Fri | Nov 27, 2020

Life and the Law | What a surveyor’s identification report with lots of red marks means

Published:Monday | June 3, 2019 | 12:00 AM
Karene N. Stanley Jones

Have you obtained a surveyor’s identification report with a lot of red marks on parallel boundaries with detailed comments by the surveyor?

The comments indicate that the concrete wall on your western boundary is not the correct boundary for your property, but instead, your neighbour has been occupying part of your land for many years.

The surveyor is also saying that your fence on the eastern boundary is, in fact, not your registered boundary, but instead, you have, for many years, been occupying part of your neighbour’s land. How can this be?

As confusing as this report may seem, it is not unusual, and it reflects what is best described as a ‘running encroachment’.

The good news is that if you are buying property, this is the sole responsibility of the vendor to remedy. The bad news is that resolving the encroachments could delay the sale by several months. Despite the frustrations purchasers who obtain such a report may feel when seeking to purchase property, they are best advised to give the vendor time to remedy the encroachments and pursue the purchase afterwards.

If you are the registered owner of the property described above, rest assured that the encroachments on both sides can be remedied, albeit involving time and money.

The encroachment on the western boundary is an encroachment by your neighbour on to your property. Put another way, unknown to you, you gave some of your land to your neighbour, and often, this has been so for several years.

There will, of course, be no issue if upon receiving the report, your neighbour agrees over a cold Red Stripe that you may demolish the existing fence at your cost and reinstate it in accordance with the registered boundary, thereby giving you access to your land.

More often than not, however, because the fence has been in its position for many years, an approach to one’s neighbour is neither a pleasant nor viable prospect as your neighbour is likely well established on your land through his Simmonds pear tree and part of his clothes line.

Additionally, the law may not be on your side. By virtue of Section 45 of the Limitations of Action Act, once the boundary has been consented to by the owners (knowingly or not) for seven years, it becomes the boundary.

Regularising your Title

To regularise your title so that you may use it, the more viable and less traumatic solution is to survey your substantive lot of land, excluding the land which is the subject of the encroachment. With the assistance of an experienced surveyor, you will need to obtain a pre-checked survey diagram, and your attorney will then do a Section 77 surrender application for boundary rectification to the registrar of titles under the Registration of Titles Act.

Ultimately, you will be issued with a new title for your substantive parcel of land, excluding the encroachment, and the sliver occupied by the neighbour would remain in your original title. Though highly unlikely, should your neighbour ever come seeking to pay for the part of your land he has occupied over these many years, you would now be able to effect a transfer of that land to him. That would effectively deal with the western boundary.

Now regarding the eastern boundary, where you are occupying your neighbour’s land, provided you have done so for over seven years, the position of the existing fence or wall is deemed to be the boundary. Regrettably, Section 45 of the Limitations of Actions Act falls short of telling you how you are to achieve ownership of the land which you are benefiting from which is not included in your title.

No need to despair. The solution is found in Section 3 of the Limitations of Actions Act and Section 85 of the Registration of Titles Act. Provided you have enjoyed the benefit of the land for an uninterrupted period of 12 years, then you may acquire the land by way of adverse possession and obtain a title for that land to be held as one parcel with your existing title or your new title, where you did the Section 77 surrender application.

To proceed, your surveyor will need to do a survey and provide you with a pre-checked survey diagram for the land that you are occupying within your boundary but which is in your neighbour’s title.

Both applications could be completed in six months with the assistance of the expedition service at the Survey Department. The total cost for surveying services and legal fees could fall in the region of $500,000.

Regrettably, there is no escaping some expenditure from a report with these findings, even if it comes in the form of demolition of the existing fences/walls on both boundaries and reinstatement in accordance with the registered boundaries.

However, to do nothing will mean that you will not be able to successfully deal in your title as it will not be accepted as a good security by any mortgagee. Moving to addressing the issue, therefore, could be considered a relatively small price to pay when you look at the big picture.

Karene Stanley Jones is the Managing Partner at Karene N. Stanley & Company, attorneys-at-Law. Email feedback to knsjones@knscolaw.com.