WHAT IS A REAL RIGHT?
There is no complete listing of what is a real right, neither is there a definition for such. Our courts have set down a set of conditions – if the right can satisfy all the below conditions then it is a real right.
CAN I AS A SELLER IMPOSE NEW CONDITIONS IN THE TITLE DEED?
Yes, the seller, at the point of transfer, may insert conditions into the title deed that will be registered on transfer.
CAN I USE UNREGISTERED SURVEYORS?
We highly recommend against such. Your rights to any recourse will be extremely limited. The South African Geomatics Council (SAGC) is the regulating body which protects the public from unethical practices. Beware of non-SAGC registered surveyors who may be skilled in only some aspects of surveying – they are neither registered Land Surveyors nor Technical Surveyors and one will have few options in holding nonregistered persons to account.
Only a Professional Land Surveyor may carry out cadastral surveys (surveys involving boundaries or beacons). For instance, an Engineer or a contractor cannot perform cadastral (title) surveys.
HOW DO I LOCATE A LAND SURVEYOR?
Land Surveyors obtain most of their work through the personal recommendation of satisfied clients. Should it be difficult to obtain a recommendation then check the South African Geomatics Institute website link www.sagi.co.za or contact the South African Geomatics Council (SAGC).
CAN I ANTICIPATE WHAT THE LAND SURVEYOR’S FEES WILL BE?
The Land Surveyor can give an estimate but not as a rule an exact figure. Final cost is dependent upon many factors – the kind of application and survey required and the difficulties encountered, which normally cannot be anticipated in advance. The professional Land Surveyor’s fees are on a par with those charged by members of other professions in your community.
CAN A LAND SURVEYOR RENDER OTHER SERVICES AND PERFORM OTHER SURVEYS?
Yes, some Land Surveyors specialize in sectional title surveying, town planning, geographic information systems, land management, photogrammetry, topographical surveying, 3D scanning, mapping, aerial surveying, computer science, mine surveying, hydrographic surveying or some particular branch of engineering surveying.
In terms of the Sectional Title Act, a land Surveyor is the only person entitled to prepare the complete sectional plan, and only a Land Surveyor may prepare and sign the Block Plan of a Sectional Title Scheme.
CAN A LAND SURVEYOR AID IN DEVELOPING MY LAND?
Yes, a Land Surveyor is the only person qualified under law to both lodge planning applications and subdivide land. A Land Surveyor’s knowledge of compliance with planning legislation, land use guidelines and zoning enables him to assist you with the planning of your land development, frame diagrams and advise on registration procedures.
CAN A LAND SURVEYOR EXPLAIN WHAT RIGHTS, RESTRICTIONS AND RESPONSIBILITIES I HAVE IN LAND I OWN?
Yes, a land Surveyor can explain the contents of your title deed as well as planning and land use restrictions to you or that of any piece of land you are interested in. He will give you his professional opinion on the rights, restrictions and responsibilities of your ownership.
WHEN SHOULD YOU CONSULT A LAND SURVEYOR?
Consulting a professional Land Survey is a good investment. Why gamble?
Land and its improvements are a major financial investment; therefore to prevent undue costs and risk consult and retain the services of a Land Surveyor:
- When seeking to purchase a property and need a Cadastral Certificate.
- When a planning application is required.
- When property is to be developed or to be improved.
- When property is to be divided into portions.
- When you require a survey of property.
- When government legislation requires a diagram;
- When the location of property boundaries or corners is uncertain; and
- When property trespass or encroachment is evidenced or suspected.
- If you seek to have a will that divides up land in any way.
WHEN I PURCHASE PROPERTY WHAT AM I ACTUALLY BUYING?
The purchase of a property is recorded in the deeds office by way of a property transfer which only records the land. Buildings, fences, and all improvements to the land will not be found in the title deed. When viewing a property for purchase, one only sees the fence, building and improvements which supposedly represent the property that will then be transferred (purchased). Everything on the land (as defined by the property diagram) will be yours. If it turns out for example that the house is built over a property line, you will only own that part of the building which is on the land that was transferred – not the other part.
Purchasers of property should always request a cadastral certificate so that the physical aspects of what they see in a property can be linked to the land they are purchasing.
WHAT QUALIFICATIONS DOES A LAND SURVEYOR HAVE?
In order to register as a professional Land Surveyor a four-year BSc degree must be obtained – which not only entails challenging mathematics but also an array of survey and land related subjects including town planning. On obtaining the degree the Land Surveyor needs to complete approximately two year’s articles with a registered Land Surveyor. Following the two-year articles is an in-service training period at the office of the Surveyor-General concluding with an examination in the laws relating to land registration, planning legislation and development.
WHAT IS A LAND SURVEYOR?
A Land Surveyor is an expert in matters relating to land, not only with the existence and extent of rights, restrictions, and responsibilities below, above or on the surface of land but also in determining the physical size and shape of it.
WHAT IS THE DIFFERENCE BETWEEN A SURVEYOR AND A LAND SURVEYOR?
A surveyor is a person educated and experienced in topographical and engineering surveys. He/she would be registered as such with the SAGC and is mostly responsible for detail and construction surveys.
A land surveyor would be registered as such with the SAGC, and is the only person allowed to do cadastral surveys, which is boundary surveys that will be registered at the Deeds office.
A Land Surveyor can be likened to a property judge, as his findings are based on mathematical principles and does not favour any of the owners of land. In the case of a boundary dispute, he/she therefore does not act in the interest of the person paying his/her account, but rules fairly according to the evidence found on site and in legal documents.
WHERE CAN I GET A BURSARY FOR UNIVERSITY STUDIES IN GEOMATICS?
Both the SAGI and SAGC offer bursaries for students who comply with the requirements. Please note that these bursaries (or loans) are only for approved courses in Geomatics. Contact SAGI at email@example.com SAGC (www.sagc.org.za).
WHERE MUST I STUDY TO BECOME A SURVEYOR/LAND SURVEYOR? WHAT QUALIFICATIONS DO I NEED?
It is important that you study at an accredited university that is recognised by the South African Geomatics Council. See their website for the required qualifications and the accredited universities. (www.sagc.org.za)
WHY IS SURVEYING IMPORTANT?
In short – it protects your money.
Before you purchase a property or start any major construction, surveys should always be carried out. These are two significant investments requiring comprehensive land knowledge so that proper planning and design can take place as well as all the rights, restrictions and responsibilities in land known.
In the case of purchasing land – consider this – do you really have the skill to know exactly what you are buying versus what you see ? What is bought and registered in the deeds office in the form of a transfer is this example, but what you saw was this example picture.
WHAT ARE THE REMEDIES AVAILABLE FOR AN ENCROACHMENT?
A number of solutions exist – the obvious ones being a servitude or subdivision and subsequent consolidation – assuming neighbours are on good terms and seek to resolve matters without going to court.
Should neighbours not be agreeable then the legal routes must be followed, the cheapest legal method would be to seek a Mandamus order against the municipality for it to enforce the building regulations – since no building or structures can legally encroach, the original source of the problem is either the lack of building plans, or building not in accordance with the building plans. The Municipality will then have to enforce the building regulations on the offending party.
Before embarking on any of these actions, always get a Professional land Surveyor to undertake a survey of the situation first – so that one can plan and make decisions based on legal evidence presented by the Land Surveyor.
DOES THE "YEAR AND A DAY RULE" IN RESPECT OF ENCROACHMENTS APPLY IN SOUTH AFRICA?
No it does not apply. While some other jurisdictions around the world may have this rule, in South African law this concept has never existed. An encroachment remains an encroachment and ownership does not change hands.
MUST AN ESTATE AGENT SHOW ME THE BEACONS OR CAUSE THE BEACONS TO BE SHOWN TO ME WHEN PURCHASING?
Absolutely. An estate agent should provide you with a Cadastral certificate prepared by a Professional Land Surveyor.
Item 5.5.1 of the estate agents code of conduct stipulates that “No estate agent shall willfully or negligently mislead or misrepresent in regards to any matter pertaining to the immovable property in respect of which he/she has a mandate” – only a Land Surveyor or their Cadastral Certificate can actually relate what is physically being sold to the paper diagram and or general plan extent of what you will own.
An example of this is below – the red line is what you see when viewing the property, the purple line is what you bought. One can understand the dire financial implications, due to not undertaking a Cadastral Certificate and being informed.
WHERE ARE MY BEACONS ?
As the owner of the land, you should know this as you are legally required to maintain the beacons. In fact, should it be discovered that the beacons are missing, provisions exist in law to block any further transfer of your property until they are replaced by a professional land surveyor. Measures also exist for the state to have the beacons replaced and to send you the bill for payment.
To save yourself a lot of money, always ensure that when purchasing a property, the seller should provide a beacon certificate (or cadastral certificate) proving that the beacons of the property are actually in place and in their true and correct positions. The purchase of property is based on the diagram / general plan and not what you see – the two are often different, leading to costly expenditure by the purchaser later.
I BOUGHT SOME LAND, AM I THE OWNER?
No. It is immaterial what you bought and who you bought it from. Only the person whose name appears in the Deeds Office register is the owner – irrespective of being paid money or not. Always ensure that when transacting in land that you do so through a conveyancer and ensure the registration process is completed as you will only become the owner when your name is reflected as the owner in the deeds office.
WHAT DOES IT MEAN IF A DIAGRAM OR GENERAL PLAN IS NOT REGISTERED IN THE DEED’S OFFICE?
It means that the right / property shown on the diagram or general plan has not had the process of land development completed. It remains simply a “plan” and at some point it may or may not be registered in the deeds office by the owner of the property.
WHAT IS AN APPROVED DIAGRAM / APPROVED GENERAL PLAN?
An approved Diagram or Approved General plan is a Diagram or General plan that has been examined by the Surveyor General and approved and files in that office. One can tell if a diagram or general plan is approved by seeing a number and signature in the top right corner of the document – the number will be prefixed by “S.G. No.”
WHY DOES A LAND SURVEYOR ACT IN THE PUBLIC INTEREST?
Consider the beacons of a property – each beacon defines more than one property and so in every survey of land, there is always the interests of another party to be considered. Therefore, on order to maintain the integrity of the property system, a land surveyor is obligated in law to always act in the interests of the public before the interests of their client.
MUST THE SURVEYOR GENERAL APPROVE A DIAGRAM FOR THE DIAGRAM TO BE LEGAL?
No. A diagram exists as a legal document the moment a Land Surveyor signs it. It would have limited applicability until such time as it is approved by the Surveyor General.
WHAT KIND OF RESTRICTIONS CAN TITLE DEEDS HAVE?
Title deeds can have any number of restrictions in them covering building lines, building heights, number of buildings, persons on the property, materials to be used, what the property may be used for, obligations and conditions to further development and even restrictions to the value of buildings to be built thereon.
Many other types of conditions can be in a title deed.
DOES A TITLE DEED OVERRIDE A TOWN PLANNING SCHEME?
Yes, a Title deed is considered higher law that a town planning scheme and in the event of conflict, the title deed prevails. Recent court cases reaffirm that a Title Deed overrides a town planning scheme.
WHAT HAS BEEN BUILT IS DIFFERENT TO MY BUILDING PLANS – WHAT MUST I DO?
You will need to get new building plans approved or demolish the parts that do not have approved building plans. Consult with a Registered Professional Land Surveyor to have an “as-built” survey of the property undertaken as this will then inform the architects building plans and importantly ensure that what has been built is recorded in the correct place on the property – considering that the plan must reflect the correct position of what has been built.
CAN A LAND SURVEYOR ENTER ANY PROPERTY?
Yes, they can. They perform a public duty and need access to the corners of properties. Legislation allows them to enter any property they need to enter and obstructing them is a criminal offence.
I WANT TO PUT UP A FENCE, DOES IS AFFECT MY BOUNDARY?
Yes, it could. The land Survey Act requires that any fence / boundary wall be undertaken under the supervision of a Land Surveyor so as to not disturb the beacons of the property, or if unavoidable, then the Land Surveyor to replace such beacons of the property after the construction of the fence / boundary line.
Having a wall / fence supervised by a Professional Land Surveyor protects your financial asset from prescription claims in the future and ensures that the contractor who builds the fence / wall does so in the right place.
Many property owners simply pull out the beacons and or build walls in the wrong place – much to their financial disappointment later when things have to rectified and or incur additional costs to replace beacons as a separate exercise.
Never take a contractors word that they use a surveyor for their work, only a professional land surveyor can work on any aspect involving property and you are entitled to verify their credentials as a Land Surveyor and engage the professional directly with any issues you have.
I HAVE USED THIS LAND, IS IT MINE BY PRESCRIPTION?
Prescription in respect of land is a period of 30 years of uninterrupted use and does not run against the state. Further, prescription in land must be proved in the supreme court – it is not sufficient to mealy say it is mine by prescription – you need a court order before the land becomes yours. Until then, it remains the property of whoever’s name appears in the deed’s office.
IS THE FENCE / BOUNDARY WALL ON MY PROPERTY THE BOUNDARY?
No it is not the boundary of your property. You purchased land defined by beacons shown and recorded on a diagram and or General Plan. These beacons define the land that you own, and nothing can replace that. If you want to know if the fence / boundary wall is built correctly on the boundary, then only a Professional Land Surveyor can in fact survey that and tell you the status of such fence / wall.
ARE THERE DIFFERENT TYPES OF SURVEYS? WHAT TYPE OF SURVEY DO I NEED?
There are many types of land surveys, each with a different purpose. The type of survey you need for you project will be based on your project. Consult with a Professional Land Surveyor if your needs relate to property, otherwise consult with either a professional Land Surveyor, Professional Surveyor or Technologist for all other needs.
DOES A LAND SURVEYOR SHOW ME WHAT I OWN?
In some ways yes – The Land Surveyor will identify / replace the property beacons which define the property limits of what you own.
HOW WIDE IS A BOUNDARY LINE ? OR IS THERE A GIVE AND TAKE ELEMENT?
A property line has no width.
WHY DO LAND SURVEYORS SURVEY OTHER PEOPLES PROPERTIES WHEN THEY ARE PAID TO SURVEY MY PROPERTY?
This is asked frequently by our both clients and their neighbours. To accurately locate a property, a Land Surveyor will have to spread their search out over a few properties either way in order to collect enough boundary evidence and data to accurately establish the property. Every property is linked with adjoining properties and evidence of all the boundaries is needed to be established.
If one thinks about the beacons on your property – it is actually shared with your neighbour and probably also the municipality if on the road side of a property – so a beacon is not just “your beacon” – it serves as a legal point for a number of properties and hence Land Surveyors have to always act in the public interest and confirm all surrounding data before placing the beacons for your property, and to do so, they need to likely also survey surrounding properties.
CAN I GET MY PROPERTY DETAILS / MAP / DIAGRAM FROM MY LOCAL MUNICIPALITY?
This is not a good idea. Firstly, the municipality is not the correct place to hold such information and secondly one does not know if it is the latest information.
The best is to approach your local Professional land Surveyor with your needs or get copies from the Surveyor Generals Office in your province.
IF I AM BUYING OR SELLING LAND, DO I NEED A SURVEY?
Yes, a survey would verify the size and shape of a parcel eliminating any issues that could arise later. It would also show any encroachments onto the land as well as highlight any side space / building line issues. A survey gives you a form of protection, while clarifying the cadastral aspects of the property.
Remember, most property sale agreement have a “voetsoots” clause, which means the purchaser will take over some very expensive problems should one proceed with purchasing a property where there are encroachments and or positional building issues.
A Seller will be acting in good faith by having a Cadastral Certificate drawn up by a professional Land Surveyor and making such available to any purchaser.
Purchasers should ask for a Cadastral Certificate before purchasing a property.
MY TITLE DEED HAS A RESTRICTION THAT SAYS THE PROPERTY MAY ONLY BE USED FOR RESIDENTIAL PURPOSES. WHAT DOES IT MEAN?
It means that legally, your property may only be used for residential purposes, even if the Municipality says otherwise, legally it remains for residential only as the title deed overrides any decision of a municipality.
It is possible to have such restrictive clauses removed from a title deed by undertaking a removal of restrictions application which your local professional land Surveyor will be well versed in performing. If successful, the clause can then be removed.
I WISH TO CONSOLIDATE MY LAND – WHAT MUST BE DONE?
Consult with your local professional land surveyor. Who will guide you through the requirements.
I WISH TO SUBDIVIDE MY LAND – WHAT MUST BE DONE?
Consult with your local professional land surveyor. Who will guide you through the requirements. Many laws exist controlling subdivision of land and many factors are at play depending on the location of your property.
HOW MUCH WILL A SURVEY OF MY PROPERTY COST?
Many factors determine the cost of a survey. Some of them are: size of parcel, how many sides the parcel has, terrain and vegetation, deed description of the parcel, existence and accuracy of the boundary evidence. Whether the parcel is located in an urban, suburban, or rural area and built up the areas is with walls and electric fences.
Each property is unique and needs an assessment before a cost can be given.
WHY CAN ONLY A PROFESSIONAL LAND SURVEYOR SUBMIT A PLANNING APPLICATION?
Any application in terms of any legislation in respect of rights in land is reserved for a Professional Land Surveyor only so as to protect the public.
MUST I ALLOW MY NEIGHBOURS WATER TO FLOW ONTO MY PROPERTY?
The question must be asked – is the water “natural water”. Natural water means all water that falls on unaltered original land. Any water that falls on paving, a roof, on land which has been shaped or level off, water that falls on retaining walls etc… - is not natural water as the land on which it falls has been altered by man, and must be retained on the land in question or discharged to the street according to municipal bylaws – it is not allowed to be passed on, unless a servitude exists to do such.
Recent court cases have held that it is very hard to find instances of natural water flow in any built-up area, and the burden of proof now lies with the person who wishes to pass on the water to prove that it is natural water – a virtual impossible task in a built-up area.
In a built-up area (suburb, city, town), unless your neighbour can separate the natural water from the other water (and prove it) – they may not pass it on and you are under no obligation to accept it.
The issue is linked with poor original property development in that insufficient drainage was provided for in the first place – in which case the problem should never be allowed to be imposed onto a neighbour who had nothing to do with such poor design or construction.
Be particularly wary of purchasing a property where it appears that the boundary walls have holes in them to allow water flow – it is a sign of a poorly developed property and likely to cost you as purchaser a small fortune to redevelop should a neighbour block up the holes.