Only a qualified land surveyor can help in a legal dispute over encroachment. Karl van Rensburg, vice-president of cadastral at the SA Geomatics Institute, spoke to Gerhard Uys.
A cadastre is a public record of the properties in a certain area. It contains the ownership details, precise location, dimensions, cultivations (if rural), and value of each parcel of land. Only a professional land surveyor can conduct a cadastral survey, which includes subdivisions, consolidations, servitudes, and mineral and other rights.
ASK FOR PROOF OF REGISTRATION AND INDEMNITY INSURANCE
Before engaging a land surveyor, it is advisable to request proof of registration and indemnity insurance. Never use an unregistered ‘surveyor’ who claims that he/she will verify the boundary on Google Earth images or old aerial photography. Neither is a mine surveyor or technical surveyor qualified to do cadastral surveys; this person’s work will have no legal standing in any dispute. A land surveyor is bound by
the Survey Act to lodge survey records with the Surveyor General, who will examine and confirm them as correct.
Remember that the final reconstruction of the position of a boundary or beacon cannot be challenged by any court. This will save you many hours in litigation, especially if you suspect that there has been an encroachment, or are unsure of the position of a boundary. Section 29 of the Survey Act provides for the resolution of boundary disputes and sets out the procedures that must be followed. A land surveyor, the
deeds office and the adjoining owners must all be involved. Once an encroachment has been established, the question is whether you or your neighbour can claim that part of the land. The short answer is that it can be claimed, but you must prove that the person had possession of it openly as if he or she were the owner thereof for an uninterrupted period of 30 years. In South Africa, very few of these cases have been
successful in court.
HOW TO CORRECT A WRONGLY PLACED FENCE
Where a wall or fence encroaches, the best option is, of course, to move it. Quite often, neighbours decide between themselves to tolerate an incorrectly positioned fence. However, as this can lead to serious disputes for future owners, it is advisable to legalise the incorrect fence by registering a servitude or a lease, or by buying the land. As discussed in the previous issue, if you want to buy the land, you or a land surveyor will have to lodge the necessary applications in terms of several acts: the Subdivision of Agricultural Land Act No. 70 of 1970, the Spatial Planning and Land Use management Act No. 16 of 2013, and others. In terms of the subdivision of Agricultural Land Act, the maximum area that can be registered for servitudes without consent is only 225m², or a strip servitude not wider than 15m.
RIVER BOUNDARIES: MOVING WITH THE TIMES
Sections 32 to 34 of the Survey Act deal with river boundaries, and moving them can be highly complex. Generally, however, the middle of the river or stream is regarded as the boundary, unless otherwise stated in the title deed. The boundary moves if the flow of the river changes naturally over time.
Email Karl van Rensburg at
email@example.com, or visit sagi.co.za.
Who is responsible for the fence between properties?
According to the Fencing Act 31 of 1963, neighbours are both responsible for the fence between them. Often, however, owners have different ideas about the quality and cost of a proposed fence, especially where game fencing is contemplated. It is always best to appoint a land surveyor to define the boundary beforehand. Where the middle of a river or stream is the boundary, the owners might have erected the fences in a ‘give-and-take’ manner for practical reasons. It should be made clear that the middle of the watercourse remains the boundary and can only be replaced by a linear boundary created by a land surveyor.
24 NOVEMBER 2017 farmer’s weekly 57