Abstract

This article has been prepared primarily for the benefit of the student in surveying and much of what has been written may be considered by the surveyor experienced in "Identification Surveys" as being somewhat elementary. However it is surprising how little many students and surveyors know of the ordinary conveyancing procedure involved in the daily transactions connected with buying and selling properties in which the "Identification Survey" plays an important part. In case any surveyor is inclined to take exception to this statement, let me assure him that it also applies to a surprising number of other people including members of the legal profession. We live in an age of the specialist in all professions and surveying is no exception. I therefore venture to suggest and hope that not only students but other surveyors, however expert in their own particular field, may find something of interest in this article. If this is the case then the time and effort spent will have been worthwhile.

The term "Identification Survey" is universally applied in NSW to a surveyors' report normally required by the legal profession and lending authorities in connection with most purchases and practically every mortgage of urban property other than vacant land or broadacres although vacant land is not altogether excluded. When a man buys or proposes to buy a property he invariably inspects it and finally agrees to purchase what he has been shown and seen. A contract of sale is prepared setting out the terms and conditions of the sale. The contract may be prepared by the selling agent but a prudent buyer will consult his solicitor before signing this document. The contract is prepared in duplicate - one copy to be signed by the vendor and the other by the purchaser. Once the contracts have been exchanged between the parties both are committed to the transaction, and are bound to complete - provided of course that each can fulfill his obligations under the terms of the contract. Many solicitors prefer to have a surveyor's report before the contracts are exchanged - it frequently saves a lot of trouble afterwards. The contract describes the property in some form - sometimes fully and clearly and at times merely by a general description without reference to the title particulars. In any case, the vendor or his solicitor is bound to supply this information. After contracts are exchanged it is the responsibility of the purchaser or his solicitor to ensure that the buyer obtains a proper title to the property he has agreed to buy. A man buys a property but receives a title deed to a piece of land only. The purpose of the identification survey therefore is to ensure, inter alia, that the title to be transferred does in fact include the whole of the property purchased together with any rights that are enjoyed by it. the report following survey should also refer to any matters which in any way affect the property adversely or otherwise. It frequently happens that the instructions to the surveyor are in general terms, such as for a survey and report in respect of the land comprised in a certain Certificate of Title, being a lot in a Deposited Plan. The surveyor is expected to know what is required. If complete instructions are given, the surveyor would probably be asked to survey and report on the following:

(a) As to the general identity of the property being purchased or mortgaged (ie as described in the Contract of Sale or as supplied to the proposed mortgagee) with the land to which title is intended to be given.

(b) As to any encroachments by buildings fences or other improvements.

(c) As to any discrepancies in dimensions disclosed by survey as compared to the title deed.

(d) A to whether the position of buildings relative to the boundaries comply with the Local Government Act and relevant ordinances.

(e) As to any easements, apparent or otherwise, enjoyed by the property or to which it may be subject or appear to be subject.

(f) As to the effect of any building or other covenants to which the land in the title may be subject, and whether such covenants have been complied with.

(g) Whether the land is affected by any proposed realignment or Notice of Resumption.

(h) Any other matters disclosed by survey or during the surveyor's investigations which may affect the property.

(a) General Identity

A clear identification of the property with the title deed is of primary importance. A particularly careful survey may have been made and much time spent in investigation of boundaries but unless the property is clearly identified with the title, the whole effort is valueless to the people concerned. Normally a street number or name of property is sufficient, but a building in course of construction rarely displays either. In a particular street with a number of cottages in various states of construction, the layman could very easily be confused. If a property has neither name or number, it must be identified by some other means. The adjoining property may be numbered, or the particular property may be identified in relation to the nearest cross street. Whatever means of identification is used, it should be such that a laymen can satisfy himself on inspection that the surveyor's report does in fact relate to the property purchased or proposed to be mortgaged. Probably every experienced surveyor has found or known of buildings erected on the wrong piece of land.

A solicitor can only investigate the title to any land by his usual searches and enquiries from various authorities. He relies on the survey to ensure that the title he accepts for his client is not only satisfactory for the land but also for the complete property being purchased.

(b) Encroachments

Any encroachments by fences, walls etc are obviously directly related to the definition of the boundaries. Assuming the surveyor has satisfied himself as to their location, any enroachments can be determined by measurement - in itself not always a simple matter particularly where walls or other obstructions are on or adjacent to boundaries and not readily accessible. The most common encroachment is by fencing. In suburban residential areas the boundaries are usually fenced. The practice of most surveyors is to take their measurements to either the centre of the rail roll-on the centre of the corner posts. Mostly this would be the same point but sometimes the rail is morticed into one side of the posts or perhaps bolted to them. Which point should be taken as the centre of the fence is a matter of opinion. There is no particular rule on the subject, nor does the Dividing Fences Act specify which particular part of a fence should be on the boundary. The fact remains however that a fence has width (usually 5 inches or more) and between two adjoining properties it is a party structure. A surveyor should therefore be careful when reporting on encroachments by fences - particularly dividing fences as distinct from fences on street frontages or abutting on other public places. It is not, in my opinion, good practice to report a dividing fence encroaching by an amount less than half of its width. For instance, a surveyor may decide that the centre of a 5-inch square corner post is 2 inches off the boundary. To say that the fence encroaches 2 inches is not correct as the boundary lies within the material of the fence or post. Likewise, practically all survey measurements are taken to the fences or posts at each corner. It is extremely rare (if ever) that measurements are taken to every post in a fence along a boundary. However there is always the odd person who puts his own interpretation on a surveyors plan, report or sketch. An example is the case of an owner who decided to build a garage up to and about halfway along his boundary. The identification survey (carried out some 15 years before for a previous owner) showed in the sketch that the boundaries were fenced lines. However, at the crucial time and place the fence had a slight bulge - in the wrong direction. In due course it was found that the garage encroached on to the adjoining land. The owner claimed that as the surveyor had shown the boundary as a fenced line and the garage had been built to the centre of the fence, therefore the surveyor was responsible. Any misunderstanding of this nature that might occur could well be provided for by including in the surveyor's report a statement to the effect that the fences are irregular, if such is the case, or "Other than is due to minor irregularities in fencing there are no encroachments, etc". It is a wise precaution for any surveyor to include some such reference in all reports where fencing is involved. Although very few people are normally concerned about minor fencing encroachments, provision should always be made for the odd case where a misconstruction might be placed on a surveyor's report. Where a property boundary is also the boundary of a road or other public place, no part of the fence etc should be on the public land.

Walls on or apparently on boundaries, including party walls, naturally need to be treated with special care. In many older buildings in particular, it is not uncommon to find that foundations or footings project and encroach on adjoining land. These being underground are easily overlooked, but easements to provide for them are comparatively rare. Footings are usually but not always, fairly close to the surface. Sometimes they are at a considerable depth below the surface. While a surveyor might be expected to probe or dig to verify whether or not any footings do in fact project, there must surely be a limit to the depth he should probe. If in doubt, a surveyor should protect himself by an appropriate mention of the facts in his report. The writer was once called to task because he had omitted to mention projecting concrete foundations later found some 10 feet or more below the surface when the adjoining land was excavated.

Walls are not always truly vertical and should be checked. Some, no doubt, were built that way while others may have slowly moved out of plumb over a long period. A wall leaning over the adjoining property and encroaching (or apparently encroaching) should be reported. The mere fact that a wall is used in common by two adjoining buildings under different ownership does not necessarily mean it is a party wall - possibly one or both may have no legal right to the use of the full width of the wall for support. Unless the title deeds disclose cross easements for support, attention should be drawn to the fact. There may be some form of agreement or document not registered on the title. In any case this would be a matter for legal interpretation. The surveyor's responsibilities ends by reporting the facts as he finds them and it is the lawyer's responsibility to decide on any legal aspects involved.

(c) Discrepancies

Survey sometimes discloses variations or discrepancies in dimensions as compared with the relevant title deed. There may appear to be a surplus or shortage. This could be due to error in original survey or plan or perhaps because of doubt as to the definition of a boundary. The facts should be reported by the surveyor together with his opinion. While a fence a few inches one way or the other may not worry a home purchaser in the suburbs, it could be a serious matter where a commercial property is concerned.

(d) Local Government Act and Ordinances

A purchaser or mortgagee is concerned to know if the property complies with the Local Government Act and Ordinances thereunder. Some solicitors, when instructing surveyors, ask them to "Certify" that the buildings comply with these laws. The surveyor's responsibility is limited however to informing his client as to the distances between side walls and boundaries, number of storeys, perhaps distance from the street alignment and in some cases, the proportion and area of the site covered by buildings. Apart from Ordinance 71, the local planning scheme ordinances could affect the property. Under no circumstances should a surveyor make a broad statement in his report to the effect that a building complies with the provisions of the Local Government Act and its ordinances. These cover a very wide field - including details of building construction, plumbing, drainage, etc - all matters outside a surveyor's province. Under Section 317A of the Local Government Act, a council may issue a certificate to the effect that a building complies with the provisions of the Act and its ordinances, or if it does not comply, that any breaches are of such a nature that they need not be rectified. Councils are not bound to issue these certificates and there is no right of appeal against a council's refusal. Some councils will not issue a Certificate of Compliance where the building is not the requisite distance from a boundary. Should a surveyor be of the opinion that the walls etc are less than the required distance from a boundary but at the same time realises there may be doubt as to the exact definition of the boundary, he should say so in his report. It may help the client to obtain a Section 317A Certificate which could otherwise be refused. If there appears to be a breach of the ordinances, the surveyor should state whether in his opinion the building was erected before or after 1 January 1920. Sometimes this is obvious but not always.

(e) Easements

The right of an owner to enjoy restricted use of another owner's land for some particular purpose is normally covered by a transfer and grant of easement setting out the specific rights. The document is usually registered and if the land is under the Real Property Act a reference will be noted on the relevant Certificates of Title. When the land is under Old System or Common Law title the document may and usually is registered but is not so readily available to the surveyor. Easements for certain purposes are also created under Section 88B of the Conveyancing Act, and will be noted on the relevant plan and Certificate of Title.

In any identification survey, attention should therefore be drawn to any rights over other land enjoyed by or used in conjunction with the property surveyed, whether noted on the title deed or not. Likewise, an adjoining owner may be enjoying some benefit or use of the property to which he may appear to have no lawful right. In all cases whether these rights exist or appear to exist, reference to them should be made in the surveyor's report. Easements may be created for a wide variety of purposes, including projecting eaves and guttering, party walls, support, drainage of both water and/or sewerage, right of footway, right of carriageway, etc. A vendor selling land may create an easement over part of the land sold to protect the view from his house or even to the effect that the purchaser cannot even walk on it. All easements are restrictions on the use of land, for the benefit of other land.

(f) Covenants

Many titles are subject to covenants of various kinds and it is quite common for the instructing solicitor to ask the surveyor to "Certify" that a covenant or covenants have been complied with. Again, it is advisable to report the relevant facts and leave it to the solicitor to decide whether the facts are such as to comply with the terms of a covenant. In some cases it may be reasonable for the surveyor to express an opinion as to whether a building complies or not. For instance, in one estate the title deeds to the various lots include a covenant to the effect that no building shall have a roof containing more than a certain percentage of red tiles. Even if the surveyor went to the trouble of counting them, it would doubtless be an interesting exercise to decide which tiles were really red. In another large subdivision, the lots are subject to a covenant restricting the type of fencing and requiring in some cases the approval of the original vendors. It is hardly the surveyor's responsibility to enquire whether the original vendor of say 40 or more years ago did in fact approve the type of fence whether erected recently or many years ago.

(b) Boundaries

In an identification survey the definition of boundaries is equally as important as in any other survey. Part of the exercise includes identification of the boundaries and unless the surveyor knows or believes he knows where the boundaries are, he is not in a position to fully report on this as well as other aspects on which the client should be informed. An identification survey is a private matter between surveyor and client. Frequently it is as a result of that survey that the machinery is set in motion to rectify defects in the title to a property as distinct from the title to the land only. No set of rules can be laid down to define boundaries. Where they are depends entirely on the evidence available as to where they were created and each case must be treated on its merits. In the event of a dispute, the final authority is a court of law. Boundaries are where they were created - the difficulty is to decide how and where they can be reinstated when all original marks or monuments have disappeared.

It is immaterial whether the land is held under a freehold leasehold or any other form of title. No surveyor is entitled to assume that title has been gained or lost by long continued and apparently undisturbed possession adverse to the holder of the documentary title. This is a matter for legal interpretation having regard to facts of which the surveyor would probably have no knowledge. His responsibility begins and ends by reporting the facts as he finds them and no doubt by expressing an opinion whether title appears to have been gained or lost.

The subject of boundary definition covers a very wide field and has been the cause of disputes between neighbours ever since man ceased to be a nomad and settled on the land. Wars have been caused by boundary disputes. Man has always been jealous of his property rights and over the centuries disputes have been settled according to the customs and laws of the times. In Australia, this means the law courts. Over the years there have been many judgments to settle disputes which have ended in litigation. The records of these cover numerous aspects of boundary definition, many of which are unlikely to be encountered by a surveyor in carrying out normal identification surveys. The subject has been discussed at considerable length by various well qualified and experienced authors, some of whom are mentioned hereunder.

The late RW Willis in his book entitled Notes on Survey Investigation, published by the Registrar General, sets out guiding principles for the use of officers checking and investigating the definitions of boundaries shown in plans lodged for registration. Many examples are quoted covering a wide variety of cases dealt with by the Department. Likewise the late Karl Hamer, until recently Supervising Surveyor of the same department, read a paper entitled "Some Aspects of Boundary Definition in NSW" before the Survey Congress in Sydney and published in The Australian Surveyor, Volume 21, No 6, June, 1967. In 1931, the late AW Miller read a paper entitled "Boundaries" before the Institution of Surveyors NSW which was published in The Australian Surveyor of March 1932. In his paper the author quotes many legal authorities and extracts from judgments of the courts not only in Australia but also overseas. These cover a wide variety of cases. The discussion on this paper provides much useful information and food for thought.

A more recent paper by FM Hallmann entitled "Boundary Control" is published in The Australian Surveyor of September, 1970, Volume 23, No 3. In this article the author sets out in narrative form a number of interesting aspects of "Boundary Control" as practised in NSW from the earliest colonial days. There is much more literature on the subject and the student interested will find in the abovementioned publications references to other sources of information. (Editors' Note. Since this article was received, the book Legal Aspects of Boundary Surveying as Apply in New South Wales by FM Hallmann has been published by the New South Wales Division of the Institution, in which the above article appears in modified form as chapter 3. The book contains a comprehensive bibliography.) It is clear that boundaries of land are where they were created originally and to define them many years later is a matter of arriving at a conclusion based on the evidence available from survey in the field and investigation of the relevant plans and documents. Often the evidence is conflicting and more weight must be given to some than others.

Boundaries are created by the subdivision of land and in identification surveys the most common boundary is that of a lot in a plan of subdivision referred to in a title deed. There can be no doubt that the boundaries of the lots shown in a plan of survey of a subdivision are where they were marked or delineated on the ground. The plan is merely a drawing or document which purports to record in convenient form, particulars of the various lots in the subdivision. Surveyors are only human and if the measurements shown in the plan do not agree with the measurements on the ground then the plan is incorrect - it is not a true record. The markings on the ground are physical objects visible to the buyers of the various lots and clearly indicate what the vendor offered for sale. It is the land marked out that the purchaser buys and he is entitled to undisputed possession of it. he buys a definite piece of land - not a drawing on a piece of paper.

In the course of time, the markings of all lots in most subdivisions disappear for various reasons - generally because of fencing or other structures. In the absence of any original markings or monuments, the only evidence of boundaries on the ground is the occupations. Usually, but by no means always, there is fairly close agreement in the measurements between the various occupations as compared with the subdivision plan and provided no one is seriously affected or prejudiced, it is usual practice to accept minor encroachments by fences and to define the boundaries of the lot concerned by the apparent availability of land to satisfy all lots. This practice is based on the assumption that all lots were marked out in accordance with the plan or rather that the plan correctly recorded the dimensions of the lots as originally marked or defined on the ground.

All surveyors have seen cases where measurements between markings (particularly pegs) vary slightly from the plan in which case little notice is taken - the pegs may have been disturbed or not placed exactly where intended or the surveyor may have merely been careless. However one case is worth mentioning. During a survey by the writer in 1920 the pegs of a number of lots of a then recent subdivision were found. The first three or four lots (say lots 1 to 4) as pegged, agreed with the Deposited Plan. Lot 5 was 2 feet short, lots 6 to 9 were as per plan but lot 10 was 2 feet longer than plan dimension. The same discrepancies occurred between the rear pegs of the lots. The land had been sold by auction only a couple of months earlier and within the following year or two all were built upon and fenced. In 1953, an identification survey was made of lot 8, and the occupations of the lots were found to be in close agreement with the pegs found in 1920. Most of the cottages had detached garages erected to the fences. If the practice of relying on the overall availability of land was followed then a number of garages and fences would apparently encroach about 2 feet. However, because of the fact that, (a) all of the occupations were some 30 years old at the time (1953) and (b) having knowledge and field notes recording the position of the pegs in 1920, the writer reported the facts but expressed the opinion that the occupations were to the boundaries as originally marked. In this case no action had been taken to amend any of the titles affected nor was there any evidence available that steps had been taken by anyone concerned to rectify the position or to dispute the occupations. Nevertheless one owner at least had an identification survey in which his surveyor had reported both side fences and garages encroaching about 2 feet, but nothing had apparently been done about the matter. It is difficult to believe that any court would, under the circumstances, uphold a claim that the boundaries were not those as occupied, even if evidence of the position of the old pegs were not available or produced. It is not a matter of acquiring title by adverse possession but rather one of proving that the occupations were not erected to the boundaries as originally created. It is basic common law that a man in possession of anything is presumed to be entitled to it unless and until it can be proved otherwise and he is lawfully dispossessed. The onus of proof lies with the person who claims against the man in possession.

Not all subdivision plans are plans of survey. Many are compiled from earlier plans while others are merely sketches by laymen. However it will be found that somewhere behind every such plan or sketch there is a plan of survey the boundaries of which must be presumed to have been originally marked or otherwise physically defined. It is on the former survey that a boundary definition must be based. One suspects that in some small subdivisions where compiled plans have been registered, the surveyor had taken the easy way out to save embarrassing requisitions which may have been expected had a proper plan of survey been lodged. In these cases problems sometimes arise, and one cannot assume that a legal interpretation of the available evidence would agree with the surveyor's opinion. The legal mind appears to be more inclined to view a boundary as something physical and visual whereas a surveyor seems to be more concerned with the mathematical viewpoint. In the case of Turner and Myerson (18 SR p.133), his Honor Harvey Joe made it quite clear that where land had been occupied and undisturbed over a long period of years and a dispute over the boundaries arose, very strong and positive evidence would be needed to rebut the presumption that the land as occupied was in accordance with the boundaries originally created. He repeated this judgment a few years later in Turner v Hubner (24 SR p.3). in both cases there was no positive evidence of the position of any original markings of the subdivisions concerned. In Currie v Clarke (29 SR p.215) however, the same judge held in effect that the boundaries of a Crown Grant could be properly defined by setting them out from original markings found of other lots surveyed at the same time and included in the same plan. However the circumstances in this case were such that no occupations were disturbed.

Where the title deed comprises land shown in a sketch or compiled plan, doubt sometimes arises as to the position of the boundaries. For example a sketch shows a block with 100 feet frontage divided into two lots of 50 feet each. Survey discloses a shortage in the overall 100 feet. The question arises as to which of the two lots is to accept the shortage. My own view in such a case is that the first purchaser is entitled to 50 feet (no more and no less) and the shortage is in the residue. I do not think the mere fact of drawing a sketch or compiled plan actually creates a subdivision or a boundary. A subdivision is effected on the land itself and until the owner disposes of some of it the boundaries between the new lots have not in my opinion been created. It has been argued that in such a case the intention was to divide the land into two equal parts - an argument which loses weight if the sketch showed one lot of say 60 feet and the other 40 feet. Again it is a matter of evidence and it may well be that neither the surveyor nor anyone else is in possession of all the relevant facts. a surveyor can only report on the facts as he finds them and express his opinion. In the final analysis it is a matter of law, and while a surveyor's opinion may carry considerable weight the legal view may be quite different. It is at times a debatable point whether a title deed comprises a particular piece of land regardless of dimensions or a definite quantum of land.

There are many cases where a boundary has been created with a new boundary following the face of a wall. The intention of the parties is usually quite clear - to leave the whole of the wall on one block - and the notation on the plan and title would be say "Western face of wall". Years later it may be found that the wall is not perpendicular and leans over the adjoining land. The lean may have developed since the survey was made or the wall may have been built that way and the surveyor perhaps had omitted to check or record it on the plan. In an identification survey, it may be sufficient to report the fact but a problem arises if and when the adjoining owner decides to erect a new wall against the old one. the position of the boundary at ground level is clear but doubt arises as to its position at the top of the old wall which may be of any height. A straight boundary is generally accepted as a vertical plane. In this particular case however the boundary is clearly described as the "face of a wall". The adjoining owner has no right to disturb it unless he can show that the lean had developed after his title had issued, which would probably be very difficult to prove. The boundary therefore would appear to be an inclined plane at least as far upwards as the top of the wall. In practice this problem is usually settled by arrangement between the owners concerned but I can find no record of litigation on this aspect.

Markings of an alignment survey made after a subdivision has been made cannot always be accepted as a reliable starting point for defining boundaries of lots in that subdivision. Surveyors making alignment surveys have done some very curious things in the past, as any experienced surveyor knows. A street must be a public road before it can be aligned, and there is no guarantee that the alignment survey has defined the road where it was originally created. An example of this is Victoria Square, Ashfield, where the alignment survey substituted straight lines for reversed circular curves, thereby including segments of privately owned land within the alignment and leaving similar segments of the road outside it. Another example is Ada Avenue, Concord, which was aligned but the site of this road was owned by an individual who held a Certificate of Title under the Real Property Act for the site of Ada Avenue. Small deviations from the original road are fairly common and doubtless have been the primary cause of litigation in some cases. King Street, Newtown, is an example where the alignment survey did not include the whole of the public road. In some sections there are strips of land between the alignment and the occupations although the latter had been erected to the road boundary as originally defined. Strips of land between occupations and street alignment left open for public use and maintained by the Council as part of the footpath are usually deemed to have been dedicated.

Unless the original markings of a road are shown in the plan and have been adopted, it cannot be assumed that an alignment survey re-established the road in the same position as created. Sometimes reference to these marks do not appear in the plan, although the surveyor's field notes may show that they were found at the time of survey.

A vast amount of information is recorded in the publications already mentioned and no attempt has been made in this article to repeat what has already been published. I have merely added a few examples of other aspects of boundary definition which I do not think are referred to in any of the publications mentioned. One can only repeat that the definition of any boundary is a matter of evidence and the conclusions must be based on that evidence, bearing in mind that evidence is sometimes conflicting and more weight must be given to some evidence than others. One thing is certain - where there is any doubt the surveyor rarely had evidence of all the facts.

(h) Reports

A surveyor's report should, in my opinion, be prepared in the form of a letter to his client, not in the form of a so-called certificate. A certificate is a document normally accepted in law as prima facie evidence of fact. Thus, certain officials and other persons are authorised to issue certificates for particular purposes. A doctor's certificate that a certain individual is dead is accepted as evidence of fact and difficult to refute. Likewise the Registrar General is authorised by law to issue a Certificate of Title to land and this document is also accepted as fact of ownership. Many other people are authorised to issue certificates for certain purposes and indeed are required in certain circumstances to do so by law. At best, a surveyor can "certify" that he has made a survey of a certain property or land. Where boundaries are located or whether certain Ordinances, covenants and such like have been complied with is merely his opinion. If called upon, the surveyor may have to justify that opinion by evidence on oath and be prepared to provide the answers to other opinions.

A printed form of "certificate" decorated with elaborate embellishments will impress no one. by some lawyers, such "certificates" are looked upon with suspicion as a sales "gimmick". Apart from that consideration, a report in such form is likely to leave the surveyor's responsibility wide open to all and sundry indefinitely. On the other hand a report contained in an ordinary letter is a private matter between surveyor and the addressed who may, of course, be acting as agent for a client.

The report should give particulars of the property surveyed, its general description and details of title reference, lot number etc. It is of prime importance to identify the property clearly so that it is unmistakable to a laymen. If doubts arise as regards boundaries or any other aspects, state the facts and give an opinion, but do not elaborate unnecessarily with lengthy technical detail, which the client will rarely understand. Finally, a surveyor should not in his report appear to represent himself as legal advisor to his client. The client's solicitor is or should be quite competent to place his own interpretation on the facts and to assess the value of the surveyor's opinion.