A recent survey of private practicing land surveyors who were asked, based on their field experience, about how many beacons they would expect to find if they were searching for them in a farm environment, a small municipality and a larger municipality/metro environment indicated that between 50% to 60% of the beacons in the cadastral system - that define the physical property, are no longer in place.
Beacons are part of the diagram which is the basis of the cadaster and land registration, the consequences of the failure to ensure that physical beacons are in place could, under certain circumstances be deleterious for land owners, the state and society resulting in:
In terms of section 41 of the Land Survey Act (Act 8 of 1997):
41. (1) Every owner of land shall maintain in proper order and repair in accordance with the regulations any beacon defining a corner point of that land, whether the beacon was erected for the purpose of or in connection with a survey or resurvey of that land in terms of this Act or any repealed law, or for the purpose of or in connection with the survey or resurvey of any land contiguous thereto.
(2) Any person who, for the purpose of carrying out any work which he or she may lawfully perform, desires to remove or disturb any beacon erected in connection with the survey of land, shall appoint a land surveyor personally to effect or supervise the removal or disturbance and subsequent replacement of that beacon in accordance with the regulations.
However in practice in a significant number of cases it seems as if we now only buy and sell paper representations of that land, leading to many problems and increased costs. The question arising therefore is this:
“Does the law require that at the point of transfer, the land must be physically defined?”
Consider for a moment the average sale agreement – would a purchaser still pay the selling price if the walls where incorrect (encroachments) and the building was not in compliance with the plans and specifications?
The survey shows that the presumption that the owner will undertake voluntarily the requirements of section 41(1) of the stated act is wrong. To say otherwise would be like saying taxi owners must maintain their taxi’s in good order and then wash your hands of it and don’t police the provision!
A further survey amongst practitioners found that in only 6% of all building applications was a land surveyor asked to identify the beacons before construction – this is worrying.
Practitioners opinions would be appreciated.
In responding, consideration should be given that I am a Land Surveyor and not a Conveyancer. The question raised has reference to a few issues:
1. Without beacons there are no grounds for believing that any area not owned by the owner of that piece of land has been included or excluded within the boundaries thereof. I would even go so far as to state that should an “owner point out beacons”, it would be “pointing out” in the sense of looking at something e.g. “look at that beautiful bird” and not in the sense of an authoritative action. “Pointing out” in the latter sense can only be done by a land surveyor after survey and beacon reconstruction calculations.
2. Section 14 of the Land Survey Act - Act 8 of 1997 (hereinafter the Act) makes it clear that no registration of land is possible without an approved diagram of general plan.
3. Section 1 of the Act, defines a diagram as “a document containing geometrical, numerical and verbal representations of a piece of land, line, feature or area forming the basis for registration of a real right …….”. It would be noted that reference is made to certain elements to be contained within the diagram, being “geometrical, numerical and verbal representations”. The “verbal representation” (hereinafter diagram elements) would include the property beacon description, which in terms of section 30 “Rules for arbiters” form the deciding factor in respect of beacons and boundaries. Hence, should any of the diagram elements not be correct due to lack of maintenance, it is doubtful whether the diagram can or should be construed as a registrable diagram.
4. Although not relevant to the question, consideration should be given to the fact:
• that beacons of most land parcels border on a street or road and share common beacons, hence also belonging also to the Local Authority; and
• the cadastre is a state asset which has been built up over hundreds of years and should not be allowed to degrade since it forms the basis of land administration.
The Diagram is a component of the Title Deed. Surely the “Right” one is purchasing should be defined properly at the point of that “purchase”? As a Land Surveyor, in my eyes, the beacons must be physically defined on the ground – else the diagram is flawed and not in accordance with the regulations. Do we now register land and transfers in land without actually knowing if there are encumbrances or not? Can it truly be said that at registration there is no diminishment of the “entitlements” associated with such real right – as the extent of the real right is not physically defined?