Key terms
Encroachment
In this guidance, means occupation that extends over the boundary of one person’s land onto another person’s land. The extent of the use of the land would usually be limited by artificial features such as a fence, hedge, or structure, or natural features such as a stream bank or cliff edge.
Adverse possession
A principle of law whereby someone who is intentionally and continuously in possession of another person’s land for an extended period of time is able to extinguish the title of the documentary owner and claim legal title to the land. Unless otherwise stated, references in this guidance to adverse possession refer to adverse possession against a limited title under section 204(1)(a) Land Transfer Act 2017. For such adverse possession to be valid against land held in a limited title, it must have commenced before the first limited title for the land was issued.
Limited title
In this guidance, means a record of title that is limited as to parcels.
Guaranteed title
In this guidance, means a title that is not subject to limitations as to title or parcels. Also referred to as an “ordinary title” in previous Land Transfer legislation.
Overview of surveys to remove limitations
Background
Most limited titles were issued as part of the compulsory registration process under the Land Transfer (Compulsory Registration of Titles) Act 1924 that was carried out from 1925 through to the 1950’s. Titles were issued limited as to title, limited as to parcels, or a combination of both. Due to the operation of section 205 Land Transfer Act 2017 (LTA 2017) and its predecessors, limitations as to title expired 12 years after the first limited title for a property was issued, so only titles that are limited as to parcels should remain in the register.
A limited title was issued when the District Land Registrar was not satisfied that the applicant was in full possession of the land and that the position and boundaries of the land were not sufficiently defined by instruments of title or deposited plans. The limitation as to parcels allowed adverse possession that had started before the land was brought under the Land Transfer Act to continue and be addressed later.
Refer to:
- sections 8 & 16 Land Transfer (Compulsory Registration of Titles) Act 1924
- sections 190 & 199 Land Transfer Act 1952
- section 200 Land Transfer Act 2017
The Registrar-General of Land cannot remove limitations from a title unless satisfied that the land has been adequately surveyed and that no part of the land is held in occupation adverse to the title of the registered owner of the land. This is usually confirmed by serving notice on adjoining owners or obtaining their consent to the removal of limitations.
Refer to section 202 LTA 2017
Survey process
A survey to remove limitations therefore serves two purposes – determination of the location, dimensions and area of the land described in the title, and exclusion of any land subject to adverse possession.
The survey process to remove limitations involves two key steps:
The methods and processes to survey and define the extent of land described in a limited title are essentially the same as for a guaranteed title. The main difference is the addition of Step 2 where encroachment from an adjoining property over the boundaries determined by Step 1 must be assessed and, if it meets the criteria for adverse possession, excluded from the new allotments.
Where occupation, title dimensions and prior surveys are all in agreement, and Step 2 reveals no adverse possession that needs to be excluded, a survey to remove limitations should be straightforward.
Refer to Additional note on survey process
The survey may also involve another step:
In some situations, land from a neighbouring limited title that is occupied in conjunction with the land in the title having its limitations removed can be included in the survey. This additional land could be a residue of a cancelled limited title or part of an adjoining live limited title.
See Step 3 - Inclusion of land from a neighbouring limited title
Step 1 – Define underlying parcel boundaries
The first step in the process is to determine the original boundaries of the land described in the limited title. The surveyor needs to gather all relevant evidence, apply the hierarchy of evidence, and determine the full extent of the land described in the title. The boundary definition process in Step 1 is effectively the same process that would be undertaken if the title was not limited as to parcels.
Many limited titles are derived from Crown Grants or deeds conveyances that lack survey information for the parcel under survey. A combination of evidence sources such as documentary title and deeds information, surrounding survey work, and field evidence – including the pattern of occupation in the vicinity – may need to be utilised to determine the boundaries.
However, it should not be assumed that a limited title doesn’t have any reliable boundary definition – some limited titles are supported by SO plans or Deeds plans which have been surveyed. Deeds plans were generally not required to show survey work even if boundaries had been surveyed and marked. A thorough search of surrounding and nearby survey plans should be undertaken to check for evidence of historic boundary marking, and old boundary marks should be searched for in the field.
When applying the hierarchy of evidence, priority should be given to evidence which is least likely to be mistaken. The methodology of definition and decision-making should be carried out in the same way as it would be if the title was not limited.
Refer to:
Occupation as evidence of title boundary
Occupation is often a source of confusion when uplifting limitations. It is important that the surveyor maintains a clear distinction between the role of occupation in the reproduction of the original title boundaries (Step 1) and the role of occupation in the definition of what is a new boundary established by adverse possession (Step 2).
In practice, differences between title dimensions and occupation are often encountered when surveying limited titles. In the absence of underlying survey information, long-standing occupation can often be the most reliable evidence for defining one or more of the original parcel boundaries. Where long-standing occupation is determined to be the best evidence of the original title boundary, occupation-based boundaries can prevail over title dimensions despite the differences in dimension and shape of boundaries that may result.
Differences of “a little more or less” are acceptable and are not restricted to the accuracy tolerances for boundary points in rule 27 CSR 2021. Case law indicates that “striking differences” are not acceptable, but what an acceptable difference is has not been quantified in law.
The magnitude of difference should be assessed in the context of the evidence in the wider area including surrounding surveys, title dimensions and occupations to ensure the amount of difference and any alteration in boundary shape is appropriate and justifiable.
Refer to Additional note on acceptable differences
When substantial differences between occupation and title dimensions are encountered, consideration should be given to the possibility that a fence or structure was not erected on the original title boundary, and encroachment or adverse possession may be present. If it is likely that a fence or structure was not erected on the original boundary, then title dimensions will usually prevail over occupation when determining the position of the original title boundaries. If adverse possession is present, it will need to be excluded in Step 2.
Where there is evidence that a fence was constructed as a fence of convenience or a give-and-take fence, it cannot be used to define the original title boundary.
Refer to Additional note on fences of convenience and give-and-take fences
The survey rules require occupation information to be provided in the CSD in relation to each boundary of the parcel having its limitations removed (rules 81(3) and 35(2)(d)). It is also useful to locate occupation on the opposite side of roads and on neighbouring parcels to demonstrate how occupation in the vicinity fits with title dimensions and the pattern of cadastral boundaries, particularly in cases where occupation has been used as the primary evidence of a boundary position.
Shortage and excess
The evidence may reveal the presence of shortages or excesses compared with title dimensions, and these should be analysed and dealt with appropriately.
Analysis should be undertaken to determine how the shortage or excess has come into existence.
Contributing factors may include:
- inaccuracy of very old survey work and title diagrams;
- historic differences between Crown grant, survey, and title dimensions;
- boundaries defined from occupation;
- road alignments established from occupation;
- adverse possession excluded or included on prior removal of limitation surveys.
The likely source of a shortage or excess should be covered in the survey report.
Nearby survey plans that support guaranteed titles should be checked to see whether limitations were uplifted and whether occupation determined the final boundary locations. Differences caused by prior occupation-based definitions should be taken into account when re-establishing the cadastral boundary framework.
When apportioning a shortage or excess, title records should be checked to see whether any priority exists - that is, whether any previous conveyances or transfers determine that the shortage or excess should remain in a particular parcel.
For more information, see:
Diagrams on transfer - Priority of diagram on transfer for definition
Where there is no priority, then a shortage or excess should be apportioned to align with occupation where possible. An excess should be left where it falls on the ground. In the case of a shortage, an owner in occupation of their full title dimension cannot usually be required to give up a part to satisfy the shortage of another owner.
A proportional or mathematical distribution can be used if there is no priority and no occupation to assist with apportioning a shortage or excess.
Refer to Additional note on distribution of shortage and excess
Boundaries defined on adjoining surveys that removed limitations
When the land under survey adjoins a prior survey that removed limitations as to parcels from a neighbouring property, the boundary defined on the prior survey can usually be used as the common boundary with the land under survey.
The prior adjoining survey should be reviewed, including the survey report if available, to confirm that its intention was to define the common boundary between the two limited titles. If it can be reasonably concluded this was the intention, the definition from the prior survey can be used to define the extent of the limited title under survey, as shown in Figure 1.
Figure 1: Use of common boundary defined by prior adjoining survey
Where the prior adjoining survey identified it was leaving a residue of the limited title it surveyed, then the residue must be dealt with as land from a neighbouring limited title.
See Step 3 - Inclusion of residue land from a cancelled limited title
Water boundaries on surveys to remove limitations
Where a limited title has a water boundary, the normal rules for water boundaries apply. That is, any difference in the water boundary position between the historical definition for the title and the current position of the water margin must be accounted for in the usual manner.
For further information, see:
Water boundaries - When limitations as to parcels are being uplifted
Step 2 – Exclude areas of adverse possession
Once the boundaries of the land described in the title have been determined, any encroachment inside these boundaries should be assessed to determine whether the occupation would support a claim of adverse possession against the limited title. If the occupation evidence would likely support a claim, then the encroachment should be excluded from the new lot and defined in a residue parcel.
Refer to:
Age of occupation
To support a claim, the adverse possession must have started before the first limited title was issued. This means that a fence, hedge or structure would need to be of sufficient age to pre-date the first limited title or have replaced occupation of a sufficient age. Prior surveys in the vicinity and historic aerial photography should be checked for evidence of old occupation. Landowners and occupiers may also have useful information about the history of occupation.
Refer to:
Nature of possession
The quality and nature of possession is also an important consideration. There must be an intent to possess by the occupier, and the possession must be actual, open, manifest, continuous and exclusive, so that someone watching the land over the period of possession from a nearby vantage point would think that the adverse occupier was occupying the land to the exclusion of all others. Regard must also be given to the character and position of the land.
For example, where a roadside fence sits inside the parcel, consideration should be given to who erected the fence and for what purpose, and whether the road controlling authority occupies the land in a manner that meets the criteria for adverse possession.
Fences of convenience and give-and-take fences do not support adverse possession.
The relationship between current or prior owners of land on each side of the boundary can also impact adverse possession and should be investigated. For example, a fence established by a common owner or related owners may have been erected as a fence of convenience without regard to the location of the common boundary and therefore not meet the legal criteria for adverse possession. Section 200(2) LTA 2017 also prevents a prior owner of a limited title from claiming adverse possession against that title.
Refer to Additional note on nature of adverse possession
Refer to Additional note on fences of convenience and give-and-take fences
Due to subjectivity and the complexities of the law associated with quality and nature of possession, it may be advisable to seek legal advice in cases where the nature, quality or period of possession is uncertain and the agreement of the adjoining owners cannot be obtained.
New residue parcels
Where evidence would clearly support a claim of adverse possession against the limited title, because it meets the age of occupation and nature of possession criteria referred to above, then the adversely occupied land should be excluded from the new lot and defined in a residue parcel (see Figure 2). The adverse occupier can make an application under section 204 LTA for title to the residue on the basis of possession at some stage in the future.
Figure 2: Adverse possession over Lot 3 Deeds 456 – RT 45/789 Ltd
If the evidence would not support a claim of adverse possession against the limited title under section 204 LTA 2017, then the boundaries defined in Step 1 should be respected and no residue parcel created (see Figure 3).
Figure 3: Encroachment over Lot 3 Deeds 456 – RT 45/789 Ltd
Refer to Parcels – Residual parcels
Step 3 - Inclusion of land from a neighbouring limited title
An additional step may also be taken as part of the survey:
The inclusion of land from a neighbouring limited title may be considered under two general scenarios:
- residue land from a cancelled limited title; or
- land being claimed by adverse possession from a live limited title.
Inclusion of residue land from a cancelled limited title
Where a prior adjoining survey clearly identified that a residue of its underlying limited title remained, the current survey can include the residue if the owner of the land under survey is occupying it.
Under the Rules for Cadastral Survey 2010 (RCS 2010) and CSR 2021, a residue parcel will have been created and currently exist in Landonline (see Figure 4). Before the RCS 2010, an annotation or depiction on the survey plan was sometimes used to indicate that a residue remained (see Figure 5). These older residue parcels are often not captured in Landonline.
Figure 4: Residue parcels on DP 588092 (CSR 2021)
Figure 5: Residue of limited title under survey on DP 32488 (Wellington)
In most cases, the limited title for the residue will have been cancelled, but this should be checked.
The residue was probably left because it was adversely occupied at the time of the prior survey. The records relating to that survey, including the survey report, occupation diagram and field notes, should be examined to confirm this. The residue land can be included in the parcel(s) being created by the current survey if it adjoins and is substantially occupied by the owner of the land having its limitations removed.
The estate boundary for the residue must be depicted on the title diagram where it passes through any new primary parcel, together with the underlying estate references and area of the residue (see Figure 6). The dataset description must include the appellation of the residue land.
Figure 6: Inclusion of residue left by prior adjoining survey
Where such land is included, an application for title by adverse possession under section 204 LTA 2017 may not always be required. 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. The outcome of the request should be confirmed in the survey report. The deposit of the survey plan will still be subject to the notice or consent provisions of section 202 LTA 2017.
Where it has been determined that a residue of a cancelled limited title exists, and it is not being included in the current survey, a residue parcel should be created if one does not already exist.
Inclusion of land being claimed by adverse possession from a live limited title
If the assessment of occupation in Step 2 shows that the owner of the land under survey occupies part of an adjoining live limited title (not the residue of a cancelled limited title), and the age and nature of that occupation would support an adverse possession claim against that adjoining limited title, then that land may be included in the new lot (see Figure 7). This should be encouraged so the owner can obtain clear title under the LTA 2017 to all the land they occupy.
Where such land is included, an application for title by adverse possession under section 204 LTA 2017 will need to be submitted as part of the title dealing and accepted by the RGL before the CSD can deposit.
For information on making a claim under section 204 LTA 2017 refer to:
Adverse possession applications (Land registration guidance)
Figure 7: Inclusion of land being claimed from adjoining limited title
The area to be claimed by adverse possession must be depicted on the plans by showing the estate boundary in the position of the boundary established in Step 1 together with the underlying estate references and area of land being claimed (r41(3)) (see Figure 7). The balance of the adjoining parcel must be captured as a residue parcel retaining its original appellation with the “Part” prefix added.
For further information on adverse possession, see:
CSDs with adverse possession
Survey and CSD requirements
Information on survey and CSD requirements.
Refer also to CSDs with adverse possession - CSD requirements
Boundary marking
All existing boundary points on a parcel having its limitations uplifted must be marked if practicable (r 35(2)(d)) and defined by survey (r 13(d)). The exemptions in rule 35(1) CSR 2021 do not apply to these boundary points. Reporting must be provided for points that are impracticable to mark (r 72(m)).
In situations where a reliable boundary mark is already in place the surveyor must measure, record and depict the position of the existing mark in the CSD (rules 80(1), 82(a) & 89(a)).
If a surveyor considers the requirement to mark a boundary point is impractical or unreasonable, dispensation must be sought from marking it.
For further information on the meaning of ‘practicable’ see:
Field survey – Boundary marking
Occupation information
In accordance with rule 81 CSR 2021 the CSD must include occupation information at every primary parcel boundary point and along the length of all existing boundaries. The occupation diagram must make it clear which side of the boundary the occupation is located.
Refer to Content of a CSD – Occupation and physical features
Adjoining owner consents and notification
As part of the process to remove limitations, the RGL must notify adjoining owners except where they have provided their written consent to the removal of limitations.
Refer to section 202(2) LTA 2017
The surveyor or solicitor can proactively obtain written consents and include them in the CSD or lodge them with the title dealing.
Where consents have not been provided, the RGL will notify adjoining owners or occupiers in case they may have a claim to title by adverse possession over land held in the limited title. Notices are usually served following lodgement of the title dealing and the notice period is 40 working days.
Early notification
Early notification can be requested by the surveyor or solicitor following approval of the CSD and prior to the lodgement of the title dealing.
An Adjoining Owner Notice request can be submitted via Landonline asking for notices to be sent out before the title dealing has been submitted. The request should provide the names and addresses of the adjoining owners and ask for notices to be served. The CSD supporting the removal of limitations must be approved as to survey before LINZ will notify adjoining owners.
Survey report
The survey report must include an explanation of how the boundaries of the land described in the limited title have been defined, and how any encroachments have been assessed for adverse possession and dealt with in the CSD (rules 6, 72(f) & (i)).
This information is essential so that other users of the dataset can understand the evidence considered and reasons for decisions made. It will also assist LINZ staff to assess compliance.
The survey report should therefore outline the decisions made in each step of the survey process:
Boundary definition (Step 1)
For Step 1, the report should include reasons for, and details of decisions made for the definition of each underlying title boundary. If old occupation has been used as the basis for the boundary definition, then the report should explain why the occupation was considered to be more reliable than title dimensions and other evidence.
Comparisons between final boundary dimensions and those on the title documents should be reported or displayed in a calculation sheet. Shortages or excesses should be quantified and the method of distribution explained, including whether any priority exists. The likely source of a shortage or excess should be reported, and confirmation should be provided that nearby CSDs have been checked for evidence of prior definitions based on occupation that may have contributed to the differences.
Assessment of occupation (Step 2)
For Step 2, the report should contain an assessment of occupation on each boundary. Where occupation is encroaching inside the parcel boundaries determined under Step 1, the assessment should provide reasoning as to why the occupation does or does not appear to be adverse possession against the limited title.
If part of the land in the limited title is excluded and a residue parcel is created, sufficient information must be provided to confirm the adverse possession of the residue parcel was likely to have started before the first limited title was issued and meets the nature of possession requirements.
Inclusion of additional land (Step 3)
If the survey includes residue land from a cancelled limited title, the survey report must:
- include an explanation of how the residue was identified
- confirm that the residue is substantially occupied by the owner of the land having its limitations removed, and
- refer to correspondence with LINZ about the inclusion of the residue and the requirements for the CSD to deposit.
If the survey includes a claim for adverse possession over land held in an adjoining live limited title, the survey report should include a summary of the age of occupation and nature of possession evidence that supports the claim.
Refer also to Content of a CSD – Survey report information
Dispensation requests
If a surveyor considers in a particular case that compliance with any requirements of the Cadastral Survey Rules 2021 is impractical or unreasonable, dispensation can be sought from the Surveyor-General under s47(5) of the Cadastral Survey Act 2002. The Surveyor-General may need to consult with the Registrar-General of Land in some circumstances.
The information required to be supplied when submitting a dispensation about a parcel that is limited as to parcels is available at:
Survey dispensation requests
Legalisation surveys
For information about legalisation surveys over limited titles, see:
Legalisation CSDs - Legalisation survey where limited title or Hawke’s Bay interim title is to remain
Diagrams on transfer
For more information about adverse possession in relation to a boundary created by a diagram on transfer see:
Diagrams on transfer - Diagrams on transfer and limited as to parcel titles
Boundary marking restrictions
A boundary point on a boundary of land held in a record of title that is limited as to parcels cannot be marked on a boundary reinstatement survey (r 114(1)(b)).
An existing boundary must not be marked on any type of survey if it is part of a parcel that is to remain limited as to parcels, unless it is also part of a parcel whose limitations are being uplifted (r 35(3)). This situation often arises on legalisation surveys and rural subdivisions.
Additional notes
Additional information to support your work.
Survey process
Two summaries of the survey process to remove limitations, from different perspectives, are provided in:
Hierarchy of evidence
In Chief Executive Land Information New Zealand v Te Whanau o Rangiwhakaahu Hapu Charitable Trust [2013] NZCA 33 the Court described the hierarchy of evidence as a principle that accords varying preference to different types of evidence when determining disputed land boundaries.
The generally accepted order is:
- natural boundaries
- monumented lines (such as original pegs)
- undisputed occupations
- abuttals
- calculations based on stated figures, deeds, grants and titles.
The court also observed
The hierarchy of evidence is a guide rather than a straight-jacket. The hierarchy places the greatest weight on the points on which the parties were least likely to be mistaken at the time. If the circumstances make it clear that a piece of evidence further down the hierarchy is a more reliable indication of the parties’ intention, then it may take precedence
Acceptable differences
The principle of “a little more or less” is considered in Moore v Dentice (1901) 20 NZLR 128 and discussed in The Guarantee of Parcels and A little more or less, NZ Surveyor No 266 February 1985, by JA McRae.
Attorney-General v Nicholas [1927] GLR 340 includes the following comments on differences between long occupation and information contained in a Crown grant:
Where the granted land cannot be fixed from the original survey, or where there are no natural boundaries and the original survey marks are gone, a long occupation, acquiesced in throughout the period by the surrounding landowners, is evidence of a convincing nature that the land so occupied is that which the grant conveys, in the absence, of course, of striking differences in admeasurement or some significant countervailing circumstance
and
if the description of the grant be ambiguous or doubtful, parol [external] evidence of the practical construction given by the parties by acts of occupancy, recognition of monuments or boundaries, or otherwise, is admissible in aid of interpretation.
Fences of convenience and give-and-take fences
A fence of convenience is a fence that was constructed with no intention of it being on the boundary, but built in a convenient location by one or more parties. One example of this is where adjoining properties were owned at some time by the same person or members of the same family, who constructed a fence where it best suited their purposes rather than on the common boundary between the properties.
A give-and-take fence is one constructed more or less on a boundary but with variations agreed to by the landowners on both sides of the fence.
Refer to:
Distribution of shortage and excess
Chapter 1, Section 6 of Land Title Surveys in New Zealand provides more detailed information on the distribution of shortage and excess under the heading “Pro-rata or proportioning rule”.
Duration of adverse possession
For adverse possession to be valid against land held in a limited title, it must have commenced before the first limited title for the land was issued, continued for at least 12 years and thereafter at least at the time any subsequent record of title was issued in respect of the land.
Refer to:
Nature of adverse possession
Various cases have described the nature and characteristics of possession that are necessary to support a claim of adverse possession against the documentary owner:
In order to constitute a title by adverse possession, the possession relied on must be for the full period ... actual, open and manifest, exclusive, and continuous; and the onus of proof in such an action as this rests upon the plaintiff ... . In order to dispossess the rightful owner the possession which is claimed to be adverse to his rights must be sufficiently obvious to give to such owner the means of knowledge that some person has entered into possession adversely to his title and with the intention of making a title against him; it must be sufficiently open and manifest that a man reasonably careful of his own interests would, if living in the locality and passing the allotment from time to time, by his observation have reasonably discovered that some person had taken possession of the land.
[T]he Courts ... require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation, and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having the requisite animus possidendi and consequently as not having dispossessed the true owner.
[T]he person in possession must act deliberately with the intention to possess land owned by another. Such a person may be described as a trespasser, or squatter.