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Good Things Take Time

In 2011 Paddy Cotter of Te Wharau Investments Ltd (TWI) approached Craig McInnes and Alex Liggett (then working for a previous employer) to undertake a survey of their title at the corner of Aikmans and Papanui Roads in Merivale, Christchurch. One of the buildings on the site had been damaged beyond repair in the 2011 earthquake, and the boundaries would need to be established so that the new building was correctly sited.

It turned out that the title to this piece of land was ‘Limited as to Parcels’, and in order to explain what that means a brief history lesson is required. In 1841 the colonial government of NZ set up the first system of European-style property ownership, the deeds registers. This was modelled on the English system, and it was quickly found to be unsatisfactory in that any purchaser of land had to research all previous transactions involving the land, to ensure that no fraudulent or incorrect transaction had been registered. This made buying and selling property slow and costly. In 1860 a new Land Transfer system was introduced, under which the Crown would issue guaranteed certificates of title (meaning that a buyer knew exactly what they were getting) to land that had been adequately surveyed.

The government then spent the next 64 years trying to get owners of land that was still recorded in the deeds registers to apply to get their land registered under the new system. Eventually losing patience with the slow uptake of the new titles, in 1924 a law was passed which forced all deeds land to be brought onto the Land Transfer Register. Where land wasn’t adequately surveyed, the new titles were issued with the tag ‘Limited as to Parcels’, meaning that the land had not been surveyed to a sufficient standard and that the area and boundaries of the land were not guaranteed (only the ownership and interests).

The original deed for TWI’s land.
The original deed for TWI’s land.

Further research into the land owned by TWI revealed that when the property next door was surveyed to bring it under the new system in the 1920s, the surveyor at the time decided that one boundary should follow a fence that didn’t exactly fit with the dimensions of the original deed. This meant that a strip of land about 1.5m wide and 19m long adjoining TWI’s title was left behind in the original deed.

The 1920’s survey of the neighbouring property with Te Wharau Investments Ltd’s land highlighted in blue, and the neighbour’s land in green, with the gap in the middle.
The 1920’s survey of the neighbouring property with Te Wharau Investments Ltd’s land highlighted in blue, and the neighbour’s land in green, with the gap in the middle.

TWI and their tenants were occupying this strip of land, but with structures and walls that had only relatively recently been built. The law allows for claims of what is known as ‘adverse possession’ in some circumstances, but where land remains in a deeds register a minimum of 12 years of continuous, exclusive, and uncontested occupation needs to be proved. We decided to define the boundaries needed to rebuild the lost building (which was on the opposite side of the property) and to wait out the 12 years.

Part of a plan showing the strip of deeds land highlighted in red, with the buildings and walls on TWI’s site extending into it.
Part of a plan showing the strip of deeds land highlighted in red, with the buildings and walls on TWI’s site extending into it.

Fast forward to 2020. Craig and Alex were now at Fox and Associates and TWI was a valued and long-standing client of the firm. 12 years of occupation had elapsed and Paddy was ready to mount a claim to the strip of ‘no man’s land’. Alex undertook a survey of the entire title, taking in the strip, and this survey was approved by LINZ, the government regulator of survey and titles.

TWI’s lawyers then lodged the claim to the land in the strip, with an accompanying mountain of evidence to prove the 12 years of continuous, uncontested occupation, including payment of rates on the land. Unfortunately, after months of too and fro, and after several rounds of additional information being provided LINZ declined the application, on the grounds that the occupation didn’t quite extend all the way across the strip to the opposite boundary.  They suggested that Fox re-survey the land leaving an even narrower strip of land behind. This seemed like a ridiculously impractical solution and so Fox and TWI were prepared to let the matter rest.

Shortly after this though, in his role with the Institute of Cadastral Surveying (an industry group which represents cadastral surveyors and their clients) Alex was involved in a ‘process improvement’ discussion where LINZ were looking to identify issues with the way surveys of limited titles are processed. LINZ requested specific examples where the process seemed to have broken down, and Alex immediately raised TWI’s situation. After a few months TWI’s solicitors were contacted and asked to resubmit their documentation to LINZ, with the end result that in January 2024 TWI were finally issued a new guaranteed title for all of the land, including the strip.

The successful outcome for TWI demonstrates two things; firstly that good things really can take time, and secondly that the investment Fox makes in their staff serving the profession through industry and regulatory bodies such as the Institute of Cadastral Surveying, Survey and Spatial NZ, the Consulting Surveyors of NZ and the Cadastral Surveyors Licensing Board, and the network developed through these organisations can provide tangible benefits to our clients. For us at Fox it was hugely satisfying to see victory snatched from the jaws of defeat after such a long history with this project, and to see a successful and sensible outcome for our client.

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