Professional advice needed re warning as to dimensions

Discussion in 'Legal Issues' started by Over here, 6th Apr, 2020.

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  1. Over here

    Over here New Member

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    Good evening, I'm needing to find out if it is the legal responsibilty of a lawyer/conveyancer to advise a purchaser of a" warning as to dimension" noted on a title. There was the customary advice to get a survey if there were any doubts, but there weren't any "doubts", until we found out after settlement
    that the "warning" ultimately had us being registered owners of a parcel of land next door to us, much to the annoyance of our land, and council not knowing or having any idea who owned the house we paid for. A massive balls up, and seems to be no claiming liability on part of our conveyancer.After large survey and legal fees etc, not to mention council refusing to process planning application till sorted (up to 18 month delay)we are not impressed with the legal profession.
    Any input would be helpful. Thanks
     
  2. willair

    willair Well-Known Member Premium Member

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    If the advice was have the property surveyed at the start and you never had it that part complete prior to settlement then you may be wasting your time ,but i'm no professional..imho..
     
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  3. lixas4

    lixas4 Well-Known Member

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    A warning as to dimensions means the title was previously 'not under the act' (general law/old law title), but has been converted to a torrens title using one of the conversion methods that didn't involve a field survey, which meant that a warning needed to be placed on the title that the dimensions shown on the title may not be assumed.

    All surveyors and I assume all property lawyers/planners/architects would note the warning as a potential issue that only a survey of the property can absolve, or at least required more investigation.

    If I read your situation correctly, your title was pointing to a property next door, and the property you thought you purchased was a lost title? Is that correct? So I guess your surveyor claimed the property you thought you owned by possession? Your situation needs to be clarified a bit to get a better understanding of the issues and what happened.

    However, either way it sounds like what happened to you was not something that happens very often.

    As far as what should have happened, if you were planning on doing a development of land, then you should consult a land surveyor/planner (and/or designer)/property lawyer/finance broker/accountant all during due diligence to confirm what you are planning on doing can be done. If you did this at least two of the above consultants would have notified you of the warning and a requirement for a survey or a least more investigation.
     
  4. Over here

    Over here New Member

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    Much appreciate your reply, bu
    Thanks lixas4, yes you’ve pretty well nailed it. In a sense, our title, the one for our house was obsolete. Once that was dealt with, the title sitting over the land next door just moved over onto our property off the land next door. My problem is making a claim. As I mentioned and like any advice re sale contract, it said, if there is any doubt re dimensions, have it surveyed. There was no doubt. I stepped it out, all ok ok, theres a house sitting in the middle of it, as has been for 100 years etc. Any regular buyer would be satisfied that all was ok, and no regular buyer would suspect that, they’re really buying vacant land next door and that no one knows who owns the house. It’s been rather expensive to correct, not to mention a massive strain. My business relied on getting planning application through pronto, so as I could build my workshop. Had I been told of this warning before signing, I wouldn’t and couldn’t have bought, as I then would have looked into it and seen that my business would be mothballed for a year which I would not have entertained. As it is, it has been mothballed for more than a year. Getting legal advice has been disappointing, the issue was so messy, no one knew what the conveyancers obligations were. I believe the conveyancer overlooked the warning and is using the old “well I did suggest getting a survey done” my argument is, I would have if I was told about the warning and what it meant. I guess I need a letter from the right person to confirm that the conveyancer erred and thus being liable. Apologies for long rant.
     
  5. Scott No Mates

    Scott No Mates Well-Known Member

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    That is one of the dangers of using an out of area conveyancer or solicitor (Yes, they can get it wrong too).

    In certain areas, you would only go to a highly experienced local or a specialist in the field.

    In some locations, eg earlier subdivisions in Katoomba in NSW, the boundaries require to be confirmed when compared to the DP & title (apparently there's a discrepancy of around 30-50cm, not much but still an uncertainty). If you use your Sydney conveyancer, they may not be aware of this and you could be buying part of next-door's lounge room.
     
  6. Over here

    Over here New Member

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    Yes,anyone can make a mistake, but if you're a professional, you ought to know where to step off and hand it to someone who may know better, or take on the job, but run it by someone from the area. I hired them as they are a property lawyer, not run of the mill conveyancer, with all about our security etc etc on their website when you use a property lawyer as opposed to a conveyancer.And they ought to know of the resource LASSI spears (website), which I'd never heard about until this happened. Anyone in the game only need to look up an address on this website and it will be staring them in the face, that there was a problem that couldn't be ignored. It costs nothing and takes about 2 minutes. Had that been done, we'd living our dream. One small oversight to someone can be disarray to someone else. And in the country, being out half to even one metre, not a real worry........but not even being on the land you bought is ridiculous.
     
  7. Paul@PFI

    [email protected] Tax Accounting + SMSF Business Plus Member

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    Title assumes that the title is valid. People often look at a fence and just assume its the boundary of the title. When we puchased (new dev) our solicitor explained this is simple terms that our neighbours on all three sides could be wrong and we could find their home and property on our land and is very costly to sort years later. So we had a survey check done. And it was spot on.

    I will guess that the conveyancer will have a T&C in the terms of appointment that they will convey the land on the contract and all defects in title require you to advise them by having appropriate checks.Its like going to Westpac for a car loan. They want to ensure title is clear but if its stolen it may be your loss.
     
  8. lixas4

    lixas4 Well-Known Member

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    What happened to this title is a rarity. I havent come across it before where the whole title differs, only slithers and parts. But i asked the owner of the business i work in, who has about 40 years experience, and he has seen it twice when he worked for the old vic board of works.

    One example he told me was when a purchaser purchased what they thought was a house on a parcel of land, when in fact the house had been built on education department land, so they actually bought the empty block next door that was uninhabitable. In the end they had to repurchase the land the house was on from the education department, although apparently they sold it for the lowest amount they could legally get away with, which was nice of them. This was also in the country.

    While i use "lassi" (www.land.vic.gov.au) everyday, as do all surveyors, not everyone does.

    The fact that you went to a property specialist lawyer and the warning wasn't flagged appropriately is disappointing. I can't comment on whether they should be held responsible for the issue.

    However, if you haven't already, you may want to investigate whether the titles office or your purchase had any insurance as to title. While the titles office doesnt guarantee the dimensions shown, they do guarantee title. And it would be interesting to see if you case falls under this definition. Have you investigated this avenue?
     
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  9. Over here

    Over here New Member

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    Thanks lixas4, No I thought title insurance was something you bought, and only heard of it, again after we settled. I'll follow that up. Thanks for your input, much appreciate it.