Introduction

In June, 1978, Mr David G Barr, then President of the Law Society of NSW wrote these words in the foreward to "Surveyors and their Professional Liability - A Manual of Loss Prevention".

"The Surveyor's and the Solicitor's professions have long been associated in amity and in mutual cooperation and respect. Each complements the other in providing for the community the high standard of care and service in real estate transactions which characterise the New South Wales conveyancing system and distinguish it from others which ride roughshod over matters of survey and associated title problems."

It is the purpose of this Practice Note to provide a document which can be utilised by surveyors and solicitors to provide common ground for the understanding of identification surveys. It does not set out to instruct surveyors how to prepare identification surveys but does provide standards which can be adopted by both professions. The adoption of common standards will be to the benefit of both professions as well as the public.

Surveyors provide a wide range of survey services for their clients and identification surveys are only one small part of the total service available. This document will deal with identification surveys only.

Qualification of Surveyors

Surveys are registered by the Board of Surveyors under the Surveyors Act, 1929. Survey practice is conducted in accordance with the Surveyors Practice Regulation 2001. Regulation 45 of the Survey Practice Regulations allows for registered surveyors to prepare identification surveys. Any document or plan prepared by any person not registered under the Act cannot be regarded as an identification survey. Such documents or plans will not be considered by this Practice Note.

In a similar manner surveys prepared outside the State of New South Wales will also be disregarded.

Need for a Survey

Identification surveys will normally be required whenever a property is being sold at auction, purchased or mortgaged.

The main function of such a survey is to ensure that the property in question has been correctly identified as the subject of the Transaction and is not deficient from a boundary point of view.

Surveys required for other purposes, eg marking out, subdivision, primary application, strata title, engineering, architectural, etc are not identification surveys and do not fall within the scope of this document.

Information to be shown on a Survey Report

As the name implies an identification survey report should properly identify the parcel of land on the ground as being identical with the parcel of land as described in the title, deed, plan, contract or other document under consideration. The report should state the street address, give references to adjoining properties and a connection to a well defined starting point being quite often a cross street.

On some occasions there are no cross streets available and other points such as pathways, parks etc will serve as suitable starting points for identification. In rural areas distances from towns, rivers, road junctions, railway crossings or other prominent features may be stated.

The report should quote relevant title references as well as lot numbers and plan numbers. In some cases, particularly where urgency is involved, a surveyor may not have sufficient time to prepare a full search of the land. If this situation is encountered then the report should carry a cautionary statement.

The report should contain a sketch or diagram which may or may not be drawn to scale. If the sketch or diagram is on a separate page then there should be a method of identifying that sketch or diagram with the written report.

The report should be addressed to a specific person or organisation and should state the purpose of the report eg "this report has been prepared for identification purposes only". This then should establish the contractual relationship between the surveyor and the client and place the recipient of the report on notice as to the proper function of the report.

Sometimes reports are prepared for specific purposes and are not full identification surveys. This fact should be stated on the report, eg project builders may require a new cottage to be shown and no other improvements; or sometimes only one boundary may be surveyed for a special purpose.

A full survey report should detail all major improvements to be found upon the site and state whether such improvements stand entirely within the boundaries. Adequate dimensions should be given to ascertain whether Local Government clearances and building lines have been observed.

Sometimes the surveyor may venture a professional opinion as to whether he believes minimum clearances have been complied with. it should always be borne in mind that a surveyor is not a legal practitioner and an interpretation of the law is more properly undertaken by a lawyer.

As well as showing possible encroachments by the subject improvements upon adjoining lands, the report should also detail whether adjoining improvements encroach upon the subject land. In both instances this should include overhanging structures but not underground structures.

The report should also supply sufficient information to ascertain whether any restrictive building covenants or restrictions as to user have been complied with. Again the surveyor may offer a professional opinion as to compliance or otherwise with the restrictive covenants or restrictions as to user. Again it should be borne in mind that the opinion of the surveyor could be weighed against the opinion of some other expert in the building or construction field eg building inspector, architect, structural engineer etc

The positions of rights-of-way, easements etc should be plotted and sufficient detail given to ascertain whether any of the improvements obstruct the use of such rights and easements.

The standards to be adopted for the depiction of all of the foregoing will vary from place to place according to circumstances. For instance a survey of a commercial building in a shopping centre will require more meticulous presentation than say a survey of rural property where the buildings are many metres away from the boundaries.

The positions of fences, walls etc enclosing the land should also be shown and again the standard of presentation will vary according to the type of improvement. It is important that retaining walls etc be carefully noted but it is normally rare for the precise location of fencing to be required. The rule generally adopted by surveyors is that if the boundary passes through the material of the fence then the fence should be shown as correct. Sometimes fences are so irregular that they cannot be accurately shown. The report should make this fact known. Unusual fencing materials should be shown.

The locations of watercourses within the site which may be considered material to the use of the land should be given but drainage or flooding problems generally would not be investigated. This is an additional service which can be provided by the surveyor by arrangement with his client.

Survey reports often show the location of "party walls" and "separate walls". The report should not however comment on the structural suitability of walls or any other part of the building. This is an architectural or structural aspect and quite beyond the scope of an identification survey. In a similar manner, swimming pool fences may be shown but no comment would be made as to their compliance with safety standards.

The surveyor should, when applicable, also comment upon access to the site. Access will be required by persons, vehicles and services. This is particularly important in rural areas where public road access is not always available. Such report, however, would be confined to obvious visible characters and the location of underground services would not be included. If underground services are to be plotted, then this would have to be by special arrangement.

Survey marks are not normally placed to define the boundaries of the land. In modern town sub-divisions it is now customary to leave front boundaries unfenced and in these cases, once the land is built upon, then survey marks may be unnecessary. Survey marks can, however, be placed by special requires. This will normally entail an additional charge.

Levels

Sufficient levels should be given to ascertain if Restrictive Building Covenants have been complied with. In flood prone areas the surveyor should be advised if floor levels are required. When so requested the results should be incorporated in the report. An additional fee is payable for the provision of levels.

Prior Survey Reports

Old survey reports provide a convenient link with the past and copies should be handed on to surveyors at the time of instruction. The practice of accepting or "updating" old survey reports should be viewed with considerable suspicion.

A surveyor has a contractual duty to his client to use reasonable care and skill based on professional standards at the time of survey. The duty may extend to a third party in tort where a special relationship is proved but this should not necessarily be assumed to extend to subsequent purchasers a number of years later. Current factors could limit the worth of an old survey report. In many cases the original surveyor may not be available to be responsible for his report, he may even be deceased.

New survey information from surveys carried out after the date of the old report may indicate a movement or shift in boundary definition and render the position of boundaries unreliable. The increased value of the land may render the extent of reasonable care at the time of the original survey now inadequate.

In some cases, where there have been no significant alterations, it may be possible for a surveyor to issue a letter stating that fact. In such circumstances the surveyor would not consider himself to be liable for the original survey information and may expressly state that he is not so liable. The responsibility then of determining whether the old report can be relied upon should rest with the instructing party. In some cases solicitors obtain Statutory Declarations from vendors to the effect that there have been no alterations but this is no guarantee that alterations have not taken place. Experience has proven that most properties tend to be upgraded from time to time. Sometimes existing owners are unaware of alterations made by previous owners since the date of the survey. It is considered prudent to have all properties inspected prior to the completion of the transaction.

Definition of Boundaries

Whilst modern surveyors are well capable of accurately laying out and redefining boundaries, this situation has not always been the case. Many of the older surveyors were carried out to a lower order of accuracy. In other cases, owing to the destruction of "permanent" survey marks, even relatively recent boundaries are difficult to refix. Under these circumstances it would be possible for different surveyors using different equipment and performing their tasks at different times to produce different results. For this reason apparent minor encroachments should be viewed with a degree of caution. Where undue difficulties have arisen in the definition of boundaries, then the report may contain a cautionary statement.

For the above reasons it is not uncommon for surveyors to be sometimes unable to state precisely the availability of land dimensions. Whenever availability of dimensions should become critical then the surveyor should be advised and, for an additional fee, he may be able to carry out a more thorough investigation. Most sites would not, however, warrant the additional expense.

Instructing a surveyor

Whenever a survey instruction is to be issued the client should provide the surveyor with full details. These details should include the name, address, telephone number and full reference of the instructing person together with copies of prior survey reports, certificates of title etc. The purpose of the survey should be given.

If there is a degree of urgency then a deadline should be stated. The surveyor should also be made aware of any access problems. It would be prudent for instructing parties to obtain advance payments from third parties to cover the costs of survey fees and most surveyors are willing to give estimates of probable costs. It should be remembered that surveyors will not have access to third parties and will look to the instructing parties for proper instruction.

Further information concerning surveys may be obtained from the Institution of Surveyors, The Association of Consulting Surveyors or any practicing surveyor.