Land Law

Topics: Property, Land Registration Act 2002, Property law Pages: 23 (8064 words) Published: June 18, 2013
The need to provide for boundary adjustments in a registered title land system by Malcolm M Park* Graduate student Department of Geomatics, The University of Melbourne and Ian P Williamson Professor of Surveying and Land Information Department of Geomatics, The University of Melbourne ianpw@unimelb.edu.au Abstract The practicalities of a modern land administration system require some means of boundary adjustment (or repair). Of the possible mechanisms it is concluded that an alternative to adverse possession, statutory encroachment, is preferable to part parcel adverse possession.

1.

Introduction

In the last decade a number of jurisdictions have abandoned the application of adverse possession to their registered land title systems: Malaysia and Singapore in the early 1990s and Hong Kong is at present considering legislation to do so (the 2003 Title Registration Bill). By doing away with adverse possession these jurisdictions are giving up a valuable tool suitable for providing for adjustments in the location of land parcel boundaries. This is because part parcel adverse possession is widely utilized to provide for boundary location adjustment or repair. Additionally, Tasmania (2001) and England (2002) have legislated to severely restrict adverse possession so as to render part parcel adverse possession impracticable and thus unavailable in all but the most unusual circumstances. This has occurred despite Tasmanian and English recognition of the value of boundary adjustment and the role played by part parcel adverse possession in facilitating boundary adjustment. Given the moves away from adverse possession, this paper considers the need for boundary adjustment and suggests that adverse possession is not inimical to registered title, and further, statutory encroachment is a feasible alternative to part parcel adverse possession. Experience throughout a number of jurisdictions utilizing registered land title indicates the need for some mechanism wherein small adjustments in the location of the boundary should be permitted. Pursuant to the law of real property inherited by the common law jurisdictions from England this has been mostly provided for by

*

Malcolm Park has Masters degrees in both Science and Law and was a practicing barrister for a decade prior to undertaking his PhD studies in 1999-2003.

extending the principles of adverse possession to part only of a land parcel. An alternative means of providing for such adjustment is that of statutory encroachment wherein a specialized adjudicator is empowered with wide discretionary powers to resolve disputes involving small encroachments across a boundary into the adjoining lot. This paper suggests that those jurisdictions not allowing for such boundary repair procedures are deficient because they fail to address the issue of boundary location discrepancies and provide some simple mechanism for resolving the problems arising from such discrepancies. Thus, the Australian Capital Territory (in Australia), Singapore and Malaysia and possibly Hong Kong, and more recently, Tasmania and England, are such jurisdictions.

2.

The need for a repair mechanism

2.1 The extent of the issue Differences between true (de jure) and occupational (de facto) boundaries are well recognised in the literature (Dale 1976, 22–23; Dale and McLaughlin 1999, 51). Similarly the prevalence of such discrepancies is also well recognised (Simpson 1976, 141–142; Dale 1976, 22–23; Wallace 1994). Dowson and Sheppard (1952, 81) estimated that five per cent of land parcels can be expected to change materially in outline, shape, and area annually. These changes do not give rise to the compensation provisions of the registered land title schemes as the assurance funds do not compensate for the loss of a land parcel through adverse possession even where the loss is occasioned by reliance upon the register. Further, the assurance fund does not “guarantee” against shortfalls in the actual...

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