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 substantially outside a fence (or a new fence erected in the position of an old 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 new boundary. Where this is not forthcoming, the surveyor should be instructed to exclude the land from the deposited plan.
Where the boundary of a parcel has been claimed to a fence which lies outside the deed dimensions, 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.
For more information and form notification see consent of adjoining owner information
It is not NSW LRS's policy to issue certificates of title, where a substantial structure from an adjoining parcel encroaches across the boundary. Therefore action to resolve the encroachment eg acquisition of the land upon which the encroachment is constructed should accompany the plan.
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 in order that notice can be served on them. Notice will be sent to adjoining owners during the processing of the Primary Application see ss.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.
In NSW Torrens title land cannot be claimed by adverse possession unless the land claimed constitutes the entirety of the title see s.45D(1-2B) Real Property Act, 1900. An application using Application for Possessory Title form 04YA (PDF 704KB) together with the necessary evidence must be lodged in NSW LRS see Baalman & Wells para's 396 - 415 inclusive.