2014/07/23 SETTING BOUNDARIES ON PROPERTY PURCHASE This week the Property Poser experts help a reader establish clear boundaries with regard to a property she is in the process of purchasing. The reader explains that she is in the final stages of the transaction and will soon take occupation of her new property, which is situated in a small town in the rural Eastern Cape. It would appear that the process is literally a week or two from finalisation, which means that registration of transfer also takes place soon. The reader recently sent a message to the seller asking where the boundary lines of the property lie but the seller was not sure and could not locate the boundary pegs. As the property lies adjacent to various other vacant plots of land, the reader is hesitant to proceed with the transaction if the geographical positioning of the property is unclear. She would like to know where the responsibility lies in pointing out boundaries and, if need be, who would be responsible for the costs of a professional determination by a surveyor. Usually, the onus to determine the boundary lines of a property would be on the potential purchaser, unless otherwise agreed with the seller, says Schalk van der Merwe from Rawson Properties in Somerset West, Cape Town. “Boundary pegs are often difficult to locate so a purchaser could try to obtain a copy of the plans of the property to see whether this may assist in the determination.” Van der Merwe says where an agent is involved, the seller could similarly request that the agent provide such information. “Endeavours of this type would typically take place before the conclusion of an agreement of sale and would be between the seller and the purchaser.” In the reader’s instance, the issue is somewhat complicated in that the matter seems to have progressed almost to the point of finalisation, says Van der Merwe. “Our reader should check the agreement of sale to determine what the provisions state as to this aspect.” Van der Merwe says the agreement would usually make provision for the seller not to have to point out the boundary lines and, should he or she do so, that the seller would not be bound to the locations identified nor any errors therein. One can imagine that the practical reason for this is that the seller will, by and large, not have a precise idea of where the boundary pegs are situated, says Grant Hill of Miller Bosman Le Roux Attorneys in Somerset West. “Often the pegs have either been covered up or removed over the years.” If an agent is involved and the question of boundary lines was specifically asked of him or her, the Consumer Protection Act could increase the agent’s liability in terms of providing accurate information, says Hill. “This would especially apply where the agent’s answer is incorrect or he or she doesn’t make the proper enquiries to determine the true extent of the property’s boundaries.” Hill says if the question were only raised recently, the reader would have to fall back on the provisions of the agreement of sale. “If she now conducts her own investigations into the boundaries, the difference in what she thought she was purchasing and what was sold to her may be so big that it constitutes a lack of consensus on what the property actually is.” Hill says this may leave her with a remedy to potentially cancel the agreement but this would not be without some disruption to the lives of all those involved, considering the advanced stage of the property transfer.
Posted on: Thu, 24 Jul 2014 08:21:08 +0000
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