This section provides information to assist lawyers and conveyancers working in the Canterbury region, following the earthquakes.
New Legislation for Canterbury Property Boundaries
The Canterbury Property Boundaries and Related Matters Act 2016 came into force on 30 August 2016.
This legislation addresses the impact of Canterbury earthquakes on property boundaries for land in greater Christchurch. The scale of the earthquake events and the nature of the resulting earth deformation has meant that it is sometimes difficult to precisely locate property boundaries in terms of existing surveys.
In the areas most affected, land parcels (along with survey marks, fences, structures and buildings) have moved to a measureable extent from their original surveyed position. If the registered title boundaries were to remain in their pre-earthquake position they would no longer properly line up with the post-earthquake reality on the ground. The legislation seeks to address this by providing that property boundaries for land in greater Christchurch move with earthquake-related land movement.
How will this affect a landowner’s registered title?
Boundaries are deemed to have moved (whether the land movement was horizontal or vertical or both) on and from the commencement of the Act as provided in section 8. The legislation will apply in the same way if further land movement occurs as a result of any future earthquakes or aftershocks up until 13 February 2022. This does not apply to land movement resulting from a ‘landslip’ as defined in section 4.
Section 8(3) of the Act recognises, for the avoidance of doubt, the ongoing validity of estates and interests in land notwithstanding the effects of boundary movement and provides that the land (as moved) continues to be the same land and affected by the same interests as before the movement.
The degree of boundary movement across much of Christchurch is within usual survey tolerances, so for most landowners there will be little, if any, discernible impact. In areas of more significant land movement, the effect of the Act means post-earthquake boundaries may differ from what is shown on the survey plan for the registered title. Boundary dimensions may have changed along with the overall area of the property. In some cases this will be because properties have ‘stretched’ as a result of land movement and the area may have increased by a few square metres. Some area reduction due to land compression is also possible, but this is less common.
How will this affect land surveys?
Any new survey of land affected in this way must take into account the impact of earthquake-related land movement on property boundaries. The Surveyor-General has made new rules under the Cadastral Survey Act 2002 to address these matters.
Section 9 makes special provision for surveys conducted following the earthquakes and before the commencement of the Act, which may or may not have taken land movement into account (referred to as ‘approved interim surveys’). Such surveys, having been approved by LINZ, continue to determine boundaries if done in good faith and without negligence.
The legislation recognises that an approved interim survey which did not account for land movement may give rise to boundary conflict with a new survey in some cases (see section 9(2) & (3)). A conflict between the boundaries shown on survey plans for adjoining registered titles constitutes an error for the purposes of section 81 of the Land Transfer 1952 and may be corrected accordingly by the Registrar-General of Land, with the involvement of the affected landowners. A landowner who sustains loss as a result of such a correction may be entitled to seek compensation under section 172 of the Land Transfer Act 1952.
As provided in section 10, boundary adjustments made for the purposes of resolving a boundary conflict (so that the boundary properly reflects land movement as required by section 8), are not subdivisions and do not require consent under Part 10 of the Resource Management Act 1991.
Analysis of survey data to date in the areas most affected by land movement indicates the potential for survey conflicts in respect of only a few hundred properties. LINZ will be undertaking further work to identify cases of material conflict where title boundary corrections may be required.
The legislation also addresses the question of liability for post-earthquake surveys or boundary determinations conducted before the commencement of the Act. Section 11 removes any liability that might otherwise have arisen merely because the survey or boundary determination was, or was not, done on the basis that boundaries moved with land movement. This applies to anyone who performed or approved the survey, or did anything in reliance upon it.
This does not, however, remove liability for any negligence, bad faith, misconduct or breach of legal obligations or professional standards that relates to something other than whether boundaries did, or did not, move with earthquake land movement.