A lot of people in Newfoundland and Labrador have land title problems. Unfortunately for a lot of people, many Newfoundlanders “have” land that they believe is theirs, but that they don’t have anything remotely close to marketable title to. Title problems will often float to the surface when people try to buy or sell a parcel of land, or when there is a racket about a boundary or an easement. Many times a land survey is involved.
A Land Survey does not give you Title to Land
Q: “Hey there, what’s up?”
A: “Fine thanks!” 🙂
Very often when I ask a client if they have title to a parcel of land I get an answer like this: “Oh yes, I had it surveyed.” Like the answer in the block quote above, it almost seems like it could be a meaningful answer to the question, but it isn’t. If you are not clear on the difference between a land survey and a deed, and you didn’t go to law school, then I hope you find this brief post helpful. (And if you aren’t clear on the difference between a land survey and a deed, and you did go to law school, then I really hope you find it helpful).
Having land surveyed is an important part of investigating, establishing or conveying title to land, but by itself a survey does not give you title to land. To have land surveyed you should hire a professional land surveyor. To get help with land titles you should talk to a lawyer.
What is a Land Survey?
Strictly speaking, the drawing that you might find attached as a schedule to a deed is not a survey, although we often call it that in everyday speech. “Survey” is a verb, and a land surveyor is someone who surveys land. The descriptions, drawings or reports that a professional land surveyor might prepare are just the recorded results (albeit the very important results) of their survey-ing.
In Newfoundland and Labrador, the current version of the Land Surveyors Act, 1991, SNL 1991, c 37, defines “land surveying” as “the interpretation of boundary evidence, the spatial measurement, the demarcation and the textual and graphical definitions of either or both boundaries and points on, over or under the earth or a combination or all of those.” Put more simply, what land surveyors do, as a core function, is describe a part of the surface of the earth (i.e. land) in largely mathematical terms.
Surveyors most often do this with reference to “control survey markers” that they place, or were already placed, that are tied in in the surveyor’s description to a North American geodetic reference system, which system is maintained in Canada with the help of the federal department of Natural Resources.
A land surveyor will usually check or place markers at the corners of a parcel of land being surveyed. Laypeople often talk about these markers as their survey “pins” or “pegs”. Usually the markers are just a piece of capped steel bar driven into the ground. Incidentally, if you’re not a surveyor then moving a survey marker is an offence under the Lands Act, SNL 1991, c 36 that could get you a fine or up to three months in jail. Sadly this does not stop people from routinely fooling around with survey markers. If you are one of those helpful people, please stop.
Once a surveyor has gone out to a piece of land and completed their survey, then they will typically generate some sort of document based on that survey, depending on the purpose of the survey. Very often it is a written, mathematical description of the size, shape and location of a parcel of land, accompanied by a drawing. This is the document many might think of when they hear the word “survey”.
A Surveyor’s Description is a Part of a Deed
To have title to land (i.e. to own the land), you need to get it from somewhere. In Newfoundland and Labrador, leaving aside possessory or “squatter’s” rights, there are two main ways to acquire title to land: (1) it it’s Crown land, then you get it from the Crown, or (2) if it’s private land, then you get it from the owner.
If you acquire title to land directly from the Crown, it’s usually by way of a “Crown Grant”. If you acquire title to land from a private owner, it’s usually by way of an “Indenture” or “Deed of Conveyance” of some sort. Either way, the Grant or Deed needs to describe the parcel of land being transferred. That’s what the survey is for. The body of the Grant or Deed will include information about the parties, the date of the transfer, a sale price, and so forth, and typically refer to the land itself “as described in schedule ‘A’ attached hereto”, for example. A deed of conveyance without an accurate description of the land (these days almost always in the form of a survey report) can’t be registered; and, from a conveyancing perspective, even if it has your name on it a survey report that is not attached to a proper grant or deed is nothing more than a nice-looking sketch. You could hire a surveyor to survey any block of vacant land in the province and they will happily take your money, go out to the land and shoot the lines, and produce a drawing. That doesn’t make it your land. If it were that easy, I would be the owner of a lot of land right now.
If you are thinking about buying or selling land, or if you have a title or a boundary problem, it might be a good idea to talk to a lawyer, perhaps even before you call the surveyor. Your lawyer might even be able to help you order up the type of survey or survey report that you need.