Tuesday, February 19, 2013

A parcel description of a property – including an incorporated reference plan – is not definitive of the boundaries or the extent of the land

MacIsaac v Salo, 2013 ONCA 98 is a remarkable decision that, among other things,holds aparcel description of a property – including an incorporated reference plan – is not definitive of the boundaries or the extent of the land

[48]       Indeed, prospective purchasers of property in the land titles system must understand that the parcel description of a property – including an incorporated reference plan – is not definitive of the boundaries or the extent of the land. Only an up-to-date survey can confirm the location of the boundaries of a parcel of land as they exist on the ground: see Marguerite E. Moore, Title Searching & Conveyancing in Ontario, 6th ed. (Canada: LexisNexis Canada Inc., 2010), at p. 182.[4]


[50]       I pause to note that the Boundaries Act does not define the term "boundary". Nor is the term defined in other Ontario legislation. David W. Lambden, O.L.S., and Izaak de Rijcke, O.L.S., give the following definition in their essay, "Boundaries", in Survey Law in Canada (Agincourt, Ont.: The Carswell Co. Ltd., 1989), at §4.01:

A boundary is the line of division between two parcels of land. It is a limiting line; by it is ascertained the extent of parcels in separate ownership or subject to different rights.

These authors observe, at §4.72, that "the limits of easements are boundaries in every sense of the word." I agree with the authors' view that the term is not limited to the boundaries of separately owned parcels, but also applies to the boundaries of an easement, including a right of way.


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