Summer services update
Key terms
Limited title
In this guidance, a record of title that is limited as to parcels.
Fully guaranteed title
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.
Survey process to remove limitations as to parcels
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 s205 Land Transfer Act 2017 and its predecessors, limitations as to title expired 12 years after the first limited certificate of title for a property was issued, so only titles that are limited as to parcels should remain in the register.
A title was issued limited as to parcels when the District Land Registrar was not satisfied that the parcels of land described in the title had been sufficiently defined or surveyed, and where there was uncertainty as to whether part of the owner’s entitlement had been extinguished by adverse possession.
Refer to:
- section 8 Land Transfer (Compulsory Registration of Titles) Act 1924
- section 190 Land Transfer Act 1952
The limitation does not mean that the dimensions and area on the title are necessarily incorrect, it means that the State will not fully guarantee the title until the location, dimensions and area of the land described in the title have been confirmed by survey, and any adverse possession of the parcel has been accounted for.
The Registrar-General of Land cannot remove a limitation from a title until the land has been surveyed and confirmation provided that no part of the land is occupied by another person in a manner that would extinguish the registered owner’s title.
Refer to section 202 Land Transfer Act 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 lost due to adverse possession. The survey may also incorporate adversely possessed land in an adjoining limited title that a claim is being made for. See Adverse possession of a neighbouring limited title below.
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 fully guaranteed title. The main difference is the addition of Step 2 where occupation within the boundaries determined by Step 1 must be assessed and if it meets the criteria for adverse possession then the adversely occupied land must be excluded from the new allotments.
Refer to Additional note on survey process.
Step 1 – Define underlying parcel boundaries (as if the title is not limited)
The first step in the process is to define the boundaries of the land described in the limited title in the same way as it would be defined if the title was fully guaranteed. This means that the surveyor needs to gather all relevant evidence, apply the hierarchy of evidence as normal, and determine the extent of the land described in the title.
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.
However, for many limited titles the boundaries may not have been surveyed, or there may be a lack of survey information for the parcel under survey. In some cases where there are prior surveys, there may be no means to find or connect onto the original old survey marks. 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.
When weighing up the evidence, the hierarchy of evidence should be applied with priority given to evidence which is least likely to be mistaken. The methodology of definition and decision-making should be carried out in the same fashion as it would be if the title was not limited.
Refer to Additional note on hierarchy of evidence.
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 reproduction of the original title boundaries (Step 1) and the definition of what is a new boundary established by adverse occupation (Step 2).
In practice, differences between title dimensions and occupation are often encountered when surveying limited titles. In Step 1, occupation should only be used to define an original title boundary if it is considered the most reliable evidence available to define that boundary after applying the weighting principle of the hierarchy of evidence.
Where occupation is deemed to be the best evidence of the original title boundary then 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. However, case law indicates that “striking differences” with title dimensions are not usually acceptable. 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 is appropriate and justifiable.
Refer to Additional note on acceptable differences.
When differences are encountered, consideration should be given to the possibility that a fence or structure was not erected on the title boundary and that encroachment or adverse possession is present. If it is likely that a fence or structure was not erected on the title boundary, then title dimensions will usually prevail over occupation when determining the position of the original title boundaries.
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 limited title parcel. It can also be 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 distributed in the same manner as for titles that are not limited.
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 fully guaranteed titles should be checked to see whether limitations were uplifted and whether adverse possession determined the final boundary locations. Differences caused by adverse possession should be taken into account when re-establishing the cadastral boundary framework and prior to apportioning any remaining shortage or excess.
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 – see Priority of diagram on transfer for definition for more information.
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 provided that no owner is left short of their title dimension. 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.
Step 2 – Exclude areas of adverse possession
Once the boundaries of the land described in the title have been defined, any adverse occupation inside the boundaries of the parcel 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 adversely occupied land should be excluded from the new lot and defined in a residue parcel.
Refer to:
Age of occupation
To support a claim, the adverse occupation 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. Historic aerial photography should be checked, and affected landowners canvassed about the history of occupation when necessary.
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 is 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.
Residue parcels
Where evidence would likely support a claim of adverse possession against the limited title, then the adversely occupied land should be excluded from the new lot and defined in a residue parcel (see Figure 1 below). A residue parcel is necessary because the registered owner’s title to the adversely occupied land has been extinguished, and the residue is not included in the adverse occupier’s record of title or land parcel. The adverse occupier can make an application for title to the residue on the basis of possession at some stage in the future.
For further information on capturing residue parcels, see Residue Parcels in the Cadastral Survey Guidelines.
Figure 1: Adverse possession over Lot 3 Deeds 456 – RT 45/789 Ltd
If it is clear that occupation does not support a claim of adverse possession against the limited title, then the boundaries defined in Step 1 should be respected (see Figure 2 below).
Figure 2: Adverse occupation over Lot 3 Deeds 456 – RT 45/789 Ltd
Adverse possession of a neighbouring limited title
An additional step may also be taken as part of the survey:
If the assessment of occupation in Step 2 shows that the owner of the land under survey occupies part of an adjoining 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 3 below).
Where such land is included, an application for title by adverse possession under s204 LTA 2017 will need to be submitted as part of the title dealing and be accepted by the RGL before the CSD can deposit.
Refer to Adverse possession applications for information on making a claim under s204 LTA 2017.
Figure 3: Residue parcel where land being claimed
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 (see Figure 3 above). 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 and CSD requirements, see CSDs with Adverse Possession.
Survey and CSD requirements
Information on survey and 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.
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. See Dispensation requests below.
Also refer to Field survey – Boundary marking for further information on the meaning of ‘practicable’.
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.
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 regardless of whether they are in adverse occupation of land held in the limited title or not. Notices are usually served following lodgement of the title dealing and the notice period is 40 working days. Early notification can be requested by the surveyor or solicitor following approval of the CSD and prior to the lodgement of the title dealing.
Refer to Early notification of 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 adversely occupied land has 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 adverse possession that may have contributed to a shortage or excess.
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, the assessment should provide reasoning as to why the occupation does or does not appear to support a claim of adverse possession against the limited title. This will explain why a residue parcel has or hasn’t been created.
If the survey includes a claim for adverse possession over land held in an adjoining limited title, the survey report should include a summary of the occupation evidence that supports the claim.
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.
Early notification of adjoining owners
LINZ will typically send out adjoining owner notices once an application for new titles is received from the solicitor. In order to get the notification process started earlier, the surveyor or solicitor can make a request to LINZ 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 can notify adjoining owners.
Legalisation surveys
For information about legalisation surveys over limited titles, see 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 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:
(a) natural boundaries
(b) monumented lines (such as original pegs)
(c) undisputed occupations
(d) abuttals
(e) 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
Land Title Surveys in NZ - Chapter 1 Section 6 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:
McDonell v Giblin [1904] 23 NZLR 660:
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.
Powell v McFarlane (1977) 38 P & CR 452 (quoted in Edmunds v Lauder [2013] NZHC 2770):
[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.
Edmunds v Lauder [2013] NZHC 2770:
[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.