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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 14563
Experience:  38 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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We have a island property at 9 Jackett Island Lot 3 DP7208

Customer Question

Hi we have a island property at 9 Jackett
Island Lot 3 DP7208 MOTUEKA we have been told that our legal seaward boundary if the MHW tide being 3.66. Others are saying no that it is the TOTSM outline. Can you advise please thank you Gail
Submitted: 1 year ago.
Category: New Zealand Law
Expert:  Chris The Lawyer replied 1 year ago.

It is not possible to check this online, but you need to look at the title and the deposited plan. You also need to check with the council. Your title should show the boundary and if not fully detailed then the plan will have that measurement. You also need to ask the council because they will also have a note of the subdivision and the seaward bounday. If you dont have a copy of the plan and title I can suggest where you obtain these.

Expert:  Chris The Lawyer replied 1 year ago.

I am not sure what you mean by TOTSM

Customer: replied 1 year ago.
Top if the south map
Customer: replied 1 year ago.
Top Of the south map
Expert:  Chris The Lawyer replied 1 year ago.

Without seeing the title and drawing of the plan, it is often the MHW measurement which is used, and i have seen on titles. The other measurement is not one I have seen used on plans. Riparain rights and boundaries are always measured by the MHW in my experience

Customer: replied 1 year ago.
Do you have an email I can attach the title map to for you to view thank you
Expert:  Chris The Lawyer replied 1 year ago.

You can attach it on this by using the little paperclip icon

Customer: replied 1 year ago.
Title photo map attached
Expert:  Chris The Lawyer replied 1 year ago.

Great just looking now

Expert:  Chris The Lawyer replied 1 year ago.

Where is the notation showing the boundary is MHW? If its not on this where did you get that information?

Customer: replied 1 year ago.
This map marked in pink is the MHW this is what we have been told. We also have full radian rights attached to our property
Customer: replied 1 year ago.
This is the map a survor gave us showing that our title has the marks of the MHW
Customer: replied 1 year ago.
Sorry I meant rapian rights
Expert:  Chris The Lawyer replied 1 year ago.

The riparian rights go to MHW so I think that is the position. Have you seen the title and what it says.? This is a fairly old plan and some of the older plans dont have as much detail. Cuncil records are also important. The latest plan you attach is also consistent with that

Customer: replied 1 year ago.
The first image I sent is our title
This is a copy of an email from a surveyor who does work in the areaFDear Gail
We have made a brief review of the boundaries of your Jackett Island property, Lot 3 DP 7208. On DP 7208 the seaward boundary is noted as M.H.W.M. (Mean High Water Mark) indicating this is an ambulatory boundary subject to the doctrine of accretion and erosion. See extract of DP 7208 below. Generally if there is a natural change in the location of the line of MHWM then your legal boundary changes with it, apart from in the case of avulsion. Avulsion in this situation may be the rapid erosion of the shoreline by waves during a storm etc. Artificial diversion or reclamation also do not alter the legal boundary.
At the Port Nelson tide gauge Mean High Water has been determined as being a tide of 3.66m, therefore to get a rough idea of your legal boundary you could wait for a predicted high tide of say 3.7m and see where the line of that high tide comes along shore adjacent to your property. It would pay to check more than one tide in case of deviations of the actual tide height from the predicted tide height.
We also note that the legal boundaries indicated on the TDC ‘Topofthesouth’ website are based on the data supplied by LINZ. In the case of Jackett Island the boundary lines are non-SDC and have only been digitised from plan records. They are indicative only and may be different to the true location of legal boundaries in this instance.
We suggest that if you have any queries with the above you seek legal advice.
Yours sincerelyThen they are saying that the boundary is the TOTSM and any land we have gained has to be claimed through NZLII am understanding that if the MHW tide has changed then any difference between our title map and the MHW tide being the 3.66 we would have to lodge a claim but does not make sense when the tide is changing all the time?
Expert:  Chris The Lawyer replied 1 year ago.

So I understand that there is an argument based on MHW. In practical terms, what has become the issue based on the potential difference?

Customer: replied 1 year ago.
Som Europe on the island say that the legal boundary is the TOTSM others say it is the MHW tide at 3.66. Just trying to understand which it is
Customer: replied 1 year ago.
Some people
Expert:  Chris The Lawyer replied 1 year ago.

I think you can rely on MHW for the boundary

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