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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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