Two of the nine exceptions to indefeasibility deal with the physical land rather than with competing claims to it — and they exist because a register can be conclusive about who owns land without being conclusive about where it is.
Sections 33(1)(d) and (e)
(d) in case of the omission or misdescription of any right-of-way or other easement created in or existing on the same land; and
(e) in case of the wrong description of the land or of its boundaries.
An easement that was created over the land but was left off the title, or described wrongly, still binds you. And a wrong description or boundary is not cured by registration — you do not acquire land simply because the title appears to include it.
The only way to find these is to compare the survey plan against the ground and look for tracks, drains, pipelines, power lines and access being used by others. A desk search will not reveal them.
Part XVI — amendment of the description
Section 153 provides two distinct routes, depending on who is applying.
Section 153(1) — the proprietor applies
Where:
- (a) the description of the boundaries, area or position of land in a certificate of title differs from the boundaries, area or position actually occupied in good faith by the proprietor named in the certificate, and purporting to be so occupied under the title in respect of which the certificate issued; or
- (b) the certificate contains a description which is erroneous or imperfect on the face of it,
the proprietor may apply in the prescribed form for amendment of the certificate of title.
Paragraph (a) is the practical one: the fence, the buildings and the occupation have been in one place in good faith for years, and the paper description says something else. Note the two conditions — occupation must be in good faith, and it must be occupation under the title, not an encroachment onto someone else’s land.
Section 153(2) — the neighbouring occupant applies
Where a person’s certificate of title relates to land:
- (a) part of which, by reason of an error in survey or misdescription, is actually occupied in good faith by another person — the “occupant” — together with the land described in the occupant’s own certificate of title; and
- (b) the title to the land so occupied has not been determined against the occupant in a contested proceeding in which the right to that land was in question,
the occupant may apply for amendment of the certificate of title.
Two neighbours, both with titles, and a survey error that has put the boundary in the wrong place for decades. Section 153(2) lets the person who has actually been occupying in good faith apply to have the paper brought into line with the ground — provided the point has not already been decided against them in contested litigation.
Sections 153(3) and (4) — notice
Where the Registrar is satisfied an application is in order, he shall serve by post, on a person who appears by the Register to be affected, a notice and a plan showing the effect of the application.
The notice must (a) indicate that an application has been made, and (b) appoint a time, and indicate what will happen after that time expires.
A section 153 notice means someone is applying to change a title in a way the Registrar considers affects you. The plan shows the effect. Do not ignore it — and note that a caveat under section 82(b) can be lodged specifically to forbid the amendment of a certificate of title under section 153. While such a caveat is in force, the Registrar shall not amend the certificate.
Amendment, correction, or a dispute?
| Problem | Route |
|---|---|
| Description or boundary differs from good-faith occupation under the title | s 153(1) — proprietor applies to amend |
| Description erroneous or imperfect on its face | s 153(1)(b) |
| Survey error means a neighbour occupies part of your paper title in good faith | s 153(2) — the occupant applies |
| Clerical error or omission in the Register | s 161 — Registrar corrects |
| Two titles genuinely cover the same land | s 33(1)(c) — the prior instrument prevails |
| An easement was omitted or misdescribed | s 33(1)(d) — it binds anyway; register or amend to record it |
| Customary ownership of the ground is disputed | Land Courts, not the Registrar |
Practical steps
- Get a fresh survey comparing the title description with occupation on the ground. This is the evidence the application stands on.
- Establish good faith — how long the occupation has run, under what title, and with what improvements.
- Talk to the neighbour first. An agreed amendment is far quicker than a contested one, and the notice will reach them anyway.
- Apply in the prescribed form under section 153(1) or (2).
- Watch for the notice and the plan, and respond within the appointed time.
- Consider a section 82(b) caveat if someone else’s amendment application threatens your land.
- Remember the Land Act side. Where the amendment effectively changes the area of a State lease, subdivision or consolidation under Parts XVIII and XIX may be the proper vehicle.
Sources
- Land Registration Act (Chapter 191) — ss 33, 82, 86, 153, 161; Parts VIII and XVI
- Land Act 1996 — Parts XVIII and XIX
- Survey Act and Survey Co-ordination Act — PacLII 1986 Revised Edition
- Mudge v Secretary for Lands [1985] PGSC 13; [1985] PNGLR 387
Before relying on anything here, read the current text of the Land Act 1996 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.