Know your boundaries!

Property

With the re-building of residential and commercial properties by property owners and insurance companies now being well underway, it is important to ensure you are clear regarding any easements registered against your title.

With the re-building of residential and commercial properties by property owners and insurance companies now being well underway, we are noticing an increase in enquiries from land owners with regard to the extent of their boundaries or asking us to explain easements registered against their title.

In some instances, a proposed rebuild plan can be prevented because of an easement in one part of the property with a prohibition on building in that area. We have also come across situations where the boundaries are not where everyone thought they were meaning one party is in adverse occupation or there is a small remnant of Deeds land which now needs to be dealt with. This can be a costly and time consuming process to sort out.

It is also worth noting that clause 5.1 of the Agreement for Sale and Purchase of Real Estate Ninth Edition 2012 (2) provides that a vendor shall not be bound to point out the boundaries of the property, except on the sale of a vacant residential lot the vendor shall ensure that all boundary markers required by the Cadastral Survey Act to identify the boundaries of the property are in the correct position at the settlement date.

So while usually it is up to a purchaser to satisfy themselves as to the extent of the boundaries when buying a bare section (for example after a house has been demolished) it is the vendor who is required to correctly identify the boundaries for the purchaser unless this clause is expressly excluded from the Agreement.

The lesson here is when you purchase a property it is vital that you obtain good legal advice explaining the title to you and if there is any doubt, you should engage a surveyor to confirm that the fences are located on the true boundary of the property. 

You should endeavour to locate the boundary pegs and if they are no longer in the correct location you should consider engaging a surveyor to confirm this for you.

Traditionally this approach was recommended when a purchaser planned on developing a property but, as the events of the last few years have proved, no one quite knows what the future holds so it can be incredibly valuable advice when purchasing any property.

Also, if you are looking to build on bare land you already own you need to have the title checked as early in the process as possible so you can avoid nasty surprises down the track.

If you have any questions regarding title or any other property matters, please contact our expert Property Team.

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Copyright © Cavell Leitch. All rights reserved. Redistribution is only permitted with express written permission. For enquiries please contact us. This article by its nature cannot be comprehensive and cannot be relied on by clients as advice. It is provided to assist clients to identify legal issues on which they should seek legal advice. Please consult the professional staff of Cavell Leitch for advice specific to your situation.