The Dirt: Good old survey promises interesting developments in 2011

What ever happened to the survey? Once a ubiquitous item on the closing agendas of most real estate deals, the building location survey has become an increasingly rare item of late, ravaged by the largely concomitant rise in the popularity of title insurance.

Although the use of building location surveys is far less common than it used to be, the benefits a good one can bring to almost any real estate transaction are no less today than they have ever been.

Surveys remain crucial in, amongst other things, any large commercial project; any new construction, development, and subdivision project; and in the resolution of boundary disputes.

(Ontario readers are ominously reminded that, while the now near-universal conversion to land titles conversion qualified status under the Land Titles Act assures holders of record of fee simple title, it does nothing to resolve the actual boundaries of converted titles.)

As one might expect, during the past 20 years or so, there have been dramatic changes in surveying practice in response to equally significant technological developments affecting other disciplines in the real estate industry.

But as one might not expect, arguably the more interesting of these industry changes relates to the storage and dissemination of cadastral information, far more so than in the technological advances in surveying science itself.

For instance, starting as far back as 2002, the Ontario Ministry of Natural Resources, the Municipal Property Assessment Corp., and Teranet began work on what was then the very ambitious task of creating a standardized, provincewide digital database of surveys already existing in the land registration system.

This database, known as the Ontario parcel database, identifies title boundaries and adds useful data such as assessment roll numbers for assessment and realty tax purposes, and property identification numbers for title searching purposes.

Ontario municipalities have been the principal customers of the parcel database to date in using the cadastral information provided to enhance land-use planning, land management operations, taxation strategy, and public works and infrastructure development.

Developers and other private sector businesses have also become increasingly aware of the usefulness of such centralized cadastral information to, amongst other goals, improve corporate planning, reduce costs, conserve resources, plan for sustainable growth, and identify new business opportunities.

The Association of Ontario Land Surveyors is responding to the growing popularity of the parcel database with a fascinating study on the feasibility of developing its own survey database for the province.

In its own literature on the feasibility study, the association notes that the parcel database run by Teranet has some potential shortcomings.

While it provides some coverage for almost the entire province, it delineates fee simple titles only and doesn’t always show easements, mining rights, and other encumbrances that may be just as important depending upon the intended user.

According to the association, the accuracy of the parcel database varies from sub-metre accuracy in most urban areas to in excess of being hundreds of metres off the mark in some rural areas with no particular way for the user to identify the degree of precision that can be expected for any given region.

The association has created a digital cadastral database task force in response to look into the need for a better cadastral mousetrap.

This task force has, in turn, engaged Kennedy Geoinfo Consulting and Gary Kirstine to conduct a feasibility study on the Ontario digital cadastral database and seek industry input on the various issues involved.

Although the consultants are now nearly ready to deliver their preliminary conclusions, real estate lawyers familiar with the parcel database or who otherwise have thoughts on the feasibility of centralized digital survey information are encouraged to provide their insights by contacting Ed Kennedy at [email protected].

Of interest to real estate lawyers but totally unrelated to the feasibility study is the issue of copyright for such survey information. Surveyors around the world have historically made claims from time to time for copyright protection of their work product.

The latest case directly on point seems to be the recent High Court of Australia decision in Copyright Agency Ltd. v. State of New South Wales that confirmed some copyright protection for Australian surveyors under certain circumstances.

It’s impossible to tell whether Canadian courts will follow it, but the case has already raised eyebrows in surveying circles throughout the common law world.

On the one hand, Australian jurisprudence obviously can’t be authoritative stare decisis in Canada. But on the other hand, it is a High Court decision.

I’m aware of at least one class action lawsuit already under way in Ontario following and presumably based upon the Australian matter. In a proceeding currently before the Ontario Superior Court of Justice, Keatley Surveying Ltd. has brought a $50-million lawsuit against Teranet.

It alleges Teranet has made certain unauthorized use of the drawings, maps, plans, and charts created or otherwise owned by Ontario land surveyors.

Of course, the case is at the pleading stage with none of the allegations yet proven, but the good old survey certainly is promising to make for interesting reading in the new year.

Jeffrey W. Lem is a partner in the real estate group at Davies Ward Phillips & Vineberg LLP. His e-mail address is [email protected].

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