Boundary Discrepancies

Do you need to respond?

It is undesirable in the long term to have unresolved boundary discrepancies. Unclear boundaries may cause difficulties or disputes with neighbours or difficulties and delay on sale of one of the properties. 

Strategic Options

Strategic options include:

• Leave the boundary discrepancy unresolved;
• Abandon land occupied outside current title boundaries and restore occupation to match the boundaries as per the title;
• Continue with the boundary discrepancies without adjusting the title boundary, but with a simple document, perhaps an exchange of letters, confirming that permitted use regardless of the title boundaries until someone calls for correction;
• A grant of limited rights of ownership in the form of an easement, to would grant long term rights as part of the titles to exercise limited use of land in favour of neighbours, such as rights:
  • of passage;
  • to use pipes;
  • for an encroachment to remain undisturbed;
• have the titles adjusted to match the occupation:
  • with your neighbour’s consent, with or without payment to the neighbour to do; or
  • without the neighbour’s cooperation.

Grounds Without Consent

If you wish to have the title boundaries adjusted without your neighbour’s consent, possible grounds to do so include:

• A claim for squatters rights. Recent reforms prevent a squatters rights claim against the wish of a property owner who has paid the rates on the property claimed;
• A claim based on occupation, equity and good conscience, with or without an originating sale;
• By application to the Land Registry to rectify the boundary in the title to match the land as actually and in good faith occupied. The Recorder has power to order compensation to be paid by the person benefited by the amendment and power to order costs. The legislation says where there are adverse claims, the Recorder has a general right to do what is most equitable and convenient. There is a right of appeal to the Supreme Court. The Land Registry does not favour use of this Section of the Land Titles Act, to match title and actual boundaries unless there is some element of survey error or land registry error.   

Factors to Consider

In considering what is the best way to proceed, take account of:

• The value of the area occupied but outside your title boundaries;
• The value of a pleasant and cooperative relationship with your neighbour;
• The cost of having the titles adjusted to match occupation if you have your neighbour’s consent; and
• The cost of having the titles adjusted to match your boundaries without your neighbour’s cooperation.

Is it cheaper to move the physical boundary to match the title boundary?

Easement versus Boundary Realignment

Moving the title boundary is expensive and the cost can be uncertain

Consider if the misalignment of the boundaries can be resolved by:

• grant of limited rights over neighbouring titles using easements;
• rather than moving the titles boundary to have full ownership rights  match occupation.

Creating an easement is simpler and quicker than a Boundary Realignment. 

A typical easement will generally take in the vicinity of 2-6 months to complete depending on the complexity and number of parties involved.   Council approval is not usually required.

An easement may be created by:

• agreement of the parties;
• regardless of agreement relying on long usage or the right to claim under a right of used by statute to make sensible use of land. 

Boundary Realignment Process

Typically after an agreement is in place, the Surveyor applies to council for approval of the Boundary Realignment.

The Boundary Realignment process is complex and prone to delay. It involves the co-operation of lawyers, surveyors and several government departments.. It is impossible to make precise and reliable promises on the timetable of the Subdivision.

A typical Boundary Realignment will generally take in the vicinity of 4-12 months to complete depending on the complexity and number of parties involved.

If council approves the application and the permit conditions are acceptable, the Surveyor will then draw the survey plan.

You will need a “Schedule of Easements”, a conveyancing document that summarises and creates the system of rights between the blocks involved in the Boundary Realignment. Possible rights include rights of way, rights of drainage and covenants restricting use of the property. 

When all the works required by council are done and the signed schedule of easement and the Boundary Realignment plan is lodged with Council, Council will examine any works done, the survey plan and the schedule of easements to make sure all is in accordance with the approval that they have already given.

When satisfied, Council will seal the Boundary Realignment plan and send it to the Land Registry.

The Land Registry then completes the title adjustment by drawing up the new title documents. 

Easement Process

Investing in a surveyor drawn plan to define the easement area is usually a prudent investment.  A detailed survey plan may be required but even if  a reliably drawn sketch plan will suffice, it needs to be reliably drawn.

A transfer and typically a contract need to be drawn and signed.

Title deeds to be adjusted need to be produced to the Land Registry so they can be up-dated. Bank consents may be needed.

Any payments can be made on exchange of the necessary transfer.

The Land Registry check the transfer and plan complies with their requirements. The Land Registry then registers  the transfer to record the easement on the title documents. 

Contract

Once there is a likely accord on the response get a sketch plan drawn by a Surveyor to illustrate the proposed changes.

A written agreement between the parties to the accord is prudent to record everybody’s expectations in clear and binding form on:

• The sketch plan as drawn by the Surveyor to illustrate the changes to the boundary;
• Any payments between the neighbours;
• When is that payment made;
• How much is payable on signing the contract;
• How much is payable on transfer;
• Who is paying what costs:
  • Lawyers;
  • Surveyors;
  • Taxes;
• Required works and funds to meet any pre-conditions.