If you are planning buying, selling or making any improvements to your home, the below is a brief refresher on Property Surveys.
What a Survey Does
A property survey defines exactly what land and structures are part of a specific piece of property. Your lender and title insurance company often require a property survey when you are purchasing a home, but even if they don’t, it can be a smart move to get one. A survey typically cost varies depending on your location and the size of your property.
When creating a property survey, an independent surveyor will use a combination of archived land records and current measurements. The survey will lay out the lot size and dimensions, and then mark the location and size of the home on the lot. In addition, the survey should indicate the presence and location of other structures, like a garage, driveway, retaining wall, or fence. It may also mark right-of-way privileges for utility companies or other quirks of your property.
In Hawaii, the legal description the of land and real property originates from the survey. Our survey system is a Metes and Bounds System, which means the surveyor relies on monuments, angles, and measures to determine the boundary of the parcel. Typically the survey will be a map showing the boundaries and all of the structures that lie within. Also included in the survey are things like utility easements, drainage easements or other areas where the land is set aside for a use other than that of the land owner. If there are structures on the parcel, the survey will also show if there are any issues with setbacks. Depending on the property and its zoning, there may be setbacks from the boundary of the parcel in which nothing can be built. A survey will highlight any encroachments on setbacks. The other thing a survey will show is whether there are any encroachments involving neighboring parcels. These can be things like fences, rock walls, driveways, etc. that may cross the boundary with the adjacent property.
De Minimus Laws
Improvements in technology have made surveys incredibly accurate. Unfortunately with many properties here in Hawaii, that accuracy can be very different from the boundaries originally established by historical surveys. In order to address this issue, the Hawaii Legislature enacted De Minimus rules. De Minimus means "minimal impact" and guidelines were established in which certain variances between modern and historical surveys would be tolerated. For residential properties the variance is 6" or .5 feet. Agricultural or Rural land is 9" or .75feet. Other types of property have different allowances. As an example, a fence built on a residential property that is 5" on the next lot is determined to be within the de minimus and therefore not an encroachment.
If that fence is 7" over on the next parcel, one option is to remove it and rebuild it within the boundaries. For some encroachments that may be very difficult and cost prohibitive. In that case an encroachment agreement may be the best course of action. In an encroachment agreement, the two neighbors settle and agree in writing to allow the encroachment, describe it, memorialize who is to make repairs, rebuild in case of such a need and it is recorded as a perpetual easement that "runs with the land" meaning it carries over to subsequent owners. It is best to have this agreement prepared by an attorney and recorded as part of the deed the property.
Surveys for Property Improvements
A property survey is very useful to have if you are planning to make improvements to your home after you buy it. That way, you know exactly where your property line is so you can properly install a fence on your side of the line. A survey also indicates how much space is available for building an extension onto your home. You also may need a survey for completing landscaping projects or adding features like a deck or swimming pool.