Professional

I was recently asked to write an article for the Association of Ontario Land Surveyors on the state of surveying and boundary due diligence in the real estate transaction.  Although aimed at surveyors, this article is highly relevant to real estate agents and lawyers as well:

The evolving role of boundary due diligence in a title insurance-backed real estate transaction.

 Chris Kamarianakis

Executive Director, Protect Your Boundaries Inc.

Today’s savvy homesellers understand the value of showing their home in its best light. “Staging” a home by eliminating clutter and adding tasteful artwork, neutral paint colours and optimal furniture arrangements has become routine in the hopes of attracting multiple offers and higher bids.

There is less awareness about the importance of including a property survey plan in the home information package. While the Agreement of Purchase and Sale (APS) contains a standard condition that allows the purchaser to request that the seller supply a survey plan if they have one in their possession, there is much confusion regarding this clause and what precisely the vendor will produce.

The first step to protecting your boundaries is to become informed about your rights as a private property owner. You have the right to exclusive use of your property, the right to legal protection against others intruding on your property, and the right to sell, transfer, exchange and mortgage property.

Land surveying – the art and science of mapping and measuring land, and calculating the precise locations and boundaries of divided plots of land – makes our system of private property ownership possible. Protect Your Boundaries was created to provide homeowners with the tools and information they need to safeguard their property assets. To that end, this blog post will provide answers to the top five boundary questions.

Where are my property boundaries?

Where does the fence go?

What can I do about a property boundary dispute with my neighbour?

If you have property boundary questions or concerns – or simply want to learn more about why a land survey plan is such an important homeowner document – be sure to check out the Protect Your Boundaries (PYB) booth (#909) at the Toronto Fall Home Show Sept. 18-21.

Approximately 49 per cent of residential properties in the Greater Toronto Area have property boundary discrepancies that could lead to disputes between neighbours, a study by PYB shows.

A random sample of 415 land survey plans from the City of Toronto and the regional municipalities of Durham, Halton, Peel and York revealed that 205, or 49 per cent, of the properties have a misplaced fence or other encroaching structure or occupation issue with the potential to create conflict between neighbours.

In the early 1990s, title insurance was introduced to the Canadian real estate market, offering lenders, lawyers and homebuyers insurance against title defects, off-title building code infractions, mortgage and title fraud, as well as many property boundary defects that would otherwise have been revealed in an up-to-date land survey plan.

In doing so, title insurance made it possible for real estate transactions to close faster but with far less due diligence – it is no longer routine for the survey plan to be thoroughly examined prior to purchase to ascertain the property’s physical features – buildings, garages, sheds, fences, walls, decks, etc. – relative to the property’s boundary.

You may be king of your castle, but do you have sole dominion over your land? The answer is ‘no’ if your property is subject to easement rights that allow another party to use part of your land or access services that cross it.

For example, your neighbour may have the legal right to use a portion of your driveway to access their garage. Or a public utility may have buried services that affect where you can install a new backyard pool or even a patio or deck. Any easement that affects your land is something you need to know about before you agree to purchase the property.

A new development in Canadian common law will continue to play out in the business and legal worlds this year, with significant and far-reaching implications for all contractual agreements in Canada, including those that govern real estate transactions.

The Supreme Court of Canada (SCC) decision in the case of Bhasin v. Hrynew SCC 71 imposes a new duty of honest contractual performance and clarifies how the principle of good faith fits into contract law.