Dec. 2019

If you are a purchaser buying a property, how do you know where the correct boundaries are? The simple answer is that before you purchase you need to check that the actual physical boundaries are the same as that shown on the title plan. Of course, this is not always easy, and some sellers deliberately make it difficult. If you purchase a property and then find out, let's say, part of your driveway is on your neighbour's legal title, then it can be a difficult and expensive process to rectify it.

The safest way is for a purchaser to instruct a surveyor to check the boundary, but very few purchasers are willing to do this (too expensive!) A more realistic option is to obtain a statement in writing from preferably the seller that the actual physical boundary of the property being sold is the same as what is shown on the title plan. If later the seller's statement is proven incorrect, then you are in a strong position to sue the seller for misrepresentation. Another alternative is to obtain the same type of written statement from the real estate agent who's acting on behalf of the seller, although a statement from the seller is best. Make sure the statements are in writing and clear so there is no 'wriggle room' later.

If you don't obtain a clear written statement, then your chances of any recovery become more uncertain and very fact specific. Courts look at things like whether there were visible boundary pegs, or any deliberate attempt by the seller to conceal the correct boundary.

The only other advice is to generally be inquisitive and perhaps a little nosy! Can you see any visible fence posts? Could you check with the neighbour?

You're best to make the enquiries beforehand rather than have an expensive process to get it remedied later.

Written by Blair Franklin, Partner.