|WHAT THE PROFESSIONALS SAY|
Ireland's non-conclusive boundary system promotes mediocrity in boundary mapping because the Land Registry index map fails to record boundaries accurately. The Irish Institution of Surveyors (IIS) recommends the adoption of best practice and the use of modern surveying technologies to produce accurate boundary surveys for land registration. The IIS will establish a register for Licensed Boundary Surveyors (LBS) in 2012 to ensure boundary surveys are carried out using prescribed procedures and standards.
The IIS encourages landowners to register their boundaries as conclusive, in the interests of enhancing the mapping information recorded in Land Registry to improve security for their properties. The IIS recommends that the Property Registration Authority (PRA) should record an accuracy attribute for boundaries such that conclusive boundaries can be easily distinguished in www.landdirect.ie.
The IIS advocates a new government policy to promote the determination of boundaries and their registration as conclusive to facilitate a continual enhancement of the PRA mapping database. The government should incentivise this new policy by providing a State guarantee for boundaries properly defined, surveyed and registered as conclusive. This measure will significantly improve the quality of property parcels to facilitate eConveyancing, ensure a high level of compliance with the EU INSPIRE Directive, and significantly enhance one of the fundamental elements of the Irish Spatial Data Infrastructure (ISDI).
In relation to the sale of lands, the contract map is vital. To comply with the Statute of Frauds (S51 Land & Conveyancing Law Reform Act, 2009), the property must be “readily identifiable”: if it is completely uncertain, then the contract is void. A degree of uncertainty may lead to the loss of the right to Specific Performance - leaving the remedy in damages only.
Errors in contract maps can lead to abatement of the purchase price. The abatement is determined normally by arbitration, and there is a consequent delay, but the vendor cannot compel the purchaser to complete until the issue is resolved. Unless the purchaser is in possession, the vendor is not entitled to interest and the loss to the vendor can be substantial.
Section 85 of the Registration of Title Act, 1964 states
Justice Laffoy accepted the statement that
She also accepted that
Finally, errors in maps of building estates can cause major problems and delays for registration.
The current conveyancing system and precedents take account of non-conclusive boundaries. The standard Law Society Contract for Sale states that the vendor is obliged to furnish such information as is in his possession relative to the identity and extent of the property but shall not be required to define exact boundaries. However if there is a difficulty in determining the boundaries it is likely to lead to a delay while the issue is resolved, a renegotiation of the purchase price or the sale falling through.
The purchaser's solicitor will be wary of advising the purchaser to proceed where there is a mapping or boundary problem on the basis that the purchaser may have difficulty mortgaging or selling on if the problem is not resolved. Where boundary information is required, such as a map marked for subdivision or a declaration of identity, there is a heavy reliance on other professionals such as architects, engineers and surveyors.
Linear projects, such as motorways, roads, railway lines and flood defence works etc. usually entail the acquisition of land from large numbers of properties. The scale and complexity of boundary issues and mapping presented to Engineers on such projects can be significant and is exacerbated where discrepancies between folios and topographical surveys is observed. Where missing or incorrect boundary information exists and where alterations to linear features (roads, rivers etc) have occurred and have not been correctly reflected on the folio map, this can lead to costly and elongated CPO compensation agreements resulting in significant time and monetary cost to the tax payer. It is in this context that Engineers Ireland support the current proposals to improve the current system, particularly the OSI Rectification Procedure wherein discrepancies on the ground can be corrected in real time, the PRA Resolution Guidelines which will provide defined Best Practice for areas of uncertainty and finally the move towards Conclusive Boundaries.
Planning legislation requires applicants to indicate sufficient legal
As the main purpose of planning is to regulate landuse, the specific ownership of lands is less relevant. However, if disputes over land ownership subsequently arise following a grant of permission, this can result in the implementation of planning permissions being frustrated and can ultimately result in non development of sites which may be important from a planning perspective, for example in terms of urban regeneration of an area. It is in this context that the Irish Planning Institute supports the proposals to improve the current system.
A conclusive opinion on boundaries is sought from the architect often with the implication that this may be based on Land Registry data which is inconclusive. Either the LR data must be made conclusive or the Cert of ID must be clearly identified as inconclusive (where based solely of LR data). The latter would render the Cert of ID useless and have consequences for the conveyance of title. Even with the benefit of a measured survey, and reference to Legal, Osi and LR data it is often difficult to achieve any level of confidence about site boundaries. Relying on any of the myriad of often conflicting mapping data can have significant consequences for both architect and client particularly where, of necessity and based on available information, boundaries which have to be assumed turn out to be in doubt.
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