Summer services update
Historical Background
The majority of all privately owned land in New Zealand is now subject to the LTA. Any land remaining in the Deeds system is there either because of historical reasons, for example occupation inside surveyed boundaries, or because it was not economically viable for an application to be made.
Applications by documentary owners to bring Deeds land under the LTA will now be rare. Most of the remaining Deeds land is likely to be in the occupation of someone other than the documentary owner. Applicants in possession of Deeds land by virtue of adverse occupation (not derived from the documentary owner) base their claims on the Limitation Act 1950 and now the Limitation Act 2010. Applicants have to demonstrate that the documentary title has been extinguished by their adverse possession.
Procedural Matters
Sections 171 – 183 LTA set out the requirements and procedures for an application. The requirements are substantially the same as those in place under the 1952 Act.
The land must have been alienated or contracted to have been alienated from the Crown and the application should include evidence of Crown granting. Applications cannot be made in respect of Māori land.
Some important points relating to applications based on adverse possession are:
- A minimum of 12 years of uncontested continuous occupation must be established. That can be personal to the applicant or can be cumulative through a chain of adverse occupiers as long as the overall period is unbroken.
- If the applicant’s period of personal possession is less than 12 years then declarations from previous occupiers that the applicant is claiming through should be provided.
Definition of Application Land by Survey
The application must be accompanied by a plan of the land applied for and which is suitable for deposit under the LTA (see section 224(1)). Occupation details should be shown on the plan - this could be fences, trees, buildings or other features denoting occupation.
Application Format and Evidence
The instrument code is AP17.
The instrument may be lodged by e-dealing (image only with certifications , A&I required) or as a manual dealing (dispensation will be required if lodged by a practitioner).
Forms 39 of the Approved Electronic Forms (for registration by e-dealing) or the Approved Paper Forms (for a manual dealing) can be used to make an application. Use of these forms will ensure that all prescribed information is provided.
This includes such matters as (and evidence to support the same):
- Period of personal possession [state period and dates].
- Periods of prior possession claimed (if applicable) [state the identity and, where applicable, the relationship of the persons through or under whom the applicant claims, and the manner in which possession was acquired by the applicant and by the persons through or under whom the applicant claims].
- Manner of occupation [state as fully as is known or can be ascertained the nature of the occupation of all persons concerned, e.g., whether it has been continuous or broken, exclusive or divided, undisputed or by whom disputed, etc].
- Is land fenced? [state all information available regarding the fences, e.g., age, extent, by whom erected, etc].
- Purposes for which the land has been used.
- Improvements [state what improvements are on the land and whether they were effected before or since the commencement of the period of adverse possession].
- Evidence to support application [give details of anything supporting the claim, e.g. payment of rates and other expenses].
The application should be corroborated by a statutory declaration from at least one disinterested party with knowledge of the history of occupation over the qualifying period or as much of it as is possible.
Advertising and Notice to Interested Parties
Once the RGL is satisfied that the applicant has established entitlement to the land then it is advertised in accordance with section 173 LTA. Interested persons then have 40 workings day to lodge a caveat forbidding the bringing of the land under the Act
The RGL sends notice of the application to interested parties such as the occupiers or owners of adjoining land, the documentary owner and the relevant territorial authority.
Caveats against bringing Land under the Act
Other persons claiming the freehold or a lesser estate of interest in the land may protect their interest by lodging a caveat within the 40 working day notice period under section 174. This operates to prevent the land being brought under the Act while the caveat remains. The RGL will serve notice of the caveat on the applicant.
RGL must serve notice of the caveat on the applicant. The caveat will be deemed to have lapsed 60 working days after receipt by the RGL unless, within that time, the caveator has given written notice to the RGL that court proceedings have been taken to establish title to the estate or interest claimed (see section 177 LTA).
For more information see Other caveats under the Land Transfer Act 2017.
Bringing the Deeds Land under the Act
If, at the expiration of the time limit in respect of the application, all necessary notices have been given and no caveat have been lodged or such caveat as has been lodged has lapsed and no sufficient cause to the contrary appears, a record of title will be issued in the name of the applicant.