Solving Boundary Problems - Implied Boundaries


Published: 20-07-2018 | Updated: 12-09-2018

Article Summary

Boundary positions can be assumed where evidence in the property documents implies their positioning. In this example a Boundary Search obtained by A contained a Conveyancing Deed and Deed Plan created when the property was first purchased. The Deed created an easement to enter B's adjoining land for the purpose of laying pipes. It was shown on the plan as being on X's land very close to the suspected property border. By implication the boundary could not have been on A's land as otherwise there would have been no need to create the easement.


The Problem

A and B owned properties that were next door to each other. A dispute arose as to where the boundary lay between them. There was no obvious boundary determinable on an inspection, and the Title Registers and Title Plans provided no help. A applied for a Boundary Search.


Amongst the documents contained within the search was a Conveyancing Deed that contained an Easement in A's favour, i.e. it granted A the right to enter B's land for the purpose of laying pipes along a line that was clearly marked on a Deed Plan attached to the Deed. The line was shown as being on B's land, close to the suspected boundary.

Boundary Search


Extract from the Deed

3    The land is subject to the following rights granted by a Deed dated 17 June 1979 made between (1) Elsie Brooks and (2) Andrew Hendre and Jean Hendre (Grantee):

"The right to enter upon the land tinted brown for the purpose of laying and constructing a sewer or drain between the points marked "A" and "B" along the position of the black line drawn on the said plan the Grantee making good all damage occasioned thereby …..

NOTE:    Copy plan filed under SK38973331"


Solution

By implication, this line must have been on B's land, otherwise A would not require an easement to enter B's land. Although the exact line of the boundary was not determinable, it was sufficient for A and B to know that the boundary was on A's side of the marked line.


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