Defining the boundaries of Old System parcels is basically similar to the techniques 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 the boundaries must be endorsed on the plan. 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 land between the boundary and the occupation may have been lost by possession to the adjoining owner.
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 hiatus 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.
1. Where the new plan does not include ALL of the documentary title
If the new plan of survey discloses a line of old occupations inside the line of the documentary title the strip of land between the occupation and the boundary may have been lost by adverse possession to the adjoining owner. Consequently the strip of land may not be included in the new title issuing on the survey plan unless:
- the consent of that adjoining owner to the boundary as defined in the plan is supplied, or
- 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 – in both cases the adjoining owner is NOT occupying the strip beyond the fence.
Any existing Limited Certificate of Title will be cancelled indicating that residue (i.e. the strip of land not included in the new survey plan) remains, viz:
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DP____
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********FOLIO CANCELLED********RESIDUE REMAINS: BEING UNDEFINED RESIDUE. NEW FOLIOS HAVE BEEN CREATED FOR LOTS(S).....
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Note The heading of the new plan must indicate that it affects “part” of the existing parcel only.
2. 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, viz:
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PA___
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PART OF THE LAND ABOVE DESCRIBED IS NOW INCLUDED IN LOT ...IN DP....
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DP___
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********FOLIO CANCELLED********NEW FOLIOS HAVE BEEN CREATED FOR LOT(S) ....(new lots)
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THIS FOLIO SHOULD BE PRODUCED WITH THE NEXT DEALING WITH THE LAND IN FOLIO....(new folio)
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Note Reference to the Limited Parcel must be included in the heading of the new plan (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 as a single lot strip claimed by possession with the parcel(s) adjoining that stand in the name of the Applicant(s).
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.