My Backyard Subdivision – Part 3: Titles and boundaries

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In the third of our six-part Backyard Subdivision series we discuss the importance of surveying and the issues to be aware of on your property’s title.

When going into the development game it’s very important to avoid paying too much for the property because you have not done all your homework.  If the property is going to be difficult to develop, or your plans will be hindered due to the size or zoning of the property, then your potential profit will take a hit.

If the most essential member of your development team is your real estate agent, then the second most important is your surveyor. Your surveyor is vital to show you how the proposed development is going to work in the space available.

Get a precise idea of the size and nature of the property

Surveying deals with a structure’s appearance and impact on the environment, street and neighbourhood, as well as protecting the local amenity. The building permit process ensures you meet the standards of construction required. You’ll need to work with a team, including surveyors, engineers and an architect or draughtsperson.

You cannot assume things like fences, walls and buildings are actually all on your title. For most properties the boundary pegs will have long gone. The seller does not have to have boundary pegs on the property unless the property is bare land.

The first thing the surveyor will establish, preferably during the due diligence phase, is exactly where the boundaries actually are, and the existing features of the property (which the house designer will need to know later). The surveyor can either just show you where the boundary is or give you a “topographical” report which is more detailed. A topographical report is very useful to show Council, engineers, designers and neighbours so they know the actual features of the property.

Tony’s Backyard Subdivision: the topographical report from Tony’s site

What happens if the boundaries are out?

Tony’s Backyard Subdivision:  Getting the boundaries exactly right was an issue in Tony’s project. He intended to have driveway access between the existing houses through to the back section. The access was already too narrow for a right-of-way, so the exact legal placing of the boundaries was important.

The short answer is that if something is wrongly placed over the boundary, you cannot legally continue to use it unless you get some kind of agreement with the neighbour (which would also need to go onto the title to bind future buyers of the property). If you can’t get the neighbour’s cooperation and agreement, you will need to get a Court to decide what happens. The Court has a wide range of power to give compensation or change the boundary depending on how, when and why the problem arose – but is a very expensive process. If you cannot do either of these, then potentially you will need to move structures, walls, etc. if they are over the boundary.

Your surveyor can give you a concept plan to help you work out just what you are going to be able to do on the property. For example, building/site requirements may include:

  • Turning circles for cars – In some areas you are not able to back out of driveways. Is there enough room for a turning circle?
  • Where formed access is required for driveways – What width and engineering is required? There are different rules for rights-of-way.
  • How will storm water and drainage be handled? You need to know where existing water and sewerage and storm water services are (this is shown in the LIM, or the Council GIS website if the Council has this information).
  • Consent from neighbours – for example, to connect to services (drains) or to allow buildings to be closer to the boundary than the planning rules allow. This should be avoided altogether if reasonably possible, or otherwise done early on. Council will require a signed “affected parties form” (available on the Council website). Without this you do not have consent.
  • Impediments on the title:
    • Council regulates environmental management requirements by way of the District Plan and Consent Notices. These are registered on the title – they may dictate what has to happen if a subdivision is proposed and rules about how the development can proceed.
    • Easements and Encumbrances – These might be for access to the site for right of way, power, water, or sewerage. You will need to get a report on how this will affect your subdivision and if they do, what is proposed to comply. Generally with these sorts of documents it can be next to impossible to get this changed. You need to know who has a right to use these if they are on your title and how this could affect your development.
    • Covenants are binding agreements about how the property can be used and need to be checked. The most common are obligations about whether neighbours must contribute to fencing or not. Covenants limiting building size and type are now also common. Covenants can also protect trees or bush that cannot be touched. Council has a list of trees that cannot be removed on its website – it’s worth checking out if there are trees on the property to be developed.
    • Building line restrictions set out how far back from the street the house has to be. If the new house is at the front of the section this will need to be checked.
    • Mining rights – a number of titles in Whangarei have old mining rights. These are generally historical only and remain on the title because it can be just too difficult or not possible to remove them. They should still be checked.
    • Hazards – There can be restrictions on building that require extra engineering (which means extra cost) due to potential subsidence or other hazards.
    • Your lawyer will need to report if there is anything on the title that can affect your development.

Showing the surveyor’s concept plan to your lawyer will mean they can assess what difficulties will come up and how best to deal with them. Getting onto issues quickly means less likelihood of problems later on.

A successful development requires getting many subject matter experts – surveyor, engineer, lawyer, Council, designer – working on the same page. You will need to project manage all of these people to work together, in a timely manner.

In part four of our Backyard Subdivision series, we look more closely at the building process.