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:
- Neighbour disputes.
- Buildings being built in the wrong place and thus not complying with building plans and specifications
- Walls and fences in the wrong place.
- A Cadastral system that is static and fixed in an era of time but of little relevance to reality.
- Lack of understanding of importance of beacons to owners.
- Financial losses to owners who mistakenly believe all aspects of the property are compliant.
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was erected for the purpose of or in connection with a survey or resurvey of that land in terms of this Act or any repealed law, or for the purpose of or in connection with the survey or resurvey of any land contiguous thereto.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.