“Find me the originating conveyance!”
Where a boundary is disputed, any litigant, surveyor or lawyer should always start by trying to find the “originating conveyance”. What is it, and why is it important?
Often, when one is looking at two properties and a disputed boundary between them, it will be the case that both properties were formerly in common ownership, i.e. both owned by the same person.
The conveyance or transfer which separated the one historical property into two current properties is known as the originating conveyance – i.e. the conveyance from which the separate properties (and the boundary between them) originates.
Originating conveyances are of crucial importance in boundary disputes because, as a matter of law, they definitively fix the boundary between the properties as at the date of that conveyance.
Consequently, if the boundary between the properties is sufficiently accurately identified or set out in the originating conveyance, one can ignore later conveyances completely.
The reason for being able to ignore later conveyances is the principle of “nemo dat quod non habet” – in effect “you can’t sell what you don’t own”. If a disputed area of land was transferred in the originating conveyance from A to B, it does not matter that a later conveyance purports to transfer it from A to C – A cannot sell the disputed area of land to C because he no longer owns it.
There are two main reasons why an originating conveyance may not determine the line of the disputed boundary. First, the conveyance itself, despite everyone’s best efforts, may simply not be sufficiently clear to permit resolution of the issue. Secondly, agreements or events after the date of the originating conveyance may have effected an alteration to the boundary line fixed by the originating conveyance.
In my next article, I will deal with how the court goes about construing conveyances – i.e. working out how a boundary described on paper can be translated to a line on the ground.