Canterbury Property Boundaries and Related Matters Bill
Jan 13, 2016 22:05:22 GMT
Brent George likes this
Post by Alex Liggett on Jan 13, 2016 22:05:22 GMT
Quick reminder that submissions on this bill are due tomorrow. My submission is as follows:
Introduction
As a Licensed Cadastral Surveyor practicing in Christchurch I support the intent of this bill because it will give certainty both for surveyors working in earthquake affected areas, and also ultimately for landowners. This submission deals with some areas of concern that I have with the bill, which may make some aspects unworkable/inequitable, and suggests some solutions.
Section 7:
I support this section, which states that boundaries move with the underlying land, as a practical solution to the problem of land movement.
Section 8:
(1) This clause states that approved interim surveys continue to define boundaries where they were done in good faith and without negligence, and they were determined by LINZ to be compliant.
(2) This clause states that the Act does not remove any boundary conflict between any two interim surveys or between an interim survey and one carried out under s7 of this Act.
It is worth noting that many of these interim surveys are Survey Office plans that have redefined boundaries without these amendments being registered on any certificate of title. It is perfectly possible for a landowner to purchase a property, and for architects and other professionals to design works on the property not realising that the dimensions have been altered by such a survey.
(3) This clause allows a boundary conflict to be resolved by processes under the Land Transfer Act 1952, and specifically mentions Sections 81 & 172 of that Act.
S.172 of the LTA 1952 allows an action to be brought against the Crown in a case of malfeasance of the Registrar, and is of no relevance to this submission.
S.81 of the LTA 1952 allows the Registrar to correct titles in cases where a title or other instrument has been issued in error or contains any misdescription (or if any entry or endorsement has been made in error or obtained fraudulently). My concern is that nowhere in the bill is a boundary conflict equated with an error or misdescription, provided that they were carried out without negligence on the part of the surveyor. In a case where there is, for example, an overlap between the boundaries defined on an interim survey and those defined on the basis of s7 of this Act, it is critical that the Registrar is able to amend both titles to reflect the survey carried out under s.7, if necessary without the consent of a landowner (and any mortgagees etc). If this is not made explicit in the Act, these overlaps may result in landowners and their surveyors having to go to court to correct the situation. This would be grossly inequitable for landowners particularly given that Section 10 absolves surveyors and LINZ of any liability for earlier surveys.
Section 10:
This section absolves Licensed Cadastral Surveyors of any liability under s52 of the Cadastral Survey Act 2002 or s7 of the Crown Grants Act 1908, and absolves LINZ of any liability for a determination of compliance under s9(a) of the Cadastral Survey Act 2002. I support this section, but only on the basis of my recommendations below, so that the avoidance of liability does not come at the expense of landowners.
Recommendations:
1. In order to provide clarity and certainty for purchasers of land in earthquake affected areas, the Act should include:
a. a requirement for the Surveyor General to compile a list of properties whose boundaries have been redefined on a Survey Office plan, to be passed onto the Registrar; and
b. a requirement for the Registrar to place a memorial on every certificate of title where the boundaries of the title have been redefined by a Survey Office plan
2. If the intention of the Act is to allow for the restoration of confidence in the cadastre in earthquake areas by providing a means to address boundary conflicts, the insertion of a clause stating that a boundary conflict constitutes misdescription of the land for the purposes of s.81 of the Land Transfer Act 1952 would at least clarify this.
3. It is considered that a better solution would be to outline a proper process for the resolution of such boundary conflicts, to ensure that any improvements constructed on or near a boundary defined by an interim survey are not forced into an encroachment by a survey carried out under s.7 of this Act. This process should include the following provisions:
a. A requirement for a surveyor to identify any substantial encroachment that will result from the boundary being moved to conform with section 7,
b. Provision for a boundary to remain as defined by interim survey in the event of substantial encroachment, unless parties agree otherwise,
c. In all other cases, boundary to be adjusted to conform to section 7.
d. The ability for the Registrar to amend all affected titles to reflect the approved survey.
e. Provision for compensation based on valuation where a loss is sustained as a consequence of b. above - with recourse to the Land Valuation Tribunal in the event of a dispute.
I look forward to the passing of a revised bill that will enable surveyors and landowners to move forward with certainty and clarity.
Introduction
As a Licensed Cadastral Surveyor practicing in Christchurch I support the intent of this bill because it will give certainty both for surveyors working in earthquake affected areas, and also ultimately for landowners. This submission deals with some areas of concern that I have with the bill, which may make some aspects unworkable/inequitable, and suggests some solutions.
Section 7:
I support this section, which states that boundaries move with the underlying land, as a practical solution to the problem of land movement.
Section 8:
(1) This clause states that approved interim surveys continue to define boundaries where they were done in good faith and without negligence, and they were determined by LINZ to be compliant.
(2) This clause states that the Act does not remove any boundary conflict between any two interim surveys or between an interim survey and one carried out under s7 of this Act.
It is worth noting that many of these interim surveys are Survey Office plans that have redefined boundaries without these amendments being registered on any certificate of title. It is perfectly possible for a landowner to purchase a property, and for architects and other professionals to design works on the property not realising that the dimensions have been altered by such a survey.
(3) This clause allows a boundary conflict to be resolved by processes under the Land Transfer Act 1952, and specifically mentions Sections 81 & 172 of that Act.
S.172 of the LTA 1952 allows an action to be brought against the Crown in a case of malfeasance of the Registrar, and is of no relevance to this submission.
S.81 of the LTA 1952 allows the Registrar to correct titles in cases where a title or other instrument has been issued in error or contains any misdescription (or if any entry or endorsement has been made in error or obtained fraudulently). My concern is that nowhere in the bill is a boundary conflict equated with an error or misdescription, provided that they were carried out without negligence on the part of the surveyor. In a case where there is, for example, an overlap between the boundaries defined on an interim survey and those defined on the basis of s7 of this Act, it is critical that the Registrar is able to amend both titles to reflect the survey carried out under s.7, if necessary without the consent of a landowner (and any mortgagees etc). If this is not made explicit in the Act, these overlaps may result in landowners and their surveyors having to go to court to correct the situation. This would be grossly inequitable for landowners particularly given that Section 10 absolves surveyors and LINZ of any liability for earlier surveys.
Section 10:
This section absolves Licensed Cadastral Surveyors of any liability under s52 of the Cadastral Survey Act 2002 or s7 of the Crown Grants Act 1908, and absolves LINZ of any liability for a determination of compliance under s9(a) of the Cadastral Survey Act 2002. I support this section, but only on the basis of my recommendations below, so that the avoidance of liability does not come at the expense of landowners.
Recommendations:
1. In order to provide clarity and certainty for purchasers of land in earthquake affected areas, the Act should include:
a. a requirement for the Surveyor General to compile a list of properties whose boundaries have been redefined on a Survey Office plan, to be passed onto the Registrar; and
b. a requirement for the Registrar to place a memorial on every certificate of title where the boundaries of the title have been redefined by a Survey Office plan
2. If the intention of the Act is to allow for the restoration of confidence in the cadastre in earthquake areas by providing a means to address boundary conflicts, the insertion of a clause stating that a boundary conflict constitutes misdescription of the land for the purposes of s.81 of the Land Transfer Act 1952 would at least clarify this.
3. It is considered that a better solution would be to outline a proper process for the resolution of such boundary conflicts, to ensure that any improvements constructed on or near a boundary defined by an interim survey are not forced into an encroachment by a survey carried out under s.7 of this Act. This process should include the following provisions:
a. A requirement for a surveyor to identify any substantial encroachment that will result from the boundary being moved to conform with section 7,
b. Provision for a boundary to remain as defined by interim survey in the event of substantial encroachment, unless parties agree otherwise,
c. In all other cases, boundary to be adjusted to conform to section 7.
d. The ability for the Registrar to amend all affected titles to reflect the approved survey.
e. Provision for compensation based on valuation where a loss is sustained as a consequence of b. above - with recourse to the Land Valuation Tribunal in the event of a dispute.
I look forward to the passing of a revised bill that will enable surveyors and landowners to move forward with certainty and clarity.