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Land surveying legislation in mauritius loopholes remedies
All legislations, with time, need to be amended to suit the contemporary demands, situations and conditions.
1.2. RATIONALE FOR STUDIES
This dissertation documents the extent to which Legislation regulating Land Surveying dating as far as 1976, has been outdated with the forthcoming new technologies and new modes and ways surveys are carried out.
We are actually evolving in an era of Global Positioning System, GIS and Aerial Photography, contrary to the present legislation which deals with regulations relating to “Ground Taping" thus giving but approximate findings. qui ne sont pas adaptés à la réalité du terrain et à la mondialisation (traduis cette phrase)
1.3. AIMS AND OBJECTIVES OF STUDY
Pour cette partie, faire des phrases et des paragraphes. pas de numérotation dans la rédaction mais dans les titres et intertitres : par exemple,
In the light of this practice, the objective of this work will be:
1. To highlight and analyse some of the loopholes on obsolete regulations which have until now been outdated. 2. To propose new and more appropriate legislation which may be more relevant to work, and regulate Land Surveyor’s practice.
3. To propose the granting of more powers to the Surveyor’s Board that will e…..
4. To propose appropriate amendments. In different fields.
These regulations will then be thoroughly analysed so that ….
2.1. OVERVIEW OF LAND SURVEYING
2.1.1. The surveyor, his duties and responsibilities
The Land Surveyor is the one to contact to demarcate any plot of land (be it private or state land) and is the only person authorised to do so as per the Land Surveyor’s Act. Demarcating one’s land enables him to establish the boundaries of his plot of land, thanks to landmarks: boundary stones, iron pegs, etc. His duty is to advise and offer a series of services that will be of use to the client.
According to the present legislation, he is required to sign, put his seal and date the plans and documents which he hands over to the client. These details are fundamental as they testify against the genuineness of the plans and documents drafted by the Surveyor, therefore, proving his involvement and responsibility. A legal procedure is imposed on the Surveyor to specify/define the land boundaries in order to give more weight when registering these documents.
Surveyors also carry out topographic layouts which consist of surveys including levelling details useful for architects and civil engineers when designing buildings.
Développer ici les différents services qui sont rémunérés et cités ci-dessous et dire ce que c’est.
Survey Report/Memorandum of survey
2.1.2. PLOT BOUNDARIES
In the event a person wishes to construct on, convert or cultivate on his plot of land without encroaching on his neighbours’ land or breaking the law, it is essential to have a detailed plan of the property prepared by a licensed surveyor, giving accurate details of the measurements including width, length, borders and so on.
2.1.3. TYPES OF DEMARCATION IN MAURITIUS
Demarcations are made in several ways. One of them can be either amicably, that is, in the presence of the neighbours or it can be carried out with the help of one or more surveyors. However, this agreement has to specify the sharing out of the costs between them.
In some cases, demarcation of a boundary is made by judicial decision. Whenever there exists conflicts between neighbours, that is, if they are not keen on carrying out any survey or they do not wish an amicable demarcation then, upon the case be filed in Court, the Judge/Magistrate shall have to appoint a surveyor (usually a third surveyor known as an arbitrator) to demarcate same and who’s fees shall be born by the parties.
2.1.4. SURVEYORS’ FEES
As per the Land Surveyor’s Act, the surveyor in Mauritius is free to set his fees. There is no price list. Fees can vary from office to office. They are generally calculated on the basis of the complexity of the duty.
As an example:-
Survey Report/Memorandum of survey
Rs. 7,500.- - Rs. 1,000,000.- + V.A.T
Rs. 7,500.- - Rs. 25,000.- per plot
Rs. 10,000. - - Rs. 25,000.-
2.2 Overview of Legislation in Land Surveying
rédiger quelques phrases sur les lois existantes en guise d’introduction
2.2.1. PRACTICAL V/s THEORY
Faire la relation avec la législation !!!!
Montrer que les lois sont lacunaires et que ce se ressent dans la pratique réelle de la profession, et comment ton expérience quotidienne peut l’illustrer avec des cas concrets.
Toujours illustrer ton propos. Toutes tes affirmations doivent être illustrées ou argumentées solidement
I personally have an experience as a Trainee Surveyor since six years and have through out my training encountered such situations (which situations, for instance) whereby simply undertaking the Diploma in Land Surveying Course does not suffice.
To deal with such situations, one must have sometimes faced past experiences. In some situations, the Surveyor, while being on site, has to take quick and efficient decisions regarding boundary, agreement between neighbours and such similar problems. Having simply completed the course study does sure aid but does not suffice.
2.2.2. IMPORTANCE OF LEGISLATION IN LAND SURVEYING
Legislation regarding Land Surveyors is important to the extent that it so far regulates the way Land Surveyors work; it imposes a code of conduct upon them and specifies the way surveys are to be carried out.
2.2.3. IMPLEMENTATION OF LAVIMS
What is LAVIMS
LAVIMS, the Land Administration, Valuation and Information Management System project is an initiative by the Government through “Infotera" to modernise land administration. The main aspect of LAVIMS (shared between the Ministry for Housing and Lands and the Ministry for Finance and Economic Empowerment) is to implement four subprojects which are: Cadastre, Deeds, Valuation and Information Management System (IMS).
In order to prevent credulous transactions (as has been the case in the past), the Cadastre identifies every parcel of land and gives it a unique Parcel Identification Number (PIN). The PIN is then used to link the parcel to information such as the owner, the deed, and any such information related to the owner, past owners, extent of property and so on.
The Cadastre is a large scale map indicating every parcel of land in Mauritius and linking it to the major land rights held on those parcels, via:- freehold and leasehold, along with details of the owners of those rights.
Through the LAVIMS project, all important information related to a specific plot of land will be held digitally, including the Deed details and the Land Survey Plan.
Through the cadastre, any specific parcel may be searched by location; either through their identification on a map and then obtaining information on the rights and right owners, or, by querying the Transcription number (be it Vol Number or Transcription Bail Number) or the name of the right owner, after which the PIN of the parcel and its location can be obtained.
In either case, digital copies of the main documents supporting rights, including the Deed Transcript and the Land Survey Plan, may be viewed online.
Initially this service will be available in the Registrar General's Department, but later it will be made available to other departments, and then to the notaries, Land Surveyors, and later on probably to the public.
However, modification of the registered data will only be authorised by the Registrar General's Department and the Survey Department who shall upon request (after having been submitted a duly registered deed or survey plan) be solely responsible for modification and maintenance of the cadastral map.
The above procedure shall to a great extent improve land transactions by making the work of the notaries, the Registrar General and the Survey Department easier, quicker and more certain.
By a simple search, one shall then be able to access information on a particular plot or owner.
Deeds are what certify transfer of property rights (in the context of land surveying) from one to another. As at now, the Registrar General's Department is not able to guarantee ownership as such, it can only record sales and transfers.
LAVIMS project, is however taking all the paper records (deeds and survey plans) in the Registrar General's Department and converting them to digital copies. This process not only makes it easier to search for and recover information, but it also makes it more secure, as more than one copy of the information can be held in different locations.
The Deeds component will also continue the reform of deeds management, already started by the Registrar General, to produce a system which shall be based on GIS, that can be searched both by the name of the land owner and by the PIN, what is known as a Person and Parcel Based Deeds Registration System.
These changes will speed-up the work of the notaries and the Registrar General's Department, making land transactions and searches quicker and more accurate.
DEEDS REGISTRATION (DIGITISATION)
The Deeds registration system is found in the Registrar General's Department and over the past few years it has not seen such significant improvements spaced out from the fact that it has been computerised.
However, LAVIMS project will provide further improvement. The actual existing paper records (deeds and their survey plans) are being converted to digital images and held on a secure database which can be accessed via the web, therefore the original paper documents being archived as “hard" copies
Upon completion of the LAVIMS project, the digital documents may in a near future, be accessed by querying a dedicated database in the IMS in a variety of ways, such as: PIN, Deed Transcript Number, name of right holder, address of property and so on.
VALUATION-The Real Property Survey and Inventory
The Valuation component will visit every property in the country, except those used for agricultural and public purposes, and will determine its value. This information will be used to develop a new valuation list, which will ensure that all properties are recorded and the value is accurately known.
The last comprehensive review of properties in Mauritius was performed over twenty-five years ago and only these properties have only been recorded in the five municipal areas; Quatre Bornes, Port Louis, Vacoas/Phoenix, Beau Bassin/Rose Hill & Curepipe.
A fair land administration system requires that all immoveable properties be surveyed and frequently inventoried, enough to take account property market value changes. As at now, the Valuation Department of the Ministry of Housing and Lands detain some approximate values of land but this is however not sufficient.
The LAVIMS Real Property Inventory intends to survey at least 350,000 properties, which will include all residential and commercial properties on the island. The inventory began in March 2009 and by now it has been completed (completion date was expected in March 2010).
Information Management System
The LAVIMS project will create and manage vast amounts of information including detailed aerial photo maps of the whole country; copies of every deed and survey plan relating to the sale and lease of land going back over 200 years; and, valuation records for every property.
In the light of the above, these data will be available to the Government, Notaries, Land Surveyors and any interested party via the internet.
These data are very complex and so a dedicated Information Management System (IMS) need to be developed.
The IMF is a computerised system for the management of information relating to land. The cadastre is the heart of the IMS, which will identify every land parcel in Mauritius. Each land parcel will be linked to the deed that created it and any related past or present deeds. It will also be linked to the information collected during the LAVIMS project data collection exercise (owner’s name, extent of building existing thereon, etc).
The IMS will mainly operate in the Registrar General's Department and the Ministry of Housing and Lands. It will enable the Registrar General's staff to search for deeds based on the location of the property, the name of the land owner, or the deed number and any such information an interested party might require.
The IMS will also enable the Valuation Department to find information on properties, which will make assessments quicker and more accurate.
On completion of the project, data of the IMS shall be available to selected users, such as the Notaries, Land Surveyors and any interested party over the internet. This will enable them to do searches that now take days, in a matter of minutes and also obtain digital data that shall ease their work, thus improving the efficiency of land transactions and reducing the time needed.
According to me, these improvements to information management will make Mauritius one of the most efficient countries in the African region with respect to land transactions.
3.1. DEFINITION OF RESEARCH
In the work, the various loopholes will be identified, analysed and commented upon and thereupon, amendments will be proposed and commented to show their practicality and finally an overall conclusion will be drawn to underline the purpose of this work.
Since 5000 B.C., surveying has served the political, economic and social needs of our society by defining and locating property boundaries, features and improvements. The land surveyors Act 1976 of Mauritius recognizes the professional aptitudes of a land surveyor. They have been invested with power and authority to survey, judge and report on matters pertaining to land divisions, ownerships and valueing.
In Mauritius, the parliament is the supreme legislator. It has the power to set laws. However, the laws imposed, shall in all circumstances be in line with section 2 of the constitution otherwise the laws are void and null.
The primary legislation is also called “Acts of parliament" because it falls under the parliament legislation, which consists of a series of Acts. For e.g. 1 Land Surveyors Act 1976, 2 the Building Act 1915, the Registrar, Duty, Rivers & Canals, Notary Act …etc
The secondary legislation of the subsidiary legislations are rules and regulations set up by the Minister/Local Council or a public authority to whom the parliament has delegated executive power. For e.g. we can mention, and surveyors (fees for survey of state lands) regulations 1993, The land surveyors (diploma) regulations 1979, The building regulations 1919 amongst others.
Therefore a preliminary work to be submitted for amendments needs to be produced in order to see whether the changes proposed are relevant, practical and in line with the modification that will soon be brought in the Mauritian cadastre system planned, by the state. This will be a colossal time consuming labour consuming and expensive work. It is also going to be performed in such a way that it stands for few centuries ahead. This is why little legislation should either be simplified or modified.
3.2. DATA DESCRIPTION
The land surveyor Act, which is dated back to the year 1976, is still being an operational law to regulate land surveying in Mauritius. As such, the land surveyors’ control is the only supervisory body to watch upon the surveyors’ work and identify if the work assigned is carried out properly and presented according to their true, tangible and physical features. However, it appears that there are some shortcomings, which have been noted in the practice of these legislations.
3.2.1. PROBLEM DEFINITION
The annexed Act has been analysed and those loopholes have been identified:-
Under Section 3 of the Land Surveyor’s Act:
Regarding “Survey to be made by Land Surveyors".
This section stipulates that no plan or memorandum of survey of whatever sort shall be valid unless it has been drawn by a Land Surveyor. In practice, it is often the case where a Land Surveyor delegates his survey team (who have only been working as assistants and own no such certificate or diploma in this field) to perform surveys relating to section 12, namely, to determine extent of a property. The case, the surveyor simply signs the survey report and the plan and affixes his stamp and he is done with the work. The legislation, although being clear enough, can’t regulate this practice.
Under Section 4 of the Land Surveyor’s Act:
Regarding “Appointment of land surveyors"
It is stipulated in the Act that the President be deemed to appoint a land surveyor by a commission. The Attorney General needs to certify that the applicant (for a commission) be a fit and proper person before he is granted a commission.
But on what basis can the Attorney General grant same?
Under Section 5 sub sec (2) & (3) of the Land Surveyor’s Act:
Regarding “Qualifications of land surveyors"
Under Section 11 of the Land Surveyor’s Act:
Regarding “Contents of a Memorandum of Survey"
It is stipulated under Section 11(1) (b) that the memorandum of survey shall contain no abbreviation, blank, gap or interval, but as at now, all memorandum of surveys are drawn in a way to be more aesthetic. The purpose of this section is such to prevent any word, phrase or paragraph to be added latter on in the survey report.
Under Section 11(1) (c), it is stipulated that the memorandum of survey be legibly written or typewritten. Computers are being used for the past two decades and “written or typewritten" stand for no reason.
Under Section 12 of the Land Surveyor’s Act:
Regarding “survey to determine extent of property"
Under Section 12(3) (a), it is stipulated that the report be signed by the Land Surveyor who shall also affix his stamp. However, in the current practice, some Land Surveyor contravenes with Section 19 (2) by “simply" signing and stamping a document drawn by assistant surveyors or sometimes “lays persons" and there are no such actions taken against them.
This section also stipulates that these reports shall not be binding upon neighbours.
Due to the fact that these reports have been drawn by “lay persons", no one is able to certify whether they have been correctly made and these are those reports which shall latter on be attached to a deed of sale.
Under Section 14 & 15 of the Land Surveyor’s Act:
Regarding “Plans & Registration of memorandum of report of survey"
Under the above sections, a Land Surveyor is deemed to register his survey report and plan which the Permanent Secretary is required to endorse for archiving. However, with the implementation of LAVIMS project, it would be more appropriate for the Surveyor to deposit a “soft" copy to him.
With LAVIMS, surveyors shall begin using Aerial Photography but no such provisions have been made under the actual Land Surveyor’s Act to regulate the use of same. As at now, there exists no legislation to allow an Aerial Photography to be produced before a Court as evidenced by a Land Surveyor.
Also, no mention of The Land Surveyor’s Board, its duties and powers, nor its Disciplinary Powers have been made in the Land Surveyor’s Act 1976.
3.3. DEVELOPING THE RESEARCH PLAN
3.4. DATA PROCESSING, ANALYSIS AND PRESENTATION
ANALYSIS & FINDINGS
Introduction of Legislation regarding Aerial photography
Under Section 19
Under Section 3 of the Land Surveyor’s Act:
Regarding “Survey to be made by Land Surveyors".
No person other than a land surveyor shall perform any survey which affects or may affect the delimitation of the boundaries or the location of any survey mark of any land registered or to be registered or survey any parcel of land for the purpose of preparing a plan which is attached to, or is referred to in, any document or instrument purporting to confer, declare, transfer, limit, extinguish or otherwise deal with or affect any right, title or interest, whether vested or contingent, to , in or over any land.
Under Section 4 of the Land Surveyor’s Act:
Regarding “Appointment of land surveyors"
Every land surveyor shall be appointed by a commission issued by the Attorney General upon recommendation of the Board.
Under Section 5 sub sec (3) of the Land Surveyor’s Act:
Regarding “Qualifications of land surveyors"
No person who has been granted a commission to practice as a land surveyor unless, he has furnished security, he holds the appropriate license under the Licenses act, he has caused his name to be registered with the Board and Hhe has sworn in an oath or affirmation in a prescribed manner in relation to the practice of surveying.
Under Section 11 of the Land Surveyor’s Act:
Regarding “Contents of a Memorandum of Survey", it should be noted that every memorandum of survey shall be drafted and registered in two original copies except in Rodrigues whereby three originals are insisted upon. The memorandum will be compiled in a single document and as content, will contain no abbreviations, blank gaps or intervals. It will be printed in ink.
Any linear dimension shall be recorded in words regarding the title of the owner or the name of the person who has requested that the survey be carried out including other documents, previous researches recorded for such.
Should any conflict arise, the Surveyor should submit all the relevant data on which the carrying out of the survey was based.The survey should include the date, time at which it was carried out, the district or town.
The Land Surveyor’s Board
The Land Surveyor’s Board so established shall be made up of a Chairperson who is appointed by the Prime Minister on such terms and conditions as he may determine; the Permanent Secretary of the Ministry of Housing and Lands; three licensed Land Surveyors and two Land Surveyors equally appointed by the Minister, the latter shall be in office of the State of a statutory body; the Chief Surveyor whose responsibility will be to as Registrar.
The members shall have a ten years’ standing as Surveyor. A member of the Board is appointed by the Minister and shall be in office for a period of two days but may, whenever he wishes, resign by a written notice to the Minister.
The Chairperson is the sole person to organise the time and place of Board meetings. The Board shall consist of five persons and it shall meet at least once yearly. It may every now and then elect one of its members as deputy chairperson to replace the chairperson in his duties in the absence of the latter.
The Board may decide on the procedure and the way in which an applicant shall apply for registration as a Land Surveyor, or a Land Surveyor in training as the case may be.
The Board reserves the right to appoint its staff for the proper discharge of its duties.
All decisions taken or acts performed by the Board are valid whether a member be absent during Board meeting, as long as such were done before the majority of the Board members present at that time.
Duties and Powers of the Board
The duties of the Board are five folds. Firstly, they shall be to keep a register of all land surveyors and trainee land surveyors as stipulated under sect 10 and 11. Secondly, they shall deal with complaints of professional misconduct as stipulated under Subsection (4) against any land surveyor except a Government surveyor and for which penalties are provided. Thirdly, to intent disciplinary proceedings against land surveyors other than a government surveyor as regards complaints of professional misconduct as defined under subsection 4. Fourthly, they shall advise and make recommendations to the Minister on matters relating to cadastral surveys as regards registration of land title. Fifthly and lastly, they shall make recommendations to the Attorney General as well as the President regarding the issue of commissioning a person qualified to practice as land surveyor.
The Board shall have the prerogative to provide the manner in which surveys are carried out, the extent to which accuracies are observed, the permissive error- margin, the format in which survey records shall be prepared and in general on matters relating to land surveying incompatible with the objects of this act.
In relation to prescription, they shall be charged to do field and office checks as and when necessary in order to verify the accuracy and authenticity of surveys carried out.
They shall organise conferences, seminars and the like to make room for improvements in surveying and related matters
All regulations made by the Board shall be subject to approval by the Minister who will specify the date on which the regulations shall be enforced.
A land surveyor shall be found guilty of professional misconduct if, in the first instance, he signs any report or memorandum of any plot of land for which he has personally not supervised the whole of the survey and field operations. Secondly, he fails to examine the accuracy of any entry in the field book, the calculations, plans in relation with such. Thirdly, he signs a defective plan resulting from inaccurate surveys or negligence. Fourthly, he supplies inappropriate information relating to any survey, boundary line or survey marks deliberately. Fifthly, with full conscience, he entrusts to any person except a land surveyor works of any kind reserved for land surveyor defined under section 3 of the Act. Sixthly, he behaves in such a way that makes him unfit to practice as a land surveyor.
In case a Land Surveyor has been found guilty of professional misconduct the Board may revoke his registration, suspend his activities as a land surveyor for a period of five or less years or reprimand him.
Upon enquiry by the Board under subsection (1) the person whose conduct is being inquired into shall have a chance to be either heard in person or by his lawyer.
To serve the proceedings purpose at any inquiry held by the Board, the Board may insist on oaths and affirmations and may impose upon the presence of witnesses and the production of books and documents.
Where an order has been made to revoke the commission granted to a land surveyor, or to suspend such Commission, the Board may either on of its own initiative or on the application of the respective person , and in either case after an enquiry held by the Board, recommend that the Commission be re-established, or bring the suspension to an end.
Any person not satisfied with a decision undertaken by the Board may within a lapse of two months after the date of the decision, appeal to the Supreme Court against such decision which on any such appeal, may be directed by the Supreme Court as it thinks proper.
The Registrar shall be keep a roll of Land Surveyors whereby the full names, surnames, dates of birth and addresses of all persons qualified under this act to hold a commission of land surveyor are entered. This shall include the date of the issue of the commission and the qualification, in relation to which the commission has been issued.
The Registrar shall before the end of January each year, send to the Minister a list of all land surveyors registered as at 31st December of the preceding year.
Consequently, the Minister shall, as stipulated in subsection (I) cause it to be published in the Gazette.
Registration of trainee Land Surveyors
In compliance with Section 5(1) (a) and (b) any person may apply to the registrar to be registered as a trainee land surveyor and the Board shall , subject to such conditions, register such person as a land surveyor in training.
Where the Board is fully satisfied that a person has been in training as a land surveyor before the commencement of this Act, the period of training shall for the purpose of sect 1 be claimed to be a period of training under this Act.
Registration of Land Surveyors.
In compliance with Section 5 any person may apply to the Registrar to be registered as a land surveyor and the Board shall, subject to such conditions, as may be determined by the Board register such person as a land surveyor
Every Land Surveyor shall at a given date, pay to the Registrar such registration fee as may be determined by the Board in respect of each year. When a Land Surveyor fails to abide by subsection 2(I) he shall be liable to pay a surcharge of 50% of the registration fee. When he fails to pay his registration fee and any surcharge if any, by 31st December of the year in which it is due his name may be removed from the register. On payment of the appropriate fee and surcharge the Board may re-establish the name of any Land Surveyor to the register.
The Board shall annul the registration of any person who has erroneously been registered or on falsified information. Such also shall apply if he is detained as a mentally ill person and also if he has been convicted and sentenced to imprisonment.
Any person who is not satisfied with the Board’s decision under this section of the Act may within a lapse of one month after the date of the decision appeal to the Supreme Court against the decision or any such appeal the Supreme Court may issue such order in the matter as it thinks proper. No appeal shall lie from an order of the Supreme Court under this section.
Any person who detains a Land Surveyor’s commission under the Land Surveyors Act 1976 immediately preceeding the commencement of this Act shall be judged to have been registered as a land Surveyor as stipulated in this section and the Board shall be entitled to enter the person’s name in the register.
Duties of Land Surveyors and the conduct of surveys.
Every land surveyor shall carry out any survey charged upon him in such way as to ensure that such survey complies with the provisions of this Act and any regulation made hereunder. He shall be responsible for the completeness and accuracy of such survey and of any plan or diagram which bears his signature.
Every land surveyor who makes a survey shall keep a record of all field notes and computations pertaining to such survey for a period of three years and upon request by the Board submit same.
The Board reserves the right to carry out and direct any survey of land for the purposes of any written law relating to Prescription.
Every land surveyor who performs any survey relating to Prescription shall submit to the Board all plans, field notes and computations which shall eventually become the property of Government.
For the purpose of prescription, no land shall be judged as having been surveyed or resurveyed until the respective plan has been authenticated by the Registrar’s signature and the Board’s seal.
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