Hawke’s Bay interim titles

What is a Hawke’s Bay interim title?

An interim title is a record of title issued under the Land Transfer (Hawke’s Bay) Act 1931 that, as a consequence of the 1931 Hawke’s Bay earthquake, is not conclusive as to the area or boundaries of the land contained within it.

The Land Transfer (Hawke’s Bay) Act 1931 is now incorporated into the Land Transfer Act 2017.

Key terms

Conclusive

In terms of the Land Transfer (Hawke’s Bay) Act 1931 removes the interim status of a record of title, restoring registered ownership rights (fee simple, secondary estates and interests) with respect to title and the description and delineation of the land.

Deeds Registration System or Deeds System

A system for registration of deeds or instruments relating to land that was established in New Zealand in 1841. The effect of registration under this system was to give priority to the registered instrument over all unregistered instruments or instruments registered at a later date. This system continues under the Deeds Registration Act 1908 and registration can still occur, although very rarely. It has been superseded by the Torrens land title system under the Land Transfer Act 2017 and its predecessors.

In the aftermath of the 1931 Hawke’s Bay earthquake, all the deeds books held in the Napier Land Registry Office were destroyed by the subsequent fire and there are no surviving Hawke’s Bay deeds records.

Record of Title

A title created under section 12 of the Land Transfer Act 2017 for an estate or interest in land. A record of title was known as a certificate of title under earlier Land Transfer Acts.

Interim Record of Title

The reconstruction of an affected Hawke’s Bay record of title was interim as neither the original register title, nor the duplicate existed. An interim title is not conclusive as to the area or boundaries of the land contained within it.

Limited as to Parcels

The Crown does not guarantee the boundaries of land contained in a limited as to parcels record of title. To uplift limitations, the parcel boundaries must be defined by survey. Resolution of the boundary is dependent on the ownership interest relative to the extent and age of the occupation surrounding the parcels.

Residue Parcel (Schedule 2 CSR 2021)

The residual portion of a primary parcel

(a) that remains as a result of a survey:

1. for removal of limitations as to parcels, or
2. for an adverse possession claim, or
3. to change the registration of land from the Deeds Registration Act 1908 to the Land Transfer Act 2017; or

(b) that

1. is being defined as part of the bed of a lake, river, or common marine and coastal area, and
2. is not currently recorded in the cadastre as the bed of a lake, river, or part of the common marine and coastal area, and
3. is not intended to vest, and
4. is not intended to have a new estate record.

Aftermath of the Hawke’s Bay earthquake

On 3 February 1931, New Zealand’s deadliest earthquake, with a magnitude of 7.8 on the Richter scale, devastated the cities of Napier and Hastings and surrounding areas in Hawke’s Bay.

In Napier, the administrative centre of the province, the Department of Lands and Survey and the Land Registry Office were both located in older premises and the subsequent fire that swept through the town destroyed virtually all the records in both offices. The records making up the official land register included deeds records, original titles, survey plans, field notes, traverse books and documents.

Māori land records for Te Matau-a-Māu (Hawke’s Bay) were held by the Māori Land Court in Rotorua at the time of the 1931 earthquake and there was therefore no significant loss of Māori land records as there was for the general land records held by the Land Registry Office in Napier.

The Land Transfer (Hawke’s Bay) Act 1931

In November 1931 Parliament enacted the Land Transfer (Hawke’s Bay) Act 1931 (LTA 1931) in order to reconstitute the lost registry records. The Act is specific to the Hawke’s Bay Land District and deals mainly with titles affected by the loss of corroborating land ownership evidence and earthquake induced ground movement. It is now part of the Land Transfer Act 2017.

Under the section 9 LTA 1931, where both the register and duplicate title had been lost or destroyed as a result of the earthquake, replacement titles could be issued as interim, which were inconclusive as to ownership. If the survey records supporting the survey were destroyed the interim title was also issued as being inconclusive as to description (areas) and delineation (boundaries) of the land.

However, section 12 LTA 1931 allowed an interim title to became conclusive as to all matters except the description and delineation of the land six years after issue.

Reconstruction of Hawke’s Bay survey records

The requirement for description and delineation of the land arises from the destruction of the original survey plan and supporting records (CSD) so that no plan, field notes, traverse books, files or documents were available to support the title. This led to the requirement under section 11 of the LTA 1931 for a registered owner to apply to have their title made conclusive.  Any such application is to be accompanied by evidence to support the position. In the case of delineation and description this is done by the deposit of a post-earthquake CSD to support the uplift of the interim legal status.

Even if the survey monumentation survived, it was of little use unless a survey plan existed supporting the pre 1931 positions, notwithstanding the potential for disturbance due to earthquake induced ground movement. Boundary dimensions were sourced from various instruments that survived including title diagrams, mortgages, transfers and valuation records. However, bearings were not usually recorded in these instruments. In some cases, bearings could be deduced depending on the availability and position of found (and undisturbed) survey monumentation from known CSDs enabling the boundary position to be verified.

If the survey plan did not survive then knowledge of the survey monumentation and boundary positions was effectively lost, although in some cases inspection of old boundary fences has revealed the original boundary monuments. Section 11 recognises that, if survey records were destroyed, the interim title could not be conclusive as to the description and delineation of the land until the title boundary has been redefined to the District Land Registrar’s (DLR) satisfaction.

The destruction of survey records was a major loss and replacing them is an ongoing process. Survey data for title purposes was gradually reconstructed from a variety of sources including:

• copies of deposited plans held by the Valuation Department and other government departments
• reliable copies of deposited plans received from any source evidencing boundaries of land in the record of title
• copies of Public Works and Railway Department plans filed along with reproduced proclamations
• reproduced deposited plans with all requisite survey data fully reproduced from records retained by the surveyor who executed the original survey (see reproduced plans DP 2615 and DP 5224 below and note the modified declaration pursuant to section 20(1) LTA 1931)
• collections of plans, diagrams, sale plans, tracings of blocks of land, received from landowners, members of the public, local bodies or any other source.

This reconstruction work was undertaken by Lands and Survey Department staff (LINZ predecessor) who spread a wide net to gather copies of plans and other valuable data including:

• deposited land transfer plans of re-executed surveys
• deposited plans effecting new subdivisions
• reinstatement of Survey Office plans
• originals and copies of Maori Land Court plans
• plans compiled, lodged or deposited by LINZ’s predecessor from reliable data at its disposal
• survey data tracings including those made by draughtsman Enting in 1922.

Although Enting’s tracings only covered Napier they are an example of tracings that were subsequently relied on as they were often annotated with distances and bearings and other valuable survey information.

Hawke’s Bay surveyors also donated their own data tracings, which they had made over the years. These tracings, together with any similar data from other sources, were given running numbers and entered in a Miscellaneous Tracings register. They were investigated and wherever possible renumbered as the original plan.

Not all miscellaneous tracings can be related to pre-quake plans but contain useful survey data, nonetheless. These are prefixed MISC in Landonline, for example MISC 4025. The register of Miscellaneous Tracings is held by Archives NZ in Wellington.

Napier Alignment Regulations 1932

These regulations enabled the Napier Borough Council to commission alignment and redefinition surveys to facilitate the rebuilding of Napier. Council-established control networks of standard monuments, generally situated within legal road, which formed the basis of road re-alignment or boundary redefinition surveys.

For an example, see DP 6715 in case study 3

Reconstruction of Hawke’s Bay title records

The loss of Land Registry records supporting records of titles was an equally severe blow. The DLR was tasked with reconstituting all title records and the steps taken to do so were recorded in reconstruction files and books.

Reconstruction (R) files

Provision was made under section 19 LTA 1931 for lodgement with the DLR of any instrument relating to the subject land, including documents, conveyances, and any interests recorded on other titles, such as easements. This enabled the creation of R files that contain all available documentation to support a reconstructed title or the issue of an interim title. They were consecutively numbered and used to gather information such as:

• the presumed name of the registered proprietor
• the area
• description of the land
• the encumbrances, restrictions, easements
• references to any available information regarding the land.

Reconstruction (R) books

As a safeguard against loss of an R file, the particulars were entered consecutively into an R book, which contains a summary of the information needed to reconstruct a title, including:

• the R number
• registered proprietor surname and first names
• new and old record of title references, area and legal description
• the column containing the legal description which often has comments relating to the land. 

Only two R books were created and are held by Archives NZ. These are:

• R1 Book numbered 1–5600
• R2 Book numbered 5601–10620 (last entry is R 10039)

They can be viewed using the Archives NZ Collections Website.

Interim titles

Interim titles were issued when a fully reconstructed (guaranteed) title could not be, usually because the DLR had insufficient information. Where possible they were issued from information compiled in the R file. An example is interim title HB85/220(I) which was issued from R 9075 on 12 December 1935, shown below.

In some instances, it was not possible to issue an interim title. The R file became the only record of interests and memorials for the parcel of land and the R file became the ex-officio title.

Over time, and in accordance with section 12 LTA 1931, all interim titles have now become conclusive as to all matters except the description and delineation of the land.  Interim titles are generally endorsed with the memorial… this certificate has by effluxion of time become conclusive as defined by Section 2 of the Land Transfer (Hawke’s Bay) Act 1931 as to all matters except the description and delineation of the land, however the absence of this memorial does not alter this position. Provided the original interim title was issued more than 6 years ago (most will have issued long before now) section 12 LTA 1931 will apply to make it conclusive other than as to description and delineation of land.

Many Hawke’s Bay titles that were reconstructed from other means, such as the duplicate title, still lack supporting survey information and it will be a long time before these reconstructed titles are all adequately defined.

Despite all the problems arising from the 1931 Hawke’s Bay earthquake, Surveyor and the Law notes… ‘Reconstruction of the Register was left to the wisdom and pragmatism of successive DLRs and their advisors, the Chief Surveyors. They reconstructed the register with a minimum of delay with minimal recourse to the courts and without any major injustices.’

Limited as to parcels and interim as to description and delineation

Interim titles should not be confused with limited titles. Interim titles are specific to the Hawke’s Bay Land District. They arose because the fires following the Napier earthquake destroyed the original records and there was no register record or duplicate to fall back on.

A title to land that is limited as to parcels means that at the time the first title was issued, a guaranteed title could not be issued because either the survey information was insufficient or there could have been someone else in adverse possession of part of the title. The Registrar-General of Land (RGL) requires the position of the boundaries of the land to be properly defined on a cadastral survey dataset before an ordinary (guaranteed) title can be issued.  

In Hawke’s Bay, many interim titles were originally guaranteed but could not be fully reconstituted as neither the original register title, nor the duplicate existed. Pre-quake there were also a number of titles that were limited as to parcels, and it is not unusual for surveyors today to deal with Hawke’s Bay titles that are both interim (inconclusive as to description and delineation) and limited as to parcels.

However, it is important to remember there are significant differences between the two. In uplifting interim status, the surveyor is redefining the boundaries of a parcel(s) for which there is little or no supporting survey information, but ownership of the parcel is conclusive. The boundaries must be defined by survey and, in cases where an interim title shares a boundary with an ordinary title, the boundary of the interim title must coincide with that of the ordinary title. Neither gaps, overlaps nor residue parcels are to be shown.

Limitations as to parcels can only be uplifted if all the boundary points are defined by survey. Definition of new parcel(s) boundaries or boundary points by adoption or acception is insufficient to uplift limitations. Parcel ownership is not necessarily conclusive and resolution of boundary definition to enable uplift is dependent on the documented ownership interest (such as title dimensions and survey information) relative to the extent and age of the occupation surrounding the parcels.

For further information refer to the guideline on limited titles.

Despite the significant differences, surveyors in the Hawke’s Bay Land District have historically treated interim and limited titles in the same manner when dealing with survey definition, particularly where survey information is very limited or non-existent. If a CSD is lodged for the removal of limitations as to parcels and the title(s) affected are also interim as to description and delineation, then the same uplift process can be used to remove both designations.

Interim titles and water and irregular boundaries

The uplifting of interim title status can involve the definition of water, water centre-line and irregular boundaries. Interim boundaries must be defined by survey, in accordance with rule 13(d) and the boundary accuracies must be in accordance with the requirements of rules 9-11 and rule 29. Please note that a new boundary must not be a water centre-line boundary (r 11(3)).

Accepted water boundaries sometimes involve interim title parcels. Rule 15(2) allows an existing primary parcel boundary and its associated boundary points to be accepted if:

• there is no risk of boundary encroaching another parcel (r 15(2)(a)), and
• the boundary is part of a new primary parcel over 20ha that comprises more than 80% of the existing primary parcel being extinguished (r 15(2)(b)), and
• the boundary is an existing water boundary or water centre-line boundary that is part of the balance of the title that is to remain a Hawke’s Bay interim title (r 15(2)(c)(iv)).

Irregular boundaries can also be accepted under the same criteria (r 9(3)(a)).

Occupation

Relevant occupation has high evidential weight within the hierarchy of evidence and is a key factor to consider when gathering and assessing evidence to support an application to uplift interim status (r 6). It is particularly important when redefining the boundaries of a parcel for which there is little or no supporting survey information. Surveyors are advised to ensure all occupation surrounding the subject land has been accurately fixed and assessed for its evidential value. For example, inspection of old boundary fences in rural Hawke’s Bay has on occasion revealed the original boundary pegs. Consideration must also be given to any relevant occupation documented on any adjoining CSD, which may add evidential weight to the boundary location (r 81).

Where the underlying parcel under survey is part of a group of parcels that all have interim title legal status, the surveyor is advised to measure the occupation of several adjacent allotments along the road frontage and the rear boundaries to ensure parcel boundaries have been defined in terms of valid approved survey evidence. This may be more difficult to achieve in rural areas, however the surveyor is recommended to measure to the nearest parcel which has been connected to an approved CSD (r 6).

Preparation of a CSD uplifting interim status

1. Confirm at the outset that the parcel(s) under survey is an interim title.
2. Review historic titles to ensure that the interim status of the subject parcel(s) has not been incorrectly removed (or added) upon conversion from hard copy to digital title with the advent of Landonline.
3. The surveyor should also check that a survey plan of the subject parcel has not been filed/lodged subsequent to the first issue of the interim title. The receipt of an earlier plan potentially paved the way for the interim status to be removed but an application under section 11 of the LTA 1931 would still have been required. As discussed below, if an application was not made at the time, it is unlikely the RGL would rely on it today to support a section 11 application.
4. All boundaries and boundary points of the subject parcel(s) must be defined by survey. The surveyor should therefore ensure that all the CSR 2021 defined by survey and permanent reference mark requirements have been adhered to (r 13(d) and rr 31-34).
5. All boundary points on an existing interim title boundary must be ground marked in accordance with Class A or Class B accuracy tolerances (r 21 and r 35(2)(e)).
6. The survey needs to connect to an adequate number of approved reliable old survey marks to recreate the underlying boundary parcel framework.  All adopted vectors used to support the framework must be in terms of approved CSDs. 
7. Ensure that no residue parcel is shown unless the subject land has the additional legal status of being limited as to parcels (r 39).
8. In many areas of Hawke’s Bay there are insufficient documented vectors that connect old marks together to determine their reliability and the only available evidence could be the dimensions shown on old title diagrams which lack bearings.
9. There may be old survey monuments in their original position which have been displaced by fault zone movement. Rule 109(2) requires that a boundary affected by fault zone movement must reflect that distortion and may include the creation of new boundary angles.
10. If the interim title boundary is common with a parcel held in a (guaranteed) record of title, the guaranteed title boundaries must be respected. This applies only if the parcel under survey is interim and not limited as to parcels (r 6). 
11. Where two interim titles (which are not limited as to parcels) abut each other and the long-standing occupation (which must not be a fence of convenience) is within survey tolerance of the underlying boundary parcel framework then the line of occupation is the boundary (r 6).
12. For legalisation surveys where the parcel to be extinguished has an interim title, a new interim title will be issued for the land not affected by the legalisation action.  Ensure that parcel annotations are shown in accordance with rule 103 (Table 7).
13. A simple boundary reinstatement CSD can be used to record the placement of a boundary mark on a Hawke’s Bay interim title. Where the boundary is subject to conflict or insufficiently defined in an approved CSD (r 114(2)(a) and (c)), a complex boundary reinstatement CSD must be used to record the placement of a boundary mark.

Reporting requirements

Rule 72 of CSR 2021 requires the survey report to provide, among other things, information about:

• the purpose for which the survey was conducted, for example whether the survey is to support an application to make a Hawke’s Bay interim title conclusive (r 72(a))
• details of conflict and how it was resolved (r 72(f)) - a useful method is by providing evidence showing title versus calculated distances
• reasons for not relying on an old survey mark (r 72(g))
• the adequacy of the number and location of old survey marks used to define the boundary (r 72(h))
• reasons for and details of decisions made regarding each existing boundary defined by survey, and the information considered in order to reach those decisions (r 72(i))
• information about the accuracy of the determination of any water boundary, water centre-line boundary or irregular boundary, and the factors taken into account, as specified in rule 29(2) (r 72k)
• reasons why it was impracticable to mark any boundary point in terms of rule 35 (r 72(m)).

Uplifting interim as to description and delineation status

Section 11 of the LTA 1931 provides for the removal of interim status by application from the registered owner (or mortgagee), who must supply evidence as to description and delineation. If the RGL is satisfied that the interim title correctly sets forth the description and delineation of the land the title is conclusive.

Evidence as to description and delineation is the approval of a CSD defining the subject land and adjoining owner(s) consent (where applicable).

Where a title is being made conclusive as to description and delineation based on an approved CSD defining the subject land then:

• If the adjoining titles are all fully guaranteed no consents of adjoining owners are necessary and no notice need be served on those owners of the intention to issue conclusive titles.
• If any adjoining title is limited as to parcels or interim the landowner’s consent to the boundary as set out in the CSD must be provided.
• If such consent cannot be supplied notice may be served on the adjoining owner(s) of the interim or limited title(s). Reasons for why consents cannot be obtained must be given.

Subsequent to the first issue of an interim title a reproduced survey plan supporting the subject parcel may have been filed/lodged and such a plan may have been used to complete the requirements to uplift the interim status.

However, it is unlikely that the RGL would rely on a reproduced plan today for an application under section 11. The CSD would need to postdate the earthquake and comply with the current cadastral survey rules. Although a reproduced plan may adequately define the land in terms of s 224 LTA 2017 and the required consents are provided, the reluctance of the RGL to rely on it stems from the fact there is no guarantee that a reproduced plan has been correctly reproduced. The surveyor’s declaration is limited to the ‘best of my knowledge and belief’.

Where the subject land is both an interim and limited as to parcels title, the survey will be treated as an uplift of parcel limitations. This will satisfy section 224 LTA 2017 and the interim status is removed as a part of the limitation uplift process.

Hawke’s Bay interim title case studies

Case study 1: Record of title HB85/300 - the RGL will not automatically remove the interim status from a record of title.

HB85/300 was created with an interim memorial in 1936. The description and delineation memorial was added in 1942, following the mandatory six years allowed under section 12 of the LTA 1931.

Reproduced plan DP 5224 includes the section 20(1) LTA 1931 certification confirming the plan is a reproduction but contains no declaration from the surveyor. The Chief Surveyor’s approval has been modified to declare the plan an accurate reproduction of DP 5224, which was destroyed by fire on 3 February 1931.

No action was taken under section 11 of the LTA 1931 to remove the interim legal status at the time of lodgement.

DP 381405, which deposited in 2007, redefined Lot 1 DP 5224 and was the basis for making the interim title conclusive. The DP 381405 redefinition basically upgraded the DP 5224 dimensions. HB85/300 was cancelled on deposit of DP 381405 and replaced by RT 326123.

Had reproduced DP 5224 been available in 1936, and an application made at that time, the definition of Lot 1 would likely have been sufficient for the DLR to make the interim title conclusive as to the description and delineation of the land.

Nothing prevents a CSD being lodged subsequent to the issue of the interim title, however the RGL will not automatically remove the current interim status from a record of title unless an application to do so is made under section 11 of the LTA 1931.

Case study 2: Deeds Plan 295 - the register was able to be reconstructed from other sources following the loss of official records.

DP 409311 subdivides Lot 11 and Part Lot 12 Deeds Plan 295 and, although Landonline references Deeds Plan 295, no copy of it exists.

R 9140 was created as part of the title reconstruction process and, as HB87/124 had already been issued (but no duplicate title survived), it became interim Record of Title HB87/124.

The R 9140 document file contained a conveyance document, dated 16 April 1909, from WJ Limbrick to AE Anderson, a mortgage dated 26 August 1909 and a deed of lien. All documents were likely held by owner, AE Anderson, pre-quake and surrendered to the DLR subsequently under section 7 of the LTA 1931. The deed of mortgage fortuitously contained a diagram showing the dimensions of Lots 11 and 12 Deeds Plan 295.

Interim title HB87/124 was issued in 1938 with a spatial diagram of the subject land reproduced from the mortgage diagram dimensions.

HB87/124 was tagged as being limited as to parcels and title under the Land Transfer Act 1924 with an interim status (conclusive to all matters except the description and delineation of the land) under the LTA 1931.

HB87/124 was subsequently cancelled and HB142/147 (Lot 11 Deeds 295) and HB161/162 (Lot 12 Deeds 295) issued.

 

DP 409311 was obliged to deal with the definition of the underlying deeds land based on uplifting the limitation as to parcels in terms of the Land Transfer Act 1952 and the interim status in terms of the LTA 1931.

Case study 3: DP 6715 - dealing with ground movement in Napier.

RT HB69/128, a fee simple title, was issued for Lot 66 DP 2615 in Latham Street, Napier in 1916.

HB69/128 was one of the duplicate titles that survived and was therefore not made interim. A memorial to that effect was recorded on the title (see Figure 13 below). It was cancelled in 1979 and RT HBH4/865 issued.

Latham Street was significantly affected by earthquake ground movement and in December 1932 the Hawke’s Bay Adjustment Court, under the Napier Alignment Regulations 1932, issued Order 4923 establishing the re-alignment of Latham Street and surrounding streets.

The redefinition was undertaken by DP 6715, which included the redefinition of the Lot 66 DP 2615 boundaries. Note the change in the Lot 66 boundary dimensions, illustrating the extent of ground movement in the area.