Defining the boundaries of Old System parcels involves similar techniques to those used when defining Torrens Title parcels. However, due to the possibility of land being lost by possession adverse to the proprietor, the surveyor should:

• re-establish the original deed boundaries, and
• compare these boundaries with the existing occupations.

The age, nature and position of the occupations existing on or near the boundaries or which are otherwise relevant to the definition of a boundary must be shown on the plan. In such cases, the survey should not be restricted to occupations within 1 metre of the boundary.  (See clause 63(1)(e) Surveying and Spatial Information Regulation 2017). If no occupations exist, the surveyor must clearly indicate this on the plan – i.e. 'NO OCCS'.

If the deed boundary is established as being outside occupations of age greater than 12 years, the adjoining owner may have acquired a possessory right over the land between the deed boundary and the occupations. In these situations, the documentary owner will only be able to include the adversely occupied land in a new title with the consent of the adjoining owner in possession (see Boundary consents and approvals).

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.

Where consent of the adjoining owner in possession is not forthcoming, a sliver lot will need to be created for the land between the occupation and the deed boundary (see Slivers).

If the deed boundary is established as being inside occupations of age greater than 12 years, the surveyor must adopt the deed boundary and not the line of occupations. Title to the resulting strip of Old System or Limited Torrens land between deed entitlement (boundary) and the occupation(s) may only be obtained by the preparation and lodgment of a Primary Application (together with the requisite evidence) claiming the strip of land by adverse possession – see below.

Where a primary application claims part of an adjoining limited title by possession

Part of an Old System parcel or existing Limited Certificate of Title may be claimed by possession in a new Primary Application. A departmental plan will be prepared to define the residue of a Limited Title after exclusion of the land now comprised in the Primary Application.

The existing Limited Certificate of Title will be cancelled, shown as follows:

NOTE: Reference to the Limited Parcel must be included in the heading of the new deposited plan lodged with the Primary Application (as part Lot....DP....) and listed as a prior title for the relevant lots created on the registration of the application.

NOTE: The deposited plan lodged with the Primary Application may consolidate, into a single lot, the adjoining strip(s) claimed by possession and the parcel(s) that stand in the name of the applicant(s). 

For more information see Primary Application

Confirmation of current parcel status

The land comprised in the 'current' metes and bounds description contained in an Old System Deed (or a Qualified and/or Limited computer folio) may have been subdivided in a description contained in the chain of deeds without the consent of the local council. Sections 23F & 23G Conveyancing Act 1919 (which require consent to be obtained for all subdivisions) do not differentiate between Torrens Title and Old System parcels in this regard. Consequently, plans redefining a parcel of land comprised in either an Old System deed or a Qualified and/or Limited Title will necessitate the plan examiner to ascertain whether the parcel has been subdivided (or re-defined) since 1971.

If it appears that such a subdivision or redefinition has in fact occurred, it will be necessary for the new plan to bear a completed Subdivision Certificate or be accompanied by sufficient evidence indicating that the council consented to the original subdivision of the deed.

All NSW legislation can be accessed at www.legislation.nsw.gov.au/