A missing survey and a deck nobody had documented in Brampton

The situation

Jacek noticed it first, sitting at the kitchen table with the closing documents spread out three days before they were due to take possession. The survey attached to the file was dated eleven years earlier. He flipped to the photos their agent had taken during the showing, then back to the survey, then called Halina over. The deck in the photos, a fairly substantial structure running along the back of the house, simply was not on the drawing in front of them. Nothing in the paperwork explained why.

Jacek, a librarian, and Halina, an office manager, had been saving for four years toward a house of their own, and had made an offer on a Brampton property in the low 700,000s once their financing was approved. The deal had gone smoothly through inspection and financing conditions, and both of them assumed the closing package would simply confirm what they had already agreed to. Neither of them had thought to ask, until that afternoon, whether the survey they had been shown actually reflected the house as it stood.

Their real estate lawyer at the time, a family friend handling the file as a favour, had missed the standard requisition deadline, the date by which a buyer's lawyer is expected to raise any title or survey concerns with the seller's side, in this case Elena's, under the agreement of purchase and sale. That deadline had passed almost two weeks earlier, before Jacek and Halina had any idea there was a problem to raise. Once a requisition deadline passes without an objection, a buyer generally loses the contractual right to insist the seller fix the underlying issue before closing, which meant the leverage that would normally exist to demand a new survey from Elena was already gone by the time anyone noticed the gap.

With the requisition window closed and a closing date five days out, Jacek and Halina switched lawyers and came to our office in something close to a panic, worried they would either have to close on a house with an unverified deck or delay a purchase they had waited years to make, potentially losing their rate-locked financing in the process.

Halina, going through the file again that evening, found the original agent's listing photos still saved on her phone. The deck was clearly visible in every exterior shot, staged with patio furniture and described in the listing as recently added. Nobody along the way, not the listing agent, not their own previous lawyer, not the lender's own intake process, had flagged that a structure so prominent in the marketing of the house was entirely absent from the survey meant to describe it.

The legal question

The question at the centre of the file was narrower than it first appeared: did the absence of a current survey actually prevent Jacek and Halina from closing, or was there another way to give the lender and the buyers the assurance a survey is meant to provide? A survey exists mainly to confirm two things, that the structures on a property sit within its boundaries and required setbacks, and that no part of a neighbouring structure encroaches onto the property being purchased. Lenders typically want one or the other of a current survey or an acceptable substitute before funding.

The deck itself was the specific concern. Built sometime in the years after the old survey was prepared, it ran close to the rear property line, close enough that if it turned out to encroach even slightly onto the neighbouring lot, or to violate a municipal setback requirement, Jacek and Halina could inherit a problem they had no way of investigating on the timeline left to them. A new survey would answer that question definitively, but a full new survey typically takes several weeks to schedule and complete, far longer than the five days remaining before closing.

This is where survey-in-lieu title insurance becomes relevant. Rather than requiring a fresh survey before every closing, many lenders and buyers instead rely on a title insurance policy that specifically covers the risk of an undiscovered encroachment or setback violation, including risks tied to structures like decks that postdate the survey on file. The policy does not confirm where the deck actually sits. It instead shifts the financial risk: if an encroachment or violation is later discovered, the insurer bears the cost of resolving it, up to the policy's coverage, rather than leaving the homeowner to absorb it.

The complicating factor was the missed requisition deadline. Because Jacek and Halina's previous lawyer had not raised the survey gap in time, Elena was under no remaining contractual obligation to pay for a new survey or to address the issue at all. Any solution had to come either from the buyers' own resources, meaning title insurance purchased at their own cost, or from a seller willing to cooperate voluntarily on a deal that, strictly speaking, she no longer had to.

There was also a narrower question about timing and cost. Title insurance policies of this kind are ordinarily arranged well before a requisition deadline, as a routine part of a closing, not scrambled together in the final days beforehand under pressure from a buyer who has just discovered a problem. Insurers still write policies on this compressed a timeline, but the underwriting can take longer and the premium can run higher when the risk being insured, in this case a specific, already-identified deck rather than a generic unknown, has to be priced individually rather than folded into a standard closing package.

What we did

1. Confirmed the requisition deadline had passed and what that meant practically. We reviewed the agreement of purchase and sale and the correspondence from the previous lawyer to establish, plainly, that the window to demand a new survey or a price adjustment from Elena as of right had closed, so Jacek and Halina understood from the outset that any solution would require negotiation rather than entitlement.
2. Compared the old survey against the property as it currently stood. We had our own site visit conducted to measure the deck's approximate distance from the rear property line against the boundary shown on the eleven-year-old survey, which gave us a rough sense of the risk level before deciding whether a full new survey or an insurance solution made more sense on the timeline available.
3. Contacted the lender to confirm what would satisfy their underwriting condition. Rather than assuming a new survey was the only acceptable answer, we asked Jacek and Halina's lender directly whether a survey-in-lieu title insurance policy meeting their standard requirements would be sufficient, since some lenders insist on a fresh survey regardless of any insurance offered. We received written confirmation that a proper policy would satisfy the condition, which immediately widened the available options and took the five-day scheduling problem off the table.
4. Obtained a survey-in-lieu title insurance policy specifically addressing the deck. We arranged a policy that named the deck and the rear setback as a known, disclosed risk rather than an unknown one, which mattered because a policy obtained after a risk is already identified typically needs that specific risk addressed in writing rather than assumed away by a generic policy that could later be challenged as not covering the very problem it was bought to solve.
5. Approached Elena's lawyer to request a modest cost contribution. Even though the requisition deadline had passed, we contacted Elena's side directly, explained the gap in plain terms, and asked whether they would contribute toward the cost of the title insurance policy given that the missing survey information related to a structure she herself had built and never updated the survey to reflect.
6. Negotiated a partial cost-sharing agreement rather than pursuing a claim. Given the missed deadline had already closed off any formal entitlement to a contribution, we treated this as a negotiation to be won on the facts rather than a right to be asserted, and framed Elena's role in the missing survey plainly without overstating what she was legally obligated to do. Elena agreed to cover half the cost of the policy as a gesture of good faith, without admitting any obligation to do so.
7. Documented the insured risk clearly for the closing file and for Jacek and Halina's own records. Because an insurance policy is only useful if the people relying on it understand what it covers, we prepared a plain-language summary explaining exactly what the policy did and did not cover. That way, if a boundary or setback issue involving the deck ever surfaced later, they would know immediately how to make a claim rather than discovering the coverage for the first time under stress.
8. Closed on the original date with the policy in place. We confirmed every condition, the lender's acceptance, the signed policy, and Elena's contribution in writing, before the closing date rather than racing to assemble them on the day itself. With everything satisfied in advance, the closing proceeded on schedule, avoiding any disruption to Jacek and Halina's financing rate hold or moving arrangements.

The outcome

The purchase closed on the original date, five days after Jacek and Halina first noticed the discrepancy, with the survey-in-lieu title insurance policy in place and the lender's condition satisfied. Elena contributed half the policy cost, several hundred dollars, after direct negotiation, and Jacek and Halina covered the rest along with the modest legal cost of arranging the solution on short notice.

This was a genuine compromise rather than a clean resolution. The deck's exact position relative to the rear property line was never confirmed by a new survey, and it likely never will be unless the property changes hands again or a future addition makes a fresh survey necessary. Jacek and Halina own a home with an insured but unverified risk sitting in their backyard, protection against the financial consequence of an encroachment or setback problem, not proof that no such problem exists. If the deck were ever found to violate a municipal setback requirement, the insurance would cover the cost of resolving it, but resolving it might still mean removing or altering a structure they use regularly.

The missed requisition deadline is the part of this file that could have been avoided entirely. Had the survey gap been flagged within the contractual window, Jacek and Halina would have had the right to insist Elena either provide a current survey or address the issue before closing, at Elena's cost and on Elena's obligation, rather than negotiating a voluntary contribution after the fact. The couple has lived in the house without incident since closing, but the file is a clear example of how a missed procedural deadline early in a transaction can quietly shrink a buyer's options later, even when the underlying problem itself turns out to be manageable.

Jacek said afterward that the hardest part was not the deck itself but the several days of uncertainty before anyone could tell him with confidence what their actual options were. Halina, more practically minded about it, kept the policy documents in a labelled folder with the rest of their closing package, on the theory that if the question of the deck ever came up again, whether from a future buyer's lawyer or a municipal inspector, she wanted to be able to put her hand on the answer immediately rather than reconstruct the story from memory.

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