CSDs with adverse possession

What is adverse possession?

In relation to land, adverse possession is a principle of law whereby someone in continuous 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. Adverse possession is also referred to as ‘prescriptive title’.

General legal requirements for adverse possession

Occupation of another person’s land does not automatically equate to adverse possession. Common law and statutory requirements relating to the period, continuity, quality and nature of possession must be met before adverse occupation is considered to be adverse possession. These aspects are discussed in more detail below.

If an adverse occupier believes they have met the common law and statutory requirements and can establish a valid claim for adverse possession, then they may apply for a record of title to the land in their possession.

To obtain a record of title, the adverse possessor will need to make an application to the appropriate tenure system manager. In the case of a claim over Land Transfer land or Deeds land, an application must be made to the Registrar-General of Land (RGL) in accordance with the provisions of the Land Transfer Act 2017 (LTA 2017). Enquiries about claims over Crown land or Māori customary land should be directed to the Commissioner of Crown Lands or the Māori Land Court as appropriate.

An application will usually include evidence in the form of statutory declarations setting out the facts and circumstances of the adverse possession together with a survey plan which defines and describes the land subject to the claim.

The status and ownership of the subject land is an important factor in determining the type of application that can be made or whether a claim can be made at all. If there is uncertainty about the ownership and status of land then it is advisable to obtain a status report from a suitably qualified or accredited supplier.

In order to establish a claim to title by adverse possession, common law and statutory requirements relating to the period and continuity of possession and the quality of possession must be met. The law around the quality and nature of possession is subjective and complex, and the success of an application will depend on the evidence and established common law principles relating to adverse possession. Liaison between the surveyor and solicitor making the application is therefore advisable to ensure the statutory and common law requirements are likely to be met before a CSD for adverse possession is submitted for survey approval.

Period of possession

A minimum period of uncontested continuous possession must be established. The adverse occupation of the land can be personal to the applicant or can be cumulative through a chain of adverse occupiers as long as the overall period is unbroken.

The minimum occupation period is set by legislation and varies depending on the tenure system of the land being claimed and the legislation through which the claim is being made:

• For Land Transfer land, the minimum possession period is 20 years (s 155(1)(b) LTA 2017)
• For Land Transfer land held in a Record of Title limited as to parcels, the possession must have started before the first limited title was issued (s 204(1)(a) LTA 2017)
• For Deeds land, the minimum period of adverse possession is 12 years (s 21(1)(b) Limitation Act 2010, s 172(1)(b) LTA 2017)
• For Crown land, the minimum possession period is 60 years (s 21(1)(a) Limitation Act 2010)
• For Māori customary land, the minimum possession period is 12 years (s 28(1) Limitation Act 2010).

Quality of possession

Adverse occupation does not necessarily equate to adverse possession. Common law rules apply to the quality and nature of the possession – it must be open, manifest, continuous, exclusive and undisputed, so that someone watching the land over the period of possession from a nearby vantage point would think that the applicant was the occupier of the land to the exclusion of all others. The character and position of the land, the ability of the registered owner to access and use the land, and the historical relationship of adjoining owners are some of the various considerations that must be taken into account.

Caution is advised in situations where the adverse occupier and documentary owner are the same person or have been the same person in the past. Difficulties can arise when a landowner attempts to claim adverse possession against themselves or where a period of possession is dependent on continuous possession that is adverse to the title of the documentary owner.

Due to the complexities of the law in relation to the quality and nature of possession, it is advisable to seek legal advice before proceeding with a survey for adverse possession to help ensure that the quality of possession is sufficient and that all relevant survey evidence is gathered.

Restrictions

Various common law and statutory restrictions may prevent or defeat a claim for adverse possession in certain circumstances. For example: 

• Māori Land cannot be claimed in most circumstances (ss 159(b) & 171(b) LTA 2017) 
• Crown land, local authority land, and land held in trust for a public purpose cannot be claimed in most circumstances (ss 159(a), (c) & (d), 171(a) LTA 2017, s 172(2) Land Act 1948, s 51 Public Works Act 1981) 
• An adjoining owner cannot claim on the basis of encroachment or in cases where land has been severed by a road, water body or other natural feature (s 159(e) & (f) LTA 2017)
• Claims cannot be made in relation to a give and take fence (s 21(4) Fencing Act 1978)
• A landowner cannot claim adverse possession over a limited title if they were a previous owner of that limited title (s 200(2) LTA 2017).

Subpart 2 of the Property Law Act 2007 allows the courts to grant title to land in cases where a structure has been placed on the wrong land, however that process is not considered to be a claim for adverse possession.

DP 440457 digital survey plan is an example of a CSD resulting from a court order.

Existing interests

There is no specific requirement for existing interests to be carried down onto a new title that results from a successful claim. However, to avoid caveats being lodged or remaining in force, the applicant may reach agreements with interest holders to retain existing interests or to register new interests. It is therefore advisable for the surveyor to liaise with the solicitor preparing the application to determine whether any spatial interests need to be accommodated and non-primary parcels included in the CSD.

Further information

Further information on the legal requirements for adverse possession can be found at:

• Adverse possession applications
• Application to bring Deeds Land under the Land Transfer Act by Adverse Occupier
• Adverse Possession Guideline 2018 – LINZG20778
• Approved Electronic Forms for the Land Transfer Act 2017 - LINZLF01232 – see forms 37, 39 and 43 for information required in adverse possession applications.

Adverse Possession of Land Transfer Land

A claim for adverse possession over Land Transfer land can be made under section 155 LTA 2017. Sections 155 – 170 LTA 2017 set out the requirements and procedures for an application.

There are various restrictions on when applications can be made, and the registered owner or a person with an interest or estate in the land being claimed can lodge a caveat and defeat the claim. Consequently, applications under s 155 LTA 2017 are generally confined to situations where the registered owner has abandoned the land.

The land being claimed must have an existing record of title or a Crown grant registered under the Land Transfer Act 1952.

A minimum of 20 years of uncontested continuous occupation must be established.

Section 159 LTA 2017 prohibits applications in the case of:  

• Land owned by the Crown (except where it could have vested in the Crown as ownerless property (bona vacantia) but has been disclaimed in terms of section 170)
• Māori land
• Fee simple land owned by a local authority
• Land held in trust for a public purpose
• Land occupied together with adjoining land owned by the applicant because of a mistaken marking of a boundary (encroachment).
• Land occupied by the applicant because of a change in the position of a river, stream or creek or the isolation of the land from other land by a river, creek, stream, other natural feature or by a road.

Section 159(e) LTA 2017 prevents adverse possession claims based on encroachment by an adjoining owner. The ‘mistaken marking of a boundary’ referred to in section 159(e) LTA should not be misconstrued as a reference to cadastral survey boundary marks. A ‘mistaken marking of a boundary’ includes any fence, wall, hedge, building, ditch, or other artificial means of marking the boundary that purports to be on the boundary but is not on the boundary.

If the full extent of the land in the underlying title or Crown grant is being claimed and the occupation, where it exists, coincides with the title boundaries, then the application can be accompanied by a certificate from a licensed cadastral surveyor in place of a survey plan (see s 156(2)(a) LTA 2017). However, if the land is not adequately defined (a residue parcel for instance) then a CSD may still be required.

If the land in the underlying title or grant is only partially occupied by the applicant, then the claim can only include the land occupied and the application must include a survey plan that complies with section 156 LTA and is suitable for deposit under section 224 LTA 2017. 

If an adverse possession claim involves land in Hawke’s Bay that appears to be held in an interim title or for which no copy of a title is available (e.g. R file), then title to the land may be inconclusive and the land may need to be brought under the LTA using sections 171-183 LTA 2017. It is advisable to seek advice from LINZ to confirm what type of application is appropriate in this situation.

For further information about application requirements see:

• Adverse possession applications
• Adverse Possession Guideline 2018 – LINZG20778

For survey dataset requirements see:

CSD requirements

Adverse possession of Land Transfer land held in a limited title

A claim for title by adverse possession over land held in a limited record of title can be made under section 204 or section 155 LTA 2017.

Application under section 204

Applications under section 204(1)(b) can be made when the adverse possession started before the first limited title issued and has continued through to the present day.

Applications under section 204 typically arise (although not always) in conjunction with the removal of limitations where the applicant is the adjoining owner in adverse possession of some of the land.

Applications under section 204 must comply with sections 171-183 LTA 2017 with any necessary modifications (s 204(2) LTA 2017). If the applicant is the registered owner of land adjoining the claimed land, there is no requirement for public notification and notice of the application is not required to be given to anyone who has given written consent to the application (s 204(3) LTA 2017).

An application under section 204 can be prevented by the registration of a caveat under section 207 LTA 2017 but the caveat can lapse unless court proceedings are initiated by the caveator to determine their entitlement to the land.

Application under section 155

An application for adverse possession can also be made under section 155 LTA. The minimum period of possession is 20 years and the requirements and restrictions detailed in Adverse Possession of Land Transfer Land apply. See:

Adverse Possession of Land Transfer Land

If the age of occupation predates the issue of the first limited title, then a claim should be made under section 204 rather than section 155. The notice requirements are reduced under section 204 as noted above, and the applicant can apply for the lapse of a caveat against a section 204 claim but not for a caveat against a section 155 claim. 

For further information about application requirements see:

• Adverse possession applications
• Adverse Possession Guideline 2018 – LINZG20778

For survey dataset requirements see:

CSD requirements

Adverse possession of Deeds land

A claim for adverse possession over Deeds land is treated as an application to bring land under the Land Transfer Act. Sections 171 – 183 LTA 2017 set out the requirements and procedures for an application. 

The land being claimed 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.

A minimum of 12 years of uncontested continuous occupation must be established (s 21(1)(b) Limitation Act 2010).

The application must be accompanied by a plan of the land being applied for that is suitable for deposit under the LTA (s 224(1) LTA 2017). 

For further information about making an application see:

Application to bring Deeds Land under the Land Transfer Act by Adverse Occupier

For survey dataset requirements see:

CSD requirements

Adverse possession of Crown land or Māori customary land

Sections 21(1)(a) and 28(1) of the Limitation Act 2010 provide for adverse possession over Crown land and Māori customary land however other legislation such as the Land Transfer Act 2017, Land Act 1948 and Public Works Act 1981 place restrictions on claiming adverse possession. Consequently, the circumstances where adverse possession can be claimed over Crown land or Māori land are very rare.

For Crown land, a minimum possession period of 60 years must be established (s 21(1)(a) Limitation Act 2010). Section 172 of the Land Act 1948 and section 51 of the Public Works Act 1981 prevent adverse possession over many types of Crown land.

For Māori customary land, the minimum possession period is 12 years and the claimant must be the Crown or a person claiming through the Crown (s 28(1) Limitation Act 2010).

Applications for title cannot be made directly through the LTA 2017 and are not dealt with by the RGL. Advice should be sought from the Commissioner of Crown Lands or the Māori Land Court on the process and requirements for proceeding with a claim for title by adverse possession.

CSD requirements

For adverse possession claims under the LTA 2017, a CSD is usually required to accompany the application. An exception is where an entire parcel is being claimed under section 155 LTA 2017 in which case the application can be accompanied by a surveyor’s certification instead. See:

Adverse possession of Land Transfer Land

The intent of a CSD supporting an adverse possession application is to define and mark the extent of land being claimed, and to provide information about the nature and extent of physical occupation.

The RGL is required to give notice of an application, and boundary marking is therefore required by the survey rules so that interested parties can observe the physical extent of the land being claimed.

For claims over Crown or Māori customary land, CSD requirements will depend on the statutory process being used to raise title. This should be confirmed with the Commissioner of Crown Lands or the Māori Land Court. Clarification on CSD requirements can be sought from LINZ once the statutory process has been determined.

For applications under the LTA 2017, the general CSD requirements are:

Dataset purpose

• An adverse possession claim under the LTA 2017 must be made using a LT dataset type.
• The survey purpose will be ‘Application’ unless the adverse possession claim is being made in conjunction with another Land Transfer purpose (e.g. Limited title, LT subdivision etc.) in which case either survey purpose can be used. 
• Caution is advised when combining an application with another Land Transfer action on the same CSD – if the application is unsuccessful then the CSD is unlikely to be able to deposit and a new CSD may be required.

Dataset description

• The dataset description on the CSD must include the appellation for the new primary parcels, the survey purpose, and the legal description of the land under survey (r 71(c)) (e.g. Lot 1 being adverse possession over part Lot 6 DP 12345).

Primary parcels and boundaries

The portion of land being claimed may be depicted as a separate primary parcel or in conjunction with adjoining land.

Where the land being claimed is depicted as separate parcel, the CSD must:

• Define the extent of the land being claimed as a new primary parcel with a new appellation and an area (r 39, r 41-45)
• Only include land in the new parcel that is in actual occupation by the applicant 
• Define all boundaries of the parcel by survey (r 13 & r 35(2)(f))
• Mark all new and existing boundary points (r 35(1) & (2)(f))
• If land is being claimed over more than one underlying estate but defined together in one new primary parcel, the title diagram needs to clearly depict what part of the land comes from each estate. For each underlying estate the title diagram must show:
  • the estate boundaries (r 97(7))
  • the estate record reference (r 97(7))
  • the area of the land being claimed from that estate – this will be by annotation on the plan (r 41(3)).

Where the land being claimed is depicted in conjunction with adjoining land:

• The above requirements apply to the portion of land being claimed except in relation to the disappearing common boundary with the adjoining land – that boundary must be depicted as an estate boundary rather than a primary parcel boundary
• Estate record references need to be shown for all land in the new primary parcel
• The title plan must make it clear what part of the land is subject to the application — this can usually be achieved by depiction of estate boundaries however additional annotations can be shown if necessary
• The area(s) of the land being claimed must be annotated on the plan
• The boundaries of the adjoining land can be defined in accordance with normal rule requirements, that is the boundaries are not required to be defined by survey or marked unless rules 13 and 35 require otherwise. 

Residue parcels

If the parcel of land being claimed is only part of an existing primary parcel, then the unclaimed portion of the existing parcel must be captured as a ‘residue parcel’.

Non-primary parcels

• The CSD must include non-primary parcels for any new spatially defined interests and any existing spatially defined interests that are intended to carry forward onto the new title (r 97).
• The CSD must include appropriate easement schedules and covenant information in accordance with rules 93-95.

For more information about non-primary parcels see:

Non-primary parcels

Occupation

• Occupation information in the form of a diagram must be provided along every boundary and at every boundary point of the land being claimed (r 81).
• The land being claimed must be occupied by the applicant, and the extent and age of occupation is a critical element of the application.
• Care needs be taken by the surveyor to ensure that the age of occupation shown in the CSD is sufficiently accurate and reliable. An estimate based on physical appearance may not be adequate on its own and further evidence and enquiry by the surveyor may be necessary.
• The evidence and information used to determine the age of occupation should be recorded in the survey report.

Existing interests

• Existing interests may not be required to carry down, however caveats and agreements may result in existing interests being retained or recreated. The CSD will need to accommodate any existing spatial interests that are intended to carry down or be recreated, and the appropriate easement schedule or covenant annotation will need to be included (r 94-95).
• Where existing spatial interests are not being carried forward, then this should be confirmed in the survey report and title plan (r 92(h)).

Survey report

• Reporting on the survey purpose (r 72(a)) should include detail about the part of the legislation under which the application is being made.
• Rule 72(i) requires reporting in regard to each existing boundary defined by survey. Where the extent of the adverse possession land is defined by a new boundary, a similar level of reporting should be provided in relation to the new boundary so that the rationale for the boundary position is understood and entitlement to the land can be assessed.
• The report should reference any land status reports and any prior correspondence with LINZ or other parties on issues relevant to the CSD. If necessary, correspondence and reports should be included in the CSD as supporting documents (r 72(p)).

Example CSDs

CSD Plan DP 527754

This CSD supports an application for adverse possession over Deeds land under section 20 Land Transfer Act 1952 (equivalent to an application under section 172 LTA 2017). The subject land was depicted as road on DEED 55 and DP 1187 but the road never became legal. The application is registered under instrument 11134110.1.

DP 502952 digital survey plan

This CSD defines parcels to support a series of applications for adverse possession over Land Transfer land under section 3 Land Transfer Amendment Act 1963 (equivalent to section 155 LTA 2017). The subject land was depicted as road on DP 2088 but the road never became legal. The applications are registered under instruments 10839839.1, 10839839.2 and 10839839.3. 

DP 495435 digital survey plan

This CSD supports an application for adverse possession over Land Transfer land using section 3 Land Transfer Amendment Act 1963 (equivalent to an application under section 155 LTA 2017). The boundaries were defined by survey but boundary marking was impracticable due to the boundaries being occupied by a building. The application is registered under instrument 9998819.1. 

DP 529008 digital survey plan

This CSD defines land subject to an application for adverse possession over Land Transfer land under section 3 Land Transfer Amendment Act 1963 (equivalent to an application under section 155 LTA 2017). The application land is defined together with other land and the surveyor has displayed the information relating to the application land on a plan graphic, however this information could have been displayed on the title sheets of the CSD if preferred. The application is registered under instrument 11422047.1. 

DP 509641 digital survey plan

This CSD supports an application for adverse possession over a residue parcel using section 3 Land Transfer Amendment Act 1963 (equivalent to an application under section 155 LTA 2017). The residue parcel was created when limitations were uplifted from an adjoining title (DP 485346). The application is registered under instrument 10724312.1. 

Instrument 11350339.1

This is an application for adverse possession under section 155 LTA 2017 where the application is supported by a certificate under section 156(2)(a) rather than a survey plan.

DP 463825 digital survey plan

This CSD supports an adverse possession claim over an adjoining limited title under section 200 Land Transfer Act 1952 (equivalent to s 204 LTA 2017). Because only part of the adjoining allotment was being claimed, a residue parcel had to be created for the balance of the adjoining allotment. The application is registered under instrument 9722236.1. 

SO 541877 digital survey plan

This CSD supports an adverse possession claim over Crown Land under s7(1) Limitation Act 1950 (equivalent to s21(1)(a) Limitation Act 2010). The CSD is a Survey Office dataset due to the title being raised under s116 of the Land Act 1948.