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Plans of Subdivision (M-Plan, Registered Plan, Condominium Plan)Upon registration in the Land Registry Office, these divide property into lots or units and set out boundaries for the first time, after appropriate approvals have been obtained.
Reference Plans (R-Plans)These are deposited plans and graphical representations of descriptions, as well as representations of divisions of land under the Planning Act.
Plan of SurveyThis may be a reference plan, an undeposited plan in the form of a Surveyor’s Real Property Report (SRPR), or a standard survey plan.
Surveyor’s Real Property Report
A Surveyor’s Real Property Report (SRPR) is a legal document that clearly illustrates the location of all visible public and private improvements relative to property boundaries. It takes the form of a plan illustrating the various physical features of the property along with a written report highlighting the Professional Surveyor’s (Clarke Surveyors) opinion of any concerns. The plan and report may be combined in one document. The best disclosure of the extent of title is a current SRPR, which is a land surveyor’s professional opinion of the extent of title at a point in time. In a real estate transaction, the SRPR can be relied upon by the purchaser, the seller, the lending institution, the municipality, the Realtor and all other parties to the transaction as an accurate representation of the property.
Copyright and Fair Use of a Survey Plan
A plan illustrates a surveyor’s (Clarke Surveyors)opinion of the extent of title and falls within the definition of an ‘artistic work’ under Section 2 of the Copyright Act. R.S.C. 1985 c. C-42. Copyright remains with the Professional Surveyor who created the plan.
Under the Copyright Act, “fair use” allows a person to use a plan for research only. It is not “fair use” to use it for benefit in any transaction beyond the time of the preparation of the original plan. Under “fair use,” a surveyor or a lawyer has the right to use the information on a plan for title research. The original client has the right to use the plan for private use in accordance with the purpose of the plan. It is not advisable to pass on a photocopy of the plan to another party after the original transaction, as it could be outdated and misleading. Using a photocopy of a plan of survey is a breach of the strict copyright laws of Canada.
A client does not have the right to unlimited use of the plan in subsequent dealing. A client does not have the right to re-use the plan for some other purpose than was originally intended. No one, other than the Professional Surveyor who prepared the plan, has the right to alter the plan. No third party, such as a Real Estate Professional, has the right to use a plan for a use not intended at the time it was originally prepared.
Misuse of Survey Documents or Plans
The re-use of survey documents and plans after their original release is misuse. Any reliance on a Professional Surveyor’s (Clarke Surveyors) product beyond the original intended use is potentially costly to the user, and in most cases, an infringement of copyright.
What is the Real Estate Professional’s Liability?
The Real Estate Professional is assuming all liability by using and re-using “old” documents that were never intended to be used in current transactions. It is similar to using an appraisal of the value of the same parcel beyond the time of the transaction. Both the appraisal and the plan must be current to reflect the accurate value and extent of title.
What is the Value of a Professional Surveyor’s Opinion?
Ontario Land Surveyors (Clarke Surveyors) provide professional opinions for a wide range of purposes. Many may be relevant to the marketability of title or compliance with local building by-laws. Professional Surveyors work with clients to add value to real estate assets. The cost of the survey is small as a percentage of the total investment and a reasonable price to pay for the protection from potential lawsuits resulting from misrepresentation in the Offer of Purchase related to property boundaries and improvements.
Title Insurance is not an Alternative to a Professional Surveyor’s Opinion
In a real estate transaction, absolutely nothing can replace the knowledge disclosed by a current Surveyors Real Property Report (SRPR). Title insurance is not an alternative to a survey, as it requires less diligence in the investigation of title, is assumed to be “no fault” insurance when it isn’t, and provides a misleading and shallow assurance of savings to the party making the purchase. Current full opinions of the quality of title by a lawyer and extent of title by a surveyor are the best assurance a party can obtain. Title insurance may mask or hide potential title and boundary problems, rather than identifying and addressing them before a property is purchased. The purchasers of title insurance think that they save the cost difference between an insurance policy and surveyor’s opinion. In reality, they are missing the clear picture of the property being purchased.
Retaining the Services of a Professional Surveyor
The services of a professional surveyor (Clarke Surveyors) should be sought will in advance of the closing date to allow enough time to deal with any issues or concerns that are revealed by the survey. The professional opinion of an Ontario Land Surveyor is not a mere commodity, so prove should never be the sole consideration. A licensed surveyor should be selected because he or she has the appropriate skills, experience and capacity to do the job.