The first thing I do when a buyer comes to our office regarding a discovered title defect is to look at their title insurance policy. Second, I want to see the survey that the buyer received when purchasing the property to determine if the survey reflected the defect. For example, the survey may disclose that a fence was over the property line.
If the survey didn’t disclose the defect then it is hoped that the attorney who represented the buyer at the closing requested the title company to remove the survey exception from the policy. If so, then the buyer is likely insured against this issue and the title company will defend you in actions brought against you relating to such issue.
The survey is a key issue. Often buyers of residential property don’t get a survey, and if they do, they don’t have an experienced real estate attorney who can request that a survey exception be removed from their title insurance policy. Without the removal of the survey exception from the title insurance policy the buyers can’t turn to the title company and say fix this. Instead, they will have to go to their attorney to see if he or she can fix the title problem.