Parol evidence rule not preventing consideration of other evidence to provide certainty to written legal description

Ontario civil | Real Property | Registration of real property | Boundaries and surveys

Dispute concerned two neighbouring lakefront lots. In 1953, then owner decided to subdivide his land and sell individual lots. Initial survey was performed in 1953, and in 1954 another survey was done and plan of subdivision was prepared and registered on title. In 1988, wooden surveyor's stake was found on lot (currently owned by M) about seven feet inside metes and bounds boundary line with neighbouring lot (currently owned by L). On application, Deputy Director of Titles held that grantor's intention was that boundary line was as evidenced by wooden stake as original post rather than line erroneously described, through mathematical error, in registered instruments on title. M appealed. Appeal dismissed. Applicable principles were correctly applied by Deputy Director. When description of sanctioned land boundary is expressed correctly and unambiguously by initial grantor in registered title instrument, then registered description governs. Where, as here, registered description of sanctioned boundary demonstrably fails to express, correctly, intention of grantor as to location of boundary, law will have resort to other evidence, including original surveyor's monuments, to ascertain grantor's true intention. There is no parol evidence rule preventing consideration of other evidence to provide certainty to formal, written, legal description. Deputy Director made specific finding of fact that wooden stake was “original post” placed during original survey, and that finding was open to her on evidence and was subject to deference.

Murphy v. Longmore (2019), 2019 CarswellOnt 6234, 2019 ONSC 2602, D.L. Corbett J., G. Mew J., and F.L. Myers J. (Ont. Div. Ct.).

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