"The fence has been there for 30 years. Doesn't that make it the land boundary"

A purchaser agrees to buy a detached house with a large garden.

The seller points to an old concrete fence and says:

“Everything inside this fence belongs to the house.”

After signing the Sale and Purchase Agreement, the purchaser plans an extension near the side boundary.

A survey later indicates that part of the garden and fence may extend into the neighbouring lot. At another corner, the neighbour’s structure appears to encroach onto the property being purchased.

The purchaser believed he was buying everything he saw during the viewing.

But a physical fence is not conclusive proof of the legal boundary.

1. The registered land and the occupied area may not be identical

Fences, hedges, drains and walls may have been erected:-

• Without a boundary survey.

• For convenience rather than legal accuracy.

• By a previous owner.

• By agreement between former neighbours.

• Before later subdivision or survey work.

• In the wrong position.

• Around only part of the registered land.

A structure that has remained in the same place for many years is not necessarily located on the correct boundary.

The purchaser should distinguish between what the seller physically occupies and what the registered title legally describes.

2. A title search does not physically mark the boundary on the ground

A land search can provide important registered information, including:-

• The registered proprietor.

• Title particulars.

• Land area.

• Category and conditions of use.

• Restrictions in interest.

• Charges, caveats and other registered dealings.

However, the search does not ordinarily tell the purchaser whether the fence seen during the inspection follows the surveyed boundary precisely.

The National Land Code forms the principal framework for the registration of land titles and dealings in Peninsular Malaysia. Physical boundary questions may also require examination of survey records and on-site demarcation.

3. A bank valuation is not necessarily a boundary survey

Purchasers sometimes assume that the bank’s valuer will identify any encroachment.

A valuation is primarily conducted to assess the property as security for financing. Its scope may not include establishing every legal boundary or confirming that each wall and building sits entirely within the lot.

Similarly, a building inspection may identify defects but may not determine the cadastral boundary.

Where the location of the boundary is important, the purchaser should consider engaging a licensed land surveyor for the appropriate survey or demarcation work.

4. When should a boundary survey be considered?

A survey may be particularly important where:-

• The property is vacant or agricultural land.

• The land is large or irregularly shaped.

• Boundary markers cannot be found.

• A fence appears inconsistent with the title plan.

• A building is close to the boundary.

• The purchaser intends to construct or extend a building.

• A neighbouring structure appears to cross the boundary.

• Access depends on a narrow strip of land.

• The seller and neighbour give different explanations.

• The purchase price depends heavily on the usable land area.

The cost of checking before purchase may be small compared with the cost of redesigning a building or litigating after completion.

5. What if the seller is occupying part of the neighbour’s land?

The purchaser should not assume that the occupied area will automatically be included in the sale.

The seller may not have legal ownership of the additional area.

Possible issues include:-

• The neighbour demanding removal of the fence or structure.

• Reduced usable land.

• Non-compliance with building setback requirements.

• Difficulty obtaining renovation or planning approval.

• A dispute over access or drainage.

• Reduced property value.

• Difficulty selling the property later.

If the discrepancy is discovered before the Sale and Purchase Agreement is signed, the parties can decide whether it must be resolved as a condition of the transaction.

If discovered afterward, the purchaser’s rights will depend on the agreement, representations made, the seriousness of the discrepancy and the available evidence.

6. What if the neighbour has built on the property?

Do not immediately demolish the structure or relocate the fence.

First confirm:-

• The registered title particulars.

• The relevant survey plan.

• The location of the legal boundary.

• Who built the structure and when.

• Whether any permission or agreement existed.

• Whether the parties previously exchanged or adjusted occupation informally.

• The extent and effect of the encroachment.

A licensed surveyor’s findings, photographs, historical documents and communications with the neighbour may be important.

The appropriate response may involve negotiation, removal, compensation, a boundary arrangement, a formal land transaction or legal proceedings, depending on the circumstances.

7. The land area stated in the SPA should be considered carefully

A Sale and Purchase Agreement may describe the property by its title particulars and registered area.

The agreement should also be checked for provisions dealing with:-

• Errors in description or area.

• Survey discrepancies.

• Encroachments.

• The condition in which the property is sold.

• The seller’s representations.

• The buyer’s inspection.

• Delivery of vacant possession.

• The right to terminate or seek compensation.

• Obligations to remove unauthorised structures.

A general “as is where is” clause should not be read in isolation. Its effect depends on the full agreement and the facts known or represented by the parties.

8. Marketing plans are not substitutes for official records

An estate agent’s sketch, online map, satellite image or development brochure can help identify the general location.

It should not be relied upon as conclusive proof of the boundary.

Even measurements taken with a mobile application may not provide the accuracy required for a legal or construction decision.

Where certainty matters, use the appropriate title, survey and authority records.

9. Check before designing, building or confronting the neighbour

If a boundary issue is suspected, the practical sequence is usually:-

• Obtain the title and relevant plans.

• Conduct the necessary searches.

• Engage a licensed surveyor where appropriate.

• Record the existing physical condition.

• Review the Sale and Purchase Agreement.

• Seek an explanation and documents from the seller.

• Communicate formally with the neighbour if necessary.

• Assess whether the issue can be resolved before completion.

A boundary problem should not be postponed merely because everyone has lived peacefully with the old fence.

The present neighbour may tolerate it. The next owner, bank or authority may not.

When buying landed property, do not only inspect what lies inside the fence.

Confirm whether the fence lies inside the land.