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Obligation on Seller Sets Boundary

17 May 2012

When a plan is attached to a conveyance, it is often marked ‘for identification purposes only’ in order to ensure that the plan is not considered to be the definitive record of the property being conveyed.

Recently, a dispute reached court after the boundary of a property that had been split from another property and then resold years later was disputed by the new owner.

The dispute turned on whether a stone wall or a nearby fence marked the boundary between the two properties. The difference in area between the two was significant – more than an acre.

The title document itself only referred to land of a specific acreage. However, the transfer deed included an obligation on the seller to ‘put in stockproof condition’ an existing fence, which was marked on the plan of the property conveyed. This was to be done within one month of the conveyance.

The court considered this decisive. There would have been no point in having that condition in the original conveyance if the fence were not the boundary between the two properties. Accordingly, the court ruled that the disputed land had not been conveyed when the original sale took place. Since it had not formed part of the land originally conveyed, the title had never passed to the new owner.

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