Questions from the webinar
What is the easiest method within Landonline to apply for approval to claim a non-live residue parcel?
Prior to lodgement of the CSD, a Titles Information request should be submitted via Landonline by a surveyor or solicitor asking whether an application will be required. For further information refer to:
Can limitations be removed as part of a standard LT subdivision in the situation where all the abutting parcels are guaranteed and there is no question as to the definition of the existing boundaries.
Yes, limitations as to parcels can be removed as part of a standard LT subdivision. The requirements of s202 LTA 2017 will still apply, even if all the abutting parcels are guaranteed. That is, Step 2 in the new guidance will need to be carried out to assess if any encroaching occupation qualifies as adverse possession that needs to be excluded. And the RGL will send out notices to all adjoining owners except for those who have provided written consent to the removal of the limitation. The notice period is 40 working days commencing on the day after notice is deemed to have been delivered to the adjoining owner. Notification can be requested by a surveyor or lawyer as soon as the plan is approved as to survey via the new Adjoining Owner Notice request in Landonline. Boundary marking and occupation information for all the boundaries of the parcel having its limitation removed are also required. Remember too, if an abutting survey removed limitations, it would need to be checked that it didn’t leave a residue of the cancelled limited title that needs to be accounted for.
Link to Adjoining owner consents please?
There isn’t a form or wording specifically for adjoining owner consent to the removal of limitations. The RGL is planning to put out a guideline on removing limitations and it may provide further info. A generic consent form that can be adapted for this purpose is available on the LINZ website.
See Form 46 on Approved Paper Forms for the Land Transfer Act 2017 - LINZLF01231
Where LINZ is asked to notify a neighbour about a removal of limitation survey, but there is no known postal address or contact details for that owner, what can LINZ do?
In this situation, LINZ may enquire with the last solicitor who acted for the owner to obtain contact details or use the physical property address to send notice.
Does r35(2)(d) apply to roadside boundaries where Road is to Vest, when a removal of limitations is being completed also on the adjoining parcel? Obviously, dispensation could be requested (= not practicable) - why can't automatic dispensation be available?
Rule 35(2)(d) CSR 2021 does apply in this situation. All boundary points on an existing boundary of a new primary parcel whose limitation as to parcels is being uplifted must be marked, if practicable (i.e. if reasonably possible). This means that no existing boundary points on the boundaries of a new parcel having its limitation uplifted can be adopted unless the boundary position is impracticable to mark. If a surveyor considers that marking an existing boundary point is impractical or unreasonable, dispensation can be sought from the Office of the Surveyor-General (OSG). Note that the exemptions under rule 35(1) only apply to new boundary points, not existing ones.
A dispensation request is required in each instance so that the OSG can consider the specific circumstances of the case and determine if any alternative requirements are appropriate.
Many of the residue and adverse possession parcels are very small and people simply do not want to go to the bother and expense of claiming them. The neighbour cannot claim them if they remove limitations so we just identify the occupation in our dataset to demonstrate the adverse occupation.
In terms of existing residue parcels, the new guidance outlines a process that should often make it easier for them to be included in a survey to remove limitations so the occupier can get title to them. The RGL is willing to consider reduced application requirements in these situations.
For further information refer to:
Inclusion of residue land from a cancelled limited title
What is best practice for definition of retaining walls? Should any sub-strata raking of poles or foundations be taken into account?
This is a judgement call that needs to be made by the surveyor on site. Retaining walls differ from fences because they serve a retaining function, so their location may be impacted by geotechnical considerations. This could mean that their placement on a boundary was not the primary consideration. It may also depend on whether this occupation is being considered for the purposes of Step 1 (determining the underlying title boundaries) or Step 2/Step 3 (extent of adverse possession).
Is Rule 35(2)(d) applicable to boundary points created by adjoining/adjacent surveys which intersect an existing boundary of the title under survey, eg: boundary marks placed by an adjoining survey which intersect a straight boundary of the subject limited title. Are we expected to ground mark all of the existing boundary points along the straight line of our limited title?
Rule 35(2)(d) doesn’t require all the intersecting points along a straight boundary of the parcel under survey to be marked if they are not adopted as intermediary points along the boundary. The boundary points at the ends of the straight boundary must be included in the survey and marked, if practicable. However, the boundary points along the new parcel boundary may be key evidence for determining where the underlying title boundary is, so they may need to be looked for to determine if the boundary is still actually a straight line. Also remember that rule 81(3)(b) requires occupation to be shown along the entire length of the boundary.
Where there is an SO plan defining a limited parcel is it possible to carry out a redefinition survey? This would be a definition of the original parcel and could not result in the removal of limitations.
Rule 114(1) prohibits a boundary point on a boundary of land held in a record of title that is limited as to parcels from being reinstated on a boundary reinstatement survey SO plan.
For information about SO plans for legalisation surveys over limited titles refer to:
Legalisation CSDs - Legalisation survey where limited title or Hawke’s Bay interim title is to remain
Not all limited titles come from the deeds system. Resident Site Licences were a license to occupy an area of Crown Land. These transferred to Lands and Survey when the mining courts closed in 1965 and many have little definition. Can these be subject to adverse possession?
Limited titles for Residence Site Licences were issued under the Mining Tenures Act 1962, which is one of several statutes besides the Land Transfer Act that provided for the issue of 'limited as to parcels' titles, because the land they related to was not adequately defined, including:
- s30(5) Crown Forests Assets Act 1989
- s18(3) Housing Act 1955
- s82(1A) Land Act 1948
- s345(2) Local Govt Act 1974
- ss10(4) & 22 Mining Tenures Act 1962
- s107(9B) Public Works Act 1981
- s116(2) Reserves Act 1977
Limited titles issued under these provisions need to be looked at on a case-by-case basis in the context of the provisions of the relevant Act. Recent cases involving limited titles issued for residence site licences have been treated as though they can be subject to adverse possession.
The LTA 2017 amended all these statutes to change the references from 'limited as to parcels' to 'qualified', so any new titles issued under these provisions will be qualified titles under section 17 LTA 2017. Any titles issued before LTA 2017 will still have the “limited as parcels” notation on them.
Limited as to parcels titles were also issued under s178(2) LTA 1915 and s167(2) LTA 1952, when the Registrar considered it would be a hardship for a survey plan to be required. We are in the process of clarifying if these titles can be subject to adverse possession. Some recent examples, where the prior title was an ordinary, “fully guaranteed” title, have been treated as though the prior guaranteed title boundaries can’t be subject to adverse possession.
When carrying out a survey to uplift limitations, you should always trace the history of the current title to determine when and how the first limited title relating to the land under survey came about. If the first limited title was issued as “limited as to parcels” because it was brought out of the Deeds system under the compulsory registration provisions of the LTA 1924 or LTA 1952, those titles can be subject to adverse possession. It’s not so clear for limited titles issued under other provisions. Guidance can be sought from LINZ on a case-by-case basis in these other scenarios.
Questions submitted after the webinar
Does the limited title that predates the occupation of an adverse possession situation have to be the original title that issued with limitations as to both title and parcels?
It’s only the limitation “as to parcels” that’s relevant for adverse possession, and it doesn’t matter whether the title was “limited as to title” or not. For occupation to support adverse possession, the occupation must be older than the date the first “limited as to parcels” title was issued. It’s a matter of tracing back through, in some cases cancelled titles, until you find the first title that was issued for that parcel of land. You’ll know when you’ve found the first limited title for land brought compulsorily out of the Deeds system because the prior reference will be a Deed reference, and there will usually be a file or application number starting or ending with a ‘C’ (C = Compulsory registration).
If some, but not all, of the adjoining owners’ consents have been obtained, will LINZ only serve notice on the owners who have not provided their consent?
Yes, LINZ will only serve notice on the owners who have not provided their written consent.
In the presentation, it was mentioned that there were 70,000 limitations as to parcels when they were first bought in. Is there a current estimate as to how many remain in the cadastre?
There are currently about 40,000 live limited titles in the system.