Dear Editor,
The Guyana Association of Professional Land Surveyors (GAPS) would like to address the views expressed by Ms. Audreyanna Thomas (hereafter referred to as the writer) in her letter to the Editor, titled “Urgent reform needed in the Surveying Profession”. The letter which was published in both the Kaieteur News and Stabroek News on Friday the 25th day of June 2021 seems to be a calculated attempt to diminish the integrity of this noble profession and against Land Surveyors in the execution of their duty. This is a precedent for the reason(s) provided below:
The Land Surveying Profession in Guyana has a long and distinguished history. Even before the passage of the Land Surveyors Act of 1891, which was passed to regulate the practice of the profession, surveyors served as lay magistrates, to settle disputes in the interior of the colonies. Even today, land surveyors are called upon to mediate in land disputes. The first President of Guyana was a Land Surveyor and many land surveyors have contributed to the development of this country and continue to do so. Every form of development in Guyana and throughout the world involves some form of surveying, be it cadastral or other categories of surveying such as: engineering, hydrographic, and topographic surveying etc. Therefore, one cannot justify the conclusion that the entire land surveying profession needs reform, by using an encounter with a land surveyor and a few “stories” heard by the way. Moreover, cadastral surveying is only one component of the land titling process and just an aspect of land surveying in general.
The practice of land surveying is governed by specific and easily identifiable rules, which are set out in the abovementioned Act and other pieces of legislation, such as the Title to Land (Prescription and Limitation) Act Cap. 60:02, therefore, like other professions, and even more so, any malpractice by a professional land surveyor can easily be identified because, land is finite and cannot be moved. Also, with respect to the issue at hand, the occupation of a portion of land is a matter of fact and cannot be easily hidden. Hence, if the surveyor was incorrect, either by mistake or design, the aggrieved party could easily employ another surveyor execute a survey to highlight the error and lodge a complaint to the Lands and Surveys Commission or to GAPS and appropriate action would have to be taken. The old adage applies here, i.e. a surveyor’s mistakes will always live after him, because the position of a piece of land on the earth’s surface cannot be moved nor altered. Therefore, while a surveyor is alive he is obligated to correct his errors or mistakes.
At first glance, the writer of the letter sought to give the reader the impression that the survey being complained about was one transaction and that she was privy to a multitude of complaints of a similar nature, regarding fraudulent land surveyors, and that reports were made to the relevant public authorities whose inaction increased the severity of the problems. However, closer examination of the issues raised reveals that a re-survey by a competent land surveyor could have identified the error, mistake or mischief made by an earlier surveyor. For the benefit of your readers, please permit me some space to address the issues raised by the writer and provide some clarity on the role of land surveyors in the land titling process under the Title to Land (Prescription and Limitation) Act.
Firstly, the writer said that a relative employed a surveyor to execute a survey of a portion of land and “in drawing up the plan, the surveyor did not mention that people were occupying portions of the land, the plan showed as if the land was cleared of any occupation.” The writer then goes on to say that “the person proceeded to acquire prescriptive title for the land and later served notice to the occupants who were there even while the survey was being done, to be removed.” Editor, in an application for prescriptive title one has to employ a surveyor to perform and execute a cadastral survey. Before the survey is executed, a NOTICE of intended survey must be served on the owners or occupiers of the adjacent lands. At this point, the adjacent proprietors as well as the owner(s) or occupant(s) are given an opportunity to object to the survey. Any objection received must be noted on the survey plan to guide users of the plan.
The basis of a survey for prescriptive title is a claim by the occupant that she or he has been in sole and undisturbed possession of private land for over 12 years. Once those conditions are fulfilled, by Section 5 of the Title to Land (Prescription and Limitation) Act, after the expiration of 12 years, the person with a paper title (or transport) is barred from commencing any action in court to recover the land from the occupier. Section 13 of the Act states that after 12 years, of sole and undisturbed possession by the occupier, the title of the paper owner shall extinguish. At the time of the survey, the person requesting the survey must be present and must point out to the surveyor, the limits of his or her occupation.
The writer said that the survey executed for the relative “was clear of any occupation”. It would therefore mean that this relative could not qualify for prescriptive title under the Title to Land (Prescription and Limitation) Act. If, the surveyor omitted to show the occupation of other people on the plan, her relative could have returned the plan to the surveyor for it to be corrected. The writer goes on to say that “the person proceeded to acquire prescriptive title for the land and later served notice for the occupants who were there even while the survey was being done, to be removed”. The court cannot grant title to land pursuant to a claim for prescription based on a survey plan that shows no evidence of occupation. Therefore, the survey plan used to acquire title by prescription had to be different from the one mentioned first in the writer’s letter. The surveyor has to show occupation on the plan to support a claim for prescriptive rights. The client/claimant must point out the area that he or she occupies and the surveyor will represent that claim on the plan with the statement that ‘this was the area claimed by the occupant’.
Secondly, the survey plan is only one component in the application for prescriptive title. The other aspect, which is relied on more specifically by the court, is the affidavits in support of the claim established by the claimant which is drafted by an Attorney at Law. In drafting the affidavit, in this case, the Attorney could have pointed to the fact that there was no evidence of occupation. Immediately this would have been brought to the attention of the surveyor, thus giving him an opportunity to supersede that plan by one showing the claimant’s occupation. Thirdly, the writer claimed that the surveyor “included land that was previously surveyed and had an existing plan.” Editor, there is nothing wrong with including previously surveyed land on a plan to support a claim for prescriptive title. Pursuant to the provisions of the Title to Land (Prescription and Limitation) Act, referenced above, the surveyor is required to state in his memorandum, on whose behalf the survey was executed, show the extent of the land claimed by the person and include a
statement to the effect that ‘the occupant claimed to be in sole and undisturbed possession of the area surveyed for the prescribed period’. If the area claimed does not coincide with the original boundaries, the surveyor is permitted to include the full extent of his client’s occupation. The client is then required to swear to an affidavit under oath, that this claim, as represented on the plan is true and correct.
Fourth, in addition to the NOTICE of Intended Survey served to adjacent land owners or occupiers, Notice of Intended Survey is also servered on the relevant NDC. Then, a Notice of claim must be served by the Attorney-at-Law upon the neighbours and anyone with an interest in the land. The claim is also advertised in a daily newspaper of wide circulation. This gives anyone with an interest in the land a sufficient number of opportunities to object to a claim for prescriptive title. So the writer’s attempt to lay blame squarely at the feet of a land surveyor is without merit and misguided at least. Fifth, the writer’s claim that surveyors “shifting the boundary lines without the knowledge of the owners of these property,” is a display of limited knowledge of the process of land titling. When a surveyor executes a survey, the boundaries can only be made legal by the express consent of the owner of the paper title or by an order of the court. No surveyor is empowered to establish a legal property boundary unilaterally. Sixth, and most important is the fact that a survey plan, prepared based on a claim for prescriptive title, does not, in of itself, establish the boundaries of a portion of land. The court has to be satisfied that the content of the affidavit sworn to by the occupant, is sufficient to establish a right to prescriptive title and, the court, through an award, makes the proposed boundaries legal. The land surveyor merely gathers the physical evidence of any existing legal boundaries as well as the occupational boundaries of the claimant and may express in his own deliberate judgement whether the occupation seems to be in existence for over the limitations period.
Finally, Editor please note that it is the client’s claim that is represented on the plan, not that of the surveyor. Even if the surveyor included the neighbours house and land in the survey, the claimant still has to prepare an affidavit and swear under oath, that the house is his. In the instance shared by the writer, if it was a mistake by the surveyor, we respectfully submit that the claimant would not have proceeded with notices for possession after realizing the mistake by the surveyor. Editor, this article is viewed as a direct attack on the land surveying profession and created the impression that land surveyors are corrupt and are colluding with persons to defraud the unsuspecting public. This is mischievous and misguided to say the least and the writer’s limited understanding could form the opinion that land surveyors can come onto a piece of land and take portions of it away, which is far from the truth. The writer should be aware that in land surveying, like any other profession, mistakes are liable to be made. However, in the land surveying profession there are procedures in place to rectify incorrect surveys if it occur.
A land surveyor only gathers the physical evidence for the parties and the courts. GAPS welcomes information regarding tardy surveyors and promise to always uphold the integrity of this noble profession. GAPS is therefore requesting a retraction of the statements by the writer after this response is brought to their attention. The writer is also encouraged to bring factual evidence to GAPS or the Commissioner of the Guyana Lands and Surveys Commission so that the particular issue can be thoroughly investigated and addressed.
Michael S. Hutson
Vice President
Guyana Association of Professional Land Surveyors.
