Redefining the boundaries of a parcel of land held under Old System or Limited Torrens Title requires an in-depth investigation as to the position of the original deed boundaries and an appreciation of the complexities of titling due to possible claims of adverse possession.
Although fencing and other occupations, particularly if they are more than 12 years old, are significant in determining the position of Old System Title boundaries, they do not provide conclusive evidence in this regard. The same care should be exercised in relocating the boundaries of an Old System parcel as is applied to Torrens Title land.
Surveyors are responsible for defining the land in the relevant deed(s). In support of the definition, the age, nature and position of occupations relative to the parcel boundaries must be shown on the plan. Surveyors should also disclose any occupations affecting the deed(s) which may be adverse to the documentary owner. Any evidence of earlier occupations, which may now be gone, should also be noted and the relationship to the boundaries shown.
Consent of adjoining owners
Where the boundary of a parcel described in a deed has been satisfactorily refixed, but lies outside a fence (including a new fence erected in the position of an older fence), building or other structure which is more than 12 years old, lodging parties are advised to obtain the written consent of the adjoining owners indicating their approval as to the position of the redefined boundary (see Boundary consents and approvals). Where this is not forthcoming, the surveyor should be instructed to include the land as a ‘sliver lot’ in the new deposited plan.
The sliver lot will be shown as a separate, fully dimensioned lot (including area) in the new plan. The owner/developer, by creating a sliver lot, acknowledges that their ownership and any rights or claims over the sliver lot have been lost. A sliver lot is created for identification purposes only within the plan and titling system.
Additional information on slivers can be found here.
Where the boundary of a parcel has been claimed to a fence which lies outside the redefined deed boundary, lodging parties are advised to:
- instruct the surveyor to exclude the land from the deposited plan; or
- lodge a Primary Application for the land in the plan (see below).
NOTE: Consent may not be required when appropriate evidence is supplied indicating that the adjoining owner is not adversely occupying the strip of land. For example, where a later fence has been erected alongside an original fence, or where a fence has been constructed back from the edge of a cliff or other feature – in both cases the adjoining owner is NOT occupying the strip beyond the fence.
NOTE: Nothing in this Guideline prevents the lodgment of a plan of subdivision of the subject land with the adjoining land (together with relevant Transfers) to create a new boundary along the line of occupations.
It is not NSW LRS's policy to create a folio of the Register where a substantial structure from an adjoining parcel encroaches across the boundary. Therefore, action to resolve the encroachment should be taken in consideration, for example:
- granting of an appropriate easement e.g: “easement to permit encroaching structure to remain”;
- excluding the land from the deposited plan where the structure encroaches and creating a sliver lot; or
- subdivision with adjoining land where the encroachment exists.
NOTE: Encroachments of a very minor nature will be considered by NSW LRS. The consent of the adjoining owner may still be required.
Plans claiming land by adverse possession
A deposited plan of Torrens Title land, which attempts to add to an existing parcel by including adjoining Old System land claimed by adverse possession, cannot be registered without a successful Primary Application being lodged for the land claimed. Lodging parties must provide the name and address of adjoining owners by statutory declaration so that notice can be served on them. Notice will be sent to adjoining owners during the processing of the Primary Application see sections 12(1)(h) and 12A Real Property Act 1900.
NOTE: Notice is sent to adjoining owners on all deposited plans which claim land outside occupations more than 12 years old.
NOTE: Torrens Title land generally cannot be claimed by adverse possession unless the land claimed constitutes the entirety of the title see section 45D(1-2B) Real Property Act 1900. An application using Application for Possessory Title form 04YA together with the necessary evidence must be lodged in NSW LRS.
Additional information on Primary Applications can be found here, and additional information on Boundary Definition can be found here.
All NSW legislation can be accessed at www.legislation.nsw.gov.au/