if there are other encroachments like a shed that has been built in the wrong location – however, in most circumstances, this would be covered by your title insurance policy.
More on title insurance next time. A good lawyer will minimize your exposure, the other kind of lawyer, not so much.
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