The Mortgage Instructions Toolkit provides practical guidance for lawyers responding to lender requests in residential real estate transactions. This page addresses surveys.

The situation

Usually, in today’s residential real estate practice environment, lenders only require lawyers to report on a survey when there is no title insurance. However, it is in the borrower’s interests for a lawyer to review the most recent survey to identify any potential problems.

Sample lender instructions

You are to review the survey to confirm that there are no encroachments to or from the property and that all improvements situated on the property are located within the lot lines. You are also to confirm that the improvements comply with applicable by-laws relating to lot line, frontage and setback requirements and advise as to the zoning of the property. A copy of the survey is not required by the Mortgagee. Alternatively, a title insurance policy will be accepted in lieu of a survey.

Practice Guidance

• Discuss the benefits of having an up-to-date survey of the property with the borrower, and ask about any concerns which could be addressed by a survey.
• Confirm and document the borrower’s understanding of the implications when there is no up-to-date survey.
• Request, or have the borrower request, that the municipality or current zoning authority confirm, in writing, the current zoning for the property and the applicable lot line, frontage, and setback requirements. Also request confirmation that:
  • the current use is a permitted use, and
  • there are not outstanding written notices of any non-compliance with any zoning or other land use bylaws

No title insurance

• When you are completing a report to the lender, identify the pertinent details of the available survey that you reviewed, and any material written confirmation obtained from the municipality or other zoning authority. 
• With respect to the survey, identify the type of survey, name of surveyor, date of the survey map and its last revision, any project or job number, and, if registered or recorded, the registration or recording information.
• Specify that your report is based solely on the written confirmation received (if any) from the municipality or zoning authority, the survey you have identified, and any additional relevant facts the borrower has disclosed to you.

Title insurance

• Confirm coverage of the title insurance policy. If there is a survey, consider what information you need to provide to the lender and title insurer.

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