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About Roger Zona
Expertise
I am experienced in all types of construction: residential, industrial and commercial; single family, multi-family, mid-rise and high rise buildings (16 story) as well as remodeling, additions and tenant improvements. I can field most any question that relates to general construction. I have consulted with infrastructure (utility) contractors also and have a good general knowledge of underground utility construction for subdivisions and commercial projects.

Experience
After college, I began my career in automotive engineering. After 4 years I chose to become an apprentice Architect; 4 yrs later I opened my own architectural firm. Six years later I moved to Florida to buy & develop land and build. I became a State Certified General Contractor and operated my business for 40 years. I built all types of residential and commercial buildings including warehouses, shopping centers, high rise apartment and office buildings and developed sites for other contractors. I retired and became a consultant to the construction industry. I maintain my license and continuing education requirements, operate a small construction company and write a weekly newspaper column for the Palm Beach Post (a Cox publication) with the byline "Ask The Contractor". I am the "technical editor" for a publisher of books that relate to home maintenance.

Publications
Palm Beach Post newspaper

Education/Credentials
BS in Engineering

You are here: Experts > Industry > Construction Industry > Construction Industry > Surveys

Construction Industry - Surveys

Expert: Roger Zona - 10/29/2009

Question
QUESTION: Mr. Zona:

You mentioned earlier that a parcel of land could have an unrecorded easement on it, and I think you said getting a current survey would uncover that. If an easement is unrecorded, how would a surveyor find it?

Colorado may require all new houses to have fire sprinklers. Do you know anything about a residential fire sprinkler system (anatomy of, installation of?). How is such a system installed on a house with a water well?

Thanks - Austin

ANSWER: Hi Austin,

In my haste to be brief but informative, I failed to mention that a recording of a deed requires either an abstract search or title insurance. The abstract search would reveal any "recorded" easements while title insurance is a type of bond that the title will be clear.

For example, my son is buying some acreage in North Carolina. A neighbor had a driveway which was supposedly on his land but the survey revealed that the drive was on the land my son is buying. This was an "unrecorded" easement which was also illegal. Rather than have the neighbor move his drive, we negotiated to reduce the amount of land and therefore the price. The neighbor now has a slightly larger parcel and will pay a little more property tax.

As for the fire protection....probably their code specifies the type of pipe (metal I would guess) the amount of coverage per sprinkler and the method of supplying the water. I assume, since you would have a well, that you would also have an electric pump. Therefore, a standby generator that operates the pump only would be a good investment. Water can be nearly as damaging as fire! There is also a non-igniting gas that would not require any electric since it operates under compression. It smothers flames without damaging anything except electronic devices. It's called "a Halon system" but it will probably be more expensive than a water system.

Good Luck with your project

Roger
Ask The Contractor

---------- FOLLOW-UP ----------

QUESTION: Thank you for your help and your patience. I apologize for being a pest with questions, but there is something I still don't understand. I know life is an imperfect thing that is full of legal procedures that are also imperfect. Most legal processes have gray areas in them to watch out for. I also understand that an easement in the wrong place can ruin an investment, because it is literally a place on a parcel of land that I would own that I can do nothing with. I want to be sure I am really clear about what the unrecorded easement is.

If you will bear with me as I split a hair or two here. You said your son is buying land. He was told the neighbor had an easement for a driveway on the neighbors land. The surveyor found that easement was on the property your son is buying. The solution was to "get out of the way of the illegal easement" by not buying the land it is on. That makes perfect sense to me.

This is where I am confused, and also where I might end up learning more about gray areas in real estate law: The surveyor found the easement, so evidence of it's existence had to be somewhere. How did he find it? Did the surveyor ask the neighbor verbally if he added any easements to the property since he bought it, and ask for a drawing of it from the neighbor? Did the surveyor find it recorded somewhere in the title commitment or on the plat? If he found a drawing of it somewhere that is recorded in the public records, how did that drawing make it all the way through the system and become a permanantly recorded document if it is illegal? What made it illegal? In other words, is one of the gray areas of the recording system the possibility that something illegal makes it through and gets recorded?

I'm trying to understand this so I can develop a strategy to protect myself. Thank you for your assistance - Austin

ANSWER: Yo Austin - - -

Undoubtedly there are many pitfalls in the world of real estate and construction! As for my son's purchase...the "recorded site" was 7 acres and the recordation gave a legal description. The starting point is usually a verified "benchmark" somewhere nearby - in a road right-of-way or a concrete "monument". The description starts at that point to the 1st point of the property and continues until the 1st point is reached again - thus closing the circle so to speak. There can be many points in between. When his surveyor connected the points he found that the neighbors driveway was within the points and therefore on the wrong property. I don't think it was an intentional infringement. Never-the-less, because the cost of to move the driveway would have been more than the land it occupied, it was simpler to re-define the boundaries and let the neighbor buy just that portion of land and my son didn't mind losing nearly an acre of land because it reduced is cost ---and besides, 6 acres was more than he needed.

There is very little land in the US that has not been surveyed and recorded. If you look at a large state wide or county wide map you will see lines that do not meet and the sliver of land not included in a description is called a "hiatus" or gap. They are everywhere. Even in an abstract, the land is described - sometimes rather crudely when it covered a large parcel of land but small sites are generally described well enough to meet deed recordation.

Another example of an "unrecorded easement" --- suppose your neighbor installed a fence along what he thought was his and your common property line. He doesn't get a surveyor to layout the true line and thinks that a 90 degree corner looks right. The corner really is at 87 degrees so by the time he reaches the next corner 120 feet away, he has built the fence on your property - just a foot or so. If you don't make him move it, the fence creates an illegal and unrecorded easement that won't be discovered until someone sells their home.

As for protection - that's what Title Insurance is supposed to do. The seller must prove that the property, as recorded, has not been changed, amended or modified which would constitute a "cloud" on the title. That means "buyer beware" - someone may have a claim on your land. Sometimes it's financial only but often it encumbers your land and makes it difficult to sell.

I don't know if my rambling really answered your primary concern. Play it safe and have a real estate attorney look at your contract. You could also contact a title insurance company and ask them about the consequences of unrecorded easements.

Lots of luck

Roger
Ask The Contractor

---------- FOLLOW-UP ----------

QUESTION: Mr. Zona,

Everything you said made perfect sense to me. You gave me the details I was looking for. I have two more follow up questions, and then I will end this thread. Your son's new neighbor bought the acre of land he (the neighbor) was already using for his driveway. Did your son make sure the neighbor paid for this acre by inviting the neighbor into the ongoing escrow process that your son was using to buy the land? In other words, did the escrow process go from one buyer and one seller to two buyers (son and neighbor) and one seller?

Secondly, I was talking to a registered surveyor who told me "the county" may require me to re-plat a property, even if I am not subdividing it, to get a building permit. You said that a lot of legal descriptions are sloppy, especially on larger tracts of land. That means not all legal descriptions are tight and clean enough to be put on a deed. I am asking for your best guess. Could this re-platting the surveyor talked about be another way of saying what you said - that is - "the county" is using my permit application as an opportunity to clean up the way the land is described on the deed?

I will end this thread now. Thank you very much for your kindness, wisdom and patience. You have been very very helpful. Have a great evening - Austin

Answer
Austin,

My son's circumstances are somewhat easy. The neighbor who's driveway was in the wrong place is the son of the property owner who my son is buying from. It was a family situation easily resolved. However, the driveway was an unrecorded easement which was obvious to the surveyor.

I had a situation here in Florida also. I was building a shopping center and installing a large entry sign. The excavator hit a buried cable (optical fiber) and Bellsouth's attorney called me to tell me that I would be responsible for repairs - very costly. I immediately called my surveyor to find out why the cable wasn't located and lo-and-behold, BellSouth did not have an easement! - and they were responsible. I did later give them an easement.

As for the county wanting a recorded plat - yes, it is very possible this is their way of getting a positive description of land that probably was recorded as "meets and bounds" - frequently a very loose description! The plat can be prepared by a surveyor (in Florida) or a civil engineer. Again, here in Florida, I am required to meet a similar requirement but the bad part is the delay caused because platting requires approvals above the building department - all the way to city councils or county commissioners - plus the added cost. If your parcel is large enough, and you create a subdivision, you can spread the cost each parcel.

Send me pictures.

Roger
Ask The Contractor

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