Dr Edward J.W.

Chikhwenda 03 April 2007

CADASTRAL SURVEYING

1.1 Historical Background

The word cadastre is thought to have been derived from Katastikon, which is a Greek
word meaning a notebook or a business record. In Latin the term related to
registration of territorial taxation units was called Capitastrum. This was a register of
capta or units made for the Roman land tax, which was called capitatio terrena.
Evidence suggests that the earliest cadastres were carried out primarily for fiscal
purposes, i.e. keeping a record of landed property ownership and rights for taxation.
Such types of land records are evident in the earliest agricultural settlements along the
Nile, Tigris and Euphrates rivers. Land records can be traced as far back as 3000 BC
in Egyptian and Babylonian civilization.

Cadastral surveying, as it is known today, developed as a result of the change from

the nomadic culture to development of agrarian communities. This change required
the recording of tenurial privileges and rights to land. Although most of the early
cadastres were for land records, there is evidence that cadastral surveys for the
planning of the city of Rome were carried out as far back as 300 AD. Interestingly,
similar developments of land records can be traced in the ancient China and also in
India where Raja The Great carried out surveys for revenue purposes in around 1000
AD. The most famous of early efforts in land taxation was carried out within one
year (1085-1086) in England. This Domesday Book of Norman England was a
comprehensive survey of all the land holdings within the domain of William the
Conqueror.

During the seventeenth and eighteenth century, continental Europe came up with a
cadastral system that is very close to the modern multipurpose cadastral system.
Between 1720 and 1723 a cadastral survey program was carried out in Italy. Later
Emperor Joseph II ordered a cadastral survey to be carried out for the entire territory
encompassed by the Austro-Hungarian monarchy. The survey started in 1785 and
was finished in 1789. This resulted in the production of plans and descriptions of all
individual land parcels in the monarchy.

Dr Edward J.W.Chikhwenda 03 April 2007

Dr Edward J.W.Chikhwenda 03 April 2007

Although the first cadastres were merely for fiscal purposes, their role has changed
due to the dynamic nature of the human society, their needs and the environment in
which man lives, changes in surveying methods, instrumentation and technology. We
have seen cadastres changing from fiscal to legal then to multipurpose as man tries to
plan and organize the modern society. This multipurpose cadastre has led to the
development of new technologically oriented Land Information Systems (LIS) and
Geographic Information Systems (GIS), which have broaden the concept of the
cadastre. These new concepts have embraced the collection of physical, economic,
social and political data and using the land parcel as the basic unit of their storage and
retrieval.

Despite the evolution of instrumentation and technological advances, cadastral

surveying has maintained its role as a means for locating and monumenting the
boundaries of a property. Cadastral surveying has also facilitated the preparation of
legal description of the limits of property and of the area included; preparation of a
property maps; re-surveys to recover and re-monument property corners; and surveys
to subdivide property. The new technology has facilitated fast and effective way of
carrying out retracement surveys of property lines, re-establishing lost or obliterated
corners, and to making ties to property lines and corners.

Today, cadastral surveying is still conducted for the purpose of ascertaining the
correct boundaries of real estate property for legal purposes. In accordance with laws
regarding land, it is still necessary to transfer the right and title to landed property
from one person to another by means of a written document, commonly called a title
deed. To constitute a valid transfer, a title deed must meet a considerable number of
legal requirements. The accurate description of the boundaries of property requires
professionals that have the expertise and integrity in the cadastral surveying practice.

Glossary of Land Administration Terms

Absolute title: an unconditional title for which no other person has a better right to the
land.

Abstract of title: a summary of documents and facts showing the ownership of a piece
of land or property.

Adjudication: the process whereby the ownership and rights in land are officially
determined.

Adverse possession: the occupation of land inconsistent with the rights of the true
owner.

Aerotriangulation: a process for extending horizontal and vertical ground control

from measurements of points on overlapping stereo-photographs.

Alienation: the power of an owner to dispose of interest in land or property. In

particular land may be alienated from the State and granted to private individuals.

Assign: to transfer property rights from one person to another, for example in a lease
or mortgage certificate.

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Attribute: a characteristic of an object which may be used in its classification.

Base map: a general purpose map upon which specific-purpose maps are based. A
base map is usually made with reference to the national geodetic survey network, and
plotted in terms of the national coordinate system.

Boundary: either the physical objects marking the limits of a property or an

imaginary line or surface marking the division between two legal estates. Also used to
describe the division between features with different administrative, legal, land-use,
topographic, etc., characteristics.

Cadastral Index Map: a map showing the legal property framework of all land
within an area, including property boundaries, administrative boundaries, parcel
identifiers, sometimes the area of each parcel, road reserves and administrative
names.

Cadastral Map: a map showing land parcel boundaries. Cadastral maps may also
show buildings.

Cadastral Surveying: the surveying and mapping of land parcel boundaries in

support of a country’s land administration, conveyancing or land registration system.

Cadastre: a type of land information system that records land parcels. The term
includes:

Juridical Cadastre: a register of ownership of parcels of land

Fiscal Cadastre: a register of properties recording their value

Land-use Cadastre: a register of land use

Multi-purpose Cadastre: a register including many attributes of land parcels.

Caution or Caveat: an entry in the registers or court records preventing certain

actions being taken without notice to the person registering the caution or caveat.

Charge: an interest in property for example when held as security for a debt.

Civil Law: the law laid down by the State regarding the rights of inhabitants. Also
known as Roman law.

Collateral: the use of property as a guarantee for a loan.

Common Law: the unwritten law based originally on common customs and precedent
but now administered by the courts.

Condominium: the co-ownership of property especially in a block of apartments.

Consolidation: the planning and redistribution of land into units of more economic
and rational size, shape and location.

Contract: an agreement enforceable by law

Conveyance: a method whereby rights in land are transferred from one owner to
another. The rights may be full ownership or a mortgage, charge or lease, etc.

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Customary Law: unwritten law estblished by long usage.

Customary Tenure: the holding of land in accordance with customary law.

Data: a raw collection of facts.

Database: an organised, integrated collection of data.

Database Management System (DBMS): a set of computer programs for managing a

database.

Deed: a legal document laying out the conditions which land is transferred.

Demarcation: the marking-out of the boundaries of each land parcel on the ground.

Demarcation Map: a map prepared to show the parcels of land as determined during
the process of adjudication.

Digital Mapping the processes of acquiring (capture), transforming and presenting

spatial data held in digital form.

Digitizing: the process of converting graphic maps into digital form.

Disaster copy: a copy of the register kept in a secure place in case the main register is
damaged, for example by fire.

Estate: in legal terms, an interest in land. The terms is also used to refer to the
physical land and property to which that interest relates.

Expropriation: the compulsory depriving of an owner of property in return for

compensation

Feature: a set of entities describing a physical object.

File: an organized collection of related records.

Fiscal Value: the value of real-estate property used for taxation purposes.

Fixed Boundary: the legal boundary of a property where the precise line has been
agreed and recorded.

Fragmentation: the division of land units too small for rational exploitation, usually
as a result of the system of inheritance. The process may lead to a multiplicity of
parcels for one owner or a multiplicity of owners of one parcel.

Freehold: a free tenure, distinct from leasehold, in which the owner has the maximum
rights permissible within the tenure system.

General Boundary: a boundary for which the precise line on the ground has not been
determined.

General Cadastre: an official public record usually recording the ownership rights,
value, and quantity of land in a jurisdiction, State or country. The legal land parcels
are recorded in registers and on cadastral maps.

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Geographic Information System (GIS): a system for capturing, storing, checking,

integrating, analysing and displaying data about the Earth that is spatially referenced.
It is normally taken to include a spatially referenced database and appropriate
applications software.

Global Positioning System (GPS): a system for fixing positions on the surface of the
Earth by measuring the ranges to a special set of satellites orbiting the Earth.

Grant: a general word to describe the transfer of property whereby rights pass from
the “grantor” to the “grantee”.

Hypothec: a charge on property as a security against a financial loan in which the

property remains in the possession of the person receiving the loan.

Information: data transformed into a form suitable for the user.

Land: the surface of the Earth, the materials beneath, the air above and all things
fixed to the soil.

Land Administration: the processes of determining, recording and disseminating

information about the ownership, value and use of land when implementing land
management policies.

Land Information Management: the managing of information about land.

Land Information System (LIS): a system for acquiring, processing, storing and
distributing information about land.

Land Management: the activities associated with the management of land as a

resource from both an environmental and an economic perspective.

Land Parcel: an area of land under homogeneous property rights and unique
ownership.

Land Reform: the various processes involved in altering the pattern of land tenure
and land use of a specified area.

Land Register: a public register used to record the existence of deeds or title
documents.

Land Registration: the process of recording rights in land either in the form of
registration of deeds or else through the registration of title to land.

Land Tenure: the mode of holding rights in land.

Land Title: the evidence of a person’s rights to land.

Land Transfer: the transfer of rights in land.

Land Use: the manner in which land is used, including the nature of the vegetation
upon its surface.

Land Value: the worth of a property, determined in a variety of ways which give rise
to different estimates of the value.

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Dr Edward J.W.Chikhwenda 03 April 2007

Leasehold: land held under a lease, which is a contract by which the right of
exclusive possession of land is granted by a landlord (the lessor) to a tenant (the
lessee) for an agreed amount of money for an agreed period of time.

Lot: a land parcel.

Market Value: the most probable sale price of a real-estate property in terms of
money, assuming a competitive and open market.

Mass Appraisal: the process of valuing a group of real-estate properties at a given

date, using standard methods.

Metes and Bounds: a property description by reference to the bearings and lengths of
the boundary lines (metes) together with the names of adjoining properties (bounds).

Microfiche or Microfilm: storage media based on photographic processes.

Mortgage: the conveyance of a property by a debtor (called the mortgagor) to a

creditor (called the mortgagee) as security for a financial loan with the provision that
the property shall be returned when the loan is paid off by a certain date. In some
legal systems there is provision that the mortgagee has the power to sell the concerned
property when the interest is not paid in time and the loan is not paid off by a certain
date in accordance with the agreed stipulations.

Orthophotograph: a composite aerial photograph from which height and tilt

displacements have been removed.

Orthophotomap: a photomap made from orthophotographs.

Overriding Interest: a legal interest in land that has legal force even though not
recorded in the land registers.

Parcel: a land parcel.

Photogrammetry: the science and art of taking accurate measurements from

photographs.

Photomap: a map made by printing photographs rather than using abstract

conventional signs and symbols.

Plot: a land parcel.

Plotter: any device for drawing maps and figures.

Pre-marking: the marking of points on the ground prior to the taking of aerial
photographs so that the points can be certain of identity.

Prescription: the gaining of a right by reason of a lapse of time.

Pre-signalization: pre-marking.

Private Conveyancing: the transfer of rights in land without any public record of the
transfer.

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Dr Edward J.W.Chikhwenda 03 April 2007

Provisional Title: a registered title that should in due course become an absolute title
provided that no objections are registered within a prescribed period.

Raster: a regular grid of cells covering an area, usually recorded by automatic

scanning.

Real Estate: land-related property.

Real Property: land and any things attached to the land including buildings,
apartments and other construction and natural objects such as trees.

Rectification: the legal process whereby errors on a land register may be corrected.

Registration of Deeds: a system whereby a register of documents is maintained

relating to the transfer of rights in land.

Registration of Title: a system whereby a register of ownership of land is maintained

based upon the parcel rather than the owner or the deeds of transfer.

Registry Index Map: a map showing all land that has been registered within a given
area.

Rental Value: the value of a property in terms of the rent which may be derived from
it.

Restitution: the restoration of former rights in land involving the re-privatization of

land and property or the creation of new property rights over land formerly taken over
by the State.

Restrictive Covenant: an agreement whereby one landowner agrees to restrict certain

ways in which the land might be used for the benefit of another.

Root of Title: a document dealing with the whole legal and equitable interest in real
property that provides certainty in any legal disposition.

Servitude: an easement.

Sporadic Adjudication: the determination of rights in land here and there, now and
then.

Stamp Duty: a levy charged on the transfer of property.

Statute of Limitations: a statute that limits the period during which a claim, for
instance for the restoration of rights in land, can be pursued.

Strata Title: title to land which is not necessarily divided horizontally, such as in
high-rise buildings or for mining rights.

Subdivision: the process of dividing a land parcel into smaller parcels.

Systematic Adjudication: the determination of rights in land on a regular and

systematic basis, for example within one area at one time.

Tenure: the method whereby land rights are held.

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Dr Edward J.W.Chikhwenda 03 April 2007

Title: the evidence of a person’s right to property.

Title Deeds: documents giving evidence of title to land.

Title Plan: a plan especially drawn to show the boundaries of land parcels.

Topography: the physical features of the Earth’s surface.

Topology: the study of properties of a geometric figure which are not dependent upon
absolute position, such as connectivity.

Traversing: a land survey technique of measuring successive angles and distances to

establish new positions.

Trilateration:a land survey technique of determining position by measurement of

distances only.

Triangulation: a land survey technique of determining position by measurement of

the angles in a series of triangles.
Valuation: the determination of the value of property.

1.2 General Procedures of Cadastral Surveys

In law, there are no universal rules for the weighing of evidence. Similarly, there are
no universal, unvarying rules for cadastral surveying procedures. Each cadastral
survey is unique and requires a unique way of conducting it. Despite this fact, a
typical cadastral surveying problem usually breaks down into the following major
action phases:
• The cadastral surveyor will be involved in studying the location of area to be
surveved by analysing and interpretating all the available deeds, contracts, maps,
wills, or other documents that contain a description of the boundaries. The principal
repository for most of these instruments is usually the files in lands and surveys
department records offices. Other records for Malawi Housing Corporation land and
city assemblies can be obtained in the respective records offices. The mere
deciphering of ancient, hand written documents is an art in itself. In cadastral
surveying, it is usual to encounter conflicting evidence in the shape of documents that
purport to describe the same property but that describe it differently. Sometimes, it is
possible to find a document in which some of the language may bear more than one
interpretation. In this last case, the surveyor should apply legal maxim to the effect
that an ambiguous document should be given the sense that the maker of the
document may be reasonably presumed to have intended.
• After the cadastral surveyor has acquired all the evidence of location and the
related documents, she or he has to determine the true property description. Based
on the property description evidence, the surveyor should be able to determine what
physical evidence of the boundary location exists in the field. In this case, physical
evidence can be in the form of beacons or any other monuments, both man made and
natural. In cadastral surveying, a beacon is any identifiable object that occupies a
permanent location in the field and serves as a reference point or marker for a
boundary. A beacon or monument may be a natural monument, such as a rock, a tree,
or the edge of a stream; or it may be an artificial monument, such as a pipe or a

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Dr Edward J.W.Chikhwenda 03 April 2007

concrete monument. It is advisable not to use perishable markers for monuments or

beacons, such as a wooden marker that decays easily.
• The cadastral surveyor has to visit the actual field in order to verify the existence
of the physical evidence of the boundaries.
• After exhausting all the evidence in the office and the field, the cadastral surveyor
has to establish the present boundary. This procedure involves those decisions
previously mentioned regarding the best evidence. It also involves the setting,
referencing, and setting out of points that should have been marked in previous
surveys but were not or that were set out with beacons that have since disappeared.
• Finally the cadastral surveyor has to prepare the property description in form of a
working plan and a deed plan.

The working plan becomes official when the surveyor general has approved it. The
working plan is the drawing on which is shown the direction and length of each line
surveyed, established, retraced, or resurveyed; the relationship to adjoining official
surveys; the boundaries, designation, and area of each parcel of land. Some of the
important topography of the area may also be shown on the working plan. The
surveyor general will approve a cadastral survey only if the surveyor submits all the
original field sheets, computation sheets and all the signed drawings. The notes of the
field survey, the field sheets, computations and the plans are then filed in the record
office, where they become public.

A property working plan must contain the following:

• Directional orientation usually indicated by a north arrow.
• Bearing and distance of each boundary.
• Corner beacons with their precise descriptions and names.
• Plot numbers of adjacent plots where there is an existing adjacent cadastral survey.
Where there is no adjacent survey, the status of the unsurveyed land shall be shown.
• Departing property line is one that runs from a point on one of the boundaries of
the surveyed plot through adjacent property. It constitutes a boundary between areas
belonging to two adjacent owners.
• Names of any natural monuments that appear on the plot (such as the name of a
stream), or the character of any natural monuments that have no names.
• Title block, showing plot number and location of property
• Other information included on the working plan include the name of surveyor,
date of survey, scale of plan, and any other relevant data.
• Grid lines are also shown on the working plan.
• Streams, roads, wooded areas, and other natural features, whether or not they serve
as natural monuments are shown on the working plan.
• It is a mandate to include the surveyor’s certificate. This is a statement in which
the surveyor makes a personal affidavit as to the accuracy of the survey. A typical
certificate might read as follows: This survey has been carried by me or under my
personal supervision. Signed (Dr. Edward Chikhwenda), land surveyor.
• If one plot was surveyed, the area of the plot is shown. Where several plots were
surveyed, each plot area is indicated on the working plan.

1.3 Cadastral Surveying System in Malawi

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Dr Edward J.W.Chikhwenda 03 April 2007

In Malawi, the British colonial settlers first introduced cadastral surveying. In United
Kingdom, the surveying history was mainly influenced by the military in the
eighteenth and the nineteenth century. The influence of the military is also apparent in
Malawi because the first topographical map of the country was produced by the
military. Most of the early surveyors in Malawi had military background.

Cadastral surveying in (Nyasaland) Malawi originated from the need to facilitate the
conversion of customary land to private ownership in 1890s. This was preceded by
dubious negotiations between the settlers and the local chiefs. Usually, the
negotiations involved the exchange of money and other items with the land. Most of
the times, the local chiefs surrendered their land without knowing the implications of
such deals. This can be attributed to the fact that human population was very small
and hence there was a lot of virgin land. Yet another reason, which might have led to
extravagant surrender of the land to the settlers, was the fact that the local chiefs
could not attach value to their land because it was traditionally believed that land
could not be sold, let alone be owned. The areas that were affected by such type of
land deals include the Shire Highlands and the Lower Shire River. During this time,
maps, sketches or even the description of the land was not available. Therefore, it was
difficult to know the exact boundaries of the private land. As a result, there was need
to come with a cadastral surveying system that would facilitate the transfer of the land
and ensure security of tenure for the settlers.

When Nyasaland became a Protectorate on 14th May 1891, a survey office was
established. The duties of the office included surveys for international boundaries,
Certificate of Claims and general mapping..

In Malawi, the first surveys were carried in order to avoid disputes between the
settlers and the local people because by this time, the settlers had acquired vast land
for tea and coffee plantations. To achieve this, the commissioner declared that all
transactions in crown lands were to be addressed to the chief surveyor in the survey
office. In 1896 land sales regulations were put in place to make sure that land records
are reliable. These regulations clearly stipulated that any land transaction was
supposed to be accompanied by a definition of the block and the approximate acreage
and also a sketch plan duly endorsed and certified by a government surveyor. The
sketch plan was also supposed to be clearly described. However, the sketch plan was
an interim measure that required a full cadastral survey to be carried out. The major
surveying activities in Malawi began after the Directorate of Overseas Surveys (DOS)
and the department of surveys was put in place in 1949. The main duties of the DOS
were to carry out trigonometric and topographic surveys, while the department of
surveys mainly dealt with cadastral surveys.

During the early days of cadastral surveying in Malawi, most of the practicing
surveyors were British nationals who were previously working in India. The other
assistants were Indian nationals. The Indian assistants were already familiar with the
tropical weather and could easily adapt to the Malawian weather. Although the British
did the first surveys, the cadastral system in Malawi is different from both the British
and the Indian system. Malawi has a predominantly fixed boundary cadastral system,
modelled on the Roman-Dutch system being practiced in South Africa. However, the
general boundary cadastral system is also accepted especially where the adjudication

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Dr Edward J.W.Chikhwenda 03 April 2007

of title has been effected. The fixed boundary system adopted in Malawi is similar to
most of the surveying that is being practiced in the former British colonies. In these
colonies, the British surveyors required very high standard of surveys that can only be
achieved using fixed boundary system. The other reason why fixed boundary system
may have been adopted was that these colonies were usually undeveloped and hence
lacked the physical features used in general boundary systems. The general boundary
system used in Britain involves the registration of titles that rely on the Ordnance
Surveys maps.

Historically, land transaction in Britain did not need neither deeds nor plans. Later the
government discovered that there was a reduction of feudal dues paid to the Crown.
Hence, the introduction of registration in the 1830s. The actual legislation was
introduced in 1862, and this required that boundaries of the registered titles be fixed.
This system resulted in long delays, great expense and creation of disputes among
adjoining owners. Because of all these, the fixed boundary system was proved to be a
failure. This led the introduction of the General Boundary Rule in 1875.

The Land Registration Rules of 1925, Rule 278 of the UK states that:
• Except in cases in which it is noted in the Property Register that the boundaries
have been fixed, the filed plan or the general map shall be deemed to indicate the
general boundary only.
• In such cases the exact line of the boundary will be left undetermined, as, for
instance, whether it includes a hedge or a wall and a ditch, or runs along the
centre of a wall or fence or its inner or outer face or how far it runs within or
beyond it; or whether or not the land registered includes the whole or any portion
of an adjoining road or stream.
• When a general boundary only is desired to be entered in the register, notice to the
owners of the adjoining land need not be given.
• This rule shall apply not withstanding that a part or whole of a ditch, wall, fence,
road, stream or other boundary is expressly included in or excluded from the title
or that its forms the whole of the land comprised in the title.

The above rules suggest that British surveyors realized the problems associated with
fixed boundary system. This resulted in adopting the general boundary system, which
is far much faster as it relies on the actual physical boundaries. But, it must be
emphasized that any appreciable discrepancy in the presentation of the positions of
these physical boundaries on the filed plan could normally fall outside the scope of
the general boundary rule. The general principle adopted in Britain is that the map or
the plan should be treated as a bad master and a good servant. The Land Registry in
Britain is thus responsible if there are practical problems regarding the accuracy of
defining the position of the boundary of the registered title.

Malawi's fixed boundary system is a combination of a copy of the obsolete fixed

boundary system that was practiced in Britain in the early nineteenth century and the
Dutch-Roman cadastral system practiced in most states in Southern Africa and the
other British colonies. The number of registered titles in the UK is above fourteen
million. Only about two dozen are under the fixed boundary system while the rest
have been registered under the general boundary system.

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Dr Edward J.W.Chikhwenda 03 April 2007

However, in Malawi the statistics show that most of the registered titles are under the
fixed boundary system. Surprisingly, the use of fixed boundary system does not mean
that the cadastral system is free from boundary disputes. General boundary system has
worked in Britain, however it can not be adopted in Malawi unless people's
perception and mindset about boundaries is changed. The Malawian layman believes
that his boundary is the centre of the beacon. However, it interesting to note that in
Malawi people have been using general boundaries from time immemorial. In the
rural area chiefs, village headmen and the family head know precisely the extent of
their land using natural features such as landmarks.

The fixed boundary system in Malawi has been inefficient because those
professionals who are the custodians of the system have set very high standards,
which stretch their abilities and usually do not reflect the needs of the customers.
This has resulted in the services being slow and expensive.

1.3.1 Cadastral Surveying Developments in Malawi

Urban growth and development of any country results from the need to fulfill
mankind's highest aspirations. From the time of the Pharaohs to the present day, the
cadastre has provided data and information for long term planning and management
of resources associated with development. This implies that a cadastral system is the
only administrative component that facilitates proper development within a
community taking into account the social complex matrix relationships that exists
regarding access and use of land. Cadastral surveys enable the local government
administration, utility administration, and socio-economic–political administration.

Historically, cadastres were primarily established for taxation purposes. The

development of modern civilization is attributed to the system of taxation that
provided the major source of government revenue. This function of the cadastres has
gradually changed to include the provision of security of land tenure, supported by a
land registration system that facilitates quick, safe and efficient way of transferring
land rights. In mainland Europe most of the countries use the Napoleonic Code form
of cadastres. In Britain, the cadastre was originated from the Domesday record after
the battle of Hastings. In the case of Germany, a cadastre is an official register of all
parcels and buildings both graphically and textually.

As described above, cadastral surveying system that has been adopted in Malawi aims
at the surveying of areas for their correct determination and description, for the
purposes of conveyancing land and real property or for securing of mortgages or
similar security instruments on real property. It involves the establishment of real
property corners, boundaries, lines and monuments, reestablishment of previously
defined real property boundaries, lines, monuments and corners through evaluation of
evidence. It also involves the partitioning of land for the purposes of constructing one
or more buildings in the present or future on one or more of the parcels. Thus, it can
be summarized that the cadastral surveying system in Malawi facilitates the
definition, identification, demarcation, measuring and mapping of new and changed
legal parcel boundaries. A cadastre usually contains parcel based, up-to-date land
information system, which contain a record of interests in land such as rights,
responsibilities and restrictions. This implies that a cadastre provides a systematic

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Dr Edward J.W.Chikhwenda 03 April 2007

record of land rights, which is the backbone of public administration, land use
planning, land development and also other private transactions in land. The cadastre
becomes an important tool if it is able to:
• Make land transactions easy, cheap and secure.
• Reduce or eliminate litigation
• Stimulate investment and land markets
• Control land transactions by imposing planning requirements
• Provide effective machinery for assessing and levying land tax
• Stimulate public planning
• Provide public administrative instrument

For the above outlined to be achieved, there is a need for a clear institutional
recognition and resolution of the major problems faced in the developing countries
like Malawi. This is so because any cadastre requires a very complex operation,
which involves the establishment of a functional system of relationships among
several institutions. The complexity of the cadastre requires a systematic approach to
maintenance of the system. It is also necessary that a cadastre should be flexible,
simple, freely accessible and low cost (Williamson, 1997) in order to accommodate
the different tenure systems in the community. Williamson (1997) argues that the
success of any cadastral system does not depend on its legal or technical
sophistication, but rather on whether land rights are adequately protected, with those
rights being able to be traded where appropriate, efficiently, simply, securely, quickly
and at low cost.

1.3.2 Chronology of Activities regarding Cadastral Surveying in

Malawi

Year Activities
1798 Dr Francisco Jose Maria de Lacerda carried out the earliest accurate surveys
in the central and eastern part of Africa. This expedition went up the
Zambezi river to Tete
1823 Lieutenant C Browne led another expedition along the East Africa Coast.
He is credited with the accurate determination of the points near the
Zambezi Delta
1858 Dr D. Livingstone led Zambezi expedition. This expedition was the
foundation for accurate surveys that were done up the Shire River, along the
western shore of Lake Malawi and eastwards to Lake Chilwa. Dr
Livingstone was the first person to carry out an accurate trans-continental
survey from west to the East Coast of Africa. The Zambezi expedition by Dr
D. Livingstone, Kirk and others can be said to be the origin of the first
accurate surveys in Malawi

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Dr Edward J.W.Chikhwenda 03 April 2007

1891 Sir H Johstone established the first survey office in Zomba that was mainly
for carrying out surveys for certificates of claims, international boundary
and general mapping.

Sir Alfred Sharpe is known to have been the first surveyor to determine the
height of Mulanje Mountain as 2,950.464 metres (9,680 feet).

Sclater, who was a successor land surveyor to Sir A Sharpe, formed the first
public works department

Mr T. Lloyd became the first chief surveyor in this public works department
William Stotesbury succeeded Mr. Lloyd as a chief surveyor

In July 1891, Sir H Johnstone issued the first circular stating that all land
purchasers must cease and all existing claims would be subject to the
Crown's approval. The approval of such claims would be done after
submitting a sketch from which a certificate of claim could be drawn.
1892 Mr Lloyd was commissioned to carry out surveys of land claims by Sir
Harry Johnstone.
1894 On 1st February 1894, the first regulations regarding the registration of
deeds came into force. These regulations were based on the certificates of
claim of which they were about 73.

Registration of Non-testamentary Documents introduced.

1895 In September 1895, Johnston announced the first legislation affecting
surveys in Malawi. This legislation was mainly to do with Tariff for
Government surveys and the requirements for presentation of surveys
Land Sales Regulations regarding Registration formulated
1896 William Anderson became acting chief surveyor

Land Sales Regulation came into force. The aim of these regulations was to
spell out the manner in which land could be acquired. According to the
regulation, any application needed to have an accurate and concise
definition of the boundaries, the estimated acreage, a sketch plan that has
been endorsed, and certified by a Government Surveyor
1897 Mr T Lloyd and Berringer became the first surveyor to be commissioned to
carry out cadastral surveys in the protectorate

Queen's Regulations regarding land surveyors were published. These

regulations spelled out rules regarding appointment and registration of land
surveyors.
1901 On 14th August, H Kaye and J Bannerman arrived at Chinde as the second
assistant surveyor and draughtsman respectively.

On 30 September, the Zomba survey office was renamed Lands and Survey
office. The mandate of this new office was to ensure that all land
transactions in BCA were to be addressed to the Chief Surveyor. However,
all deeds continued to be drawn up, approved and registered by the
Registrar at Blantyre.

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Dr Edward J.W.Chikhwenda 03 April 2007

1910 The Registration of Documents Ordinance formulated

1912 The 1897 Queen's Regulations were rewritten to come up with the Land
Surveyor's Ordinance number 8. The main changes in this Ordinance were
that the Director of Public Works was the registering officer of all land
surveyors. The post of Chief Surveyor was also abolished. This Ordinance
also required the notification of the registration of the Land Surveyors to be
in the Gazette
1915 In January, the Lands Office was established in Blantyre
1916 The first Deeds Registration Act formulated
1917 The first aerial survey in Malawi was carried out from Karonga.
1920 The Land Surveyors Ordinance was amended to empower the Lands Officer
to be the Registrar of Land Surveyors rather than the Director of Public
Works.
1917 The first aerial survey in Malawi was carried out from Karonga.
1949 At the end of 1949, the Deeds Registry was divorced from the Lands Office.
This was the time when Lands Office was relocated to Zomba. The surveys
section was also moved to Zomba for the second time.
1950 Department of Surveys as it is known today was established on 16th March,
1950 under Mr. B.A MacArthur Davis who became the first Director of
Surveys on 1st January 1951. The formation of this department resulted in a
dramatic improvement in survey activity in Malawi. Subsequently, the
survey licence was restored to intended status of 1890s.
1954 By 1954, only two licences were issued despite having a large number of
applicants.

1961 In 1961, when the ministerial system of government was introduced, the
surveys department was brought under the ministry of Lands and Mines.

1.3.4 International Boundary

The first attempt to survey the international boundary of Malawi was in 1898. This
was three years after the Berlin Conference, which endorsed the scramble for Africa.
The survey was in respect of the British and the German spheres of influence i.e the
boundary between Malawi-Tanzania and Zambia - Tanzania. This survey covered
about 360 kilometers along the Songwe River. The Malawi section of the border was
only 138 kilometres, which consisted the natural river boundary. Two demarcation
pillars were fixed at the western end of the river. The survey of this international
boundary involved the British and German surveyors. The starting point of the survey
triangulation was the South Shore of Kambwe Lagoon on Lake Malawi. The British
party measured the base south of Karonga Boma while the German party measured a
base south of the mouth of Songwe River. The two triangulation were connected
some 112 kilometres along the border.

The second phase of attempting to demarcate the international boundary of Malawi

was in 1899/1900, when a joint Anglo-Portuguese Provisional Boundary Delimitation
Commission attempted to demarcate about 1,056 kilometres of a border between

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Dr Edward J.W.Chikhwenda 03 April 2007

Malawi and Mozambique. A triangulation and plane table were carried out with some
monuments erected along the boundary. The beacons were generally masonry pillars.
Where rocks could not be obtained, the beacons consisted of a tripod 2.44 metres high
built of steel rails with a steel plate fixed to the top by means of bolts and nuts, the feet
embedded in blocks of masonry.

The delimitation of the Malawi-Zambia border was defined as the watershed and was
never surveyed in cadastral terms as the Malawi-Tanzania and Malawi-Mozambique
borders. The main reason was that both Malawi and Zambia were British territories
and hence the issue of boundary was left to the diplomats. In 1967, a joint survey of
the Zambia - Malawi was commissioned. This was the first time for the Malawi
boundary to be perambulated.

1.3.5 Land Administration Matters

The following were the responsibilities of different officials in terms of land matters
between 1901 and 1905:

(a) Chief Surveyor: He was responsible for all land administration matters, all types
of surveys, preparation of rent rolls and rent notices, deeds registry.
(b) Attorney General: He was involved in providing advice on legal issues and
conveyancing.
(c) Treasury: This office was responsible for registering land tax.
(d) District Council: This office was mainly concerned with rent collection.

1.3.6 The Role of Directorate of Colonial Surveys and Department of

Federal Surveys

The Directorate of Overseas Surveys (DOS) played an important role in the history of
surveying in Malawi. The provision of a national network of trigonometrical control
is one of the major contributions of DOS. This facilitated the national mapping series
of Malawi. The DOS was known as the Directorate of Colonial Surveys (DCS) from
its inception in 1948 to 1957. It was then changed to DOS. The following is a list of
DOS contribution:
• Measurement of Sambani Base.
• Reconnaissance and observing main primary network of our triangulation system.
• Malawi - Mozambique boundary commission.
• Secondary triangulation and traverses network.
• Tertiary control for selected development areas and townships.
• Secondment of surveyors and cartographers to Surveys Department.
• Provision of land use and geological maps.

It should be noted that when the DOS was in Malawi, Surveys Department was not
sufficiently staffed. During the federation times, the Department of Federal Surveys
carried out field surveys for controlling photography in the Shire Highlands. The
federal surveys department worked independent of the DOS. The DOS was

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Dr Edward J.W.Chikhwenda 03 April 2007

instrumental in the measuring of the Sambani Base in 1948. By July 1948, the
baseline position was selected on the Phalombe plains between Mulanje and Blantyre.
By August 1948, a 4 metre wide line was prepared and the measurement of the base
commenced in September 1948. Because of the prevailing weather conditions in
September, the surveyors resorted to night observations because the weather was calm
and the temperatures were stable. The Sambani base was 22.4 kilometres in length
and was measured in both directions with an accuracy of 1:3,360,000. The
measurement was completed by mid December 1948. By March 1949, the
triangulation network had been carried out. The observation of the primary
triangulation started in 1951 because of the delay that was caused by the need to
urgently survey the possible rail route from Mtwara on the Indician Ocean to the
copperbelt in Zambia. The survey of the primary triangulation took 75 surveyor –
months and included 55 stations. About 114 rays were observe and covered about 51
kilometres. The observation of the network closed with an accuracy of 1/670,000
between Sambani Base and the Tanzania Stations. The northern primary network was
observed from 1957. This network connected to two stations in Tanzania and three
stations in Malawi. This means that surveyors from both countries were involved in
the observations. In 1963 a connection was reconnected and observed from Nyika
Plateau to the 30th Arc in the vicinity of Isoka, Zambia.

The secondary triangulation framework was observed from 1956. I should be noted
that during this period, there existed the Department of Federal Surveyors, the
Directorate of Colonial Surveys (DCS) and the local surveys department. Smooth
observation of the secondary triangulation required some form of planning. As a
result, it was agreed that the DCS would work north of 14ºS while FS would work
South of 14ºS and east of 34º30'E. The DCS, later known as DOS, concentrated on
the survey of the four blocks, namely Lilongwe Block, Kasungu Block, Mzimba
Block and Nyika Block. The observations were completed in 1963. The tertiary
breakdown of the triangulation was carried out between 1967 and 1974. This
breakdown of the triangulation was necessary because it was to facilitate cadastral
and other land use surveys. I should be noted that in the Southern Region of Malawi,
the DOS did the secondary and tertiary triangulation from 1967 to 1974. The DOS
carried out the following tertiary breakdown for: Lilongwe Land Resettlement
Scheme, Pirilongwe Secondary, Blantyre West Secondary, Nsanje Secondary,
Thyolo-Mulanje Tertiary, Chirwa Secondary, Ntcheu, Dedza, Namweras, Mulanje
Mountain, Kasungu, Dowa, Nkhota kota, Mponela, Mchinji, Chinteche, Karonga and
Limphasa Dambo Tertiary Schemes.

The formation of the Federation of Rhodesia and Nyasaland in 1953 meant that there
were three departments that were to deal with surveys; namely the local surveys
Department, the Directorate of Overseas Surveys and newly formed the Federal
Surveys Department. When the Federal Surveys Department was formed, it was
necessary to come up with some recommendations regarding how the three
organisations were to operate in Malawi. The following recommendations were
agreed at a conference held in Salibury.

• Cadastral surveys were to remain the responsibility of local survey departments.

• Geodetic and topographic surveys to be centralised and to be the responsibility of
the Federal Surveys.

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Dr Edward J.W.Chikhwenda 03 April 2007

• Appointment of the Federal Surveys Adviser, whose main task would be to

coordinate the operations of the three organisations.

The first adviser was appointed on 1st December 1954 (Col. J. Bradford). Mr.
Bradford suggested that Malawi should adopt the Gauss Conformed Lo Grid (English
feet) on the Transverse Mercator Projection for Cadastral purposes. The idea was that
the surveys done in Malawi should be in sympathy with those done in the rest of the
Federation. Bradford also suggested to the DOS, who were at this time continuing
with the primary triangulation, that triangulation points should be pillared. On 1st
July 1956 after the death of Bradford, The Federal Department of Trigonometrical
and Topographical surveys was established and Brig. M. Collins was appointed the
Director. In November 1956, a branch was opened in Zomba. The Federal Surveys
set out the standard of trigonometrical pillars, which would be built by DOS.

In 1957, Malawi handed over all its map stocks to the Federal Department. In 1959
the street Map of Blantyre/Limbe was published as part of the Federal urban series.
Maps at scale of 1:5,000 were also published in the same year, which included
cadastral information. In 1961 two topo-cadastral map streets were published. These
sheets contained both topographical and cadastral information.

1.3.7 Trends in Survey Legislation

The origin of the Land Survey Act as it is known today can be traced as far back as
1948 when Mr W. Smith proposed the introduction of legislation to safeguard all
survey beacons in the Protectorate. This legislation was introduced to include the
checking of surveys and the introduction of a proper system of filing, indexing, cross-
referencing and safe custody of original plan computations and field books. This was
the first time when it was proposed that the government should ensure qualification
for those surveyors to be licensed. It was also proposed that a scale of fees be
introduced. According to the proposals, examinations were to be administered and
surveyors were supposed to satisfy the local examination Board of their knowledge of
the Nyasaland Survey Ordinance and any relevant land laws. As we have observed
elsewhere, Brigadier Hotine was the initiator of the Department of Surveys, as it is
known today. He actually spearheaded the adoption of the South African concept of
cadastral surveys.

The Land Survey Ordinance was officially enacted in 1952. This is the basis of the
Land Survey Act (CAP 59:03). This ordinance was primarily intended to replace the
Land Surveyors Ordinance (CAP 60, revised 1946 edition) that was enacted in 1912.
By 1952, the 1912 Ordinance proved to be inadequate, hence the need to come up
with a new ordinance. In the 1952 Ordinance, the licensing procedure was clearly
articulated. According to this Ordnance, a Land Surveyor could be licensed if s/he :
(a) held a commission issued under the provision of the 1912 ordinance
(b) had had two years practical experience
(c) held an appropriate degree
(d) passed locally an equivalent examination
(e) qualified as a Land Surveyor in the UK or any one of the Dominions or certain
other countries.

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Dr Edward J.W.Chikhwenda 03 April 2007

The act gave powers to the Director of Surveys to require a person who applies for a
licence to satisfy him of his or her competence by carrying out a trial survey. In this
Act, the punishment that a licensed surveyor would get if any complaint is made
against him/her was included. Some of the punishment included suspending him from
practice and even removing him or her from the register.

The Land Survey Rules were first published in 1955 (Government Notice No 87) as
subsidiary legislation to the Land Survey Ordinance of 1952. These contained 62
Rules and 4 Schedules. The tariff of fees was included in the schedules, and was the
first comprehensive statutory regulations in the country. Some of the rules included:
• Surveys to be connected to triangulation control, either national or local.
• Tapes and chains were to be standardised
• Aerial photos could be used for determination of river boundaries.
• Survey beacons were specified
• Specifications for plans
• Computation of plots was to be consistent in data
• Survey records to be retained by the Surveyor.

On 31st May 1957, Mr. R. Garrard was appointed the Director of Surveys. Mr.
Garrard introduced methodical surveys and the filing of all survey records. He made
the submission of all survey records, computations, and field books etc compulsory.
Mr. Garrard also insisted that only professional officers could carry out cadastral
surveys. Technicians were allowed to survey only under strict supervision. Here in
Malawi, because of the fixed boundary system by cadastral surveys are regulated by
very strict legislation.

1.4 The Role of Cadastral Surveying in Land Registration

Land registration has been used as a tool for ascertaining land rights for centuries.
Thus, it is not strange to find that the settlers in Malawi introduced a surveying
system that enabled concise identification of parcels of land for registration purposes.
In England, the Land Transfer Act of 1897 made land registration to be compulsory.
As the settlers arrived in Malawi in the 1890s, it was necessary to introduce a system
of describing the land they acquired from the natives. During this period of
colonization, there were a lot of changes in England regarding the cadastral
surveyor’s role. It is reported that the cadastral surveyor changed from using the
compass, swinging from meticulous accuracy in defining the land, because of the high
cost involved and the apparent associated hostility that was created between
neighbouring land owners, to the theory that while registration of title involved the
examination and guaranteeing of the legal title, it did not involve any official
identification and guarantee as to the extent and boundaries of the land, the title to
which it was guaranteed. This was because title to land has the meaning of the legal
right to the possession of property and it also signifies the evidence that proves that
right. This implies that one can have a good title to land rights without actually having
the title deed.

1.4.1 The Cadastre and Land Registration

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Dr Edward J.W.Chikhwenda 03 April 2007

As we have seen above, a cadastral system should be seen as the combination of a

cadastre and a land registration system. In this case, it is preferred that a cadastral
system should be less expensive than the actual land value. The importance of a
cadastral system can not be overemphasized. Land is and will be unique for any
development and progress of the human settlement patterns. This uniqueness of land
means that there is need for the government to play an important role in controlling
the land market, which is essentially a market of land rights. In history, this has been
achieved by establishing a cadastral system that guard the interests and rights of
individuals in the landed property. The complexity of land rights is that it is possible
for many persons to have different rights in the same piece of land. It is also possible
for one person to have land rights on several parcels.

A cadastre can be either fiscal or legal. History shows that cadastres developed as a
means of levying property tax. This was a fiscal function because these types of
cadastres facilitated the authority to tax all land and buildings. In Europe, fiscal
cadastres are credited to Napoleon who financed his wars using the property tax he
collected from all the lands he controlled. Over the years, it was realized that land
rights had to be protected legally. This resulted in legal cadastres. It is, however,
difficult to precisely differentiate between fiscal and legal cadastres. Fiscal cadastres
were and are based on full survey just like legal cadastres. The main difference
between the two is that fiscal cadastres will usually require less accurate maps
especially if the property tax is based on the market value principle of valuation. On
the other hand, legal cadastres require very precise cadastral surveys that are
guaranteed by the government.

A cadastral system deals with the ownership, value and use of land. Although
cadastres and land registration systems are conceptually independent, they are
interdependent in practice. Each attribute of land needs to be carefully managed. To
achieve this, there must be good land records of ownership and value. Records of
ownership fall into the legal cadastres while records of value facilitate fiscal
cadastres. Fiscal cadastres ensure fairness in land and property taxation and equity in
the compulsory acquisition of land as well as ensuring efficient land resource
management.

The western concept of land administration system makes it necessary to have some
form of land registration that records and guarantees data and information about the
ownership of land. A right is something to which some person or group of persons is
entitled. The function of land registration is to provide a safe and certain foundation
for the acquisition, enjoyment and disposal of rights in land. The idea is that once
land is registered and security is guaranteed by government, there is likely to be order
and stability in society by creating security not only for landowners and their partners
but also for national and international investors and moneylenders, for traders and
dealers, and for Governments. Although a cadastral system may be directed at
protecting the interests of individual landowners, it should also be seen as an
instrument of national land policy and a mechanism to support economic
development.

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Dr Edward J.W.Chikhwenda 03 April 2007

Cadastres contain a set of records that are based on the proprietary land parcel. The
records show a graphic representation of different parcels. In some cases, the cadastre
supports either records of property rights, or the taxation of land, or the recording of
land use. As we have seen, nowadays, cadastres play a multi-purpose role by
providing a wide range of land related information. In this situation, cadastres are
based on the proprietary land parcel because this provides the legal basis for all
dealings in land.

The cadastre is an information system consisting of two parts: a series of maps or

plans showing the size and location of all land parcels together with text records that
describe the attributes of the land. It is distinguished from a land registration system
in that the latter is exclusively concerned with ownership. However, both a cadastre
and a land register operate within a strict legal framework. In some countries, real
property formation, mutation, land consolidation, cadastral mapping, registration of
real properties, ownership and legal rights, real property valuation and taxation are all
combined within one basic cadastral system. In countries where the cadastre evolved
as a support for land taxation, the cadastre was separated from the legal processes of
land registration. In this case, lawyers dealt with land registration and the records
entered in land books, Grundbuch in Germany. This resulted in a dual system. Use
rights and ownership rights were recorded separately. This type of cadastral system is
evident in most European countries where there is the traditional notary system.

Land registration is a public register in which the documentation affecting interests

and rights in land are kept. This represents a legal system of registering properties
such land, buildings and all the other legal rights in land. The cadastre acts as the
source of the essential data in the land registration process. An effective and efficient
cadastral system should combine both the cadastre and the land registration process in
the same organization. In so doing, it is possible to make the contents of both systems
to be identical. The case in Malawi is that the plot numbers of parcels are different
from registration numbers although the cadastre and the land registration is in the
same ministry.

There are basically three systems for recording rights in land namely; private
conveyancing, the registration of deeds, and the registration of title. Private
conveyancing involves the transferring of documents of ownership between the seller
and purchaser, usually with the guidance of a lawyer. The government authority
merely provides a legal framework within which this process takes place. Private
conveyancing is generally inefficient and potentially dangerous because there in no
proof of ownership of the rights being transferred. As a result, private conveyancing
can be subject to fraud.

In registration of deeds, the government authority provides a deeds registry where a

copy of the transfer document is deposited. An entry in the registry then provides
evidence of the vendor’s right to sell. Because of the defects of this system, some
countries have allowed insurance companies to operate private registers that
underwrite any losses that may arise through defects in the title. This is known as title
insurance. In this case, the purchaser pays a premium to obtain the necessary
guarantee. If fraud takes place and a purchaser of land finds that the title is invalid,
the insurance company will pay compensation.

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Dr Edward J.W.Chikhwenda 03 April 2007

A copy of all agreements that affect the ownership and possession of the land are
registered at the registry offices. One copy of all documents is retained. There is need
for each document to be checked by an authorised lawyer who ascertains its validity.
Any person who is interested to purchase a registered property should search the
registry for the most recent document of transfer. However, the registry only shows
how the vendor obtained the property and the conditions under which it was acquired.
This does not provide proof regarding the legitimacy of the previous transaction. This
means that the prospective buyer has to inspect all the other previous transactions
until the purchaser is confident that there is a clear chain of title.

Deeds registration system only merely provides access to the history of transfers,
some of which may in practice be missing depending on the history of the system.
This means that it leads to the storage of vast quantities of ancient documents. The
volumes of data may lead to inefficient and costly data retrieval in most transactions.

Despite the shortfalls of deeds registration, deed registries still provide the most
important evidence of ownership that can be assumed to be correct unless proved
otherwise in the courts. In many countries around the world, the deeds registries are
not in this category and the systems owe more to the nineteenth century than to today.
Documents are in poor physical state, difficult to retrieve and even more difficult to
link into a chain of titles tracing the pattern of ownership over time.

The registration of title is believed to be the ideal system of registering land rights
because it is based on the mirror, curtain and insurance principles. The mirror
principle ensures that the registered rights should reflect perfectly the legal position
on the ground by drawing a curtain over all previous dealings so that only the present
entries on the register need be consulted (the curtain principle), and guaranteeing the
accuracy of what is shown on the registers (the insurance principle).

In registration of title system, each land parcel is identified on a map and the rights
associated with it are recorded on the register. In addition, the name of the owner is
recorded. When the whole of the land is subject to transfer, only the name of the
owner need be changed. When part of the land is transferred, the plans must be
amended and new documents issued. In this system the definitive record is that held
by the titles registry. Usually, the owner of the property will keep a copy of the
certificate of title for each land parcel.

In this system, the ownership of land can be guaranteed because of the insurance
principle. Any dispossession of land through the functioning of the registers will be
compensated even though the mistake was not made by the registry but rather was a
case of fraud.

Both systems of registration of title and registration of deeds evolved to meet the
needs for improved conveyancing. Both were devised to provide greater security to
the land market and both grew from a legal rather than a land management
perspective.

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Dr Edward J.W.Chikhwenda 03 April 2007

The foregoing discussion has shown the uniqueness of both the deeds registration and
title registration. Deeds registration is based on the principle that registered deeds take
priority over unregistered deeds. However, deeds registration exhibits a fundamental
defect in the sense that it does not in itself prove title. It is just a record of an isolated
transaction. In order to remove the uncertainty of the deeds registration, states adopt a
private type of title insurance. Title registration, on the other hand, is based on the
principle of ascertaining the title to a piece of land as a fact. In this system, the state
actually maintains, guarantee and warrant the existence of the title and the physical
terrain. Title registration usually requires very precise survey especially where fixed
boundary system is used. That is why the importance of the cadastral map (plan) has
been the major focus of discussion in the English title registration system. The
cadastral plan shows how the land is divided up into parcels subject to property rights
that are recorded on the register of title. Since the proof of title to registered land is
the actual entry in the register, the cadastral plan act as an index that enables the
registrar to know which land is being registered. According to the British registration
system, it is a mandate that the registrar should be able to identify on the ground the
parcel of land being registered to a reasonable accuracy. Because of the controversy
regarding the accuracy of such cadastral plans, several commissions were set up to
evaluate the issue. In 1832, the Real Property Commissioners reported against the use
of plans, while the Registration Commissioners in 1850 reported in favour of plans. In
1857, there was yet another report, expressing the view that a map/plan is a good
servant, but a bad master; very useful as an auxiliary but mischievous if made
indispensable. However, the Act of 1862 considered meticulous accuracy and the use
of maps to be the major requirement for registration of title. This is the system of
registration currently being used in Malawi. This system is indeed heroic but a step
towards the simplification and cheapening of land transfer which forces every land
owner who applied for registration and his neighbours to fight for their rights to the
last millimetre or forever after keep silence (Wallance, nd). This system survived only
six years in England before a Royal Commission was appointed to investigate the
causes of its breakdown. It was discovered that the causes of the failure included the
necessity of precise official delimitation of the boundaries of the registered land. This
reinforced the view that a cadastral survey should aim at ascertaining what the land is
and what the legal title to such land is. On the other hand, there is a need for an
official control over all plans and maps submitted for the purpose of registration and
coordination.

The Land Transfer Act of 1897 in England was once again amended representing
another swing of the pendulum as regards to plans. All registered land was supposed
to be described by means of the Ordinance Map. In 1925, the Land Registration Act
was formulated. This Act modified the rigidity of the 1897 Act by dispossessing the
map from any position of mastership. These changes in the regulations indicate the
controversy that existed regarding the role of surveying in the registration process of
land. However, a boundary in cadastral surveying is an imaginary line that defines
the limits of a given property. This means that property boundary is a legal concept
that exists only in mind. The concept of boundary is thus only notional and can not be
shown on a plan or map. On the other hand, the law recognizes a boundary as a
mathematical two-dimension entity that separates one man's land from another
person’s land. What is shown on maps are symbols representing this imaginary line.
As a result, no professional surveyor can guarantee that a line drawn on a survey

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Dr Edward J.W.Chikhwenda 03 April 2007

drawing or a plan actually exists exactly there on the ground. Thus, a map or a plan is
a gigantic compromise by which surveyor's endavour to show on a flat surface the
topographical features on the surface of the sphere. It is similar to seeing the earth
through the wrong end of the telescope. Maps contract and expand with the changes
in temperature this renders the scale useless.

The registration of title in England is based on general boundary system that

guarantees the title to the parcel as a whole against the world and it does not
guarantee its boundaries to the last millimetre against adjoining land owners. In this
system the exact position and extent of the boundary is non conclusive because it
dispenses with the need for determining the exact location of title boundaries when
defining the extent of the properties and the ownership of the physical features. Even
where the boundaries of condominiums are required, the general boundary system,
leave the plane of the boundary of the title to be undetermined. However, although it
is not necessary to indicate the exact location of the boundary in general boundary
systems, it is imperative that the location of the physical features within which
the title boundary lies or the points between which the undefined title boundary run
must correctly be defined on the application map. In the fixed boundary system used
in Malawi, the guarantee to the precise legal boundary line requires the ground to be
visited; the boundaries to be perambulated and exhaustive inquires on detail must be
made of those in visible occupation of it. The fixed boundary system is further made
complicated by the lack of qualified personnel both in public and private sector in
Malawi.

In mainland Europe and Germany in particular, the Grundbuch (land registration) is

based on the common private law that was first enacted on 1st January 1900 (Hawerk,
1995). This system of registration contains all the rights of ownership in landed
property. The Grundbuch function in German falls under the Ministry of Justice and
each district local court acts as a land registry. The deeds registration system is used
because the contents of the land register are based on private contracts that are
certified by public notaries. The contracts are then stored in files belonging to each
record. The security of tenure in this system of private system of registration is based
on two legal principles. Firstly, the transfer of land rights only takes place after the
purchaser and seller have agreed on the transaction and the notary has approved and
submitted the deed to the land registrar for recording and registration. Secondly, the
knowledge that the land register enjoys the public faith because the details recorded
are assumed to be correct unless proven otherwise.

The British or German registration of title systems certainly can not be applied in the
Malawian system because registration system need to reflect the legal system and the
development needs of the community in question. However, the success of any
registration system depends on the powers vested by the state in its administrators.

The Germany system of land registration is supported by a sophisticated cadastral

surveying system that is the responsibility of the Federal Government. The surveying
services is based on a three tier structure (Hawerk, 1995):
• State Government Ministry: This is a Supreme Surveying and Cadastre Authority
which deals with the principles of cadastral surveying, preparing cadastral

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Dr Edward J.W.Chikhwenda 03 April 2007

legislation, administrative rules and guidelines for uniform implementation of

these tasks as the top supervisory body.
• Higher Surveying and Cadastral Authority: This represents the administrative
subdivisions of the state government departments. Their function is to supervise
local cadastral and surveying agencies as well as licensed surveyors.
• Local Surveying and Cadastral Services: They basically maintain and update
cadastral surveys within their jurisdiction.

Thus, a land registration system of any country needs to have a compatible cadastral
surveying system. Whether a general or fixed boundary system is adopted, the
cadastral surveyor’s job is to provide the required services that facilitates speed,
security in the registration process. Cadastral surveyors or lawyers may wreck the
whole concept of fixed or general boundary system and the resultant registration
process if they are out of tune with their expected functions. The cadastral surveyors
must be experts who are able to judge between the need of a map/plan of reasonable
accuracy used for practical purposes of the land market with its give and take, its
more or less and a geodetic map based on a rigorous system of triangulation with a
margin error of astronomic fineness. If surveyors leave their proper business of
cadastral map making and mix themselves up in the exclusively legal questions
involved in defining legal boundaries; if the survey is so slow and expensive that the
remedy is worse than the disease; if it is forgotten that the plan is to assist in the
identification of a single plot verbally; if the map/plan is made the master or the
indispensable precursor instead of the servant; registration of title as a proposition for
reducing the cost and simplifying the procedure on the sale of land is foredoomed.
However, the plan/map prepared by the surveyor is an important tool in the actual
registration of title to land. Definition of the physical boundary is a prerequisite to
registration because one wants to register a definite piece of land. Accuracy should be
thought of in relative terms and it is not necessary to be too meticulous while trying to
achieve an accuracy of academic excellence. An accurate map/plan is desirable that
can be provided within the financial resources of the registration authorities.
Summarizing on the lessons of cadastral surveying in the developing countries,
Williamson (1997) asserts that cadastral surveying systems must be appropriate,
systematic, sustainable, sensitive to culture, needs, resources and level of
development of individual countries.

The present cadastral surveying procedures in Malawi, which are regulated by the
Land Survey Act CAP 59:03, have been of much ridicule in the construction industry
because of its quest for academic excellence. Most of the fieldwork in the cadastral
system of Malawi can easily be done by technicians and supervised by professionals.
Professional issues of cadastral surveys account for only 20 per cent of the work.
These may include planning of cadastral surveys; sorting out acceptable data; dealing
with legal aspects of the survey and presenting the survey to the client. However the
professional surveyors in Malawi have made surveying to look complicated because
the surveyors have set unrealistic standards of accuracy.

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Dr Edward J.W.Chikhwenda 03 April 2007

1.5 Categories of Land in Malawi

Land ownership deals with both legal and ethical issues. Modern theory suggests that
there is a conception that property - in all in forms, has no direct relation with
personality. This means that land tenure is not an extension of, nor support of human
dignity and human will. In fact ownership regimes are seen as mechanical
arrangements or institutional arrangements that derive its authority from the state. In
primitive societies that existed in Malawi, land ownership was seen as an extension of
human dignity. The present type of land ownership that is propagated by
international institutions would make one believe that property is some form of
robbery because its existence tends to produce inequality in material enjoyment. This
is not what the creator intended to be the state of affairs. The concepts of western
civilized majority do not regard property in its sacred quality as the primitive society.
Because property is considered as a function of private utility, it poses no moral
sanction. The way property and its forms of ownership have been propagated, in the
western philosophies and theories, has resulted in the insecurity and poverty among
the peoples of the developing nations. This has consequently put speculation in the
place of production and removed permanent economic bases of our societies. Here,
we advocate that land tenure should be connected with the ultimate ethical sense of
man.

The issues related to land are very important to all activities on this earth. Man is
land animal, who cannot live without it. All the activities of man including food for
survival and any other material being is derived from the land. We have seen in
history how man in his primitive state safeguarded land in a peculiar manner from the
perils, which attach to its abuse. This ultimately resulted in coming up with some sort
of regulations so that inheritance of this important thing is secure. It is important to
note that all other forms of property may be replaced when destroyed or stolen apart
from land.

Historically, land has been held in common. Some land has been held by the state or
even private individuals. However, it is very clear that the manner in which land is
conceived and treated is very different from any other property.

Land was preliminary conceived as mere space that could be inherited by none but
open to all. In this case the community had rights in the land but the individuals had
no absolute continual power of such land. The emerging private ownership to land
was a result of the increased demand due to increase in population and the fact that
the mutations of allotment grew rarer.

Evidence from the nomadic nature of population suggests that such communities lack
fundamental conceptions of property. This type of community has revealed
communistic approach to land ownership. The main reason behind this approach is
that land was being regarded as mere space over which they progressed or a mere area
of soil from which they drew the sustenance of themselves and their domesticated
animals.

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Dr Edward J.W.Chikhwenda 03 April 2007

If we look at the Mediterranean civilization, we find that communities were in towns

and agriculture and village settlements were well established. As a result, by the
opening of the Christian era, land was held as private property. This means that land
could be bought and sold. Although this was the state of affairs, the state maintained
a reserve of land for the city. Evidence from the Mediterranean area, suggests that the
state was willing to prevent the increase of free men who could easily be dispossessed
of their land. The result of this thinking was that some sort of aristocratic legislation
emerged. The idea was to encourage equity in the subdivision of the reserved public
land. Note that at the dawn of the Christian era, the States in the Mediterranean area
consisted of a minority of free men. The majority of the men did not posses any civic
rights. This means that the majority of the citizens did not have any property in terms
of land. If we look at the Roman ideology, by this time, it was a deliberate state wish
to ensure that all the landless citizens should be freeholders and proprietors of the
diminishing public lands. The idea was that once men have some land, which they
can call to be theirs, they are likely to contribute to development of the state. This
would consequently result in increased security of the state. This thinking is evident
in the Mediterranean region as early as the 1st century, where the state encouraged
absolute ownership of land. This was balanced by the retention of large areas to be in
the hands of the communities for distribution. However, one thing is common even
up to the present day, that is, most European Countries have maintained the Roman
Law. Even most of the colonies (British, French, and Portuguese) have maintained
the Roman ideas and the Roman terminology of their law.

When Europeans arrived in Africa in 16th and 17th Century, they found that the tribes
were basically nomadic. In this case, the land was held in common by the tribe,
which moved from year to year. In some instances land could be re-allocated year by
year. Land for grazing animals was commonly maintained by the tribe. The tribe was
usually associated with an intense bond of blood and of common interest between the
members of each clan. The character of a tribal system in Malawi was that of intense
royalties to the clan and to the elders as well as the chief. In this type of society,
ownership is thought of as theft.

1.5.1 The Legal Implications of Surveying Land in Malawi

Land surveying deals with the management and administration of land. Land
comprises three related elements that are bound into a single areal unit, which is
referred to as land parcel. The three elements of land include:
• The Solum: This is the physical entity that comprises that part of the earth's
surface confined within a land parcel. This includes the solid below the surface and
the air space above. The solum extends from the centre of the earth upward to the sky.
This means that the solum is basically concerned with vertical surfaces. Where the
special types of titles such as condominiums, sectional or apartment are applicable,
the solum can also be divided by horizontal or inclided planes.
• Proprietary Unit: This is the co-extensive legal rights, which includes the
ownership and is attached to the solum. In this context, a legal right is an interest
conferred and protected by law that entitles one person to claim that another person or
persons either give him/her something or do an act for him or her or refrain from

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Dr Edward J.W.Chikhwenda 03 April 2007

doing an act. There are three types of dominium, which is the right of ownership;
these include usus, which is the right to use, fructus, the right to take fruits and absus
which is the right to possess exclusively, dispose off and to dispose.
• Social Matrix: these are those aspects of social organization, which uphold the
land tenure system, and the social system, which may change a system. The
organizations may include social, cultural, political and economic.

In Malawi, land can be categorized as customary, public and private. Each category is
specifically covered in the Land Survey Act, Land Act and the new Malawi National
Land Policy. These acts provide guidance as to how each category can be surveyed
and who can carry out such surveys. In law, land includes any chattel affixed to land.
A brick lying in the backyard of a building is a chattel. But as soon as it is attached to
the land it automatically becomes land. The title to land is associated with two
distinctive concepts. The first one is the concept of the actual physical holding or
possession. The second concept is that of documentary evidence. Cadastral surveyors
are usually involved in carrying out surveys for documentary evidence, in a form of
deed plans.

Historically, the land in Malawi was held under customary tenure. In this system,
each man feels that he owns the land he holds. The ownership or title to land is a
physical thing because the owner builds his house on his land, plants his crops. He
can claim to be able to stand with his feet on his land. The owner is able to show his
boundaries and even sometimes invite his neighbours and friends onto his land. The
land may have been acquired by conquest, adverse possession, squatter sovereignty,
inheritance or even by purchase. However, due to the European intervention,
especially after all land was declared Crown land in 1903, the concept of land and its
ownership has changed. The western concept of land is different from the traditional
beliefs and norms. In the western concepts, land assumes the nature of a commercial
commodity. The passage of time and as a consequence of economic, social, political,
technological change, population and urban developments has resulted in the agrarian
attributes of land to change as well. The changes in the concepts of land were
accompanied by resistance from the local people who had a different concept. Several
regulations were enacted to resolve the conflict. For example, in 1936 the Native
Trust Order Council was formed. The aim was to set aside land for public purposes,
land for reserves and also land for the natives. This is the origins of the Land Act
CAP 57:01, which was enacted in 1965. This act endorsed the fact that land shall be
represented by documents just like most commodities.

The Land Act of 1965 (Cap 57:01) categorizes land in Malawi into three:

Public Land

All land occupied, used or acquired by the government and any other land not being
customary or private. This can also include land that reverts to the government on
termination, surrender or falling in of any freehold or leasehold title under which any
parcel of land concerned is held.

Private Land

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Dr Edward J.W.Chikhwenda 03 April 2007

All land owned, held, or occupied under a freehold or leasehold title or a certificate of
claim or which is registered as private land under the Registered Land Act (Cap
58:01) . Private land can be further be categorized as freehold or leasehold.

Freehold Title

This is the free mode of holding property and usually is of indefinite duration.

Leasehold Title

Land or property held by way of contract granting rights in land or property for a
limited period of time. This period in Malawi is usually 99 years for residential plots.
For industrial or commercial plots and farms, the period is less than 99 years e.g. 21
years for estates.

Note:
• All public land and customary land under minerals is vested in perpetuity in the
president.
• The minister of lands is empowered to convert customary land into public land by
notice under his hand and published in the gazette

Customary Land

All land held or occupied or used under customary law but does not include any
public or private land. This land cannot be valued because it is not supposed to be
sold as it has community interest. The land belongs to one's ancestors and the unborn
generation. The law governing this type of land is usually unwritten and hence it is
dynamic. It varies from locality to locality because custom and inheritance systems
differ between different groups.

There are some people who have advocated that this type of holding land has some
shortfalls. For example, there is a school of thought that suggests that it does not
provide security of tenure, it is uncertain, it discourages conservation and
improvement of natural resources. Some assert that customary land tenure hinders
modern agricultural development and promote unequal distribution of land. In
Malawi, customary land has been uneconomically fragmented due the rapid
population growth. However, customary land tenure system in Malawi has prevented
a phenomenon of absentee landlordism and landless peasantry. At the same time, land
speculation and land grabbing has been effectively discouraged in almost all the rural
areas. As a result, this has brought cohesion of social groups in Malawi.

According the Malawi National Land Policy (2002), land has been categorised into
the following:

Government Land

This is land that is acquired by the government or government agencies, and

dedicated to a specified national use or made available for private use at the discretion

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Dr Edward J.W.Chikhwenda 03 April 2007

of the government. An example of such land is, land reserved for government
buildings, schools, hospitals and land owned and leased by government for exclusive
use by individuals, companies and institutions for which ground rent is often paid.

Public Land

This is land that is reserved for public use and accessible to the public at large, and
land held in trust and managed by the government or Traditional Authority. This land
includes land gazzeted for use as national parks, game reserves, recreational areas,
and historic or cultural sites. This also includes land vested in the government due to
uncertainity of ownership and abandoned land. In traditional authority area, public
land includes land that is reserved for community use such as dambos, graveyards,
communal grazing areas, and village forest reserve areas (mostly in Lilongwe West
Registration Area - Ndundas).

Customary Land

This is all land that is falling within the jurisdiction of a recognised traditional
authority, granted to a person or group and used under customary law.

Private Land

This is land that is exclusively owned, held or occupied under:

• Freehold tenure: Land held by services of free nature.
• Leasehold estate: Land held under contract granting exclusive rights of use of
land for a fixed period normally shorter than the private ownership rights held by a
person issuing the lease.
• Customary land: Land allocated to a clearly defined community, corporation,
institution, clan, family or individual also called (Customary estate).

1.5.2 Customary Law

Law is a set of formal and explicitly stated normals and procedures that are laid down
and enforced by appropriate authorities. In any society, social and cultural facts as
well as their mode of development influence law. The development of customary law
in Malawi has been influenced by the experience of the traditional leaders. This
means that it was not necessary to have written records. Historically, written records
of customary law appeared when travellers, missionaries and administrators
penetrated the African social and cultural sphere.

Before and after western influence penetrated the African society, customary law has
manifested itself to be dynamic by adapting to new developments and conditions.
This is equally applicable to the customary law that exist in Malawi where different
types of principles, norms and rules have been in constant change in order to fit to the
existing developments. This fact forces us to concetrate on unearthing how customary
law affects new developments and conditions and also to determine how adaptable are
the principles, norms and rules. This need arises from the fact that customary law is
based on public policy conceptions, morality and justice. Thus, customary law is

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Dr Edward J.W.Chikhwenda 03 April 2007

associated with a legal system that comprises principle rules, institutions and
procedures that specify and control the exterior relationships between fellow members
of a society. In this legal system, relationships may be bilateral or multilateral and
may involve a corresponding duty-bearer for each right holder. The dictates of this
legal system insists on the fact that, a right without a corresponding duty or without
corresponding right is perceived as of imperfect obligation and hence outside system.
Legal systems view a person as an entity in whom certain rights and duties are vested.
This is where the status of an individual defined. Status in legal terms is a coherent
agglomeration of a variety of specified rights and duties or capacities and
incapacities, which relate either to a particular social function or the social functions
generally of its possessor. Capacity on the other hand is specific to a given legal
relationship.

1.5.2.1 Inheritance in Customary Law

In customary law, inheritance plays an important role. Inheritance is a process by

which both the successor to a deceased as a legal unit, as well as other persons, have
claims on specific parts of the property of the deceased. It is usually associated with
kinship and related relationships that exist in a society. Inheritance in customary law
can be applicable to movable and immovable property, durable and fungibles as well
as non-material privileges and claims to symbolic rights. The central focus of the
inheritance system that exists in Malawi should be viewed in the light of the total
system of property holding not trusterty. Taking this analogy, it will be seen that
inheritance practices restrict the amount of the assests of an estate to the
responsibilities. In this context, an estate can be viewed as powers of administration
and beneficial enjoyment. This implies that any person who inherits an estate should
have the responsibility to administer it properly. As a result, it is not uncommon for
senior persons within the Malawian society to be by passed if he/she does not
demonstrate the qualities of a good administrator. This even applies to those who are
within the inheritance line of the society in question.

In the customary law system, property is confined to the descendants of the creator of
that estate and it is excluded from the estates at higher level of kinship group. The
higher level of kinship group is confined to what is called trusterty. In this regard,
trusterty can be considered as a higher level of property. Trusterty can be seen as a
pool of all property over which all kinsfolk of a given group may have potential
claims.

1.5.3 Rights in Land

In customary law, individuals have rights to use and take the fruits of the land they
are working. Individuals have also the right to dispose of land. However, rights can
not be transferred to a stranger. Strangers may be conferred usufruct rights where the
fruits of the land may be claimed during one’s lifetime without altering the nature of
land. When the stranger join the political community through marriage or assimilation
he/she may be eligible to have land rights. Once the community recognizes the rights
of an individual, no one is supposed to extinguish such rights against his will. Rights

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Dr Edward J.W.Chikhwenda 03 April 2007

are of different levels or hierarchy. In this context hierarchy is defined as ordered

arrangement of items, elements and values in graduated series (Oxford English
Dictionary). In Malawian societies, superior rights include the rights to allocate land,
control its use and restrict its use. The hierarchical nature of land rights has
developed from the principles of inheritance systems as practiced in different tribes.

The evidence from the current practices in Malawi reveal those tribal societies have
exercised the practice of sharing of produce from one’s land for centuries. Although
this is viewed by some commentetors as communistic, individuals in customary law
have rights, powers and immunities. Individual may have immunity against
encroachment of others on one’s rights. There have been situations whereby several
individuals can have rights, priviledges, immunities and powers in respect of one
piece of land. Hunting tribes used to have rights to hunt freely without let and
hundrance from others. Thus, the right to land is the defining parameter to citizenship
of an individual. This include the right to have land space to build, to arable land and
a right to public land for grazing, entertainment and other community gathering
(marriages, courts for settling disputes etc).

The hierarchy of spatial allocation in Malawi under the customary law is that the chief
has powers to distribute, equitably, to people any land. Any land that is abandoned
reverts back to the chief. This council of elders formulates rules and regulations about
land use. The chief can expropriate any land for public purposes provided that, other
land is identified for these dispossessed. The chief has the mandate to give every
subject land to live on and land to cultivate. In return, subjects usually give gifts to
the chief. These gifts to the chief act as payment for the rights, privileges and
protection that the individual perceive to have due to status within the community.
Usually it is expected that chief will provide protection to all his subjects against
trespassers. In most cases, the chief becomes a chief after many of his subjects had
been allocated the land rights by his predecessors. This means that the chief can not
interfere with past disposition of land.

The above discussion reveals that the hierarchy of land allocation process has the
chief at the top, who allocates land to a village headman. The chief bestows the
headman with powers to administer rights in land. The headman is in return
mandated to allocate land to his subjects who are family heads. The family head
usually allocates the land to his dependants. The land is vested in the village heaman
as a representative of the resident villagers. The rights in land in the customary law
that exists in Malawi exhibits the fact that society in Africa is composed of a structure
of social positions and a structure of relationships between incumbents of these
positions (Gluckman, 1969).

The system of land holding is an essential part of the social organization relations
from the chief downwards through the political units of the village, into the hierarchy
of kinship relationship. In the hierarchy, the chief has primary estate of rights of
administation, the village headmen have the secondary estates while the household
heads have tertiary estates of rights of administration. Those who work on land have
estate of production. This reveals that land holding in cutomary law does not only
represent citizenship but also a representation of social position in the total political
and kinship hierarchy. This hierarchy is the manifestation that if the owner of the

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Dr Edward J.W.Chikhwenda 03 April 2007

rights of production dies or left the village, the rights revert to the tertiary estates of
rights. In this context, an estate is a term that is derived from status. Administration
and production describe the rights that are involved at different levels of status.
(Gluckman, 1969). As we have seen above, ownership is not absolute in customary
law because the importance of property is the role it plays in a nexus of specific
relationships. Property law in tribal society defines rights, as obligations owed
between persons in respect of things. This implies that property rights are seen as
demands on other persons in virtue of control over land. Relationships within
communities are usually unified through the transfer of property rights. Gifts given to
the chief are usually aimed at validating, recognizing and consolidating the
relationship in the social structure hierarchy.

In conclusion, it fair to say that ownership of land depends on membership of a group

which is defined by the relationship with the community. The amount of land an
individual has depends upon the status and his immediate needs. The hierarchical
nature of the relationships within a community provides the needed security of tenure
in land. Where land is scarcity of land within a community, there is need to come up
with very compex deals that may include sale, lease, loan or even pledge. In the
whole system of customary spatial allocation inheritance is a means of acquiring land
rights. In this system the land rights are transfered from one generation to the next.

1.6 Land Acquisition Process in Malawi

Cadastral surveying is a branch of land surveying which is undertaken to produce

deed plans for the compilation of the title deeds of property boundaries for legal
purposes. As we have seen above, cadastral surveying system was established in
Malawi in the1890s as a result of the need to come up with a system that would
facilitate the transfer of land and ensure security of tenure for early settlers.

Malawi, then Nyasaland, established a predominantly fixed boundary cadastral

system, which was modelled on Roman-Dutch system. This system is also practiced
in South Africa and most of the states in Southern Africa. In this system, high
standard cadastral survey work is expected.

The process involved in cadastral surveying and production of title deed starts with
the production of sketch plan or a layout plan depending on the type of land to be
acquired.

The history of land ownership in Malawi may be categorised into four, namely:
• Pre-colonial land ownership was essentially customary and was based on the
different customs of the tribes. The historical accounts suggest that during this time
the tribes were leading a nomadic life. The tribal land was defined by a boundary that
could be defended.
• Colonial starting in the 1870s up to 1964. This type of land ownership was
instigated by the arrival of the colonial settlers in the late 1870s and consolidated in
1884 when western countries decided to share Africa and its resources at the Berlin
conference. In 1891, Malawi was declared a protectorate and all land was vested in
the British Crown. This means that all land in Malawi was called Crown land.

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Dr Edward J.W.Chikhwenda 03 April 2007

Because the natives realised that they had lost their land to the foreigners, there arose
some conflicts between the natives and the settlers. One of the examples of such
conflicts and disagreements in the manner the land was allocated during the colonial
era was the famous Chilembwe uprising of 1915. This uprising originated from the
issue of taxing the natives for the occupation of their own land. Later, the colonial
government realised the need to reserve some land for the natives. By the late 1920s,
the colonial government came up with three categories of land, namely; Crown Land,
Native Reserves and Land under Certificate of Claim. Note that most of the land that
is under freehold tenure now was acquired using the Certificate of Claim. The natives
reserves were later changed to African Trust Land.
• Independent one party state from 1964 to 1994. During this time, the government
of Malawi formulated the Land Act of 1965. In this act, land was categorised into
three, namely; Customary Land, Public Land and Private Land. Private land could
either be freehold or leasehold. It will be seen that the customary land is what was
called the African Trust Land, while the public land is what was called the Crown
land during the colonial era.
• Independent multiparty state from 1994 to date. As we seen above, the new
multiparty dispensation has initiated the formulation of the National Land Policy
whose main aim is to deal with the current land problems.

In the land acquisition process of Malawi, there are three types of registration being
practiced in relation to our cadastral system.

(a) Private Conveyancing

This is the system of registration, which involves two individuals, the seller and
the buyer. These two people agree on the price of the property intended to be
sold and eventually transfer the ownership with the guidance of a lawyer. The
disadvantage of this system of registration is that there is no concrete proof of
the legal ownership of the property being transferred.

(b) Deeds Registration

This is another system of registration whose principle aim was to record copies
of whole documents, plans and other evidence of conveyance that may or may
not involve the transfer of title. The registration is done at the Deeds Registry
Office in Lilongwe in the Ministry of Lands Physical Planning and Surveys. The
Deeds Registrar, who is a lawyer by profession, does the registration. The person
claiming an interest under the same normally presents documents that are
presented for registration under this system.

The deeds registration is man related because it becomes legally effective when
booked or registered in the official deeds register in relation to the rightful
claimant.

The registrar normally requires an identity of the person who has brought the
documents for registration. Documents presented for registration should contain
a description of the land to which it refers sufficient for its proper identification.

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Dr Edward J.W.Chikhwenda 03 April 2007

The Deeds Registrar numbers every copy of document filed, entering the time of
the day and the day of the month and the year when it is registered and files the
copies in the order in which the documents are received by him in the Deeds
Registry File.

The advantages of this system are that the Deeds Registry helps to keep complete
records of all the transactions involved in the property. The disadvantage is that
it is very tedious in trying to go through the information/documents. The
chances of missing other important documents are high since it involves a sort of
history of transfers.

(c) Title Registration

Title Registration system was introduced in Malawi in 1967 under the Registered
Land Act. Its main purpose is to record land ownership. That is to say, the unit
of property is what is registered and ownership identified. It is usually based on
a parcel of land precisely defined as a unit to give permanence of the record.
Title registration is the recording or registering of ownership to land or any other
interests that may be created over the land.

Title registration is land related because it is the right referring to the parcel, i.e
the title, that is registered together with the indications about the rightful
claimant in relation to land.

1.6.1 The Land Registry

Land registry administration principles need to be adapted to land tenure and methods
of public administration. The other factors that must be taken into account when
assessing the efficiency of land registry records include socio-cultural economic
status of the citizens and also the morphology of the country. Land Registry Records
act as the book keeping of land registration.

Land regstration is based on the four principles namely:

• The booking principle
• The consent principle
• The publicity principle
• The specialty principle

Cadastral Map: Any land that is registered must be referred to a cadastral map. The
cadastral map is the graphic, complement of the Land Register. It combines with the
register to constitute the main record. As an important instrument, the cadastral map
has to show the location, shape and size of every individual parcel of land within the
area depicted. The map must be accurate and precise to adequately address all local
conditions and requirements. Note that the success of any land registry depends upon
the maintenance of an effective liaison with the cadastral survey.

Land Register: This is the principal register and is composed of a series of` sections,
one or more of which constitutes the record of the register to the parcels of land

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Dr Edward J.W.Chikhwenda 03 April 2007

situated within some convenient territorial unit e.g. a ward. It also constitutes the
register of the persons registered as holders of those rights. A separate self-contained
and self - disciplined folio is devoted to each parcel shown on the cadastral map. The
folio has the cadastral reference number of the parcel, the name of territorial unit and
larger geographical divisions. The land register does not have written definition or
description of the boundary or location of the land. The following information is
shown on the folio:
• Definition of the parcel by liaison with the cadastral map
• Details of proprietorship.
• Easements
• Charges
• Limitations - restrictions of temporary character
• Annotations - entries which cannot be properly made elsewhere and which may be
m of an optional nature.

Dossier of Legal Instruments: The rights that are registered are all based upon
deeds, judgements or other legal instruments. Because an effective land registration
must be based on legal instruments, it is imperative that the land Registry should
retain these instruments. The instruments are numbered serially throughout the year.

It is advisable that legal instruments be duplicated so that the authorities may have
impeachable copies as a safeguard in case of loss or destruction of the originals.

Application Register: This is where all received instruments and accompanying

documents are recorded. It is also called the daybook. This is important especially in
a case of dispute because the priority of any right can be determined by the time of
delivery of the instrument at the land registry.

Instrument Record: Once the legal instruments have been received and numbered
serially in the application register, they are then passed on to the competent
administrative legal and technical offices for examination. If and when registration
has been completed, the relevant instruments are photocopied and then passed in
original and duplicate for record and filing. The instruments are then entered in the
record of legal instruments against the parcels to which they relate. The originals are
passed in daily batches to the fireproof archives. The duplicates are filed in the Land
Registry in dossiers in suitable order under their respective years.

The instrument record provides a permanent list of living parcels and the living
instruments that are related to the parcels. Because of this fact, new instruments that
supersede the old ones should be shown in the record.

Index of Interested Parties: This is an auxiliary alphabetical index of proprietors

that are holders of the rights in land. The index contains within itself all the
information needed to define, trace and identify the persons inscribed in it.

Certificate of Registration: A certificate of registration is an official voucher issued

to any person registered in the land register as the holder of a right in the land. It
defines the nature of such rights and of any registered restrictions to it at the time of
issue. This is also called certificate of title.

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Mutation Form: This is a form where the changes in the land rights are recorded.
This may be due to aggregation or subdivision of previously existing units. This
involves close and methodological cooperation between the cadastral survey and the
land register recording system.

In Malawi, registration of rights to land is done at the Land Registry Office within the
Regional Offices of the Ministry of Lands. The Chief Land Registrar conducts the
registration. Application book is kept in the Registry in which a record of
applications is kept.

A Land Register is kept for every piece required to be registered and another Register
for lease required to be registered. The Register shows whether the land is public or
private. The piece of land to be registered is identified on the Registry Map, then
plotted and title number issued. The title number is recorded in the Land Register
together with the plot number and the name of the applicant. A Land or Lease
Certificate is issued to the applicant. Any other changes as regards to the ownership
are then registered and ammended accordingly. The advantage with this system is
that ownership is guaranteed by the state. It shows the present entries in the register
and the present legal position on the ground.

1.6.2 Title Registration Process in Malawi

The process of title registration in Malawi is a protracted one. The first step in land
acquisition is the identification of land to be leased by an individual. This means that
the land can be either public or customary. Where that piece of land is not within a
city or town assembly, the lease is obtained from the Lands Department. Where the
land falls under the jurisdiction of a city or town assembly then the lease has to be
obtained from the respective assembly. Note that the land in city assemblies is owned
by several institutions such as the government, the assembly, Malawi Housing
Corporation and even traditional leaders. If the land falls under the jurisdiction of
Malawi Housing Corporation then the lease will be obtained from the Malawi
Housing Corporation. Thus, in Malawi, land registration in the form of a lease can be
obtained from three main institutions, namely Lands Department, City, Municipal or
Town Assemblies and Malawi Housing Corporation. Actually, the Land Survey Act
Rules Eighth Schedule was included in the Act in order to allow the registration of
title on land belonging to City, Municipal, Town and Malawi Housing Corporation
without following the procedures of approving a cadastral survey as indicated in the
Land Survey Act.

Once the applicant has identified the land, status of that particular land can be
checked at the Lands Department Records Office. The Records Office has all the
information regarding the ownership of all the land that has been registered. This
means that it is possible for the applicant to know whether that piece of land is
actually public, customary or private. The records office of Lands Department will
also have detailed information about the legal ownership position of the piece of land.
The applicant will be in a position to know whether the land is free i.e. not leased to
someone or whether it is zoned for other public purposes.

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Assuming that the plot is free from any other encumbrances the applicant is asked to
look for any surveyor to carry out a preliminary survey of that plot in order to come
up with a sketch plan. The sketch plan depicts the information such as acreage, name
of the applicant, site details, grid reference, sheet number and the surveyor's name.

1.6.3 Sketch Plan

This is a plan showing bearings and distances of a parcel of land in question. The
information on the sketch plan include the grid reference coordinates of one of corner
points, direction of grid north and a map insert at the scale of 1:50000. A sketch plan
is not supposed to be very accurate. Hence, any person who has some experience in
the production of a sketch plan is allowed to prepare one.

A sketch plan is normally produced where acquisition of land is needed on customary

land. In this case, there is no layout plan for the land because land allocation is based
on customary law. On customary land, the chief and the elders of the village know the
boundaries.

The process of lease application on customary land is very tedious. There are several
stages or steps that one needs to undertake in order to get a lease. The following
procedures are usually undertaken:

• The first stage is for the prospective lessee to identify the land s/he wants to
acquire from government, city, municipality, town assembly or Malawi Housing
Corporation.
• In the case of application for lease on government or public land, the lessee then
goes to Lands Department, which is under the Ministry of Lands, Physical
Planning and Surveys to collect the Lease Application Form (LAF) Form II. On
this form the applicant states his personal particulars, the purpose of the lease, i.e.
residential, commercial and any other purposes.
• In the case that the plot is on customary land, the applicant is asked to fill in
another form called Consultation with Chief Form (CCF). On this form, the
applicant states his personal particulars, indicates where the plot is i.e. village,
name of village headman and name of the Traditional Authority (TA). Below the
form, the village headman provides the date and his/her signature. The Chief also
puts the date and his signature. Finally the Chief Executive of that particular
District Assembly has to provide his or her signature and date. Having signed, the
Chief Executive writes a covering letter from his office to the Regional
Commissioner for lands permitting the applicant to have her/his plot leased. When
these sections have been signed, they act as a declaration that the named
individual, as shown on the forms has acquired the piece of land in question.
• Before the CCFs are signed, the lessee must find a surveyor or any other person
who is familiar with the production of sketch plans.
• The sketch plan is then produced.
• The sketch plan plus the fully filled and signed Consultation with Chief Forms and
Lease Application Forms are all sent to Lands Department for further processing.

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Dr Edward J.W.Chikhwenda 03 April 2007

• Copies of the above mentioned documents are also sent to Department of Physical
Planning for comments on land use.

Once the application is at Lands Department, the application forms and sketch plans
are scrutinised to ensure that the applicant has filled in the forms properly before
opening a file in the land registry. Thereafter the application is sent to the Records
Officer who plots the survey data from the sketch plan onto the registry map sheet
indicated by the surveyor. Should there be no encroachment problems or the land is
leased to somebody already, the Records Officer writes a letter to the Commissioner
for Physical Planning asking for planning comments as regards to the plot in question.
The sketch plan is also attached to this letter. This is only applicable if the plot falls
under customary or public land as long as it is outside the city boundary. If the plot is
within the City and on public land the Records Officer will direct that application to
the City Assembly Planning Section seeking for planning comments from them. A
sketch is also attached to the letter.

In both cases, if the application is in an area zoned for residential purposes, these
authorities will have no planning objections to lease the plot. But, may be for other
reasons pertaining to planning aspects, these authorities may defer the application
until site inspection of that plot is conducted.

Having received the planning comments from either the City Assembly or Physical
Planning Office with no objection to lease the plot, a Memorandum is written and
deployed to the Minister responsible for land matters. In the memo, the Lands Officer
states the name of the applicant and his particulars as indicated on the Lease
Application Form II, the purpose of the lease, hectrage, particulars of land/plot and
the lease term i.e. Residential leases are given a term of ninety-nine years,
commercial leases are twenty-one years, agricultural leases sixty-six years. A copy
of a letter from the City Assembly (Planning Comments) and from the Physical
Planning Officer is attached to the memo to the Minister for verification purposes. In
case of a lease on customary land, a copy of Consultation with Chief Form is also
attached to the memo.

Once the Minister has approved the lease, a copy of that memo is sent to the Regional
Commissioner for Lands. The applicant is notified of the approval through a letter of
an Offer of Lease. The Offer of a lease has to be accepted within sixty days; failing
which, the Offer is automatically cancelled. In the Offer of a lease, a period of lease
is indicated and statement and fees is also attached to it.

After the offer of a lease has been accepted by the applicant, the Records Officer
submits a Survey Request to the Surveyor General together with a sketch plan or
layout plan. The Surveyor General advises the applicant of the initial deposit cost
before a Cadastral Survey is instituted. Once the deposit has been paid, the Surveyor
General notifies the Regional Surveyor to include the applicant on a survey
Programme so as to have his plot surveyed.

If the plot is on customary land and there are no control points to carry cadastral
survey, a sketch plan is prepared by the Surveys Department at a stipulated fee. In

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Dr Edward J.W.Chikhwenda 03 April 2007

this case no precise survey is carried out and a sketch plan is prepared based on the
preliminary survey data.

1.6.4 Layout Plan

This is a well-designed plan showing proposed residential, industrial and commercial

plots. This is usually common on all public land in townships, municipalities, cities
and districts where the area is declared as planning area. This plan is produced by
Physical Planning Department and gives some guidance as to the proposed direction
of development within a town, city or district. A copy of a layout plan showing a plot
allocated to an individual plus completely filled and signed forms of lease application
are sent to Lands Department for further action. However, experience shows that
some cadastral surveys do not follow the geometry of layout plans especially where
owner obtained the land from a chief.

1.6.4.1 Planning Permission

The Public Guide to the Development Process of 1996 for Blantyre City Assembly
states that planning permission is required for any development. In this case,
development is defined in the Town and Country Act (1998) as any building,
rebuilding, engineering or mining operation in, on under or over land. The cadastral
surveyor is mainly required to apply for planning permission is s/he wishes to
subdivide land under the instruction of the freehold land owner. The cadastral
surveyor has to submit nine copies of location and site plans for any subdivision. It is
important that the cadastral surveyor should provide enough information on both the
location and site plans so that the city authorities should be able to assess the
proposed subdivisions.

The purpose of the location plan is to facilitate easy identification by the planning
officials. The plan has to be drawn to scale. Other information that has to be shown on
the location plan include the name of the locality, plot number, names of roads,
geographical features such as rivers, streams, landmarks, bridges, shops that faciliate
easy identification of the location.

The site plan should be drawn to a scale of not less than 1:1250 and should include:
• Plot boundaries with dimensions and locations of beacons
• Contour lines (at the very least, indicate direction and steepness of the site
with arrows and notes)
• Existing development on the plot and on adjacent plots
• Distance of proposed development from plot boundaries and other buildings
• North arrow and scale
• Boundaries and areas of all plots
• All available services and indicate access to each plot
• Show widths of all roads

1.6.4.2 Application Processing Procedures

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Dr Edward J.W.Chikhwenda 03 April 2007

Once the application has been submitted to the city authorities, the assembly has sixty
days in which to make a decision. However, there have been cases when the sixty
days are exceeded due several and varied reasons. The processing involves consulting
other utility institutions such as water boards, escom, Malawi Housing Corporation
etc.

When a planning application is received it is checked and if in order, it is registered.

The city then has to write the applicant, acknowledging the receipt of the same. The
application is then scrutinized against city bylaws, the structure plan, planning
standards and guidelines, other legislation such as the Environmental Management
Act.

Comments from the utility institutions are sourced and are referred to a committee of
technical experts who are mandated to meet at least once each month. After the
technical committee has scrutinized and reviewed the application, the Town Planning
Committee will have to make final decisions based on the recommendations from the
technical committee.

After a planning permission is granted, the developer is given two years in which to
implement the development. Otherwise after the expiry of two years the developer
has to resubmit the application. In a case where the application has been rejected, the
applicant has a right to appeal within 30 days against the Town Planning Board.

1.6.5 Offer of Lease

The offer of lease becomes legally binding once the Minister for Lands Physical
Planning and Surveys has approved it and the applicant has accepted the conditions
on the offer of lease.

At this juncture, a cadastral survey can be carried out. However, the Land Survey Act
states that no cadastral survey is to be conducted on customary or public land without
a written approval of the Surveyor General. This means that a request is made from
Lands Department asking the Surveyor General to conduct a survey on the piece of
land in question.

A sketch plan, details of lease documents are sent together with the request to the
Surveyor General.

Upon the receipt of the request, the Surveyor General writes an authority letter to
Lands Department with copies to the owner of land authorising a cadastral survey to
be conducted on that piece of land.

The owner then approaches a Licensed Surveyor or a Government Surveyor for the
survey to be done.

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1.6.6 Surveys Department

Surveys Department, which is headed by a Surveyor General, is charged with the

administration of the Land Survey Act.

1.6.7 Cadastral Survey

Once the above-mentioned procedures have been fulfilled, a cadastral survey is then
carried out. This survey is carried out in order to come up with a Deed Plan. Precise
distances and angular measurements are used to fix the boundaries from which a map,
parcel plan showing the precise location of the land can be produced.

After the licensed land surveyor has finished carrying out the cadastral survey, he
checks his work for any possible errors, which have to be eliminated. The working
plan is also checked if the surveyor has adhered to the Land Survey Rules 58 - 64.
Thereafter, the working plan, survey computations, the field book are all submitted to
the Survey Records Office where a receipt is issued to the Surveyor. The title of the
survey is entered in the plan register, information is also entered on the index card,
plot number is entered in the register, counting survey documents and adding the SD
and SR number in red etc.

From the Survey Records the working plan and all the computation sheets as well as
the field book are further sent to the Survey Examination Office. This is where the
survey is thoroughly examined. The examiner will examine the surveyor’s report,
town planning layout, subdivisions approval, the basis and method of survey,
checking the adopted coordinates, checking the coordinates from the computation list
etc. From the Survey Examiner, the working plan is further sent to the Drawing
Office, where they check scale and the true north point, checking surveyor’s signature
and certificate and many other items.

Thereafter the Principal Land Surveyor checks whether the instructions to the
surveyor from the examiner have been adhered to. He/she also checks whether a
licensed land surveyor signed the survey. Finally, the Surveyor General enters the
survey fees in a ledger and also approves the survey work. The approved surveys are
sent back to Surveys Records and a copy to the licensed Land Surveyor.

The Lands Department is then notified of the approved Deed plans who likewise
notifies the applicant to get the Deed plan from the Surveys Department. The
applicant brings three copies of the deed plan to Lands Department where they are
embedded in the lease documents. The applicant then signs the documents in the
presence of Land Registrar who is a Lawyer. A Witness is also supposed to sign upon
production of an identity e.g Passport or Driving Licence. The lease document is then
sent to the Commissioner for Lands at Ministry Headquarters for his signatures on
behalf of the Minister Responsible for Land Matters. Once the Commissioner for
Lands has signed it, it is then sent back to the Regional Commissioner for Lands for
registration. But before registration of title is done, the document is sent to the
Registrar General’s Office for stamp duty stamping.

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Dr Edward J.W.Chikhwenda 03 April 2007

1.6.8 Licensed Surveyor

The Land Surveyor carries out cadastral survey once the following have been
provided:
• Authority letter from the Surveyor General.
• Sketch plan or layout plan showing the extent of the plot to be surveyed. Town
planning authority in accordance with town and country planning Act should
approve a layout plan.

1.6.9 Cadastral Surveying Techniques

Land in Malawi is essential in terms of settlement and agricultural activities, as such

it requires a careful system as to how it can be managed or administered. In order to
manage this land, it has been discovered that it needs to be apportioned to individuals
or organisations that have shown interest to access it or own it.

Cadastral surveying is a type of surveying whose purpose is to provide a figure

depicting property boundaries on which the government guarantees ownership and
rights to the interested individuals and groups or organisations. This happens to be
the only way of collecting tax for every parcel of land and property in Malawi since
each parcel of land is legalised as an entity owned by an interested party.

The government of Malawi is the custodian of all land in Malawi although it has
entrusted other authorities like Chiefs in the case of customary land, Malawi Housing
Corporation (MHC) and the city assemblies to look after some land under certain
conditions. Land belonging to institutions like MHC is called private land. The rest
of the land is called public and belongs to the government for the public interest. This
is why every piece of land is registered at the end of carrying out a cadastral survey in
order for the government to sufficiently manage or administer the land in Malawi.

1.6.10 Execution of Cadastral Surveys

When a survey is performed for the purpose of gathering data, the field notes become
the records of the survey. If the notes have been carelessly recorded and documented,
lost, falsified or made grossly incorrect, the survey is rendered useless. No matter
how carefully the survey measurements could have been made, if part of those
measurements has not been recorded or has been ambiguously recorded the survey, as
a whole may be useless. For a Surveyor to produce the best results, he or she needs to
keep all observations neat, accurate and complete. In several systems notes keeping
are in general use although certain principles are applicable to all.

Field notes should show where, when, the weather conditions for what purpose, and
who carried out the survey. The field notes, in some cases, may be presented as

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Dr Edward J.W.Chikhwenda 03 April 2007

evidence in court cases involving land disputes. Erasures are prohibited in order to
avoid suspicion of such recording as having been altered. Good quality paper, which
is subjected to hard usage, is recommended. In case of an error made, a line should
be drawn through the incorrect value and insert the new value above. Recording of
the field notes is done in the field when the work is done not on scraps of paper to be
copied in the field book later.

The land surveyor conducts the cadastral survey to satisfy all the Land Survey Act
Rules and submits the following to Records Office:

• a comprehensive report of the survey done.

• a working plan and a deed plan; the working and deed plan should be signed by a
licensed land surveyor before submission.
• authority letter giving permission to carry out a survey in case of public and
customary land.
• field book and computation sheets.
• approved sketch or layout plan.
• survey records containing data and information on property surveyed.

Survey Records: This office receives and records survey work from surveyors
and then sends them to the Examiner.

Survey Examiner: The survey examiner scrutinises thoroughly the survey

documents, makes certain that the survey has been done in accordance with the land
survey act rules. The survey examiner also makes comments on cartographic errors,
which are rectified, by the drawing office.

Drawing Officer: Makes all corrections on survey drawings and inserts Survey
Records (SR), Survey Drawing (SD) and Deed Plan (DP) numbers on the drawings.
The document is then sent to Principal Land Surveyor.

Principal Land Surveyor: Checks if all Land Survey Act Rules have been fully
followed in conducting survey and also assigns survey fees before sending it to the
Surveyor General.

Surveyor General: Approves or disapproves all surveys by signing or not signing

on the working and deed plan. Approved surveys are sent to the records office while
disqualified ones are sent back to the Land Surveyor.

Records Officer: Keeps records of the approved surveys:

• original deed and working plans are kept for records.
• three copies of the deed plan are sent to the surveyor or owner for title deed
production.
• Lands Department is notified of the approval of the survey.

1.6.11 Lands Department

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Dr Edward J.W.Chikhwenda 03 April 2007

The Lands Department does the final production of the title deed. Once the deed plan
is received from the office of the Surveyor General through the owner, preparation of
Title Deed document starts. Upon completion of the title deed, the owner with at
least two witnesses is expected to sign the document before it is sent to the
Commissioner for Lands.

The Commissioner for Lands looks into all legal issues in the title deed document
before it is signed and then sent back to the Regional Lands Office for registration.
The title deed is said to have been registered in a cadastre after the land registrar has
signed the document.

Title Registration

As we have seen above, Registered Land Act introduced the title registration in 1967.
This is the recording or registering of ownership to land or any other interests that
may be created over the land. It is only applicable in Capital City of Lilongwe, City
of Blantyre and City of Mzuzu. The system relies on selective registration of leases
granted on public lands and the voluntary requests to register title by owners of
private properties.

Other forms of registrations are: deed registration which is the process of recording
details of a deed without either relating it the previous transactions in the same parcel
of land or examining its validity. And the other form of registration is that of
adjudication of title, which aims at registering of all registerable interests within
which the rights can be exercised, the extent to which the benefit thereof may be dealt
with. The ownership of all interests in a particular piece of land are determined by
the state.

But although there are all these forms of registration, Title Registration is the most
favoured by many people. This is due to the fact that it reflects the present details of
the parcel of the land. It also acts as a curtain whereby previous transactions are
obscured and also acts as insurance since the state guarantees the existence of that
ownership. Title registration facilitates loan borrowing from various financial
institutions.

The actual registration of title is done in the land registry. Once the lease document
has been stamped, the deed plan data is then plotted on the registry map sheet number
by a draughtman/cartographer who also gives the title number to that particular plot.
The following details are recorded in the title binders in the land registry: nature of
title e.g absolute/freehold or leasehold, date opened, registration section, piece
number, approximate area, hectarage, registry map sheet number, name of registered
proprietor, address of registered proprietor, consideration and remarks, signature of
registrar. Also encumbrances section is completed. It contains such details as, entry
number, date, nature of encumbrances, further particulars and signature of registrar.

Once this has been done or recorded, a land certificate is issued at a fee of K500.00.
And the whole title registration transaction is done at a stipulated fee of K2,000.00.

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Dr Edward J.W.Chikhwenda 03 April 2007

The land registry keeps the original lease document. The advantage of this system of
registration is that the government guarantees ownership.

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DEFINITION OF CADASTRAL SURVEYING

2. Definition of cadastral surveying

Cadastral surveying is the determination of position, size, and shape of landed

property for the purposes of ownership and registration. A cadastral survey deals with
the interests in land, encompassing both the nature and the extent of these interests.
In this context, interests in land refer to the legal right that can be owned and include
any recognized relationship among men with regard to use, preservation and
enjoyment of land. This means that a cadastral survey is a legal survey that shows the
boundaries of plots with a degree of accuracy in accordance with the survey
regulations in the Land Survey Act of Malawi CAP 59:03.

The granting of guaranteed titles and production of detailed maps to indicate where
the landmarks are has been necessitated by the growth of civilization. In Malawi, the
Land Survey Act governs the executions of cadastral surveys and stipulates who and
how cadastral surveys should be carried out. Because of the legal nature of these
surveys, only licensed surveyors and government surveyors can carry out cadastral
surveys. If any other survey company wishes to employ an assistant, the surveyor
general is informed in writing. This reduces the possibility of unprofessional practice
by unqualified persons.

The Land Survey Act is only one of the many acts relating to land that are important
to the survey profession. The other acts include the Registered Land Act, the Land
Act, the Customary (Development) Land Act, the Adjudication of Title Act, Town
and Country Act e.t.c. Thus, the licensed surveyor is supposed to be conversant with
all the Acts pertaining to land. As an example, the Land Act clearly states that no
survey is supposed to be carried out on customary or public land on behalf of the
government without the written approval of the surveyor general. Therefore if the
surveyor is not aware of this fact he could go ahead with a survey that is legally not
accepted.

The cadastral surveying system in Malawi aims at guaranteeing the accuracy of

boundary surveys by putting responsibilities and liabilities on the part of the cadastral
surveyor in the form of survey regulations. These often prescribe the manner in which
surveys are to be carried out as well as the standards that must be reached. Survey
regulations may also prescribe the necessary qualifications for the grant of a licence
to undertake cadastral surveys. The legal nature of cadastral surveying requires that
before any persons can conduct a survey in the private sector they must be registered

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Dr Edward J.W.Chikhwenda 03 April 2007

as competent to do so. The test of competence is organised by the Land Surveyors

Registration Board. Regulations governing licensing only apply to individual
cadastral surveyors and not to survey companies. However, in some countries those
who provide any form of service for official bodies are required to be registered under
quality assurance. Such a process could be extended to license cadastral survey
companies. Quality assurance requires all operational procedures to be documented so
that at each stage in the preparation of a service, someone can be held responsible for
the quality of the work. This is part of the overall process of total quality management
that ensures that what is done is fit for its purpose and meets the needs of clients.

The Land Survey Act in Malawi aim at:

• Defining the relationship between physical and legal boundaries.
• Permitting flexibility in reconciling the possession of land with its ownership.
• Attempting to protect officially placed survey beacons and monuments from
damage.
• Providing rights of access to surveyors so that they can make full use of
monuments.
• Prescribing who may carry out cadastral surveys;
• Prescribing qualifications for individual surveyors.
• Indicating acceptable survey standards without prescribing the methods whereby
these must be achieved.

It is important to prescribe the qualifications of those who may conduct cadastral

surveys from a legal perspective in order to cover the legal liability of the surveyor
for work undertaken and for the consequences in the short and the long term of any
errors in measurement. Although the government authority may guarantee the quality
of work as far as the general public is concerned, cadastral surveyors must be
professional enough and should be sued for any cases of negligence. In the United
States the responsibility of all cadastral surveys remains with the licensed surveyor.

2.1 Technical Requirements in Cadastral Survey System of Malawi

These technical requirements are stated in the Land Survey Act Rules as follows:
• Entries in the field book shall be in ink except the actual observations, which shall
be in pencil.
• The front cover of the field book shall have the following information:
• Name and address of the surveyor
• Description of the equipment used
• Place of survey
• Date of survey.
• Erasures are not acceptable.
• Alterations are done by drawing a line through the erroneous entry in such a way
that the previous entry is legible. This will enable the examiner to know whether
there was any cheating by the surveyor or not.
• The description of control points and beacons shall be recorded either found,
placed, replaced or indicatory.
• Sufficient observations, measurements and sketches shall be made in the field to
enable the surveyor to draw all relevant detail.

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Dr Edward J.W.Chikhwenda 03 April 2007

• All corner points of land surveyed for the purpose of registration in fixed
boundary system shall be marked with beacons.
• The standard beacon shall consist of an iron pipe/peg at least 12 millimetres in
diameter. The length shall be about 45 centimetres and driven vertically.
• The peg/pipe shall be set in a concrete block 20 centimetres in diameter and 30
centimetres in depth. Each beacon shall be given a name or number.
• Where the ground is soft or sandy the peg must be at least 60 centimetres etc.
• Angular measurements shall be taken on both faces and the mean obtained.
• The measuring tape shall be pulled at standard tension in the field to avoid
applying corrections in the office computations
• Distances exceeding 30 metres shall be measured in catenary.
• Distances of 10 metres and less can be pulled flat on the ground.
• Each boundary beacon shall be fixed by two measurements of bearing and
distance.
• Distances shall be corrected for the following; slope, temperature, combined scale
factor and average mean sea level and tension.

2.2 Definitions in Cadastral Surveying

• Cadastral Index: This is the record of all-cadastral surveys, and usually shown on
topographic maps. For rural areas, the surveys department maintains cadastral
index at a scale of 1:50,000. For urban areas, the cadastral index at a scale of
1:2,500 is maintained. Every new survey done in rural or urban area is plotted on
these cadastral indices. The cadastral drawing office is mandated to revise the
cadastral index every time a new survey has been done. This helps the survey
examiner to know whether there is any encroachment or even overlap. Any change
in the original survey shall be revised accordingly on the cadastral index. These
changes may include subdivision of a plot. This has to be reflected on the cadastral
index. This means that a cadastral index must be seen as mirror of the physical
condition of the ground. It should show the complete up-to-date picture of the
layout of the plots. Because of the high accuracy expected of the cadastral
surveying system in Malawi, where registration of land is based on title
registration, all data shown on the cadastral index must be checked and re-checked.
This is to instill confidence and faith in the data and information on the cadastral
index to both the land owner, the Government and a potential property buyer.
• Contiguous Property: An adjacent property, which shares a common boundary
with a piece of land that has been surveyed.
• Beacon: Concrete marks placed by land surveyors that conform to the Land
Survey Act CAP 59:03. The beacons show the limits of ownership of a piece of
land.
• Deed Plan: a plan that describes the extent of ownership. The deed plan is an
extract from the working plan and is always attached to the title deed. The title
deed is the evidence that someone owns a piece of land. A deed plan is hand drawn
and usually lettered in an individual style based on upright or sloping Egyptian.
The deed plan is usually traced from the working plan in accordance with the
specifications in the Land Survey Act. Included in the deed plan are the S.D and
plot numbers, and the acreage of the plots in hectares. Also included in the deed
plan are the bearings and distances of plots. Note that the bearing and distance of a

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Dr Edward J.W.Chikhwenda 03 April 2007

common boundary line are only written on one side. If there is a straight road
reserve, the bearing of such road reserve is written centrally. The projection used
in the survey should be included on the deed plan.

QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

Typical deed plan

• Field Book: a record of all the measurements taken in the field by the land
surveyors. The land survey act prescribes the format of the field book.
• Registers: The ledgers in the records section where deed plans, working plans, plot
numbers and sketch numbers are recorded.
• Registry Map: a simplified version of the cadastral index. This is applicable in
areas where the Registered Land Act allows for title without a deed plan.
Currently, this is applicable to part of Lilongwe Plain, where the Lilongwe Land
Development Programme was implemented. In this area, it was not necessary to
carry out precise cadastral surveys as stipulated by the Land Survey Act. The

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Dr Edward J.W.Chikhwenda 03 April 2007

registration of title was based on sketch plans, which are also called demarcation
maps.
• Sketch Plan: a plan showing land that the lands department has offered a
provisional lease. The land is usually un-surveyed, but its boundaries are defined
approximately. Persons other than a surveyor may do the definition of such
boundaries. These plans are also recorded on the cadastral index.
• Survey Records: the entire field books, observations, computations, surveyors
report e.t.c. regarding a survey. The records office keep all the plot numbers,
survey drawings, cadastral index. The examination office, however, keep all the
envelopes that contain the computations and survey reports.
• Working Plan: a plan prepared and signed by the surveyor. It shows all the
boundaries, including the contiguous property. It also shows all the observations
and control points that have been observed to. Included in the working is the
traverse and how the beacons have been independently checked. The coordinate
values of control points and property corner beacons are listed together with
bearings and distances between beacons forming the perimeter of the plot. On the
working plan, the acreage of each plot is also shown as well as the rectilinear and
curvilinear areas.

QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

Working Plan

2.3 Documents required to be submitted to Surveys Department

The Land Survey Act of Malawi elaborates how land surveyor should carry out their
fieldwork and how they are supposed to present their computations. The land Survey
Act Rules contain all the appropriate conventions regarding the working plan as well
as the deed plan. The survey records contain very vital data and information
regarding the plot being surveyed. Accompanying the computations of any survey is

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Dr Edward J.W.Chikhwenda 03 April 2007

the field book, sketch plan duly approved by the city authority or the lands
department, letters giving the surveyor the permission to survey in the case of public
land or customary land etc. Also included in the submission by the surveyor, is the
survey report which has to be very comprehensive. This is so because it has to cover
all the important aspects of the survey. The report has to spell out concisely, the
purpose of the survey. The purpose of the survey include the subdivision a plot under
the owners instructions, or survey of customary or public land, based on the approved
sketch plan that was used in the application for lease. If it is customary or public
land, the surveyor has to include the reference number of the offer letter for the
approved lease from lands department. For private land, the surveyor has to include
town planning approval reference number, including the plan itself.

Apart from the purpose of the survey, the report has to include the survey system that
was used. In Malawi, surveys done before the establishment of the control system of
trigonometric pillars and reference marks, surveys were based on local coordinate
systems. With the establishment of reference works and trigonometric pillars, most
surveys are currently based on Universal Transverse Mercator (UTM) coordinate
system or previous surveys that are connected to the UTM coordinate system.

The survey has to report on the accuracy achieved in any survey. This acts as a form
of insurance, indicating that the survey is reliable. Any future land surveyor who
finds the beacons whose precision and accuracy is good, is likely to be comfortable
when adopting such beacons in the new survey. The surveyor has to indicate which
beacons were adopted. A detail account should be provided on the circumstance of
how beacons were placed. It is also important to give reasons why found beacons
were adopted in the new survey. Any unusual circumstances that may have been
encountered during the placing of beacons or the manner, in which the beacons were
found, should be reported in the survey report.

In the report of the survey, which include previously placed beacons (known as
established beacons), the surveyor has to provide a comparison of data diagram. This
diagram shows computed bearings and distances from the previous survey in black
and the computed bearings and distance of the current survey in red. This is also true
for the drawn lines of the diagram. The old lines are shown in black while the new
lines are in red (see LSA rule Part VII section 67). It is also important for the
surveyor to include some comments on any alignment tests that may have been
carried out during the computation of coordinates. It is good practice to include a
comment on the relationship of the position of a beacon that has been found, with the
physical boundaries such as walls, fences and even rivers etc. Even if an indicatory
beacon has been used in indicating the boundary of a plot, the reasons for the choice
should be documented

2.3.1 Records Office

The records office is also known as the archives. This is where all the records of all
cadastral surveys are kept. Here, the general public may inspect cadastral indices,
registry maps, deed plans and sketch plans etc. The office also keeps a record and
register of all the field books, computations and plans.

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Dr Edward J.W.Chikhwenda 03 April 2007

Once a land surveyor has carried out a cadastral survey and done all the computation,
s/he submits a field book, computation sheets, survey report, plans(sketch plan or
layout plan approved by planning authorities), a letter from the surveyor general to
give authority to survey if the land is public and also a letter from lands department
indicating the offer of lease. The working plan is then given a survey drawing number
(S.D) and surveys record (S.R) number and recorded in the plan register. The plan
register covers the whole country. The SDs and SRs run in numerical order. Included
in the plan register are SD and SR numbers, District, Title of Survey, Hectares,
Surveyor and Cross Reference. This information is also entered in the Card Index.
The examiners report form is included in the submitted survey computations. The
records officer put all the survey documents in one envelope called a Survey Record
(SR) Envelope. Details are entered on the front cover of the Survey Record (S.R)
envelope. The details include the file number, the deed plan number, number of
prints, working plan number. The contents section of the cover includes how many
working plans, the details of river boundary, the number of field book pages, the
number of computation sheets, any extras that may be include the envelope and the
number of reports that may have been included in the envelope. Additional
information on the cover include the name of the plot being surveyed, which is a
portion of a given parcel, the district where such survey has been carried out, the date
of such a survey and the surveyor who did the survey. The system of which the
survey was based is also recorded. The examiner and the date examined shall also be
included. The one who has accepted the survey has to sign and the date when such
survey has been accepted has to be indicated on the cover. Before entering the
documents submitted by the surveyor in the S.R envelope, they are carefully checked
and numbered. A receipt is then issued to the surveyor, as evidence to show that the
survey has indeed been submitted to the surveyor general’s office.

Plots on the working plan are given plot numbers. There are three types of plot
number books. One book covers the rural areas and some townships. This is divided
into districts and townships called Plot Number Book by Townships and District
Centres. Each district and township has its own set of numbers. The other two books
are for Lilongwe and Blantyre. These books are called Plot Number Book by
Townships. The townships are divided into numbered wards or areas. In Blantyre the
plot numbers are prefixed by ward letters, for example BW/230 refers to plot number
230 in the Blantyre West ward. Whenever a new survey of plot is to be undertaken,
the surveyor gets the plot number of the new plot from the records office. Similarly,
the deed plan numbers are obtained from the deed plan register, which is kept at the
records office.

The following are some of the checklist that the records officer has to consider:
• Issuing a receipt to the surveyor
• Entering the title of the survey in the plan register
• Counting all the survey documents and adding the SD and SR numbers in red
• Entering the plot number in the register and cancelling all the superseded plot
numbers
• Entering the information on the index card.

2.3.2 Examination Office

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Dr Edward J.W.Chikhwenda 03 April 2007

Once the survey has been submitted to the records officer, the survey is sent to the
examination officer. The survey examiner deals with the following:
• Looking at the surveyor's report, town-planning layout, and subdivision approval.
These need to be satisfactory before the surveyor general approves a survey.
• Examining the basis and method of survey.
• Checking the number and tape standard from the computation list
• Checking the adopted coordinates
• Checking coordinates from computation list
• Checking field book and applying field corrections such as temperature, slope,
height above mean sea level, and projection, etc.
• Checking the coordinates of trignometric stations and found beacons against the
previous records
• Testing computed beacons for alignment
• Checking the orientation joins
• Checking traverse adjustment and closures
• Checking placing computations
• Checking final data joins, including consistency check and area computation.
• Checking road reserves and access to plots
• Checking comparision of data sketch
• Comparing working plan with adjoining records and deed descriptions.

Once the survey examiner has thoroughly scrutinised the survey documents, s/he will
write some comments on the prescribed form regarding corrections that are to be
made by the drawing office as well as those corrections that require the surveyor to
undertake. The survey is now sent to the drawing officer for his/her action.

2.3.3 Drawing Office

Once cadastral surveys have been submitted to the records office, recorded and sent to
examination office, the examiners usually comment on cartographic errors. The
drawing office usually rectifies these errors. The drawing office has a list of items
that need careful scrutiny. The following is the list:
• Inserting Survey Record (S.R) and Survey Drawing (S.D) on the working plan.
• Checking the title of the plan and the plot numbers on the working plan.
• Checking the grid and the coordinates on the working plan.
• Checking scale and the true north point.
• Checking surveyor’s signature and certificate.
• Checking curvilinear boundaries with planimeter
• Plotting the survey on district or township registry maps.
• Checking contiguous properties
• Preparing deed plans and allocated numbers
• Checking coordinates and plotting
• Cross-referencing or cancelling superseded surveys, SDs and SPs.
• Allocating numbers and preparing deed plans
• Countersigning by the section officer

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Dr Edward J.W.Chikhwenda 03 April 2007

The drawing office will have access to the survey record envelope because when the
drawing office cartographer wants to check all the listed items above, they need to
verify that what is observed in the field and computed is what is on the working plan.
The computations include list of coordinates and plot data. The working plan is
checked to verify if the land surveyor adhered to the Land Survey Rules 58-64. The
information on the working plan is usually transferred to the cadastral index. If there
are any errors in terms of overlap or encroachment, the survey examiner is alerted.

If the surveyor has satisfied all the Land Survey Rules and regulations, it is then sent
to the principal land surveyor, who will check whether the instructions to surveyor
from the examiner have been adhered to. The principal surveyor also checks whether
a licensed land surveyor duly signed the survey. The duty of the principal land
surveyor is also to assess the survey fees.

From the principal land surveyor, the survey is sent to the surveyor general who may
include some comments on the prescribed form and then approves the survey or
return the survey to the surveyor for his action. The surveyor general will also enter
the survey fees in a ledger. All approved surveys are sent back to the records officer
who is supposed to make corrections to the registers as necessary. The officer then
prepares prints. The lands department or the private surveyor is then informed of the
approval of the survey. The working plan, deed plans are filed in the records office
while the survey record envelope is filed in the examination office.

Fig. : Survey Approval Procedure

Licensed Land Surveyor
Survey returned to Surveyor

Survey Records
Survey returned to Surveyor

Survey returned to Surveyor

Survey Examiner
Approved Survey

Drawing Office

Principal Land Surveyor

Surveyor General

2.4 Datums in Malawi

2.4.1 Horizontal Datums

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Dr Edward J.W.Chikhwenda 03 April 2007

Map production in any country is based on some sort of a projection. This is so

because the earth is not flat but spherical. This means that when one is producing a
map or sketch, what is happening is that the spherical earth is being projected onto a
flat surface. In Malawi, surveyors use the spheroid of reference (Clarke 1880
Modified). The variables of this spheroid are the semi-major and semi-minor axis.
These variables are defined as follows:

Semi-Major axis a = 6,378,249 metres

Semi – Major axis b = 6,356,515 metres

Flattening f = 1/293.465

The relationship of a metre to the feet is given as 1 metre = 3.28084558 feet

(UK).

The Datum used in Malawi is the 30th Degree New Arc (1960). This is identical with
arc (1950). The Map Projection used for all the maps in Malawi is the Transverse
Mercator, Universal Transverse Mercator (U.T.M) Grid to be precise. In this gird, the
coordinates are in metres. This means that our maps use the Zone 36° with central
meridian 33° East. The False Coordinates of origin are given as:

• For eastings, the origin is based on the Central Meridian plus 500, 000.000 metres
• For northings, the origin is based on the Equator plus 10, 000,000.000 metres
• The scale factor applied for this type of projection is 0.9996

However, all cadastral plans and maps that were produced before 1974 used
Transverse Mercator Projection, which is based on the Gauss Conformal Grid
Coordinates System. The coordinates are in English Feet. In this type of projection,
the Central Meridian was either the 35° E or 33°E. Zone A was based on Local Origin
Lo 35°. This was basically used in Southern Region plus Salima, Dedza and Ntcheu
Districts. Zone B was based on Local Origin LO 33°. This projection was used in the
remainder of the country. For both Zone A and Zone B, surveyors used 0.000 feet as
the coordinates of the origin. This means that the Y coordinates increased in the
negative sense East of the Central Meridian.

Nowadays, it is a requirement that when a surveyor is carrying a retracement survey,

s/he must covert the coordinates in Gauss Conformal System to U.T.M system.
Where Zone A (Lo 35°(1966)) coordinates are found, it means the surveyor has to
convert those coordinates to UTM via geographic coordinates. See equation that
follows:

Sometimes the surveyor encounters Zone A Lo 35° (1960) coordinates. In this case
the surveyor has to convert the Lo 35° (1960) to Lo 35° (1966) before converting to
UTM coordinate system.

The conversion of Zone B, Lo 33° coordinates to UTM metric system in retracement

surveys is slightly easier than the Lo 35°. The conversion to the metric system is
done using standard formulae given below:

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Dr Edward J.W.Chikhwenda 03 April 2007

Eastings (metres) = 500, 000 – 0.304677552 y

Northings (metres) = 10, 000, 000 – 0. 304677552 x

Where x and y are coordinates in the Lo 33° system.

In Malawi, the UTM projection is being used for both cadastral and topographical
mapping. However, it has been shown above that before the metrication and the
establishment of the control surveys surveyors used local coordinate systems with
local origins and a local grid system. Surveys done after triangulation stations were
established, two grid systems were used. Cadastral surveys used the Gauss
Conformal grid covering two-degree belts of longitude. This also used Transverse
Mercator Projection whose grid system was oriented south. The foot was the unit of
measure. The longitude of origin was the central meridian of each belt. The latitude
of origin was the equator. In this system of grid, both negative and positive
coordinates were possible because the false coordinates were both zeros (y, x).

The topographical mapping however adopted the Transverse Mercator projection,

which used zones six degrees wide. The grid system used was UTM and was in
metres. As compared to the Gauss Conformal, the orientation was north and the
longitude of origin is the central meridian of each zone. The false eastings for the
central meridian is 500,000 metres while the false northings for the latitude of origin,
which is 0º (the equator) is 10,000,000 metres. In this system, all coordinates are
positive.

The shape of Malawi could have easily adopted only on grid system even in the
1960s. Malawi is a long and narrow country, which extends through only 3º of
longitude. This means that only one coordinate system could easily be adopted. The
two systems of Gauss Conformal and UTM for Cadastral and topographical surveys
were adopted because it was a normal practice in the Federation of Rhodesia and
Nyasaland. It can also be argued that Malawi adopted the two-degree zone for
cadastral surveys in order to reduce distortions, especially at the limits of the zone.

The Gauss Conformal grid for cadastral surveys used the equator as origin but used
33º and 35º as their central meridian. The maximum scale factor applicable at the
edge of this 2º Gauss belt to convert spheroidal distances to projection distances is
approximately 1.00014. This means that scale factor correction for the Gauss
Conformal grid is negligible. However, the scale factor for UTM grid belts of 6º is
approximately 1.0007. This is five times the scale error as in the Gauss Conformal
grid. But the shape of Malawi means that the scale error is less than 1.0004. This is
acceptable for most cadastral work.

2.4.2 Height Datums

The primary route of levelling was proposed in 1956. The proposal was to run from
an existing Portuguese connection at Tete, through Mwanza to Blantyre. In 1960 the
proposed route was changed. Instead the Sena-Nsanje-Blantyre-Liwonde-Lilongwe
route was recconnaitred. Bench Mark building also started in the same year.
Included in this scheme were branches, Liwonde-Mandimba and Blantyre-Mwanza.

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Dr Edward J.W.Chikhwenda 03 April 2007

Observations of these schemes started in 1961. The surveyors were instructed to

connect these schemes to the Shire Valley Project Survey Bench Marks and to
Nyasaland Railway levels. The fundamental Bench Mark was built at Blantyre. The
following are the major levelling routes in Malawi:

(a) High Water Mark, Ordinary Spring Tides: This was established mainly for
engineering purposes. The Rhodesia Railways established it before 1931 and
its basis is Beira. The height from Beira was carried along the Malawi
Railway line to Lake Malawi at Chipoka.

(a) Railways Datum: This was based on the high water mark, usually the nearest
railway bench mark. In this datum, the zero is the High Water Ordinary Spring
Tides mark that was determined at Beira in 1934. The height was then
transferred from Beira to Salima, along the railway by third order spirit
levelling. The Trigonometric datum and the Shire Valley datum were obtained
from the Railways Datum. The heights at Chileka International Airport and
Phalombe Plain Primary Baseline are derived from the Railways Datum.

(b) Trigonometric Datum: This datum was obtained by a triangulation

observation between a Railways Datum Benchmark at Limbe Station and a
Primary Triangulation Station 8NYP, Ndirande The trigonometric datum is
based on the height of 1613.30 metres for Ndirande Trig Pillar 8 NYP. This
means that all the heights for all trig pillars and all mapping in Malawi are
based on the Ndirande height.

(c) Shire Valley Datum: This datum was mainly for carrying out an investigation
into the economic and agricultural potential of the Shire Valley. Its height
was based on rail level of 50.984 metres on the railway datum at the Chiromo
Bridge. From this bench mark, a tertiary standard levelling was carried out in
1950. This network was extended to Mangochi on Lake Malawi.

(d) Malawi Nation Datum: This was an attempt to connect precise leveling to
Triangulation Pillar 33 NYT, Kanjedza in Blantyre. The Mean Sea Level
superseded this.

(e) Mean Sea Level : This scheme was the most precise because it was aimed at
geodetic surveys rather than engineering purposes only. Here, continuous
recordings were taken over several years by Missao Geografica da
Mozambique. A line of first order levels was run up the Zambezi to Tete to
connect with Primary levels in Zimbabwe. The Portuguese did the adjustment
for calibration factors and orthometric correction. Adjusted lists of
Benchmarks in Malawi are based on this datum. This datum is called the
National Datum (1974).

2.4.3 References to Malawi Law Relating to Cadastral Surveying

Cadastral surveyors in Malawi are supposed to be familiar with the various acts of
parliament that deal with land issues. The following are some of the acts:

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Dr Edward J.W.Chikhwenda 03 April 2007

Acts of Parliament Relevant Sections

1. Land Survey Act CAP 59:03 All Sections including the Land Survey Rules
(First appeared 8th July 1955)
2. Land Act CAP 57:01 1,2,3,5,8,15,27,29(1),30
(First appeared 7th June 1965) Land Act Regulations 1,2(a), 2(n)
Registered Land Act CAP 58:01 1,2,5,7,10-25, 27,29,30,32,101,126-130,134-
(First appeared 9th May 1967) 137,144,149-153
Adjudication of Title Act No.18 1-4,13,14,18,19,20(1),22(1),23
(First appeared 10th August 1971)
Customary Land(development) Act 1-3,4,10,12-15,21-23,26(1),27,28(2)
CAP 59:01
(First appeared 6th May, 1967)
Deeds registration Act CAP 58:02 1-3,6,13,15,19,20,22,23,24,26,28,34
(First appeared 31st March 1916)
Town and Country Planning Act CAP 1,2,3,5,6,7,8,23,30 including the rules
23:01
(First appeared 10th December 1948 )
Planning (Sub-Divisional) Control 1,2,3,4,5,11 including rules
Act CAP 59:04
(First appeared 19th February 1958)
Public Roads Act CAP 69:02 1-19,24-28
(First appeared 1st September 1962)
Urban Areas(Public and Private 1,2,10(4),15,19
Streets) Act CAP 23:02
(First appeared 20th July 1956)
Local Lands Board Act CAP 59:02 1,2,3,6,8,10
(First appeared 9th May 1967)
Mining Act CAP 61:01 14,19,44,110(e) including mining regulations
(First appeared 30th April 1937)
Acquisition of Land Act CAP 58:04 All
(First appeared 29th July 1948)
Local Government (Urban Areas) Act 1,2,5,6,7,8,9,77,119(d)
CAP 22:01
(First appeared 1st January 1966)
Conveyancing Act CAP 58:03 All
(First appeared 10th July 1952)
Railways Act CAP 69:03 All
(First appeared 1st October 1907)
Protected Places and Areas Act CAP All
14:04
(First appeared 15th June 1960)
Registered Land (Amendment) Act All
No.32
(First appeared 24th August 1970)

Table 2.1: Acts of Parliament Relevant to Cadastral Surveying

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2.5 Types of Cadastral Surveys

The legal nature of cadastral surveys requires land surveyors to be professionally

competent before they can practice in Malawi. Professionalism in this context may
be defined as the attainment of special knowledge as distinguished from mere skill.
This implies that any surveyor who wants to deal with legal surveys has to acquire the
necessary traits to be considered as a professional. However, there has been
misconception that once one has a licence to practice then he is a professional. To be
a professional one needs to be competent in the executing empirical procedures as
well as understanding the underlying theory and history behind those procedures.
Different people acquire professionalism in different ways. Some will acquire
professionalism through study while others may acquire it through research on their
own. However, because all cadastral surveys are not the same, there are some
cadastral elements that are usually learned through trial and error. Although this may
be the case, our clients and their lawyers completely depend upon our understanding
of cadastral issues. This means that cadastral surveyors need to fully understand the
principles underlying cadastral surveys in order to understand the issues.

When a cadastral surveyor has been given a survey request, he is likely to encounter
one of the following cadastral tasks:

2.5.1 Original Surveys

This involves the establishment of plots on virgin land. Usually there will be a layout
plan or a sketch showing the extent of the plot(s) to be surveyed. The layout plan is
supposed to duly be approved by town planning authority in accordance with Town
and Country Planning Act. Thus, most surveys in townships are supposed to follow
the layout plan unless there is ample evidence that the plan could not be followed on
the ground because of obstacles etc. In this type of cadastral surveys the accuracy is
dictated by the instruments used the purpose of the survey and the economics of the
day. Evidence shows that every generation of cadastral surveyors tend to strive for
greater accuracy and precision. This means that cadastral surveyors have to aim at
achieving both accuracy and precision within the economics and instrumentation
available.

2.5.2 Subdivision Surveys

In subdivision surveys, a layout plan that has been approved by the city authorities as
per Town and Country Planning Act is strictly followed in the subdivision process.
The reason why there is a need for an approved plan is that in townships, the areas are
zoned into residential, industrial and recreation areas. Each area has minimum plot
size specification as per the Town and Country Planning Act. It is recommended that
all cadastral surveyors should familiarize themselves with the public guide to the
development process produced in 1996 by the City of Blantyre.

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Dr Edward J.W.Chikhwenda 03 April 2007

2.5.3 Retracement Surveys

In any retracement survey, the cadastral surveyor should have in mind the fact that the
original surveyor understood what it was they were accomplishing. Having this in
mind, the surveyor should realize that the original surveyor might have some
constraints such as instrumentation, existence or inexistence of a national horizontal
or vertical control network and also the economics of the times in which they worked.

In a retracement survey, the surveyor has to re-establish the previous survey for which
the description is known with a clear mind as to the accuracy and precision that can
be achieved. In a resurvey, the surveyor is supposed to follow the footsteps of the
original surveyor after a careful examination of the evidence before him. This implies
that the surveyor should know and appreciate the law as it affects boundary locations
and also how the described boundaries were arrived at. In Malawi, the surveyor is
likely to encounter different types of previous surveys. There those surveys that were
done based a local surveying system. There are two types of old surveys namely;
those that do not have any coordinates at all and those with local coordinate system.
Those without coordinates usually have bearings and distances shown on the working
plan. The distances are either in chains or in feet. The bearings are either astronomical
or magnetic. These surveys were done before the establishment of the national
triangulation network. The surveyor may also encounter surveys that were based
Gauss Conformal Projection with central meridian of 35 E and 33 E which were
referred as Zone A and Zone B respectively. In these surveys, the coordinates of
beacons are in feet. Those surveys that were done after 1974 are in UTM. Thus, each
retracement survey exercise requires unique approach and solution.

The cadastral surveyor while trying to re-establish an old boundary should be aware
of existence of blunders in all the measurements; especially due the fact that some of
the distances may have been measured by chainmen whose level of knowledge was
usually low. The major challenge in retracement surveys is when the described corner
beacons of the plot are lost or obliterated. The Land survey Act CAP 59:03 Part IV
Section 16 says that the position of any survey mark fixed, placed or set up for the
purpose of denoting the boundaries of any land and which is deemed to have been
lawfully established shall not be brought into question in any court of law or by any
person in any circumstances. The same section defines an established beacon as one
whose position is in agreement with its position established in any other survey and
when a plan based on survey has been approved for the purpose of establishing such
mark by the surveyor general. However, a beacon can also become an established
beacon when its position is in agreement with an order of the high court.

Thus, in any retracement survey there are three types of beacons. Firstly an
established beacon is the one whose position can be identified by verifying the
evidence of the monument or its accessories by reference to the description in the
field notes or located by acceptable supplemental survey record, some physical
evidence or testimony. Secondly, an obliterated beacon is the one whose physical
evidence may have disappeared but whose position can be recovered through the
testimony of one or more witnesses who have dependable knowledge of the original
position. This implies that an obliterated beacon is the one whose point there are no
remaining traces of the monument or its accessories but whose position can be

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recovered beyond reasonable doubt by the acts and testimony of interested

landowners, competent surveyors or other qualified local authorities or witnesses or
by some acceptable record evidence. Finally, a lost beacon is the one whose position
can not be recovered. This is possible in areas where surveyors did demarcation of
plots but the exact coordinates of those beacons were not recorded in the
computations and no accessory tie points were described. In this situation, the
cadastral surveyor can only use his judgement when re-establishing the original
boundary. This is very common in traditional housing areas where block surveys were
carried out and no coordinate list provided for each corner beacon. It is also common
in very old surveys that were done using local origin and no coordinates were
recorded on the deeds or associated plans. These are the most difficult surveys the
cadastral surveyor can encounter in his professional life.

In a situation where the cadastral surveyor is engaged in re-establishing old beacons,

he is required to thoroughly examine all the evidence as to who established the
coordinates, how the coordinates were established, what procedure and control was
adopted in determining the coordinates. It is important to know who established the
coordinates because each cadastral surveyor has his own methodology and expertise.
Evidence from the Malawi cadastral survey practice shows that some surveyors prefer
establishing permanent control points such as drill holes or using pegs or nails in
concrete or road side. Some surveyors prefer using resection to establish control while
others will use a traverse. These are very good guidelines as to the reliability of the
control coordinates and hence coordinate of the corner beacons that have been set up.
The examination of the procedure is equally important because it can reveal the
accuracy and precision that may have been used to establish the beacons.

Note that the reliability of any beacon in a survey is closely associated with the
reliability of the control network adopted and the manner in which the theory of errors
has been applied. After the above evidence has been examined, the cadastral
surveyor should critically analyze the monumentation evidence, which is usually
supported by the coordinates found in the survey records. However, cadastral
surveyors should be very cautious in their judgement when dealing with survey
records and their coordinates because coordinates are only useful if they reveal the
position of a beacon unambiguously. A coordinate value on its own is of little use if it
fails to verify the position of a beacon. This brings us to a conclusion that the
cadastral surveyor needs to exercise judgement for each survey task. This judgment
should be based on the fundamental principles of surveying that include statistical
verification.

2.5.3.1 Positional tolerance in Retracement Surveys

It will be agreed that professionalism in cadastral surveying is associated with the

level of understanding connected to boundary lines that may have been established by
other surveyors. Since the boundary is defined by coordinates of beacons that are
derived form angles and distances, the theory of errors need to be taken into account.
The principles of theory of errors suggest that the repeatability of the measured angles
and distances depend on the instrumentation, terrain, observer and environmental
conditions. This means that even after blunders and systematic errors have been
eliminated, there still remain random errors. It is not surprising to note that most of

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the disagreements in surveys are related to these random errors. Although we are
aware that the errors are random in nature, we have adopted a system of adjusting
observed angles and distances so that they should agree with a preconceived
geometrical condition. What we are actually trying to achieve is to make the
computed coordinates of the control points contain these accumulated measurement
errors without due regard as to where the error actually occurred. The major problem
is that there is evidence that the computed positions of the control points of a traverse
become more uncertain as one gets farther from the starting control point. Sometimes
the surveyor is fooled by the computed relative precision of his survey by thinking
that the higher the precision the more acceptable their survey. In reality, relative
precision of a survey does not indicate accuracy of the positions on the ground. Thus,
relative precision does not provide the surveyor with the reliability of the
measurements as to be used for evidence in re-establishing obliterated beacon. To
counter the problem of the increased uncertainty as one goes away from the starting
point, some surveyors will use cross-ties in their traverses because this provides
computational checks and reduce uncertainty.

The above discussion shows that cadastral surveyors engaged in retracement surveys
must be aware of the existence of random errors because they will influence their
decisions as to which control points to use in a particular survey. Usually the basic
procedure is to identify the most reliable control network and tie this to any
monuments/beacons that can be found in the area of survey. Note that any monument
found is very important during evidence evaluation and statistical analysis. Once the
traverse has been run, it is analyzed for blunders, systematic and random errors.
Using the adjusted observations, the coordinates of the new control points are
computed. Using these coordinates and the tie bearings and distances the found
monuments’ coordinates are computed. The geometry of the new and the old surveys
is then compared. In this case, the level of the geometrical agreement is the most
important evidence to the cadastral surveyor. The geometrical analysis is based on
statistical evaluation of the data of both the original and new survey. The next stage
in the analysis will be to check whether all the displacements of the found
beacons/monuments are within acceptable comfort level. This is a level at which
surveyors will feel comfortable, if they are to use the measurements as evidence in re-
establishing the position of an obliterated beacon/monument. Note that comfort level
may vary due to the economics of the day, the physical or parole evidence that may be
used to re-establish the beacons. Usually comfort level is directly associated with the
acquired professional level of individual surveyors because some times it takes
several years of cadastral survey experience.

2.5.3.2 Dealing with uncertain Boundary lines in Retracement Surveys

A cadastral surveyor may be required to carry out a retracement survey because the
boundary line is uncertain due to poor deed description, conflicting physical evidence
of location or a dispute between adjoining owners. The surveyor will encounter two
possible problems namely; a boundary line that is being disputed has written evidence
such as the boundary description in a previous deed and the boundary line that has to
be relocated from ambiguous description.

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Boundary lines with written description are based on two principles of law such as the
parole evidence rule (oral) and the statute of frauds. Courts have cited these two
principles in resolving boundary disputes. The principle of parole evidence rule was
cited by the Supreme Court of the State of Kansas in Wheeler, Kelly and Hagny Inv.
Co v. Curts, 158 Kan, Corpus Juris Secundum which noted that it is a general rule
that parole or extrinsic evidence is not admissible to add to, subtract from, vary,
contradict.... written instruments which dispose of property… and which are valid,
complete, unambiguous and unaffected by accident or mistake. On the other hand,
the principle of the statute of frauds Corpus Juris Secundum notes that mere parole
statements or agreements can not accomplish the creation, sale, conveyance,
assignment or surrender of estates or interests in land. The principal object of the
statute is to prevent the establishment or divestiture of equitable titles to land by the
introduction of uncertain and unreliable testimony.

The importance of written evidence is displayed in the case of Andrews v. Andrews

where both parties held title through a common grantor. The description of the
boundary line was the same in both the plaintiffs and defendants deeds. The dispute of
the boundary line arose because the plaintiff and the defendant agreed mutually to
move the iron rod which was distinctively described in the deeds from the centre to
the edge of a plantation road and placed a concrete monument at the edge of the road
to mark the agreed corner beacon. The defendant’s claim was that the true boundary
corner beacon was the one, which was mutually placed after the two agreed to shift
the beacon. However, the court held that the location of a beacon could not be
changed by parole agreement if the deed is sufficiently defined by extrinsic evidence.
In this case the true boundary line was fixed by their respective deeds.

However the above-cited case would have been different if the boundary line was
ambiguous or the physical evidence on the ground did not agree with the writings. In
this situation parole agreement may be the alternative solution to the dispute. The
courts have held that where boundary lines of adjoining owners are not definitely
known or their location is in dispute, the owners may establish their lines either by
written agreement, conveyance or parole agreement.

Sometimes, the adjoining landowners carry out physical improvements to the land
along an uncertain boundary. If the neighbour does not question this development, the
boundary line is assumed to be established by acquiescence and acceptance. In this
case there is no need to have a written agreement between the adjoining owners. If
there is a dispute regarding the boundary line the parties may agree upon a line.
However, if the physical improvements to the land have been in existence for more
than twelve years, then the possession may ripe into title.

The above fact forces the surveyor to ask three important questions when dealing with
a boundary dispute. Firstly, it is important to find out whether the boundary line was
established with the consent of both parties. Secondly, it is important to find out the
time scale when both parties have mutually agreed the boundary. And finally, what
constitutes possession. Where the boundary line is ambiguous, the courts have held
that oral agreements to establish the boundary are enforceable. Therefore, if a
landowner knows the true line and silently allows the neighbour to make substantial
improvements unknowingly past the line, is estoppeled to claim the true boundary.

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However, where the improvements were made due to a mutual mistake as to

boundaries, equity will require conveyance of the disputed strip for its reasonable
value (Kellie, 1985).

The principles of dispute resolution, which require oral agreement, practical location,
acquiescence and acceptance, can only be left to the courts. The courts, usually will
require the competence of a professional surveyor to provide the courts with data
sufficient to describe the agreed line and its relationship to lines and boundary beacon
corners to adjoining plots. In this case, the cadastral surveyor has to exercise his
professional expertise. Firstly, it is necessary for the surveyor to examine all the
existing evidence of the instruments that describe the ambiguous boundary line. The
evidence may be obtained from deeds, survey records, aerial photographs and the
existence of any monuments on the ground.

A deed can be defined as an expression of the parties as to what real estate and rights
were intended to be conveyed. The services of the surveyor are required because the
deed is supposed to contain accurate description of the land and appurtenances.
Although this is the case, there are some deeds that contain errors or ambiguities. In
this case the surveyor or the court has to determine what was intended by using
extrinsic evidence or information outside the deed.

Extrinsic evidence in this context can be defined as evidence outside the writings, that
is outside the deed. The evidence can be from another source (aliunde) which
includes parole, statements, acts by parties, unrecorded documents, aerial
photographs, historical documents, private plans (Richards et al 1995). When a deed
can not unambiguously describe the boundary of a property, extrinsic evidence is
usually used to furnish the needed information for validation purposes only. Cadastral
surveyors in retracement surveys constantly encounter deeds that have ambiguities.
This requires the surveyor to use extrinsic evidence in order to identify or verify
monuments. However, the courts have held that extrinsic evidence can not be used to
control, vary or contradict the clear language in a deed. This means that, where the
deed is clear, extrinsic evidence may not be allowed. Thus, a cadastral surveyor
involved in retracement survey should understand the implication of constructing an
ambiguous boundary line using extrinsic evidence. This is so because he has to know
what the courts regard as evidence in a boundary dispute.

2.5.4 Liability of a Cadastral Surveyor

The licensed land surveyor is supposed to have a code of ethics because the citizenry
depends upon the adherence by registered land surveyors to standards of professional
responsibility. This may be applicable where the appellants allege that the neighbours
who owned real property adjacent to theirs had committed a continuing trespass, and
further allege that a professional surveyor had aided and abetted the neighbours by
negligently preparing an erroneous survey plot of the disputed property. In this
situation, the registered surveyor should keep in mind that a party other than the
person or property owner with whom the surveyor has entered into a contractual
relationship could maintain a cause of action against a registered land surveyor. This

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means the licensed land surveyor should always remember that he would be liable to
third persons with whom the surveyor is not in privity for negligent
misrepresentations appearing in a parcel, provided that the surveyor knew or should
have known that such third persons would use and rely upon the surveyed plot in
subsequent transactions involving the property. The liability of a surveyor for his
errors is similar to those of most professionals. He may be held responsible for
damages sustained as the result of his negligence and lack of skill. Thus, he is
obligated to exercise that degree of care, which a surveyor of ordinary skill and
prudence would exercise under similar circumstances. In some circumstances, a
surveyor could be liable to a subsequent landowner with which he is not in privity
because when a surveyor becomes registered, he declares an obligation to assume
responsibility to the public for the accuracy of work they certify as having been
performed accurately. This means a surveyor may be held liable to purchasers of
property who suffer damage by reasonable reliance upon the surveyed plot.

2.5.5 Ethical Issues in Cadastral Surveying

Ethics originally means a custom or habit, or the way one is characteristically

disposed to act. It also means the right way inasmuch as it is the approved or a proven
way. Such a way is justified by reference to the principles operative in it. Thus,
cadastral surveyors are professionals who must act on principle, or at least exhibiting
some scruples consistent with principles. Ethics in this sense may be comparable to
conscience. Note that both conscience and ethics are guides to conduct. Usually
conscience tells us what to do while ethics tells us what not to do.

Each of us has an ethical system. This can be a personal and a professional ethical
system, which is basically identical. This means that a professional person must take
personal responsibility for the consequences of his ethical conduct. This requires the
setting of standards for oneself. These standards can be set if it involves our
conscience, which may be defined as the consciousness of the moral quality of our
conduct. It is a kind of self-consciousness, over and above the consciousness of the
circumstances in which we find ourselves, of the feelings and thoughts provoked by
the situation, and of the range of possible responses to the situation. Usually,
professional conduct is accompanied by the self-consciousness characteristic of
conscience. Self- conscientiousness brings professional competence to bear on the
situation rather than the moral principles. It also compels the professional to practice
his skills expertly. As professional land surveyors, it would be a good professional
ethic not to behave oneself in a way that is harmful to the public, not to falsify
measurements, not to disobey statutory rules and regulations and not to accept
assignments that are outside our area of expertise.

2.5.6 The Licensed Cadastral Surveyor and the Law

Land surveyors that deal with legal issues of land have to be licensed in Malawi.
However a land surveyor is not expected to be licensed for him or her to practise in
engineering or topographic surveying. Cadastral surveying is usually very
challenging because one is involved in demarcation legal boundaries. The legal
boundaries are a basis for most of the phyical boundaries. This means that a cadastral

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surveyor will be involved in solving boundary problems. As a result it is important

that only professionally qualified surveyors who are registered by the Land Surveyors
Regstration Board are allowed to practise. Licensed land surveyors are supposed to
have the expertise to provide clear and expert testimony in a court of law. The client
and the government need to have trust in land surveyors because their duty is far more
than establishing boundary lines, drawing a cadastral plan and deed plans, and
recording some descriptions and conclusions of the work. The licensed land surveyor
must be an expert who can gather, analyze and preserve evidence of boundaries. The
licensed land surveyor has to act as a judge and an interpreter of the discovered
evidence. Because of these facts, the courts usually call upon the expertise of
cadastral surveyors when the neighbors cannot agree on the boundaries of their
adjoining plots. When this happens, the cadastral surveyor is expected to effectively
and convincingly defend any findings from the field survey. Based on the expertise of
the cadastral surveyor, the client has all the confidence that his or her boundary will
be established.

In the cadastral system of Malawi, we believe that a cadastral survey should be able to
withstand a court challenge. A survey that cannot withstand a court challenge is
practically useless. In order to make the cadastral survey useful, cadastral surveyors
need to know how the courts expect them to construe the words of a deed and how
they should handle legal concepts such as seniority of title. The cadastral surveyor's
duty is that of a detective, evaluating items of evidence that make it more or less
probable that something observed in the field and recorded in the field book is a
correct beacon. Surveyors should be aware that the courts do not entertain hearsay as
evidence because its use subverts the process courts use to discern the truth. Courts
want evidence to be presented under oath, directly scrutinized by a judge or jury and
subjected to cross-examination. Because hearsay is a statement made outside of the
hearing, a court process cannot test it. The reason why cadastral surveyors have to
present evidence under oath is that although the surveyor has the evidence of the
markings on deed or working plan, that s/he found during his or her research or
survey is a proof enough to declare that the beacon is in its original position, the
courts want the surveyor to give the background of the original surveyor and how the
plan was drawn.

Note that the courts are willing to accept hearsay exceptions such as:
• Recorded documents affecting a property interest.
• Statements in unrecorded documents purporting to affect property interest.
• Statements in documents over long period of time say 20 years.
• Reputation in a community concerning boundaries.
• Field notes.

It is also important to note that expert witnesses can base their opinions on facts or
data that are not admissible as evidence as long as those facts or data are of a type that
are reasonably relied upon by experts in the particular field. This means that the
licensed cadastral surveyor should always ask himself or herself whether the sort of
evidence can be relied on by experts.

Some of the issues include:

• Look for minimum requirements to make the beacon or plan reliable.

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• Establish the circumstance of the survey behind the plan.

• Establish whether the plan is signed or approved, and by whom.
• Establish whether the plan provides enough information to enable you to make
tests with your own measurements.

The basis for experts witness comes from the rule of evidence which states that if
scientific, technical or other specialized knowledge will assist the trier of facts to
understand the evidence or determine a fact in issue a witness qualified as an expert
by knowledge, skill, experience, training or education may testify thereto in the form
of an opinion or otherwise. Land surveyors have specialized knowledge that is
beyond that of a judge. The judge may not be trained to place beacons and
understand and read field notes. They may not be able to make measurements with
theodolites or GPS. Although they may be conversant with the law, they may not be
experts in land law or boundary law. Surveyors have that specialized training to
enable them evaluate whether beacons have been disturbed or whether their
accessories still exist. Thus, the licensed cadastral surveyor should be able to present
the scraps of evidence and to give an interpretation of them in as far as the
interpretation will help the judge or jury to understand the evidence. Effective
testimony requires the licensed cadastral surveyor to come up with an outline of the
evidence. For every evidence, you have to identify issues that you can be used to
teach the judge. The judge will understand the evidence if the testimony is made
lively and interesting

Surveyors and Legal Issues

When a surveyor attempts to track property boundary description, he/she has to see
forensic approach in order to solve the mystery. This is especially true in retracement
surveys where the surveyor has followed the footsteps of the original surveyor. For
the surveyor to be successful she/he must deal with empirical evidence and clues
Sherlock Holmes in his book entitled The Sign of Four, perfected the art of adductive
reasoning by saying that when the impossible, whatever remains, however impossible,
must be the truth.

Copy Right of Survey Products

When a cadastral survey has been done for a particular person, the government,
MHC or city assemblies acknowledge that the client is the owner of the deed plan
produced from such a survey. This implies that the owner may give the deed plan or
even the title plan to others . When a survey is done, the law recognises an "implied
licence" which permits the client to make copies of the survey products for the
purpose of computing the transaction for which the products were created (Johnson,
2004) However, the implied license does not include the making of subsequent
copies for later transactions. Copyright protection prevents the an unauthorised
copying of survey products. If a cadastral surveyor is employed in a survey company,
the survey company holds the copyright. This implies that even if the cadastral

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surveyor is licensed to practice, what he/ she creates is work made for hire
(johnson,2004)

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BOUNDARY SYSTEMS IN CADASTRAL SURVEYING

3. Boundary Systems in Cadastral Surveying

The problem of boundary lie at the foundation of all surveying, for one must know
where a line is before he can measure it and the solutions of these problems calls for
the same powers of accurate observation and of consecutive and logical thought that
are demanded for successful work in any branch of modern science (Mulford, 1912)

Definition of Terms

Corner: a dimensionless, legal entity which constitutes the end points of two or more
boundary lines.
Beacon or Monument: a physical device which provides evidence of the position of a
corner. A physical monument can be moved, destroyed or obliterated, but the legal
corner does not move with them.
Boundary: a one dimensional series of points usually running in a straight line or a
curve with fixed radius between two corners or angle points.
Existant Corner: a corner whose position can be identified by verifying the evidence
of the monument or its accessories, by reference to the description in the field notes
or located by acceptable supplementary survey record, some physical evidence or
testimony.
Obliterated Corner: a corner at whose point there are no remaining traces of the
monument or its accessories, but whose location has been perpetuated, or the point for
which may be recovered beyond reasonable doubt by acts and testimony of the
interested landowners, competent surveyors, other qualified local authorities or
witnesses, or acceptable record evidence.
Lost Corner: a point of survey whose position can not be determined, beyond
reasonable doubt, either from traces of the original marks or from acceptable
evidence or testimony that bears upon the original position, and whose location can
only be restored only by reference to one or interdependent corners.
Accessory: mound of stones, witness mark or other objects cited in the original field
nots as having direct relationship to its corner.

Paradigm of Boundary

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Land surveying deals with angles and distance measurement, while cadastral
surveying is a professional area which specialises in boundary. Land measurement is
only ancillary for the cadastral surveyor. According to Pemberton (2004) the more
precisely you measure a line, the less accurately you place it. This is as a result of the
interplay between measurement, common law and the usual practices of professional
surveyors. The issues of boundary for the cadastral surveyor in both original,
subdivision and retracement surveys. In original surveys, the boundary will be where
the first markers were fixed. In a retracement survey the first markers may have been
destroyed or lost. In some cases the first markers may just be 20 centimetre covered
by earth. When a cadastral surveyor wants to re- establish the original markers it is a
good practice to talk to the land owners and their neighbours as to where the
boundary is. The process may even involve pacing and using a mgnetic compass to
approximate the boundary line. In the field reconnaissance, the cadastral surveyor has
to make a thoughtful, thorough search for evidence of the boundary (Pemberton,
2004). Currently, most cadastral surveys operate under a flawed paradigm which
suggests that a professional surveyor is a deft and an accurate measurer. One
important fact about boundaries is that a boundary line can not be accurately located
by measurement alone. Cadastral surveyors are the only legal stewards of land
boundaries. In this case, cadastral surveyors should ensure that the location of a
boundary is more about law than it is about measuring. This cadastral surveying is
about human rights because all law grows out of human rights. Pemberton(2004) has
come up with the following short axioms:

1. To hold title or easement upon real property is a self-evident inalienable human

right (a) This means that anything or condition that operates to displace or remove
a boundary contrary to the will of the owner is an infringement upon one of his
most fundamental rights. (b) Any information system that purports to describe the
boundaries of a real property accurately is a clear and present danger to one's
rights and (c) Any person or process that alters a legal description of a property
created by an approved land survey or without the surveyors or owners consent is
a threat to rights of the owner.

2. The boundary line is invisible, immovable, and a perpetual legal entity (a) All
beacons etc are but visible indicia of the location of the line. Property line that
comes under their purview.
(a) Property corners must be permanently monumented
(b) Survey data, including documentation of the beacons must be accurate,
reasonably precise and publicly recorded

Corner Law

No property owner can loose his or her title to land or any part thereof merely because
the evidences become lost or uncertain. What the property owner needs to do if the
evidence is lost is to present a better evidence than the other person. A beacon may be
described as lost when it physically disappears or when reliable evidence is missing
or even when both situations are applicable. It must be noted that when surveyors are
dealing with lost beacons, they must ensure to exhaust all possible sources of
evidence with due diligence. Surveyors should understand that in retracement surveys
they are attempting to protect bona fide rights. Where the property boundaries have

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considerable value, it is commonsense that the surveyor needs to use a considerable

amount of effort.

When dealing with retracement surveys the surveyor should consider the following
priority list.
1. Corner beacons
2. Corner accessories such as stones lines of trees or hedges, witness corners or
evidence of any of these.
3. Record evidence in the field notes of the original survey or including report on
survey.
4. Written conveyance of land adjacent to the corner.
5. Other surveys, tax, court records, wills, adjacent deeds, water running records etc.
6. Evidence of occupation.
7. Parole evidence testimony of persons who have personal knowledge of any
evidence.
8. An existing line is accurately located only by weighing all the evidence and
correctly choosing where it has always been.
9. Accuracy has great legal weight, precision has almost none, emphasis on
precision often decreases accuracy.
10. Only the owner of the property (MHC, Assemblies or Government) can create
new boundaries and or set indicia on that property.
(a) The law declares she /he must do this himself/herself or authorise a licensed
land surveyor or a court of law to do it.
(b) All other attempts to create boundary lines are a violation of property rights
and are illegal.
11.Lines once drawn on the ground are perpetually fixed in position by their original
indicia notwithstanding imprecision in their placement or description.
(a) Original surveyed lines as marked on the ground are perfectly accurate
(b) Loss or movement of indicia has no effect on the location of the boundary
(except) some earth movements).
(c) Original beacons are primary evidence of boundary location
(d) A legal description is secondary evidence of the location of boundaries
(e) Identifying a previously established boundary requires the application of
measurement to determine its approximate location and of law to determine its
exact location.
12.Weighing of evidence and determination of the exact location of the true legal line
requires skilled, judicious persons to be in the immediate proximity of the line.
(a) Only licensed land surveyors and courts of law can legally weigh and
determine exact location of a boundary line.
(b) Location of an existing corner by measurement alone is the best risky at worst
punishable.
(c) No measurement or data system can be endowed with the person on these
functions.
13. Original surveys establish new boundaries by setting beacons, measuring
documenting and recording. Retracement surveys locate existing boundaries by
searching for evidence, determining facts and deciding where the line has always
been.
14.The professional land surveyors statutory stewardship and the duty of the courts is
to protect property right.

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The concept of cadastral surveys varies from country to country depending on

priorities and historical factors. The priorities of each country may be influenced by
aims and objectives of the cadastral survey. In Germany and most of the continental
Europe, cadastres are not only restricted to boundary definition. Just like the
Domesday record of the 1086 in the United Kingdom, fiscal cadastres are also
concerned with land use and development. This means those positions of buildings
and other physical features are recorded on the cadastral plans. Some cadastres also
deal with the valuations of immovable property. The cadastral system of a country
usually involves determining who owns what rights in terms of ownership, easements
mortgage over land, where the land is situated and how much land is involved. These
questions may only be answered by an unambiguous and precise definition of parcel
numbers, location and boundary.

In both deeds and title registration systems of land registration, the surveyor has to
identify and define the boundary of the unit that makes up a certain parcel. This
implies that the duty of the surveyor is to carry out measurements that enable the
identification and definition process of pieces of land parcels.

Legally, a boundary is a surface that separates where one landowner’s property ends
and the next begins. Generally, this surface is vertical and may be likened to a bead
curtain suspended from the sky so that anyone passing through it from one side to the
other passes from one set of property rights into another. The boundary surface
intersects the ground along the legal boundary line; stepping over this line is
equivalent to passing through the bead curtain.

As such, a boundary can be defined legally as is an infinitesimally thin surface

extending from the centre of the earth to the infinite in the sky and is essentially an
abstract concept. In the case of strata titles, such as in high-rise buildings, the
boundary surface may be horizontal. In practice, most people mark the limits of their
property on the surface of the earth either with linear features, such as fences or
hedges, or with point features, such as wooden pegs, iron bars or concrete markers.
These physical objects may also be referred to as the physical boundary, though they
may not follow the same line in space as the legal limit. In most legal systems, a fence
is an item of defence, a guard against intrusion; it is not necessarily a property
delimiter.

Boundary description is the most important part of any cadastral survey.

Conveyance, document relating the transfer, encumbrances or location of land relies
on description of the area involved for the purposes of identification and permanent
record. And surely, a good description should be drawn with a minimum of
information. In order to achieve this, the survey boundaries should be safe, without
conflict. This implies that the description should have clarity of expression and the
dimensions should also be both physically and mathematically accurate. Thus, a
description should be accurate, specific and concise in all its terms.

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Dr Edward J.W.Chikhwenda 03 April 2007

When a tract of land is defined by giving the bearings and lengths of all boundaries, it
is said to be described by metes and bounds. This is an age-old method of describing
land that still forms the basis for the majority of deed descriptions. A good metes-and-
bounds description starts at a point of beginning that should be monumented and
referenced by ties or distances from well-established monuments or other reference
points. The bearing and length of each side is given, in turn, around the tract to close
back on the point of beginning. The beacons or monuments placed at each corner
should be described to aid in their recovery in the future. It is also advisable to state
the names of abutting property owners along the several sides of the tract being
described. Many metes-and-bounds descriptions fail to include all of these particulars
and are frequently very difficult to retrace or locate in relation to adjoining ownership.
In preparing the description of a property, the surveyor should bear in mind that the
description must clearly identified the location of the property and must give all
necessary data from which the boundaries can be reestablished at any future date. The
written description contains the greater part of the information shown on the plan.

Metes and bounds system of describing a land parcel is usually seen as the most
perfect form of description as the dimensions recite successively the various courses
of the boundary. The recital may include all ties and monuments, whether they are
physical or record, all references to adjoining lands by name and record and all
measurable dimensions. This ensures that the land being described can easily be
identified with respect to adjoining titles and without conflict.

The advantages of metes and bounds lies in the setting out of dimensions of the
course and the recital of monuments, giving the owner and others an idea of size and
apparent fixity of position. Physical monuments that are found in this system should
be checked independently in order to ascertain their originality.

The fixed boundary system adopted in Malawi uses co-ordinates in its description of
land parcels. This helps in the co-identification of the physical and record points and
its precise relocation. The coordinate reference system employed is the UTM. This is
the national mapping base for all surveys in Malawi.

In England and Wales, about 17 million properties are now registered. The
boundaries of these properties are general in nature. In the British system, the filed
plan in the Land Registry identifies the property to which title is registered. The filed
plan does not precisely define the boundaries of that property. This is against a
background of the fact that the Land Registry Act of 1862 required the boundaries of
registered properties to be defined precisely. Because most owners did not know the
precise positions of their boundaries, their attempts to register their title to their
property created a large number of boundary disputes. In order to overcome this
problem, the framers of the act replaced it with the Land Transfer Act 1875 which
removed the requirement to ascertain boundaries to the nearest inch. This is the origin
of the general boundaries rule. The implication of the red edging of the filed plan
only indicates the general boundary and does not define the boundary itself.

3.1 Definition of Legal and Physical Boundary

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Dr Edward J.W.Chikhwenda 03 April 2007

In both the fixed and general boundary systems, there are two boundary concepts.
These concepts are the legal and physical concepts of a boundary. The legal boundary
is an invisible line. It has no thickness, and it is unlikely to be precisely identified
either on the ground or in the deeds or title documents. This is usually shown on a
deed plan produced by cadastral surveyors. Where fixed boundary rule is used, the
legal boundary is defined by a line joining the beacons that have been placed at the
turning points of one`s property. On the other hand, a physical boundary is a physical
feature that may have been intended to follow the legal boundary. These physical
boundaries are the ones used in the general boundary rule. In the fixed boundary rule,
the physical boundaries are usually established following the legal boundaries. This
means that landowners usually erect a fence after the beacons have been fixed at the
property corners. However, we have observed that the nature of physical boundaries
makes it impossible for the precise extent of land ownership to be identified
especially if the physical boundary is a hedge or a ditch. This is because it is difficult
to know whether the boundary is in the middle, or on one side or the other side of
the hedge or ditch.

Legal presumptions in the general boundary rule implies that it is impossible for the
cadastral surveyor to rely on the line on the map as being the boundary of a property
at all. Where the surveyor has used badly drafted title deeds, there has been
sometimes confusion as regards the exact boundary of the property. This is not
surprising because the general boundaries rule, states that “...the exact line of the
boundary will be undetermined - as, for instance, whether it includes a hedge, wall or
ditch, or runs along the centre of a wall or fence, or its inner or outer face, or how far
it runs within or beyond it; or whether or not the land registered includes the whole
or any portion of an adjoining road or stream”. The above rule indicates that it is
impossible for someone to claim that they know exactly where the legal boundary of
a property lies in relation to the line on the map. In conclusion, none can put his or her
absolute trust in the position in which the line is shown on the map. That line on the
map or a deed plan is only approximate.
Because of the above reasons it is advisable that where there is a boundary dispute in
the general boundaries system, the two parties need to compromise if the dispute is
over a strip of land that is only millimetres wide. In this system, it may be possible
that a professional advice may not determine the true position of the legal boundary.
The professional advice may only provide a third, and impartial, opinion as to the
position of the boundary. If those involved in the dispute do not agree with the
professional advice, the alternative is to seek legal advice from the lawyers. This
becomes very expensive as the court case will drag in order to establish the real truth
beyond any reasonable doubt.

In the UK where the general boundary rule is used the Land Registry does not
ascertain the precise positions of property boundaries, but it records property extents
using maps whose lines represent physical features that may or may not be property
boundaries. There is a possibility that the lines on the registry maps may actually be
shown a little way out of their correct position.

3.1.2 Precision of Deed Plans

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Dr Edward J.W.Chikhwenda 03 April 2007

Most of the deed plans produced by cadastral surveyors are at a 1:1250 scale. This
means that the thickness of the line on the deed plan actually represents 25
centimetres on the ground. Where the deed plan is produced at a scale of 1:2500, the
thickness of the line on the deed plan actually represents 50 centimetres on the
ground. However, line thickness is not the only consideration when trying to interpret
a plan onto the ground. Plan accuracy is a major factor. The accuracy depends on
scale and method of survey. The accuracy statement tells that even the best of plan of
a scale of 1:1250, some of the lines will be spot on, while in others the position of any
line on the plan can be shown up to 40 centimetres out of position relative to other
lines within 60 metres of it. Therefore, it is inevitable that the line on the plan
identifies the physical feature to which the boundary is related. It is the position of the
actual feature on the ground and not the position of the line on the plan that is
important in determining the position of the boundary. It must be remembered that
where the general boundaries rule is accepted, the line on the plan may not be the
actual boundary.

3.1.3 Adverse Possession

Adverse possession refers to the occupation of land against the interests of the real
owner by someone who does not have title to it. The one who possesses the land in
this manner is called a squatter. For a squatter to qualify for this type of possession
s/he must intentionally possess the land and prevent both the world at large and the
rightful owner from using it in a way that is adverse to the interests of the proper
owner. This means that the squatter must not be holding the land as a tenant or
licensee and must act as if he/she were the occupying owner and demonstrate that no-
one else has so acted.

It is possible for a squatter to obtain title by adverse possession if the owner has failed
to demonstrate his ownership of the land for a prescribed period, usually 12 years. For
example, if your neighbour takes possession of part of your land, fences it off, locks
any access gates (to prevent you enjoying its use) and cultivates or otherwise uses it
for the prescribed period as if it was his own, then he might eventually be able to have
the annexed land legally transferred to him. It is the responsibility of the landowner to
prevent willful encroachment upon his or her property. If the landowner fails to do
so, or fails to take action to recover any land encroached upon, within the period
prescribed by the Land Act then the landowner loses the title to the affected land.

If your land has been encroached upon, you have to know that it becomes very
difficult indeed to repossess the land. However, there are two possible actions that the
land owner can do to repossess the land:
• The landowner can physically repossess the land. This is not an action to be
undertaken lightly because you will have to be prepared to defend the land against
counter-measures by the squatter. It will require the removal of any fences and/or
other perimeter features erected by the squatter, and the erection by you of fencing
or other perimeter features on the correct boundary alignment. Be prepared to
deal with the police and even to be involved in legal proceedings.

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Dr Edward J.W.Chikhwenda 03 April 2007

• The landowner may have to commence a legal action. In this case it would be
wise to consult a licensed land surveyor to provide expert opinion. The licensed
land surveyor will investigate the encroachment and advise on whether or not the
squatter has an unassailable case. If he has not and the surveyor so advises, then
discuss with your solicitor the pros and cons of repossession and of commencing a
legal action. It is advisable that a landowner whose land has been encroached
upon should only start the legal proceedings if s/he is sure that they are going
pursue the case to the end.

3.2 Fixed Boundary System

This is where the boundary of a piece of land has been accurately determined by
survey in accordance with the LSA rules of Malawi. The corners of a plot are
physically surveyed by setting out (placing) beacons of specified nature as per LSA
regulations. The beacons are supposed to be durable. Using a plane coordinate
system, the beacons are uniquely coordinated. In the office, applying error analysis
principles processes the measurements. Once the analysis is satisfactory, the results
have to be checked independently by the government authority. This system
guarantees that any other surveyor can accurately replace any corner beacon that
might get obliterated or lost. Surveyors can easily re-establish the original boundary
of a plot in times of dispute. The surveying system used in the United Kingdom on the
other hand, does not require monuments to be erected such as pegs or reference
marks. The Registered Land Act and the Adjudication of Title Act provide provisions
for general boundary system in Malawi. The fixed boundary system was adopted in
Malawi by surveyors because the natural and man made features that act as the basis
for general boundary system are scarce or are not well.

There are basically three concepts of fixed boundaries. The first concept is based on
the fact that the fixed boundary is one, which has been accurately surveyed so that
any lost corner monument can be replaced precisely from the measurements. The
second concept is based on the fact that a boundary corner becomes fixed in space
when an agreement is reached at the time of land transfer. In this case, the location of
the legal boundary cannot be changed, unless during document transfer. This means
that the boundary’s location is fixed with or without the surveyor’s measurements.
This is the principle of the Torrens system. The third concept of fixed boundary is that
the boundary is only fixed when agreement is reached between adjoining owners and
the line of division between them is recorded as fixed in the register. Once the
boundary is approved the evidence on the register normally overrides whatever is on
the ground. The exact line of a boundary is determined by reference to the
documentary evidence in preference to long-term occupation and possession of the
land or to the position of well-established physical features, such as hedges, which
may be inconsistent with any registered plan.

3.3 General Boundary System

This surveying system does not require any accurate survey of a plot legally. Usually
no beacons are placed and land registration is based on the property description that

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Dr Edward J.W.Chikhwenda 03 April 2007

can accurately be plotted. This system emphasizes on visible features on the ground.
The general boundary dictum of the English system of registration permits the use of
graphical as opposed to numerical cadastre. The boundary in most cases is the hedge,
tree, a river etc. These boundary features are supposed to coincide approximately with
boundary of the parcel. Photogrammetrical methods are employed for the productions
of survey drawings. Photogrammetry is relatively cheaper if large tracts of land are
involved.

The nature of general boundaries system does not require the neighbours to be
consulted and to agree on the precise location of the legal boundary lines before the
ownership of a plot of land can be registered. This reduces the number of disputes in
the short term but may give rise to problems in the longer term. The approach is often
used where adjudication of title is undertaken sporadically with titles being brought
onto the register only when dealings take place. The main advantages of general
boundaries lie primarily in the less demanding standards of survey and the manner in
which the registrar of titles can ignore small changes in the position of a boundary
agreed between two parties, whilst still guaranteeing the title of each. This provides
cheap compilation and maintenance of the cadastral records within defined limits
more accurately.

In the United Kingdom, cadastral maps are basically topographic representation of the
physical boundaries of land parcels. The maps are produced by Ordinance Survey.
Because of this fact, there is no provision for the licensing of cadastral surveyors in
the British surveying system. Presently, the whole of England and Wales is fully
surveyed in cadastral terms. With the present technology, general boundary system of
cadastral survey provides a digitized cadastral database in which the coordinates are
accurate in conformity with the digitized graphics. On the other hand, fixed boundary
system provides a digital cadastral database in which the coordinates are accurate in
conformity with legally accepted tolerances of the Land Survey Act.

3.3.1 Problems associated with the General Boundary Rule

Where the boundary is taken as the brick wall fence, it is usually assumed that the
legal boundary i.e. the line of no thickness is to be found on the outer face of the
physical boundary feature. But life is not always that simple. If the boundary follows
the side of a building, then the conveyance may include an easement to allow the
eaves and gutters to overhang, and the footings to encroach beneath, the neighbour's
land. In this case you can be sure that the outer face of the wall of the building is
where the legal boundary is to be found. The problem arises where there is no
easement. Where we have fences, it may be easy to identify the boundary. However,
there are cases where it is difficult to identify the boundary from a title deed or a
conveyance deed. Sometimes a fence may be built some distance away from the legal
boundaries because of covenants that prevent any structures within a certain distance
of the edge of the road. Hedges create many problems for someone trying to locate a
boundary. Unlike walls and fences which, once erected, do not change their thickness,
a hedge grows every year, and is usually trimmed by its owner or by the people living
either side of it. Its thickness is therefore constantly changing. The only constant thing
about a hedge is the root of hedge. It would be unusual for the root of hedge to form a

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Dr Edward J.W.Chikhwenda 03 April 2007

boundary unless the hedge was specifically the joint responsibility of both
neighbours.

3.4 The Purpose of Adjudication of Title in Boundary Systems

Adjudication of title to land is the process of bringing title to land onto the register for
the first time. The process involves determining the existing rights in parcels of land
authoritatively. Adjudication represents the first stage in the registration of title to
land in areas where the ownership of the land is not officially known. Theoretically,
land adjudication process neither alters existing land rights, nor creates new ones.
Rather, it establishes what rights exist, by whom they are exercised and to what
limitations, if any, they are subject. Thus, adjudication should be seen as an attempt to
introduce certainty and finality into the land records.

In Malawi, the adjudication of title, which is a form of general boundary system, was
carried out in Blantyre, Zomba (1996) and Mzuzu. This depends on record data. In
this system, a valid and competent description is required in order to avoid conflict.
However, it is important to note that adjudication of title is only necessary when the
existing cadastral system need important changes, or when a totally new cadastral
system is required. In this situation, it means the old data and information is usually
of bad quality or has limited meaning.

The process of adjudication involves preparing an index map. The actual boundaries
are determined in the field by asking the rightful owners of parcels to identify the
extent of their rights and interests. It is a requirement for the adjoining rightful owners
to agree on the exact boundaries of parcels. The claims of the rights and interests have
to be supported by some sort of evidence such as existing deeds or titles. The
location and boundaries are fixed wholly by ties and references to points and lines
already established in earlier records. Sometimes, a combination of record references
and supplemental dimensions may be used. Finally, an index map is produced, as well
as a list with names of rightful owners.

3.5 Control Network for Cadastral Surveys

In Malawi, the LSA specifies that a survey of any piece of land shall be based upon
the stations on National Triangulation if surrounded by such stations or situated
within 3,000 metres of such station CAP 59:03 rule 8. However, there is a provision
that cadastral surveys can be based on Reference Marks or beacons of a legally
approved plan in a municipality or township. Thus, it is not a necessity for every
cadastral survey to be based on a traverse if such control points are conveniently
placed in relation to the plot to be surveyed. But all found beacons shall be verified to
be in their original positions before they can be adopted in the new survey.

There are several ways in which found beacons can be verified. The first method is
whereby the distance between the beacons is measured in order to find their lateral
displacement. The observed distance is, thus, compared with the one computed from
the coordinates of the two beacons. The second method can be by actual coordination.
This is where the bearing and distance is observed from a known coordinated beacon

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Dr Edward J.W.Chikhwenda 03 April 2007

that has already been approved to be in their original position. Using bearing and
distance method, the coordinates of the other beacon are found. These coordinates are
then compared with the original survey coordinates. The reasons why the found
beacons should be verified to be in their original position is that, although the beacon
may look perfectly normal and stable they may have been disturbed due to the
following:
• Uprooted and placed on a different location by owner/neighbour.
• Ground movements due to excavation, rock blasting or natural causes e.g.
earthquakes.
• The previous surveyor did not place it at its pre-computed position.

Where it is necessary to establish control network for a cadastral survey, there is need
to carefully plan and design the network in such a way that the control points are as
close as possible to the corner beacons to be placed. It is good practice to select points
that can be used to place and check as many beacons as possible from one station.
This will minimize costs by reducing time of moving from one survey station to
another.

3.5.1 Survey Control in Cadastral Survey System of Malawi

Just like any other land surveying project, cadastral survey establishes both horizontal
and vertical control using the following procedures:

3.5.1.1 Triangulation

This is used to establish control for wide area, that is, at nation level. The LSA rules
classify triangulation into the following:
• Class A: Refers to surveys to determine position of town control or
Reference Marks. The difference between the observed and the calculated
15000
beating of any ray in fixing a point shall not exceed 1 + seconds.
(S + 300)
• Class B: Refers to township surveys and the difference shall not exceed
30000
1+ seconds.
(S + 300)
• Class C: Surveys not included in Class A and Class B. The difference
60000
shall not exceed 1 + seconds where s is the length of the lay in
(S + 300)
metres.
3.5.1.2 Trilateration

Trilateration is also suitable for big projects as above. It is also classified into three
classes. The difference between the measured length and the calculated shall not
exceed the following:

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Dr Edward J.W.Chikhwenda 03 April 2007

0.075s
• Class A metres
(s + 300)
0.150s
• Class B metres
(s + 300)
0.300s
• Class C metres
(s + 300)
3.5.1.3 Traverse

This is the most liked procedure inside buildings, tunnels, large pipes, urban streets
and forests. It is also preferred in cadastral surveys in Malawi because of the
following advantages:
• Flexibility: control points can be placed at convenient positions avoiding
obstacles such as buildings, hedges, trees etc.
• Simple equipment such as theodolite and tape can be used because short distances
are involved.
• Bush clearing can be avoided by selecting traverse points along paths and
roadsides.
• It is possible to make observations in poor weather because short distances are
involved.

The following are the acceptable misclosures for the three classes of traverse:
• Class A 1:12,000
• Class B 1:8,000
• Class C 1:4,000

3.6 Execution of Cadastral Surveys

Cadastral surveying involves following the fundamental principle of working from

the whole to the part. This requires the cadastral surveyor to carry out preliminary
investigations and procedures before attempting the actual survey exercise. The
surveyor is supposed to carry out the following:

3.6.1 Office Reconnaissance

Office recce broadly means the planning of the job. Whether the survey request is an
original, subdivision or retracement survey, the surveyors' task is to check in the
survey records all the existing data and drawings within the vicinity of the plot to be
surveyed. The records are usually kept by the lands registry or the department of
surveys. The information gathered is of vital importance because all surveys are
supposed to be connected to existing ones.

Once all the information has been gathered, the next step in office recce is to pre-
compute the theoretical positions of plot corners if it is an original or a subdivision
survey. If the survey is a retracement, then the pre-computation involves converting
the old co-ordinates that may be in a local system into the UTM system. Finally it is

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Dr Edward J.W.Chikhwenda 03 April 2007

good practice to check all the survey instruments whether they are in good working
condition or not in order to avoid embarrassment in the field.

3.6.2 Field Reconnaissance

All surveying projects require field reconnaissance. This is the most important part of
the project because it enables the surveyor to plan and design his job effectively. Field
recce has to be organized with meticulous care to enable the survey to be successful
from the beginning to the end. This is so because in most cases the plan produced by
the town planner and physical situation of the area in question do not tarry. The
reason for this is that the planner does the planning in the office. The planner may
only have an outdated aerial photograph or old plan of the area. Thus, the planner is
liable to misinterpretation of some of the features. An area that looks perfect to a
planner might be rocky and unsuitable for a plot.

In short, the field recce will help the surveyor to fulfill some of the following:
• To introduce himself to the people on and adjacent to the plot to be surveyed.
• To seek permission to enter any private land.
• To investigate the site to be surveyed in order to have an overall picture and
appreciate the difficulties in carrying out his job.
• To select the best positions for his control points.
• To check the consistency of the existing physical boundaries (walls, fences,
hedges) accompanying the request.

When selecting control points for a cadastral survey, the following should be taken
into account:
• Control stations shall be kept to a minimum but conveniently placed in order to
pick all the relevant detail and place as well as check as many beacons as possible.
• Traverse lines shall be as long as possible in order to reduce the effects of random
errors especially in the angle measurements.
• Control stations shall be positioned on hard, stable ground to avoid the sinking of
tripod legs of the theodolite when the earth is settling.
• All survey marks shall be driven flush to the ground for protection against
vandalism and also to avoid being hazardous to vehicles and pedestrians.

3.7 Pre Computation of Beacon Co-ordinates

Each survey request requires a unique technique. The usual technique is to scale off
the co-ordinates of one of the beacon from a layout plan. This is only acceptable if it
is an original survey and there are no other surveys within the area of survey. The
next step is to scale off the bearings and use the distances shown on the layout plan to
pre-compute the co-ordinates of subsequent beacons. If on the other hand, the survey
is a subdivision, which implies that there exists an original survey, then use the co-
ordinates of the original survey as your starting point for pre-computation. The scaled
bearings and distances on the layout plan are thus used for subsequent computations.
For retracement surveys the pre-computations involve the conversion of co-ordinates
from one system e.g. LO 35 to UTM or using swing and scale factor to correct
bearings and distances respectively. The method will depend on the circumstance.

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Dr Edward J.W.Chikhwenda 03 April 2007

3.7.1 Swing and Scale Factor

In Malawi, most retracement surveys have the following characteristic:

• Surveys that were done based on astronomical observations and distances were
measured using a chain, referenced to a local origin. The deed /working plan for
these surveys only show the bearing and distance. No co-ordinates are given. These
surveys were done before 1953 when there were no trigonometrical pillars for
orientation. These are the most difficult surveys because they were sporadic surveys.
Unless one or two beacons are found and tied to either LO 35, LO 33 or UTM
systems, it is difficult to reconstruct the old boundary. However, it can not be denied
that they served their purpose.
• Surveys done after 1953 and were in LO 33 or LO 35. These surveys are easier
because the deed/working plan usually have the bearing and distance and also the co-
ordinates of the boundary beacons. Sometimes the boundary beacon coordinates are
given for blocks only. The co-ordinates in the imperial system can be converted
directly into UTM metric using formulae and computer program at the Surveys
Department. On the other hand, if there are at least two beacons in two systems, the
method of computing swing and scale factor can be used.

3.7.1.1 Swing

In order to compute swing, at least two stations in two different systems are required.
But due to random nature of survey data, it is necessary to have several stations and
compute mean swing for the area under investigation.

In the figure below, e and n denotes the original co-ordinate system. E and N is the
new co-ordinate system. The bearing to p in the old system is α. If the co-ordinates of
p and P are known in the two systems and several others, their bearings can be
computed in the two respective systems.

Fig. 3.1: Swing and Scale factor

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Dr Edward J.W.Chikhwenda 03 April 2007

n
P2
N
P1
E

θ
p1 p2

θ
e

⎛ ( pe2 − pe1 ) ⎞
Brg1 = tan −1 ⎜⎜ ⎟⎟ -------------(i) old system
⎝ ( pn2 − pn1 ) ⎠

⎛ (Pe2 − Pe1 ) ⎞
Brg2 = tan −1 ⎜⎜ ⎟⎟ -------------(ii) new system
⎝ (Pn2 − Pn1 ) ⎠

The swing is the difference between the two bearings which is θ = Brg2-Brg1

3.7.1.2 Scale Factor

Just like swing, the distances of the two systems should be found.

d1 = {( pe 2 − pe1 ) + ( pn 2 − pn1 )
2 2
} ------------(iii) old system

d2 = {(Pe 2 − Pe1 ) + (Pn2 − Pn1 )

2 2
} -----------(iv) new system

d2
Scale factor =
d1

Example

On 27th February 1969, Mr. Jose L. Nicomedes carried out a survey of the
Polytechnic campus. The Director for Surveys, Mr. R. A Minchell, subsequently
approved the survey. The coordinates were in LO 35, 1966 imperial feet and
orientation was south. The task is to unearth the original boundary of the Polytechnic
campus. (Hint: The surveyor has to convert the imperial coordinates into UTM
metric system before s/he can start looking for the beacons.)

The following is the data:

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Dr Edward J.W.Chikhwenda 03 April 2007

Station y(feet) x(feet) Eastings(m) Northings(m)

Mpingwe -28928.12 +5735732.58 723046.738 8251348.287
Soche -8161.12 +5746588.43 716684.491 8248099.209
Sanjika +7797.49 +5728123.84 711863.979 8253781.253
Ndirande -20111.48 +5716085.07 720415.878 8257363.337
P1 -8385.67 +5734039.07
P2 -8344.17 +5733961.28
P3 -8375.60 +5733462.20
P4 -8213.74 +5733039.39
P5 -8061.45 +5732641.56
P6 -8751.05 +5732659.53
P7 -9889.89 +5732666.43
P8 -9885.55 +5733382.55
P9 -9941.68 +5733531.69
P10 -10054.60 +5733646.09
P11 -10407.89 +5733813.68
P12 -10333.08 +5733971.38

There are several ways in which the above problem can be tackled. For simplicity, the
following procedure is used to find the joins (bearing and distance) between the
control points and also at least one of the 1969 beacons in LO 35.

The following are the joins in LO 35

At To Bearing Distance
Mpingwe Soche 062° 24′ 07″ 23433.262
Mpingwe Sanjika 101° 42′ 17″ 37550.511
Mpingwe Ndirande 155° 49′ 56″ 21535.036
Mpingwe P1 094° 42′ 46 ″ 20612.138

Joins in UTM
At To Bearing Distance
Mpingwe Soche 242° 56′ 51″ 7143.857
Mpingwe Sanjika 282°16′ 27″ 11444.362
Mpingwe Ndirande 336° 22′ 18″ 6565.230

Thus swing = UTM metric-LO 35 bearings

Scale factor = UTM metric distance divided by LO 35 distance

Swing Scale factor

180° 32′ 44″ 0.30485969
180° 34′ 10″ 0.30513814
180° 32′ 39″ 0.30486274

Hence the mean swing = 180° 32′ 42″ and scale factor = 0.304861215

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Dr Edward J.W.Chikhwenda 03 April 2007

Note that the second swing and scale factor has been ignored because it is different
from the other two.

Now it is possible for the surveyor to find the bearing and distance from Mpingwe to
P1 in UTM metric by applying the mean swing and scale factor.

UTM bearing Mpingwe - P1 = 094°42′46″ (LO 35) + 180°32′ 42″ = 275° 15′ 28″
Distance (metres) =20612.138 × 0.304861215 = 6283.841m

Once the bearing and distance is known from Mpingwe to P1, then the co-ordinates of
P1 can be found.

The co-ordinates of P1 = 716789.336 mE; 8251924.118 m N

In order to find the co-ordinates of all the beacons P2 to P12, then compute the joins
from P2 to P3, P3 to P4 ..........up to P12 and back to P1 in a form of a theoretical
traverse in LO 35 . These can then be converted to UTM metric by applying the same
mean swing and scale factor as above.

Line Bearing(LO35) Distance(LO 35) Bearing( UTM) Distance(UTM)

P1-P2 151°55′14″ 88.168 feet 332°27′56″ 26.879 metres
P2-P3 183°36′13″ 500.069 feet 004°08′55″ 152.452
P3-P4 159°03′08″ 452.733 feet 339°35′50″ 138.021
P4-P5 159°03′11″ 425.982 feet 339°35′53″ 129.865
P5-P6 271°29′34″ 689.834 feet 092°02′16″ 210.304
P6-P7 270°20′50″ 1138.861 feet 090°53′32″ 347.195
P7-P8 000°20′50″ 716.133 feet 180°53′32″ 218.320
P8-P9 339°22′33″ 159.353 feet 159°55′15″ 48.580
P9-P10 315°22′22″ 160.743 feet 135°55′04″ 49.000
P10-P11 295°22′42″ 391.025 feet 115°55′24″ 119.208
P11-P12 025°22′44″ 174.545 feet 205°55′26″ 53.212
P12-P1 088°00′33″ 1948.586 feet 268°33′15″ 593.953

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Dr Edward J.W.Chikhwenda 03 April 2007

Station Eastings(metres) Northings(metres)

P2 716776.910 8251947.952

P3 716787.939 8252100.005

P4 716739.823 8252229.367

P5 716694.551 8252351.086

P6 716904.722 8252343.608

P7 717251.875 8252338.201

P8 717248.476 8252119.908

P9 717265.154 8252074.281

P10 717299.243 8252039.082

P11 717408.456 8251986.968

P12 717383.193 8251939.110

P1 (computed) 716789.429 8251924.123

P1 (starting) 716789.336 8251924.118

Corrections -.093 - 0.005

Note: If the difference between the computed and the starting coordinates of the loop
traverse is very big as in this case, they have to be distributed using the principles of
Bowditch Method of adjustment.

3.8 Placing Beacons

After control points have been established in the area of survey, the next stage
involves computing the joins i.e. bearing and distance using coordinates between the
chosen control point and all the beacons that can easily be placed from this point.
When setting out the beacons in the field, the surveyor shall place them in their exact
positions. Since placing beacons is an iterative procedure, a beacon can never be
placed at its exact position at one go unless by accident. As a result an iterative
procedure is adopted in order to place the beacon at its exact position. The acceptable
error in the beacon placing procedure is ±0.004 metres. The speed of placing beacons
depends upon the instrumentation and the experience of the chainmen as well as that
of the surveyor. Generally, a theodolite and EDM is faster than a theodolite and tape
for distances greater than 20 metres. However, for short distances, theodolite and tape
prove to be equally effective.

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Dr Edward J.W.Chikhwenda 03 April 2007

Once the beacons have been placed, they must be checked independently.
Independent checks reveal all those beacons that may have been misplaced during the
placing procedure. The placing misclosure using the independent check should not
exceed 0.030 metres. When the beacons have been proved to be in their correct
positions, the computed theoretical values of the beacons are accepted as plot data
coordinates. These are the coordinates that will appear on the list of coordinates.

Sometimes, while trying to place a beacon it might fall in an inaccessible position.

Here an indicatory beacon is placed on-line the pre-computed beacon. The indicatory
beacon is placed on a suitable position that will not confuse the owner of the
contiguous property as showing the actual boundary. The theoretical position of the
original pre-computed beacon co-ordinates shall be shown as a blue circle on the
working plan.

3.8.1 Road Intersections

In most township surveys, the surveyor may encounter various road intersections that
have to be fitted when setting out the property boundaries. These intersections are
sometimes at angles other than right angles. In this case, the diagonal distance
across the intersection will exceed the formal width of the road.

R
S
12

P
me
tre

W θ W
s

C 2 x
A
T Q
B
a) Bends in Roads of Regular Width

In the above figure, the coordinates of A, B and C are known as well as the width (W)
of the road. The duty of the surveyor is to compute the angle of intersection in order
to determine the value of x (which is the distance from B to the unknown point P).
In oder to compute the intersection angle, the joins(bearings and distances)BC and
BA are computed first. The difference between the bearings BC and BA gives us the
ngle of intersection θ found from the above are used to compute the bearing from P
that is at right angles to lines BA and BC respectively. Assuming that the width of
the road is W and the angle of intersection is θ, then the value of x is found as
follows:

Since the diagonal joining the inner and outer intersection points bisects the angle of
intersection,

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Dr Edward J.W.Chikhwenda 03 April 2007

⎛θ ⎞ W
cos⎜ ⎟ =
⎝2⎠ x

W
x=
⎛θ ⎞
cos⎜ ⎟
⎝2⎠

The bearing BP is found by adding the angle (θ/2) to the bearing PT and subtracting
180 degrees. The coordinates of P are then found by using the normal fomula.

Alternatively the surveyor may use an intersection formula to find the coordinates of
P. In this method, the coordinates of theoretical points R and S are computed from the
bearing BC plus 90 degrees and BA minus 90 degrees respectively. Using bearing
CB and AB, the coordinates of P are computed from R and S respectively. The
bearing intersection formaula is used in this case.

b) Bends in Roads of Unequal Width

D
α
W1 x
θ
E
B H
G

F
W2

In the above figure:

W2
In ΔBEF BF =
tan α
W
In ΔDEH DE = 1 = GF
sin α

Since BG = BF – GF
W2 W
BG = − 1
tan α tan α
DG
In ΔDGB tan θ =
BG

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Dr Edward J.W.Chikhwenda 03 April 2007

W2
tan θ =
⎛ W2 W ⎞
⎜ − 1 ⎟
⎝ tan α sin α ⎠

W2
tan θ =
⎛ cos α W ⎞
⎜ W2 − 1 ⎟
⎝ sin α sin α ⎠

W2 sin α
tan θ =
(W2 cos α − W1 )

Hence θ can be deduced in order to find the value of x as follows:

W2
= sin θ
x

W2
∴x =
sin θ

A B

W1

D F
C

W2

In an alternative method, the surveyor may have to compute the joins BA and BC if
the coordinates of A, B and C are known. In order to compute the coordinates of F,
the coordinates of D and E are computed at right angles to A and C respectively (
using the distances W1 and W2 respectively). Once the coordinates of D and E are
computed, the bearings AB and CB are used to compute the coordinates of F using an
intersection formula.

3.9 Found Beacons

All found beacons shall be proved to be in their original positions before they can be
adopted and subsequently used in any new survey. Some people think that the double
bearing and distance method of co-ordinating found beacons provide a stronger
fixation and hence recommended. The LSA stipulates that the maximum linear

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Dr Edward J.W.Chikhwenda 03 April 2007

displacement of a found beacon shall not exceed 0.050 metres. Any found beacon that
is a boundary beacon and exceeds 0.050 metres is supposed to be replaced in its
original position. This is only applicable when the beacon forms part of the boundary
under survey. However, if the beacon is not part of the boundary under survey, the
surveyor may choose whether to replace it or not to adopt it.

3.10 Examination of Cadastral Surveys

After the fieldwork has been completed and computations done, the working plan is
drawn and deed plans extracted. The completed survey is then sent to the surveyor
general's office for examination and approval. The purpose of examining cadastral
surveys is to make sure that the rules in the Land Survey Act and the related acts have
been followed in the execution of the survey. When examining cadastral surveys the
following should be taken into account:
• Fieldwork should be satisfactory.
• Mathematical computation should be correct.
• The cartographic work should represent what has been done on the ground.
• The legal basis of the survey.

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Dr Edward J.W.Chikhwenda 03 April 2007

AREA COMPUTATION

4. Area Computation

In cadastral surveys, area computation is one of the major procedures to be carried out
after the fieldwork has been completed. This is because any cadastral survey involves
finding the size of the plot. There are four methods in which area of a plot can be
computed.

4.1 Distance Method

It is possible to compute the area of a triangle if the sides are known. Even if the
observed figure is a polygon, it is possible to compute the area of such a figure. The
figure may be subdivided into triangles(Fig 4.1).

Fig 4.1 Triangle

b
c

C B
a

Area = s{( s − a)( s − b)( s − c)}

(a + b + c)
Where s =
2

4.2 Graphic Method

This is only applicable if the surveyed plot is curvilinear. In this method, there is a
need to have a plan or map that has been drawn to scale. This method is particularly
important where the surveyor can not compute the area directly. In this method, a
sheet of transparent tracing paper, a planimetric templet or a polar planimeter may be
used to find the area.

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Dr Edward J.W.Chikhwenda 03 April 2007

The transparent tracing paper is ruled to give a network of squares. Each square has a
dot, which represents a given area for different scales. The value of each dot varies
with the scale chosen. This tracing paper is placed over the required area and dots are
counted.

A planimetric templet is a transparent paper with a net of parallel lines separated by

distance h. The templet is then laid over the area The area is divided into small
trapezoids of area hmi. The total area is given by:

Area = h ∑ mi

Fig. 4.2 Graphic Method

where m are the lengths of the centre lines of the divided trapezoids. Note that ∑mi
can also be obtained mechanically using pair of compasses. The use of compasses is
very useful where the surveyor is dealing with long figures that have curved
boundaries. It is also important to realise that the accuracy of area determined using
the graphical method would depend on the survey, the plotting accuracy, the plan
scale, and the distortions of the paper and the area measuring accuracy.

Apart from the planimetric templet method, surveyors also use the polar planimeter to
determine area of irregular figures, with curved boundaries.

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Dr Edward J.W.Chikhwenda 03 April 2007

A
K S

Fig. 4.3 Polar Planimeter

S = Tracing point
SK = Tracing arm
K = Joint connecting tracing arm with the anchor arm PK

The procedure of finding area using the planimeter is as follows:

• the joint K moves on a circular path around the fixed anchor P.
• the measuring cylinder R rotates proportional to the area A as the tracing point
circumscribe the area, following the curved boundary.

Now if we denote:

r = radius of the measuring cylinder in millimetres

l = length of tracing arm in millimetres
1:m = scale of plan
n = number of cylinder rotations in units N of the vernier.
C1(mm2/N) = planimeter constant for scale 1:1 (4 to 10 mm2/N for most tracing
arm lengths
CM(m2/N) =planimeter constant for plan scale 1:M, then when the anchor is
placed exterior to the area.

2 π rlM 2
n
Area = (mm2)= C1 M2 (mm2) = CM n(m2)
1000

and when the anchor is interior to the area:

Area = G1 M2 + C1 M2 (mm2) = GM + CM n (m2)

where G1 is the area of the base(zero) circle in mm2 for the plan scale 1:1 and is the
area of the base (zero) circle in m2 for M times linear enlargement. The base (zero)
circle is the area described by the tracing point with the plane of the measuring
cylinder kept passing through the anchor.

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Dr Edward J.W.Chikhwenda 03 April 2007

4.3 Trapezoidal and Simpson's Rule Method

In a survey of long strips such as a road or railway reservation, this method of finding
area is used. In a trapezoidal rule the area is assumed to be broken into a number of
trapezoids. Thus the area is given by:

⎧⎛ y + y n ⎞ ⎫
Trapezoidal Rule: Area= x ⎨⎜ 1 ⎟ + y 2 + y 3 + ....⎬
⎩⎝ 2 ⎠ ⎭

For Simpson's rule, the boundary is regarded as a portion of a function of a third

degree and the general formula is:

Simpson's Rule: Area=

x
{( y1 + y n ) + 2∑ odd + 4∑ even}
3

y1 y2 y3
yn

Fig. 4.4 Trapezoidal and Simpsons Rules

4.4 Area from Coordinates

When area is computed from coordinates, the cross-coordinate method is preferred.

The general formula is:

Area=
{(N E
1 2 (
+ N 2 E3 + ... + N n E n −1 ) − N 1 E n + N 2 E1 + ... + N n −1 E n − 2 + N n E n − 2 )}
2

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Dr Edward J.W.Chikhwenda 03 April 2007

(E1, N1 )

(E 3 , N 3 ) (E 2 , N 2 )

Fig. 4.5 Cross Cordinate Method

The above expression can be represented in a tabular form as follows:

E1 N1

x1 = E2 N2 = y1

x2 = E3 N3 = y2
x3 = E1 N1 = y3
Σxi Σ yi

Area =
(Σxi − Σyi )
2

4.5 Subdivision of a Plot

Subdivision of a plot is a standard requirement in cadastral surveying. Most surveying

books deal with one category of land subdivision that involves a trial and error
approach. In this method, the surveyor usually assumes a trial line and then establish
the exact line based on geometric and trigonometric relations (Easa, 1989). In this
section the first approach of trial and error method will be presented followed by a
new direct method as proposed by Easa 1989.

4.5.1 Trial and error method for Land Subdivision

In this method two scenarios are possible as follows:

• Subdivision where line of a given bearing has been specified by the client.
• Subdivision where the plot has to be subdivided into parts or ratios from a given
point. This is where the area of one or all of the plots is known.

4.5.1.1 Line of given Bearing

The procedure of subdividing a plot if a bearing has been given is as follows:

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Dr Edward J.W.Chikhwenda 03 April 2007

• First compute the area of the whole plot.

• Determine where the line of the given bearing will cut the boundary after knowing
the starting point of the line on the plot boundary

Fig. 4.6: Parcel Subdivision Principles

C
K
H
1 x
Brg n
B

Brg 2

Brg 2
D

Brg 2
L
A F x E
m

Knowing brg1 and brg2 and also the coordinates of stations B and F, the coordinates
of H can be found using intersection formula:

Eastings of H =
(EB cot α − EF cot β − NB + NF )
(cot α − cot β )
Northings of H =
(NB tan α − NF tan β − EB + EF )
(tan α − tan β )
where α = brg1 and β = brg2 respectively

Note that the coordinates of H can also be computed using the solution of a triangle.
In this case, the angles HBF and HFB have to be derived from the computed bearings
using the coordinates of B, H and F.

H
α s
B χ

F
Fig. 4.7: Triangle BHF

Using the sine formula, the distance s (BH) can be found as follows:

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Dr Edward J.W.Chikhwenda 03 April 2007

( BF ) sin γ
s=
sin(180 − ( χ + γ ))

Using the bearing from B to H and distance s, the coordinates of H can be computed
as follows:

E H = E B + s × sin α
N H = N B + s × cos α

Once the coordinates of H have been found, the next stage is to compute the new area
HCDEFH. This area can be given the letter A'. If the required line to cut off the
required area gives area A, then area FHKL= A-A'. If Hn and Fm are perpendicular
to FH, n and m lying on the line LK, which is parallel to FH, then Hn=Fm=x.

Angle KHn and LFm can be determined from the known bearings of the sides.

Fig. 4.8: Detailed extraction of the small triangles

K F x L
ω

H x n m

If these are denoted as σ and ω then:

The distance Kn is given as:

Kn = x tan σ

The distance Lm is given as:

Lm = x tan ω

This in turn gives us:

KL = HF - x tanσ + x tanω

Using the the formula for computing the area of a trapezium which states that the
area of a trapezium is equal to half the sum of the parallel sides times the height.

We get:

x
Area FHKL = ( HF + HF − x tan σ + x tan ω )
2

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Dr Edward J.W.Chikhwenda 03 April 2007

∴ (A-A') =
x
(2 HF + x(tan ω − tan σ ) )
2

x2(tanω- tan σ )+ xHF = 2( A-A')

Hence x =
− HF ± ((HF ) + 2(tan ω − tan σ )( A − A')
2
)
(tan ω − tan σ )
Having the value of x ; FL = x.secω
HK = x.secσ

Once the distances FL and HK are found, the coordinates of L and K can be compted
using the bearing AE and BC respectively. This will enable the surveyor to compute
the required area ABKL.

4.5.1.1b Subdivision into given ratios from a Fixed Point

This subdivision is required when the client has specified the area for each plot. The
procedure is as follows:
• Compute area of the whole plot from co-ordinates.
• Find the turning point on the boundary where the line from the fixed point will
give the approximate area required.

In the diagram below, A is the approximate point that would give area Z that is half of
the total area. But if the area ABCDEHA is computed and given letter Z' then it is
found to be less than the required area Z.

Fig. 4.9: Parcel Subdivision into given Ratios

F

D
C
A
B

Hence area of the triangle aiha is equal to Z-Z'.

From trigonometry (Z-Z') =

AH
(( AI ) sin (HAG ))
2

2(Z − Z ')
It implies that the distance AI =
( AH ) sin (HAB )

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Dr Edward J.W.Chikhwenda 03 April 2007

Once the distance AI is found, the coordinates of this point I, are found because the
bearing and distance AG is now known from given coordinates. Finally, the required
area Z is computed from co-ordinates of IBCHI.

4.5.1.1b Direct method for Land Subdivision

In this method, there exist three scenarios. Usually the land is to be subdivided into
two parcels to achieve a specified area and some other constraints. The first constraint
is whereby the coordinates of one of the endpoints are fixed with respect to one of the
corners of the area. Secondly, the orientation of the subdivision line may be fixed
usually following one sideline of the area. Note these two constraints are the same as
those in the trial and error method discussed above. Finally, sometimes the client
may require the line of subdivision to pass through an interior point of the land.

Fig. 4.10: Direct Method of Parcel Subdivision

n
B

2 n+1

Parcel I Parcel II

1 n+2
A
n+m

Assuming that the land above is to be subdivided into two parcels by a line AB, the
values of the coordinates of the corners are usually given as (x1,y1), (x2,y2),……..
(xn+m,yn+m). The coordinates to be determined in this survey are either (xA,yA) or
(xB,yB) or both for points A and B respectively.

General Formulae

The variables have the following relationships:

yA = yB + (xA - x1) SA ----------------------------------------(1)

yB = yA + (xB - xn) SB ---------------------------------------(2)

Where SA = cot α1,n+m ----------------------------------------(3)

SB = cot αn,n+1 ---------------------------------------- (4)

α1,n+m = bearing from corner 1 to n+m

αn,n+1 = bearing from corner n to n+1

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Dr Edward J.W.Chikhwenda 03 April 2007

If the known area of Parcel I is assigned Z, the formula used is given as

Z=
1
2
{ ( )}
x B ( y n − y A ) + x A ( y B − y1 ) + x1 y A − x n y B + ∑ xi +1 y i − xi y i +1 --------------(5)

4.5.2a Corner of A or B fixed

Note that equations 1, 2 and 5 have four unknowns that have to be solved for the
coordinates of A and B. This implies a fourth condition is required in order to solve
the simultaneous equations. To form the fourth equation, let us consider a situation in
which the coordinates of either A or B are given. By solving equation (2) and (5), the
following equation holds:

xB =
(k 1 (
− x A y1 + x1 y A + ( x A − x n ) y n − x n S B )) --------------------------(6)
( y A − y n ) − (x A − xn )S B

where k1 ={ ∑ ( xi+1 yi - xi yi+1 )}-2Z -----------------------------------(7)

The coordinate yB is then computed from equation (2).

When the coordinates of B are given, the formula becomes:

xA =
(− k 1 (
− x B y n + x n y B + ( x B − y1 ) y1 − x1 S A )) ------------------------(8)
( y B − y1 ) − (x B − x1 )S A
4.5.2b Bearing of Fixed Line

In this scenario, the line of subdivision will be defined. Let us assume that the
subdivision line has to be parallel to side 2, n in the figure above give by:

1
P =
tan β

Since tan β =
(x B − x A ) ----------------------------------------------(9)
(yB − y A )

(yB − y A )
P = -----------------------------------------------(10)
(x B − x A )
By substituting for yA and yB (equations 1 and 2) into equation 10, then the
following holds:

xA = k2 + k 3 x B ----------------------------------------------(11)

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Dr Edward J.W.Chikhwenda 03 April 2007

(− y n − y1 + S A x1 − xn S B )
where k 2 = ------------------------(12)
(P − S B )

k3 =
(P − S B ) -------------------------------------(13)
(P − S A )
The four unknowns are then solved by simultaneous equations 1, 2, 5 and 11. Note
that if yA and yB is substituted in equations 1 and 2 into equation 5 the following is
obtained:

k4 + k5 (xA + xB ) + k6 xA xB =0 -----------------------(13)

Where k4 = k1 + x1 y1 - xn yn - SA x12 + SB xn2 -----------------------(14)

k 5 = y n - y 1 + SA x 1 - SB x n -----------------------(15)

k6 = SB - SA -----------------------(16)

Substituting xA (equation 11 into equation 13 ) the following quadratic equation is

obtained:

k3 k6 xB2 + {k5 (k3 + 1 ) + k2 k6 }xB + (k4 + k2k5 )=0 ---------------------(17)

Note that one of the values of xB will be meaningless because it will be on the
opposite side. However, if the boundaries on which A and B are parallel to each other
the value of k6 becomes zero. Hence there is one solution for xB.

4.5.2c Subdivision line to pass through Interior Point

If the subdivision line has to pass through a predetermined point Q inside the land to
be subdivided the boundaries on which points A and B must be specified. The
following is the relationship between the coordinates of Q and the unknown
coordinates of A and B.

( y A − y B ) ( y0 − y B )
= -----------------------(18)
(x A − x B ) (x0 − x B )
Substituting for yA and yB equation 1 and 2, equation 18 becomes:

k7 x A + k 8 x B + k 6 x A x B + k 9 = 0 -----------------------(19)

Where k7 = yn - yQ + SA x1 - SB xn -----------------------(20)

k 8 = y Q - y 1 + SA x 1 - SB x Q -----------------------(21)

k9 = - k 5 xQ -----------------------(22)

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Dr Edward J.W.Chikhwenda 03 April 2007

Solving equation 19 and 13, the following equation is obtained:

((k 7 − k 9 ) + (k 5 − k 8 )x B )
xA = - -----------------------(23)
(k 7 − k 5 )
Substituting for xA in the above equation 23 into equation 13, we get:

k6 (k5 - k8 )xB2 + {k5 (k7 + k8 ) + k6(k4 + k9 ) }xB +{k5 (k4 - k9 ) + k4(k7 - k5 ) }=0
-----------------------(24)

This also gives two solutions. One of them is the one being sought.

Example: Given the following data:

STATION EASTINGS NORTHINGS LINE BEARINGS DISTANCE

1 721403.94 252590.16 1-2 085° 55′ 52″ 318.513
2 721721.65 252612.76 2-3 065° 01′ 16″ 274.153
3 721970.16 252728.53 3-4 191° 23′ 36″ 469.614
4 721877.39 252268.17 4-5 292° 16′ 21″ 246.588
5 721649.20 252361.63 5-6 252° 19′ 21″ 365.047
6 721301.39 252250.78 6-1 016° 49′ 47″ 354.535

Using the coordinate method, the area of the whole parcel is 176281 square metres.
It is required to subdivide the parcel into two equal halves. The dividing line
originates from the line 1-6 to line 3-4. The points A and B define this line
respectively. This implies that corners 1 to 3 are Parcel I, while corners 4 to 6 are
Parcel II. In order to divide this parcel into equal halves, the three scenarios discussed
above are considered.
Case I: Point A on line 1-6 may be fixed 177.270 metres away from station 1.
This gives the coordinates of A as 721352.615 mE, 252420.483 mN.
Case II: Orientation of AB is parallel to line 1-2 whose bearing is 085° 55′ 52″.
This gives the value of P as 0.07113405307
Case III: Subdivision line AB passing through a point Q
(721680.000,252480.00) inside the parcel.

In Case I, the following are the computations:

SB = cot bearing (3-4) = 4.962427322
SA = cot bearing(1-6) = 3.305960792

xA y1 x1 yA xA - x n (yn - xn SB ) yA - y n (xA - xn )SB

208099.268 169849.903 -617.545 -4085.81849 -308.047 -3064.52218

k1 = { ∑ ( xi+1 yi - xi yi+1 )}-2Z = 70821.2571

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Dr Edward J.W.Chikhwenda 03 April 2007

{k1 − x A y1 + x1 y A + (x A − xn )( y n − xn S B )}
xB = ---------------------------------(6)
{( y A − y n ) − (x A − xn )S B }

xB = 927.180 mE
yB = yn + (xB - xn) SB

yB = 515.245 mN

Case II

x A = k2 + k 3 x B

where k2 = -(728.53- 590.16 + 3.305960792 × 403.94 - 970.16 × 4.962427322)

(0.07113405307 - 4.962427322)
= -682.9622567

k3 = 0.07113405307 - 4.962427322 = 1.512072721

0.07113405307 - 3.305960792

xA = -682.9622567 + 1.512072721 xB

However, we have observed the following:

k4 + k5 (xA + xB ) + k6 xA xB =0

Where k4 = 70821.2571+ 403.94 ×590.16 - 970.16 × 728.53 -3.305960792× 403.942

+ 4.962427322 × 970.16 2 = 3733682.719

k5 = 728.53 - 590.16 + 3.305960792 ×403.94 - 4.962427322 ×970.16

= -3340.568689

k6 = 4.962427322 - 3.305960792 = 1.65646653

Hence, the equation above becomes:

3733682.719 + -3340.568689 (xA + xB ) + 1.65646653xA xB= 0

Using the following equation

k3 k6 xB2 + {k5 (k3 + 1 ) + k2 k6 }xB + (k4 + k2k5 )=0

1.512072721 × 1.65646653 xB2+ {-3340.568689× (1.512072721 + 1 ) + -

682.9622567 × 1.65646653 }xB+ (3733682.719 + -682.9622567 × -3340.568689 )
=0

2.504697853 xB2- 9523.055595 xB + 6015165.05 = 0

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Dr Edward J.W.Chikhwenda 03 April 2007

Solve the quadratic equation as follows

−b± (b 2
− 4ac )
2a

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Dr Edward J.W.Chikhwenda 03 April 2007

PRACTICAL ISSUES IN CADASTRAL SURVEYING

5. Practical issues in Cadastral Surveying

The LSA clearly spells out the duties of a cadastral surveyor. In Malawi, the Dutch-
Roman system principle regarding boundary beacons is that when the surveyor
general approves a cadastral plan, it implies that the beacons are legally recognized.
When a plan is approved, the beacon becomes an established beacon because it has
been lawfully established in a previous survey. In the cadastral survey system of
Malawi, if a beacon that is deemed established remain undisturbed, it is assumed to be
in its original position. In terms of evidence of boundary, the position of such a
beacon has greater weight than mathematical or documentary evidence. This implies
that when there is need to re-establish the original boundaries of a plot, the survey
documents in the survey records act as evidence of the original positions and nothing
else. As a result, when a resurvey is anticipated, the surveyor needs to make
professional judgement as regarding the acceptability of the position of the beacon
and its mathematical coordinates. The Land Survey Rules of 1955, Rule 57 stated
that:

In the resurvey of land, the surveyor shall adhere to the principle that marks
originally placed on the ground, provided always that they have not obviously
been disturbed, mark the true boundaries, even though the data of such
boundaries may not be found on resurvey to agree with the data recorded on
any previous survey.

In a resurvey, the surveyor endeavors to prove that the found and replaced beacon
positions are compatible with the lawfully established beacons of the original survey.
All evidence of the physical presence and conditions of beacons have to be
established before any decision can be made. It is usual practice to accept any other
object that occupies the position that was deemed to have been occupied by an
established beacon as the boundary beacon. If on the other hand the object is found
not to occupy the reputed position, then it ceases to be a beacon. In a resurvey, it is
usually required to include a comparison of data sketch in which the original data is to
be denoted in black and the one determined in the new survey in red.

When a cadastral surveyor is carrying out a survey in Malawi, s/he may deal with the
five systems of surveys. The first of its kind is the Zomba Local system that was
based on the southern region triangulation scheme. The second system that was
introduced in 1960 is called the Gauss Conformal projection. This is an upside down
system based on the South Africa/Rhodesia 2-degree belt projection. In 1966, two
systems were introduced. These were the LO 35 and LO 33 and were based on two

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Dr Edward J.W.Chikhwenda 03 April 2007

different longitudes of 35 and 33 respectively. The final one is the metric Universal
Transverse Mercator (UTM) introduced in 1973. As we have seen earlier, all surveys
are now done using the UTM. This means that old surveys that were done using the
other systems have to be converted into metric.

5.1 A Typical Cadastral Problem

The figure 55 below is a representation of a typical cadastral survey problem a

surveyor is likely to face in the field. The surveyor is hereby given a theoretical
chance to apply the basics of land surveying. The first and foremost duty of the
surveyor is to carry out office recce. This enables him/her to search for all the
required data and information that might be required to carry out the survey. Once all
the data is obtained, the equipment is checked and verified to be in good working
order. The field recce then has to be carried out. This involves visiting the area to be
surveyed, identifying the existing control points from which the control network for
the survey may be based. The owner of the plot to be surveyed and the adjoining
owners are notified about the pending survey exercise. This should be done in order
to lessen the tension that might caused when the neighbours see a group of men armed
with hammers, pangas etc.

Once the general picture of the survey task is obtained, the surveyor has to think of
the best method of tackling it. The different methods of pre-computations and
computations should be considered. The examples in this survey problem include the
use of the following methods; scaling coordinates, computation of a theoretical paper
traverse, computation of offsets at road junctions and road secant computations.

The field procedure in this survey involves running a control traverse that fulfills the
basic principle of working from the whole to the part. The traverse also enables the
surveyor to search for the beacons placed in previous surveys and check that they are
in their original positions. Once all the necessary statistical analysis has been done,
the survey can proceed with the placing of the other beacons that are required for the
purpose of establishing the new plots.

The procedure of establishing the control traverse is based on the experience and
expertise of the surveyor. Once the traverse has been run and the coordinates properly
adjusted, the searching joins are computed in UTM coordinate system. For those
beacons without coordinates, especially those in the Zomba Local system, their
approximate positions should be identified and a trial and error method is used to find
them. If two or three beacons are found and coordinated, then the bearing and
distance in the two systems can be found that provides the surveyor with a swing and
scale factor to be used to find the other beacons. Apart from coordinating and
checking that those beacons that were placed previously are in their original positions,
it is also important for the surveyor to check the alignment of the roads.

The road reserve will usually be shown on the plan or the distances have to be scaled
off from the plan. In order to achieve road parallelism, the bearing between the two
beacons B3 and B5 (Figure 55) should be the same as that between C3 and C1. In this
survey problem, it is assumed that the beacon C4 is on line A2 to A1. Before the

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beacons A1 and A2 can be used for any further computations, however, they must be
proved to be in their original positions.

The coordinates of E10 and E11 should be computed using road secant formulae in
order to maintain the width and parallelism of the road.

Beacons C15, C14, C13 and C12 are on a river boundary. Their coordinates are scaled
off from the layout plan. But they may not be placed on these precomputed positions
because they may fall in waterlogged areas or in the river. Rule 23 of the Land Survey
Act requires the surveyor to recompute the coordinates so that they should fall on
high ground. The initial positions become theoretical points while the placed beacons
become the indicatory beacons. Footpaths, like roads should have parallel sides. This
can be done by computing three of the four beacons by any suitable method and then
computing the fourth beacon by intersection.

Once all the beacons are coordinated, they have to be placed in their exact positions
either by using the existing approved boundary beacon or other control points that
have been established in the area of survey. If traverse method was used to establish
control, these control points should be placed close to the points to be placed in order
to make the placing procedure easy and fast. A beacon is usually placed from one
control station and checked independently from another point.

The final coordinate list should show the precomputed or scaled data if that data has
been placed to within acceptable limits as specified in the Land Survey Act Rules. In
case of found beacons, the coordinates of the original survey shall be on the list of
coordinates unless there is sufficient evidence that the original survey was faulty. In
this case, the beacons have to be re-coordinated and a comprehensive report written
explaining the reasons why the original coordinates were not accepted.

All the data that has been abstracted from computations shall be in ink and cross-
referenced to the computation pages (Rule 7(9)). The actual field observations are
entered in pencil.

The following is the recommended order of filing the computations:

• List of Coordinates
• Orientation Joins
• Coordinate conversion(if any)
• Abstract of Bearings
• Traverse Computations
• Orientation Joins for Beacon Search(existing surveys)
• Coordination of found Beacons
• Comparison of Data
• Precomputations for new beacon positions
• Placing data joins
• Placing checks
• Area and Consistency Checks.

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5.2 Computations in a Cadastral Survey

The survey of plot 1 was based on LO 35 coordinates as follows:

Station Y X Eastings Northings
Ndirande -16096.143 5773886.544 720415.878 257363.337
Michiru +17437.798 5767005.556 710213.121 259558.099
RM5 -2443.310 5774438.468 716252.266 257234.619
RM7 716289.003 257194.852
RM8 716514.167 257183.385
A1 -2354.325 5774472.691
A2 -2350.824 5774538.201
A3 -2268.941 5774533.820
A4 -2272.441 5774468.310

Fig. 5: Layout plan for cadastral survey

T3
B6 B7 B1 D1 D2 D3
20m 20m
B2 D7 30m
T4
B5 B4 B3 D6 D5 D4 E6
25m 15m x2 y2 15m 25m 25m

18m
25m 15m x1 y1 15m 25m 10m
C1 C2 C3 E1 E1X E2 E3
to Michiru 9m
C4 E13 RM5 E4 E5
30m
20m 20m to Ndirande(NYT/8)
25m

C5 A4 A1 E12 E14 E7

20m PLOT 1 to Ndirande(NYT/8)

E11

C6 A3 A2 RM7
to RM8
PLOT 2 30m 35m E10 E9 E8

T2 C7 C8 C9
C10 C11

C14
C13
C15 C12

T1
Scale: 1 / 1000

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Data for Plot 2 that was surveyed using chains and azimuth orientation.
From To Azimuth Distance
C6 C7 182° 31′ 12″ 0.994 chains
C7 C8 092° 31′ 10″ 1.243
C8 A3 002° 31′ 04″ 0.994
A3 C5 272° 31′ 08″ 1.243
Note: 1 metre = 3.2808558 British feet
1 chain = 66 feet
= 20.11670248 metres

The above problem involves three cases usually encountered in cadastral surveying.
These include original, subdivision and retracement surveys.

In this problem, an area is to be developed as a commercial centre. Existing evidence

shows that Plot 1 and 2 were previously surveyed. Plot 1 was surveyed using LO 35
coordinate system. The survey of Plot 1 was based on imperial feet coordinate system
of RM5, Ndirande and Michiru trigonometric pillars (Table ?). A recent survey also
reveals that Ndirande, Michiru and RM5 have been coordinated in the UTM metric
system. These two coordinate systems are used in the computation of the swing and
scale factor for the conversion of the imperial coordinates to the UTM metric system.
The survey of Plot 2 was based on chains and magnetic compass needle orientation.

The duty of the cadastral surveyor is to set out the rest of the plots as per the layout
plan. The city authorities must have approved the plan. The road running north south
has road reserve width of 15 metres and road running west east has a road reserve of
12 metres.

Survey Procedure

5.2.1 Office Recce

• Use swing and scale factor procedure to convert the coordinates of A1 to A4 from
imperial feet to metric system.
• Since A3 was placed in agreement with Plot 2, the coordinates of C6, C7 and C8
are computed following the computations for Plot 1.
• Pre-compute the coordinates of all the road beacons.
• Pre-compute the coordinates of all other beacons.
• Plot the pre-computed coordinates to ensure that the coordinates have been
computed as per the approved layout plan.

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5.2.2 Coordinate Computation

Bearing and distance in imperial feet

From To Bearing Distance
Ndirande Michiru 101°35′ 45″ 34232.633
Michiru RM5 290° 29′ 57″ 21225.141
RM5 A1 068° 57′ 49″ 95.339

Bearing and distance in UTM metric system

From To Bearing Distance
Ndirande Michiru 282° 08′ 25″ 10436.150
Michiru RM5 111° 02′ 37″ 6470.690

Using the coordinates of RM5, Ndirande and Michiru in the two systems, the swing
was found to be 180° 32′ 40″ while the scale factor was 0.30485969.

In order to find the coordinates of A1, the bearing and distance between RM5 and A1
was computed in the imperial feet system. These are then converted to the UTM
metric system by the application of the swing and scale factor above.

Join RM5 to A1 = 068° 57′ 49″ / 95.339ft (old system)

Join RM5 to A1 =249° 30′ 29″ / 29.065 m (new system)

5.2.3 To compute the coordinates of A1, A2, A3 and A4

At RM5 716252.266 257234.619

249° 30′ 29″ / 29.065
A1 716225.040 257224.444
183° 36′ 13″ / 20.000
A2 716223.783 257204.484
273° 36′ 25″ / 25.000
A3 716198.832 257206.056
003° 36′ 10″ / 20.000
A4 716200.089 257226.017

5.2.4 Compute coordinates on-line A2 to A1

At A1 716225.040 257224.444
A1- C4 003°36′13″ / 20.000 226.297 244.404
X1 / 30.000 226.926 254.385
X2 / 42.000 227.680 266.361
B2 / 52.000 228.308 276.341
B1 / 72.000 229.565 296.302

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5.2.5 Compute coordinates at right angles to A1-X1

A1 -E12 093° 36′ 13″ / 15.000 716240.010 257223.501

5.2.6 Compute coordinates parallel A2-A1(on-line E12-E13)

E12 -E13 003°36′13″/ 20.000 716241.267 257243.461

-Y1 / 30.000 241.896 253.442
-Y2 / 42.000 242.650 265.418
-D7 / 52.000 243.278 275.398
-D1 / 72.000 244.535 295.359

5.2.7 Computation of coordinates of C1,C2 and C3 at right angles to A1-X1

X1 -C3 273°36′13″/ 10.000 716216.946 257255.014

-C2 / 25.000 201.975 255.956
-C1 / 50.000 177.025 257.528

5.2.8 Computation of coordinates of E14 and E7 on line A1 -E12

E12 -E14 093°36′13″/ 25.000 716264.961 257221.930

-E7 / 50.000 289.911 220.358

5.2.9 Computation of coordinates of C5, C6, C7 and C15 parallel X1-A1

C1 -C5 183°36′13″/ 30.000 716175.139 257227.587

-C6 / 50.000 173.882 207.627
-C7 / 80.000 171.997 177.686
-C15 / 104.000 170.488 153.734

Since the coordinates A3 are known from the conversion above, the coordinates of
C6, C7 and C8 of Plot 2 can be computed as above. However, this depends on the
evidence from the old survey and the new layout plan. If there is agreement in
orientation and the converted distances, the coordinates of C6, C7 and C8 above can
be assumed to be correct and subsequently be used for beacon searching.

The bearing A2 to A3 is 273° 36′ 13″. However, the bearing given by the survey of
Plot 2 for beacons A3 to C6 is 272° 31′ 08″. This means that there might be a slight
shift in orientation of 001° 05′ 05″. The conversion of the distances reveals that there
is agreement between the old survey of Plot 2 and of the layout plan. Hence, the
coordinated of C6, C7 and C8 can be used for beacon searching process.

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5.2.10 Computation of coordinates of C8, C9, C10 and C11 from C7 parallel C6-
A3

C7 -C8 093 36 13 / 25.000 716196.948 257176.115

-C9 / 70.000 241.859 173.286
-C10 / 80.000 251.839 172.658
-C11 / 105.000 276.789 171.086

5.2.11 Computation of coordinates of B3, B4 and B5 parallel to X1-C1

At X2 -B3 273 36 13 / 10.000 716217.700 257266.990

-B4 / 25.000 202.729 267.932
-B5 / 50.000 177.779 269.504

At B1 -B7 273 36 13 / 25.000 716204.614 257297.873

-B6 / 50.000 179.664 299.445

5.2.12 Computation of coordinates of D2 and D3 on line B7-B1

At D1 -D2 093 36 13 / 25.000 716269.486 257293.788

-D3 / 50.000 294.436 292.216

At Y2 -D6 093 36 13 / 10.000 716252.630 257264.789

-D5 / 25.000 267.601 263.847
-D4 / 50.000 292.551 262.275
-E6 / 75.000 317.502 260.704

At Y1 -E1 093 36 13 / 10.000 716251.876 257252.813

-E1X / 25.000 266.847 251.871
-E2 / 50.000 291.797 250.299
-E3 / 60.000 301.777 249.671

5.2.13 Road Secant computations for the coordinates of E11 and E10

Fig. 5: Road Secant computation

15m
a’ E11
x
A2 θ
b’

Angle a’-E11-A2 is found by subtracting the bearing E11 to b’ from the bearing E11
to a’ and then dividing by 2.

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Bearing A2-A1 = 003 36 13

Bearing A2-C9 = 149 54 44

Hence Bearing E11 to a’ = 273 36 13

E11 to b’= 239 54 44
diff = 033 41 29 = θ
θ/2 = 016 50 44

Therefore, bearing A2-E11 = 239 54 44+ 016 50 44+180 = 076 45 28

To find the distance x using the right angled triangle a’-E11-A2

x = 15/ cos(016 50 44) = 15.673 metres

A2 -E11 076 45 28 / 15.673 716239.039 257208.074

Similarly, the coordinates of E10 are computed using the above procedure:

Bearing C9-A2 = 329 54 44

Bearing C9-C11 = 093 36 13
θ = 056 18 31
θ/2 = 028 09 16

Therefore, bearing C9-E10 =093 36 13 + (090 00 00 + 028 09 16) =031 45 29

x = 15/ cos(028 09 16) = 17.013 metres

C9 -E10 031 45 29/17.013 716250.814 257187.752

Once all the pre-computation is done in the office, a traverse is carried out. This
traverse is based on the found local reference marks RM5, RM7 and RM8. However,
it is necessary to observe Ndirande trig pillar as an independent check. The traverse
consists of four control points T1, T2, T3 and T4. After the usual adjustment
procedure of the traverse, the following coordinates were obtained:

Station Eastings Northings

T1 716232.561 257132.981
T2 716159.055 257189.245
T3 716182.165 257315.400
T4 716260.562 257303.791

After the traverse, the old beacons A1, A2, A3, A4, C6, C7 and C8 are to be searched
from the traverse control points. Thus, beacon search is done before any new beacon
is placed. This provides a check on the consistency of the plan and the field positions
of old beacons. Any beacon that is found during the beacon search process is very
important in terms of evidence when carrying out the consistency check.

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5.2.14 Beacon search data joins from T2

T2 716159.055 257189.245
A1 716225.040 257224.444 061° 55′ 22″ / 74.786 metres
A2 716223.783 257204.484 076° 45′ 08 ″/ 66.498
A3 716198.832 257206.056 067° 05′ 22 ″/ 43.184
A4 716200.089 257226.017 048° 08 ′ 07 ″/ 55.100
C6 716173.882 257207.627 038 °53′ 23″ / 23.616
C7 716171.997 257177.686 131° 46′ 09″ / 17.352
C8 716196.948 257176.115 109° 06 ′ 40″ / 40.103

In the field, all found beacons are fixed. Usually, the pre-computed joins will be
different from the observed ones. This is due to the probabilistic nature of survey
measurements. The field book entries will look like this:

5.2.15 Orientation joins at T2

T2 -T1 127° 25′ 54″ / 92.568 metres

T2 -T3 010 ° 22′ 50″ / 128.254 metres

At T2 150mm nail in ground placed

T1 127° 25′ 54″ (-4″) 127° 25′ 58″
T3 010° 22′ 50″ (+2″) 010° 22′ 48″
A1 061° 55′ 26″ (-2/2) 061° 55′ 25″ 74.786
A2 076° 45′ 07″ 076° 45′ 06″ 66.498

T2-A1 74.875 092° 44′ 30″

is 74.792
sh/b 74.786
0.006

-A2 66.530 88° 45′ 55″

is 66.517
sh/b 66.498
0.019

Note: Calculated bearings in column (2) should be in ink and the observed one in
pencil.

5.3 Subdivision example

Under the owner's instructions, the plot below has to be subdivided into two equal
halves taking into account the accessibility to the two plots. A private surveyor with
the following coordinate list surveyed the plot in 1979:

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Dr Edward J.W.Chikhwenda 03 April 2007

Fig. 6: Simple subdivision example

J98 M6

y M5R

J46 J99

J100 M4
ROAD RESERVE

Easting Northing Station

721843.14 249211.02 J46
721814.10 249177.70 J98
721834.48 249218.58 J99
721847.48 249233.50 J100
721826.02 249253.39 M4
721769.00 249247.56 M5R
721738.60 249227.49 M6

Before the plot can be subdivided, the surveyor has to search for the established
beacons in the field. Once the beacons are found and confirmed to be in their original
positions, the surveyor then computes the total area of the plot. In this case, the total
area of the plot is 4709m2. This gives 2354.5m2 as the required area.

Now let the first approximate area to be the area M5R-M4-J100-J99-J46-

M5R=1429m2. Hence the difference between the computed area above and the
required area is given by 2354.5-1429=925.5m2. This is represented by the triangle
M5R-J46-X in the above figure. The aim of the computations in this cadastral
problem is to find the distance y, which will give us coordinates on the line J46-J98
that provides the required area.

The solution of a triangle is used in order to find the value of y. This can only be
found if the included angle at J46 (M5R-J46-J98) is computed. This angle is
computed by subtracting bearing J46 to J98 from the bearing of J46 to M5R (296° 14′
11″ -221° 04′ 25″)= (075°09′ 46″).

Having computed the angle of the triangle, the distance y is found by the following
relationship:

a × b sin (angle )
Area of a triangle = half(base.height) =
2

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Dr Edward J.W.Chikhwenda 03 April 2007

925.5 = y. 82.655.sin( 075° 09′ 46″)

2

y = 925.5 × 2
(82.655 × sin(075° 09′ 46″))

y = 23.167 m

Now using the computed bearing from J46 to J98 and the value of y = 23.167metres,
the coordinates of the new position X are found as

Xe = 721827.919mE and Ye = 249193.555 mN

When these coordinates are used to compute the area of one of the two plots the area
obtained is 0.2355 ha.

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LAWS OF MALAWI

6. Laws of Malawi that are significant to Cadastral Surveying

The land surveyor deals with the most important issues of land management. Land
management can not be successful without regulations and legislation. Thus, for the
land surveyor to be effective and efficient in providing surveying services in Malawi,
he must be familiar with all regulations and legislation that deal with land issues.

Data and information obtained from cadastral surveys enables all transactions in land
to be done with confidence. The registration of title was introduced in Malawi in
order to make conveyancing easy, reliable and fast. This was based on the premises
that registration of title tends to eliminate the need for separate investigation of title
that takes place on every purchase. In registration of title system that exists in
Malawi, the state actually guarantees that the registered piece of land exists and
belongs to the named person.

Land surveyors in Malawi carry out their cadastral surveys as per the Land Survey
Act CAP 59:03. This Act explicitly outlines all the technical issues as regarding the
procedures, the powers of the surveyor, the registration body, the surveyor general
and the minister. According to the LSA, no one is supposed to carry out cadastral
surveys apart from a surveyor. The Act defines a surveyor as a government surveyor,
licensed surveyor or a graduate surveyor where such a surveyor is dully registered
under the act (Part I, Section 2).

Public Land Ordinance of 1951

Public Land Ordinance of 1951 empowered the Governor of the Protectorate to

authorize permanent improvement such as clearing of land for agricultural purposes,
installation of electric light or power, provision of means of sewage disposal,
construction or improvement of roads and bridges e.t.c. The Governor was also
empowered to make and execute, under the public seal, grants, leases or other
dispositions of public land for any such purposes and any terms and conditions he
may think fit.

By 1951, there were several estates that were being surrendered by owners. As a
result the Public Land Ordinance empowered the Governor to accept the surrender of
any lease that was made under the Public Lands Ordinance or the Crown Lands
Ordinance of 1912.

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Dr Edward J.W.Chikhwenda 03 April 2007

Under the 1951 Public Land Ordinance, every lease that was granted had implied
covenants with the governor. According to the Public Land Ordinance all mines,
royal and base minerals, mineral substances such as mineral oil, deposits quarries,
gravel flints, chalk sand, clay, and other valuable earth upon in or under any part of
the demised property were under the custodianship of the governor. This implies the t
the governor and any duly authorized officer had powers to enter, search from, dig,
win, take, dress, make merchantable and carry away at his or their pleasure and to
sink necessary pits and shafts. He/she had also the powers to erect buildings and fix
machinery and works thereby doing no willful damage and making to the lessee
reasonable compensation for any actual damage which she/he may sustain and a pro
rata abatement of rent being allowed in respect of the extent of the surface so
occupied and interfered with. However, the lessee was allowed by the Public Lands
Ordinance of 1957 to take from the demised premises in accordance with the mining
ordinance, any limestone and other materials suitable for building, road metalling, or
agricultural purposes as long as such limestone and other materials or any products
manufactured therefrom are not sold for profit.

Apart from the above powers, the governor was also entrusted with powers to control
use or make dispositions of interest or rights in any running or stagnant water
especially if that body of water is not inside any demised premises.

The governor could also grant a right of way across the demised premises whether
land belonged to Government or was under the control, of the governor or any lessee
tenant or license of the governor occupied it.

The 1957 Public Land Ordinance also empowered the governor to authorize entry of
any demised premises including buildings at all reasonable times for all reasonable
purposes.

The Crown Land Ordinance was repealed in 1957 and replaced by the Public land
Ordinance of 1957. Upon this repeal the words Crown Native Trust Land was
repealed and replaced with African Trust Land.

The Land Survey Rules

The land survey rules were included in the Land Survey Ordinance (Cap 113) in
1967. These rules prescribed technical issues of cadastral survey such as checking of
survey work, field work, beacons, general plans, survey records, computations,
miscellaneous items, including surveys of public and customary land on behalf of
government, tariff of fees, application for a license e.t.c. and schedules.

The Malawi (Africa Trust Land) (Modification) order of 1964 was laid before
parliament on 29th June 1964. It was aimed at amending section 1 of the Nyasaland
Protectorate (Africa Trust land) order in council of 1950 which was amended by
section 2 of the Nyasaland Protectorate (Africa Trust Land Amendment) Order in
council of 1955. It was consequently amended by the Nyasaland Protectorate (Africa
Trust land) (Amendment) order in council 1956.

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The Malawi (Africa Trust land) Modification order of 1964 also removed the words
"Certificate of Claim" by the words "has been recognized by the Secretary of the
State". This order also revoked sections 5 of the Nyasaland Protectorate (Africa Trust
Land) Order of 1950 by inserting the following section: All Africa Trust Land is
vested in the Governor - General

Section 5 (2) stated that the entire property in and control of minerals in under or
upon any African Trust Land are, save in so far as any part thereof may have been the
subject of alienation duly ratified by the crown, or in relation to which prospecting or
mining rights subsist by virtue of express grant made under any law relating to mines
or minerals hereby vested in the governor General and shall be administered and
controlled for the use or common benefit, direct or indirect of Africans, but nothing
contained in this order or in any regulations made there under shall affect any grant
ratified by the Crown relating to the ownership of the mines and minerals and any
person entitled to the exercise of such rights on Africa Trust land may enter thereon
together with other persons employed by him for the purpose of exercising such rights
subject to the provisions of the laws and regulations for the time being in force in
Malawi. Section 9 of Nyasaland Protectorate (African Trust Land) Order of 1959 was
revoked and the following replaced: When any grant, disposition, permit or license of
or in respect of Africa Trust land has been made or given by the Governor or
Minister, all moneys payable shall be paid into the General Revenue of Malawi.

Mining Ordinance 1957

It will be seen that the first ordinance that dealt with mining was formulated on 30th
April 1937. In 1957 another ordinance was brought into force, whose aim was to
amend and consolidate the principle ordinance of 1937. The 1957 Ordinance
empowered The Governor to control the working of all minerals in under or upon any
lands in the protectorate. However, Section 8 of the ordinance allowed the African of
the protectorate to take iron, salt, soda stone, sand clay limestone from lands which it
has been the custom of the members of the community to which that African belongs.
If the private owner of a piece of land wants to prospect any minerals, shall give
notice of his intention to do so to the Governor. Any person to whom an exclusive
prospecting license shall have been issues shall lodge with the commissioner a plan
showing the boundaries of the area within which he has by such license been granted
the exclusive rights to prospect, and shall if so required by the conditions of his
license or by the commissioner, beacon or otherwise mark out such boundaries within
such time and in such a manner as may be required by his license or prescribed by the
commissioner, and the commissioner shall registrar such license.

6.1 The Adjudication of Title Act

Adjudication of title is a system of general boundary system whereby a minister

according to the Adjudication of title Act Sec 3 declares an adjudication area. This
act was formulated in 1971 after discovering that the registered land act was slow and
made land dealings expensive. The Act provides for field investigation with no legal
obligation to refer to existing documents (deeds). Each adjudication area has a
demarcation map that is prepared under section 13 of the Act. The administration of

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an adjudication section shall be under the adjudication officer duly appointed by the
minister.

In Adjudication of Title, the aim is to register all registerable interests within which
the rights can be exercised, the extent to which the benefit thereof may be dealt with.
Thus, the ownership of all interests in a particular piece of land is determined by the
state. This gives a sense of security to the registered owners because the title is
considered valid against the whole world.

Adjudication may be systematic or sporadic in nature. In systematic adjudication, an

adjudication area is declared where the interests are to be registered and recorded. In
sporadic adjudication, separate individual parcels are adjudicated irrespective of
where the land is situated or when the application is requested.

Adjudication may be required in the following situations:

• frequent boundary disputes that lead to expensive litigation and even breach of
peace.
• proposed land use change.
• land is required for public purposes or for formal disposition by government.

The duties of the adjudication officer may include making sure that the rights and
interests in land are properly recorded at the time of the adjudication exercise. The
adjudication officer or the land surveyor may enter upon any land at any reasonable
time within the adjudication area for the purposes of demarcating or surveying any
property. The act empowers the surveyor to summon any person whom he thinks may
have information regarding the boundary lines of a plot or any piece of land. On the
other hand, an administrative officer is required who shall be competent enough and
have powers to take affidavit in any inquiry, he may also issue summons, notices or
orders.

The surveyor's main job in this type of general boundaries is to carry out such surveys
that may be required in the execution of an adjudication process; prepare a
demarcation index map that shows every piece of land identified by a distinguished
number. Section 18 of the Adjudication of Title Act lists the following, as the
information required on an adjudication record:
• Number and approximate area of the piece.
• Name and description of the person entitled to be registered.
• Entitlement, restrictions affecting the powers of the owner.
• Whether the land is public, private or customary.
• Particulars of registerable rights under the Registered Land Act; such as charge,
easement, profit or restrictive covenants affecting the piece of land.

Once all the data and information has been recorded, the Act requires the records
officer and the owner or his agent to sign a form. This form is usually necessary in the
case of private land because it acts as an acknowledgment that the owner has the
interests in the piece and that they all accept the record as true. Once all the records
have been entered, they are published. After publication, the public has sixty days to
inspect the records. Anyone with interests in any piece may challenge the
adjudication officer if he/she identifies an error or mistake of any kind in the record.

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The expiry of the sixty days upon publication of the records implies that the
adjudication records are deemed to be binding to all parties.

In a case where the boundary of the piece is found to be incorrect, inaccurate or

incomplete by the owner, Section 20 of the Adjudication of Title Act empowers him
to challenge the adjudication officer. Note that this has to be done within the sixty
(60) days from the date the adjudication record is published. The procedure for
challenging the adjudication officer is by a written objection stating explicitly his
facts. If the adjudication officer investigates the claim and obtain sufficient evidence
that the claim is genuine, Section 22(1) empowers the records officer or the surveyor
to make the necessary corrections in the adjudication record or the demarcation map
respectively.

6.2 The Land Act CAP 57:01

This Act was primarily formulated in 1965 to make provisions with regard to land in
Malawi for matters incidental thereto and hence ensure control of the three categories
of land in the interests of better planned and orderly development.

The act defines customary land as land held or occupied or used under the customary
law but does not include any public land. In this context, customary law is the law
that is applicable in the areas concerned. In Malawi, there are very diverse customs
and norms resulting in different land allocation procedures. However, there are two
major systems of land allocation. In some part of the country a patriarchal system is
used while in other parts the matriarchal system may be used.

Government land is defined as all public land excluding public roads. Public land may
be defined as land occupied by the government and any other land not being
customary or private land. However, any customary land or private land can be
reverted to public land if the government requires it for a certain development or on
termination, surrender or falling in of any freehold or leasehold estate respectively.

Section 5 of the Act empowers the minister to grant any person any estates, interests
or terms of condition on both public and customary land. Note that a grant on
customary land should not exceed 99 years. When a grant is made, it has to be
published in a gazette. However, it is not necessary to gazette the conversion of
customary land that is required for a public road.

Land Act regulations require that all the covenants to be strictly adhered to. These
covenants include a covenant to pay the cost of a survey of boundaries of the demised
property and the erection and maintenance of survey beacons to the satisfaction of an
authorized officer. The regulations also require the lessee or the freeholder to obtain
written consent of the minister before he may assign, subdivide, underlet, mortgage,
charge or part with the possession of the demised property. It is expected that the
minister should scrutinize carefully before the transaction can be approved. If the
minister gives his consent, a prescribed fee is supposed to be paid to the minister.

6.3 The Registered Land Act CAP 58:01

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Land Registration is where Government registers title to a parcel of land. In this

system of registration the Government also determines the precise boundary of a
piece of land. Proof of title to a parcel of land is by the issue of a certificate of title
that identifies the owners of land. In the certificate are listed all the encumbrances to
the land such as easements, mortgages or liens. In Malawi, the registrar keeps the
original certificate of title and the duplicate certificate is issued to the property owner.
Whenever the property is conveyed or encumbered, the original certificate of title is
amended to reflect the changes in title. The certificate of title should be conclusive
and represents the existing state of title of a particular parcel of land. The nature of
title registration makes the duties of a surveyor to be simplified because s/he only has
to check search the certificate of title.

This Registered Land Act was formulated in 1967 in order to make provisions for the
registration of title to land and for dealings in land so registered and for purposes
connected therewith. This was necessary because when the settlers arrived in
Nyasaland they devised a system of identifying land owned by what was called the
Certificate of Claim. This system brought a lot of problems because it was difficult to
maintain records for security and proof of title.

This Act was modelled on the system of the Registration of Title of the United
Kingdom. In this system the government agency keeps a record of title to land and no
dealing in respect of any land is valid unless it is registered.

The details of the land to be registered are put in three sections:

• Property section: describes the land or the lease with all the other particulars.
• Proprietorship section: contains the address, name of the owner.
• Encumbrance section: has all the encumbrances e.g. lease, charge etc.

When a piece of land is registered under the Act, it implies that the state guarantees
the existence of such land. However, section 13 of the Act also empowers the
Registrar to cancel any entry in a register that ceased to have any effect. If the
boundary of a piece of land has been altered on the registry map, the piece number is
supposed to be cancelled automatically.

According to the Registered Land Act CAP 58:01, it is not a requirement that a
precise cadastral survey should be carried out before a piece of land can be registered.
However, when a piece of land is to be registered it is a requirement to provide a
concise description in the form of dimensions and boundaries of the said land. But the
Act does not require the dimensions to be verified by the surveyor general. It is only
when the surveyor general has approved such dimensions where the Act expects the
register to say so. The Act also provides for protection of all survey monuments once
a survey has been done. It becomes a serious offence for any person to deface, remove
or impair any boundary feature.

When a person is in the process of acquiring any piece of land that is in an area where
the Registered Land Act is applicable, it is the duty of the individual to inspect every
entry in the register relating to the land in question. A person who eventually buys a

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piece of land is accepting all the encumbrances contained in the register concerning
such land.

According to section 134 of the Registered Land Act, a person may acquire any
private land without any permission from the lawful owner entitled to the land
provided he has possessed the land for a period of twelve years or longer,
uninterrupted and peacefully. If a person can actually prove that he has stayed on a
piece of land for more than twelve years, he may apply to the Registrar for the
registration as a proprietor. This was enacted in order to prevent having absent
landlordism in the country. This does not apply to customary or public land because
no one can own customary or public land. In a case where a person has occupied
customary or public land for twelve years or more, such a person may only acquire
the profits and easements of the land without an need for registration.

Interests in unregistered land may include legal estates, legal mortgages, legal
interests, equitable interests that binds the purchaser irrespective of notice and
equitable interests that remain fully subject to the doctrine of notice. Registered land
may be classified as registered estates (fee simple and leases exceeding 21 years),
registered charges (legal mortgages), overriding interests. These overriding interests
may not be protected by entry on the register, thus override the purchasers. Registered
land may also include minor interests capable of being protected by entry of notice or
caution on the register and minor interests capable of being overreached even when
protected by entry of a restriction on the register and which comprise interests of
beneficiaries under trusts for sale or under settlements. The system of registration of
title is aimed at freeing the purchaser from hazards of notice, real and constructive
that are common in unregistered land.

6.4 Deeds registration Act CAP 58:02

The 1894 regulations did not require the deeds registry to keep any map of any land
that was registered because the registry acted like a depository only.

The following legislation is a build up to the 1916 Ordinance.

Year Activity
1894 Introduction of registration of Non-testamentary
Documents.
1895 Formulation of Land Sales Regulations regarding
Registration.
1910 Formulation of the Registration of Documents
Ordinance.
1916 Fromulation of the first Deeds Registration Act

The Deeds Registration Act was based on the principle of registration of documents
affecting land to be compulsory. Failure to register these documents made the
document null and void. In this system of registering documents related to land, the
validity of the title to land was not conferred by the act of registration. It should also
be noted that the act empowered the registrar to accept or refuse any description of a
document, regarding any piece of land.

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This Deeds Registration Act was enacted on 31st March 1916 to replace the law as to
the registration of documents relating to land. In this context, deeds refer to all
instruments in writing that pass any interest in land or affecting land and the case of a
will means the probate of a will sealed in Malawi.

Registration of deeds is a process of recording details of a deed without either relating

it to the previous transactions in the same parcel of land or examining its validity.
This system of registration is problematic where there is constant increase in the
physical volume of records. That is why a Canadian lawyer once described it as being
cumbersome, expensive, time consuming, delaying, deceptive, inadequate,
incomplete, inept, imperfect, uncertain, unprofitable, undesirable, unsuitable and
downright stupid (Hanson, H (Q.C.), 1961).

In Deeds Registration Act, deeds and all interests in land or writing which pass any
interest in land or affecting land that are sealed, may be brought for registration in the
Deeds registration File. The file has to be certified by a Deeds Registrar as a true
copy. The file contains the names of all parties, the nature of the document, the date
of the document and the hour of such registration. According to section 15 of the Act,
a map or a plan may be filed together with the true copy. On this plan or map there
must be a conscience description of the land to be registered. If the description of the
piece of land is not sufficient enough to enable its proper identification, then the
Deeds Registrar has powers to refuse to register the document.

Erasures and any form of alterations in the document are not entertained unless the
parties to the document have signed.

6.5 Town and Country Planning Act CAP 23:01

The current planning system in Malawi has its roots in the land use planning in
Britain that was originally introduced in the nineteenth century when environmental
and social changes led to the formulation of the Public Health Act of 1848. In this
Act the primary concern was public health rather than guidance on design and layout
of settlement pattern. In 1909, a new act called Housing and Town Planning Act was
formulated in Britain whose aim was to tackle the problems associated with
uncontrolled development and siting of settlements. However, this Act never required
local planning authorities to prepare planning schemes. This was provided in the 1932
Act. During the Second World War, three reports namely, the Barlow Committee,
Scott Report and Uthwatt Committee examined the implications of past policies
regarding planning. The result was the 1947 Town and Country Planning Act, which
ushered substantive amendments such as development control, development plans and
financial implications of betterment and compensation in planning system.

Thus, the present planning system in the Malawian cities and towns is based on Town
and Country Planning Act (TCPA) 1947 of Britain. This Act was first enacted on 10th
December 1948 in Malawi. This means that after the planning of present Blantyre
CBD in the 1890s, towns in Malawi grew organically for the next 50 years. This act
was mainly aimed at making provision for town and country planning. The act

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empowers the minister to declare an area as a Planning Area after consultation with
the local authorities.

The minister is empowered to appoint a planning committee comprising the

chairman and a number of persons permanently resident within the planning area.
This planning committee is empowered to exclusively administer such rules
relating to town planning and building control operations made by the urban council.
According to Part II Sec 8(a), the planning committee is supposed to prepare
particulars and information regarding the present and the future planning needs and
a probable direction and also the nature of development. This means that the planning
committee should be able to come up with an outline planning scheme within the
planning area that takes into account the impact of development on health,
sanitation, communication, amenity and convenience.

Where the minister has declared an area as a planning area, the local authority has
to submit a scheme. Once a scheme has been submitted, it will be gazetted and it is
valid for five years after which if it has not been implemented, it ceases to have effect.
Where there is need for implementation of the plan, the minister in mandated to
prescribe how compensation is to assessed on any affected structures or land.
Anyone who is not satisfied with the compensation as prescribed by the minister
may challenge the decision by applying to the High Court (Part II , Sec 3 (7)(a) ).
Where the area has been declared as a planning area it becomes an offense for anyone
to construct, demolish, alter any building until a detailed scheme is approved by the
minister. It is also forbidden to subdivide land in a planning area without written
permission of the planning committee. Part II Sec 6 of TCPA, exempts a chief and
any other African from seeking permission because Section 26 of the Land Act
(1965) empowers him to administer, use, subdivide and occupy any customary land
using the prevailing customary law in the area.

Part III Section 10(5) of TCPA CAP 23:01 has provision for the readjustment of
boundaries or the redistribution of land. This implies that the planning committee
under the jurisdiction of the minister have powers to appropriate land for planning
purposes. Where the owner refuses, Part IV Section 21(8) empowers the minister to
compulsorily acquire it by directing a sheriff using a warrant in a prescribed form.
If the owner was given a notice to quit, then the cost accrued by the reason of the
execution of such a warrant shall be paid by the person refusing to give up
possession. However, no compensation is paid for buildings that were erected after
the area became a planning area.

6.6 Public Roads CAP 69:02

The act defines carriageway as part of the road designed and constructed to be used
for vehicular traffic. According to the Act all public roads are vested in the president
as public land. Section 10 gives specific widths for different types of road reserves
as follows:
• Main roads = 60 metres
• Secondary roads = 36 metres
• District roads = 36 metres

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• Branch/Estate Roads = 18 metres

No compensation is payable in respect of any construction of road reserve and the

highway authority may enter any land to exercise its power. The highway authority
may give one month notice of their intention to carry out any works that may
damage any structure. If that structure is a building, the notice shall be served three
months in advance. The act empowers the owner of any land affected by any works
to claim compensation within three months of suffering damage.

In a case where land ceases to be part of public road, that land is vested in the
owners of the adjoining land upon the terms and conditions upon which he/she holds
such land without any formal transfer unless such land was immediately before
becoming public road was customary land (Section 11). According to section 12, the
minister may prohibit the erection of any building with direct frontage on to a
road.

6.7 Customary Land (Development) CAP 59:01

This act was enacted on 9th May 1967 for the purpose of ascertaining of rights and
interests in customary land. This was aimed at improving agricultural development
on customary land. This act was effected by establishing a development section. In
this area, there may be a family that occupies or use the land . This type of land is
defined as family land. Where the minister has declared an area as a development
area using section 3(1), all the interests in that customary land are ascertained. The
development section is defined by a plan or a description or both. Each section has a
Land Committee that advises the allocation /demarcation officer upon any point of
customary law. The committee also represents absent persons' interests and minors
interests. When an area is declared a development section, a notice is published.
Once this is done, any customary authority or mwini dziko ceases to exercise any
customary functions or any right to any monetary or other payment in respect of the
performance of such interests (Section 9).

Before any demarcation may proceed, the demarcation officer is required to give
seven days clear notice under section 10 in order to sensitize those who are likely to
be affected to indicate their boundaries. Once the demarcation has taken place and
before the allocation record becomes final, the officer may correct any error or
omission not materially affecting the interests of any person. The officer may also
make any alterations with the consent of all persons whose interests are affected.
After sixty days expiration from the date of publication of the notice of completion
of the allocation record, the demarcation is assumed to be final. This means any
dealings in land now become subject to the Registered Land Act. The allocation
officer is required to sign a certificate and deliver the demarcation map and the
allocation record to the Registrar of the Registration District.

6.8 Local Lands Boards CAP 59:02

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This act was enacted on 9th May 1967 to supplement Customary Land Development
Act by providing for the establishment and powers of Local Land Board. Part II
Section 6 of the act forbids any person in a division to sell, lease, charge, exchange,
partition or subdivide without the consent of Board. It is a requirement that any of the
above transactions shall need a consent from an appropriate Board through the
registrar. When granting the consent, the Board may impose restrictions, which
should not be inconsistent with the Registered Land Act. In the case of family land,
any intention to partition shall be referred to the Board by the registrar. The Board
has to verify and ascertain the names of those members of the family entitled to
share the land. The Board has to take customary law into account during the decision
making.

6.9 Lands Acquisition CAP 58:04

This act was enacted on 24th August 1971 to provide for the acquisition of land.
Section 3 of the act empowers the minister to acquire any land either compulsorily
or by agreement paying such compensation, for any land that the minister may think
desirable or expedient in the interest of Malawi. Section 5(1) of the act requires a
notice of intention to acquire any land to be served and published in the gazette
(5(2)). However, the act requires fair compensation to be paid wherever land is
acquired (section 9).

6.10 Mining Act CAP 61:01

The act was enacted on 30th April 1937. Section 5(2) of the act requires any person
who desires to prospect for minerals to apply to the minister. The minister may
approve in a form of written agreement authorizing him to prospect with
restrictions. But it should be noted that all minerals in or under any land or waters
of Malawi is vested in the President on behalf of the people of Malawi. Section 8(a)
permits local people to use natural resources such as iron, sand, salt, soda, stone etc.
but not for profit making. In Malawi, mineral prospecting is not permitted in these
areas :
• Public areas or burial places.
• Municipality or township;
• Near railway (one hundred metres ), road, street, highway.
• One hundred metres from any building , reservoir, dam.
• Salt licks being used by cattle.

6.11 Land Survey Act CAP 59:03

The Land Survey Act is based on the 1952 act which was aimed at making better
provision for land surveys and licensing and control of land surveyors and for
matters incidental thereto and connected therewith. It clearly spells out the duties of
a cadastral surveyor and the regulations to be followed when carrying out cadastral

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LAND LAW AND PROPERTY MANAGEMENT

7. Land Law and Property Management

Land is the fundamental resource for human survival. Historically, the human race
has evolved from being hunters and food gatherers to agriculturists. Industrial
revolution fostered the growth of towns that led to human concentration in fixed
space. This socio-cultural-economic transformation has resulted in the capitalist
concepts of land. Thus, civilization has led to monopoly of land holding. The law
regarding land ownership has developed as a direct need for individuals to protect
one's territory.

According to the British Law of Property Act 1925 section 205(1)(ix), land is real
property and it includes mines and minerals, buildings or parts of buildings. Section
62 of the Property Act define land as to include hedges, ditches, fences and the
rights of way. Theoretically, the legal concept of real estate includes everything that
is attached to the earth, whether by course of nature such as trees, or by society such
as buildings to be part of the land. Land at law is not only the earth but includes
fixtures, covenants and easements. This means that if the government, Malawi
Housing Corporation(MHC) or private individual grants land rights to another person,
it is effectively granting rights to the earth's surface and all that is above(Cozens-
Hardy MR in Mitchell v. Mosely). The latin expression ‘Cuius est solum eius est
usque ad caelum et ad inferos’ (he who owns the land owns everything extending
to the very heavens and to the depths of the earth), reveal the basis of the definition of
land at law. However, the concept of legal estate also ensures that the owner of a
legal estate may control only as much as air space as above the land as can reasonably
be utilized. The Land Act as well as other Acts in Malawi, put some limitations as to
what can be obtained from the land. For example, minerals discovered in one's land
become government property. Town and Country planning Act has regulations
regarding what can or can not be built in certain areas, what can be displayed in the
airspace etc.

7.1 Historical Background

The land law that is used in Malawi has its origins in the English Land Law. In
England, land law evolved from Norman conquest in 1066 when William conquered
Harold at the battle of Hastings. After the battle, the new King declared that every
piece of cultivable land in England should become part of the feudal manor. This
system of land ownership involved spatial allocation that was controlled by an

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overlord or a hierarchy of overlords. The feudal system was created in order to

consolidate Norman control over England. Feudalism was a pattern of land tenure
related to military service that developed in the northern Europe in the ninth and tenth
centuries. The hierarchical structure in the feudal system had the king as the ultimate
owner who allocated territories to several subservient owners, usually barons or
magnates. These magnates were mandated to provide the king with armed men when
required. The magnates in turn would grant their portions of the territory to lesser
lords with the obligation for military support. The livelihood of these magnates
depended upon the manor, which was a basic unit of territory. A manor usually
consisted of a single village with the fields around it. However, there were some
variations because sometimes a manor would consist of a group of villages or only
part of the village. Within a manor, the lord would usually have a personal estate and
the rest of the arable land subdivided into individual strips but farmed communally.
Each ordinary villager lived in a primitive cottage set in its own plot. The villagers
would have their grazing and other rights from the overlord. This system of land
tenure lasted for two or three centuries following the Norman conquest of 1066. With
changes in aspirations and needs of society the feudal tenure system evolved into the
present western tenure system with two major forms of freehold and leasehold.

Most of the present concepts and principles of land law have evolved from the social
and economical changes in society. The dynamic nature of society resulted in the
evolution of the feudal system of land tenure to the present western concepts. The
turning point of the British Land Law was in 1925 when legislators decided to
implement drastic reforms regarding property law in order to address the needs of
society. The present day English Land law deals with rights and interests that may be
enjoyed in respect of land.

7.2 The Concept of Ownership to Land

The English Land Law has never applied the concept of ownership to the land itself
because firstly, the concept of ownership implies total control of the land. Land in the
English land law system is not perceived as a personal property like a watch but it is
a real property. As we has seen above, real estate includes the physical land and the
appurtenances such as structures affixed thereon. This means that property is the
rights one has in land, which include rights to future benefits by ownership or
possession of economic goods. Real property is essentially interests, benefits and
rights inherent in the ownership of the physical real estate. Personal property,
however, includes movable items, those that are not permanently fixed to any part of
the real estate.

Secondly, the feudal system of land tenure confronted the royal judges in the two
centuries following the Norman conquest . The big issue here was that there was a
bureaucratic pyramid from the peasant farmer to the King who was the overall boss.
The judges saw that the tenant at the bottom of the pyramid had to be protected by
law because he was the one who was having lawful possession. At the same time, all
the intermediate lords who were not the people actually occupying the land but had
the right to receive the services of their respective tenants also had to be protected by
the law. The lawyers saw that this was not necessary and hence got rid of all the
intermediate lordships between the tenant and the Crown. Even in Africa the land

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tenure system reflect similar concept that you can not own customary land. For
example in Malawi, the customary law has the chief as the custodian of land who
actually holds it on behalf of his immediate community. One is granted rights in land
by virtue of belonging to the community. Thus, it is possible for an individual to
transfer his rights to his daughter, son or relative but can not sell it, in the western
connotation.

7.3 The Doctrine of Tenure and Estates

Tenure in the English land law is directly associated with the 1066 Norman invasion
of England . The king is considered the owner of land in England, everyone else hold
the land in a form of freehold or leasehold tenancy. An estate is the interest in land,
which an individual has based on the theory of tenure and the fact that only the king
owns the land. The word estate is derived from the word status because land holding
in feudal time was a sign of the status of the holder. This is why the doctrine of
estates was concerned with the duration for which a piece of land may be held.
Therefore, it implies that all of us are tenants, although a layman may think that we
own a piece of land we have ‘bought’ as freehold or leasehold. Interests in land
only offer legal rights and powers for a particular period or duration. Real estates
include :

Freehold or Fee simple

This is the right to use and enjoy the rights in land for the life of the grantee and
that of his heirs and successors. If one can compare this with the feudal system of land
tenure, fee simple is equivalent to ownership of the land because the rights are for an
infinite period.

Fee tail

This is the right to use or enjoy the land for a period of the life time of the grantee
and that of his direct descendants but not to all his heirs. This means that the right to
use the land is limited by cutting (taille= to cut in French) the people who can
benefit.

Life Estate

The right to use land for the life of the grantee only. This means that after death of
the grantee the estate reverts back to the Crown.

Leasehold

Leasehold, on the other hand, is not classified as real property but as a personal
property. However, the ownership for personal property is not just like owning a
watch because personal property is further divided into chattels real and chattels
personal or pure personalty. A chattel is any property that is not freehold or fee
simple. All movable items are called chattel personal. In order to distinguish between
real or personal property, four factors need to be established. These include the

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manner in which it is annexed, the intention of the party responsible for the
annexation, the purpose for which the premises is used, and the cost of the item. Items
that easily removed without damage, qualify to be classified as personal property.
Hence leasehold can be classified as real chattel. Leasehold is the right to use and
enjoy the land for a set, stated duration of time. This ranges from a few months to
99 years in Malawi. Fixtures are tangible items that previously were personal
property and have been attached or installed in land or a structure in such a way as to
become a part of the real estate.

The origin of leasehold was the fact that in feudal system, the freeholder would like
to let someone to use his land for a term of years. This meant that the tenant would
retain the possession for a period of years and in return he would pay rent . In this
case the freeholder has a legal right to use the land exclusively. There exists only a
contractual agreement between the freeholder and the tenant, hence giving the
freeholder the power to demand the return of the property at any time. This was the
case in Britain before the fifteenth century and was a source of insecurity on the part
of the tenant. The reason is that contractual rights only give rise to ‘personal’ actions
against the freeholder who broke the contract. If the tenant was able to exercise ‘real’
action on to the freeholder, then he/she would have the right to get back the thing
(res= Latin word for ‘thing’ from which real comes from). In Britain, the landlord
had the security while the tenant was vulnerable. Because of this fact the Landlord
and Tenant Act was enacted so that there is security on both parties.

7.4 Bundle of Rights Theory

The bundle of rights theory holds that the ownership of real property may be comared
to a bundle of sticks, wherein each stick represents a distinct and a separate right or
privilege of ownership. The sticks can be of different lengths, can be owned by one
person or several persons exclusively or concurrently. The rights and privileged are
usually guaranteed by state laws, subject to restrictions and limitations. As discussed
above, freehold tenure is the most complete degree of ownership. However, it is
important for state governments to ensure equality and equity is spatial allocation by
imposing four powers of government:

Ad valorem taxation

This is the right for the state to levy and collect a tax that is based on the value of
property. The aim of this tax is to provide government general support funds and
maintenance of public services.

Eminent domain

This is the right reserved by government to acquire property by compulsory

purchase for the benefit of the community.

Police power

The right for the government or local authority to regulate property to promote
safety, health, moral and general welfare of the community via zoning ordinances,

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building codes, traffic regulations etc. Individuals also have the power to put
restrictions in title deeds of their real property that limit the use of the property.

Escheat

The right for government to acquire property where the owner dies without writing
a will or having legal heirs.

7.5 Theory of Relationships

Ownership interests in estates may be enjoyed exclusively or concurrently with

others . This implies that it is possible for more than one person to have interest in a
landed property. For example, A may have freehold fee simple, while B may have
life estate in the same property, which he might enjoy after the death of A and
finally, C may have a 21 years leasehold which he is currently enjoying. This
implies that after C's lease, the property will go back to A if he is still alive etc.

7.6 The Principles of Registration of Title

There are three main principles of registration of title to land:

Mirror principle

The registration of title is supposed to reflect accurately and controvertibly the

totality of estates and interests affecting the registered land.

Curtain principle

This principle suggests that trusts affecting registered land are kept off the title
with the results that the purchaser of the land may safely transact in the assurance
that the interests behind any trust will be over-reached on sale.

Insurance principle

The state itself guarantees the accuracy of the registered title in the sense that an
indemnity is payable from public funds if a registered property otherwise
prejudiced by the operation of the registration scheme.

7.7 Interests in Land

There are three types of interests in Land. These are registrable interests, minor
interests and overriding interests. Registrable interests are absolute, full legal
interests that are subject only to overriding and minor interests. These interests are
usually registered in freehold but rarely in leasehold . Minor interests comprise the
residual class of interests . These are all interests that do not qualify as registrable

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interests or as overriding interests. Usually they are family or commercial equitable

interests and are entered on charges register as notice or on proprietorship register
as caution or restriction. Overriding interests on the other hand are encumbrances,
interests, rights and powers not entered on the register but subject to which
registered dispositions are by law take effect. Sec 70 (I) of the English Land
Registration Act 1952 sec 3 (xvi) contain all the overriding interests. The presence of
the overriding interests distort the mirror principle of the register since it can not
fully be relied upon as a comprehensive record.

7.7.1 Easements and Profits

Easements are rights ‘in alieno solo’ i.e. rights on the land of another. Therefore, an
easement can be seen as a right annexed to the land to utilize land of different
ownership in a particular manner or to prevent the owner of another land to use his
land in a particular way. This excludes the taking of any part of the land itself .
Profit a prendre is the right to take part of soil or produce of a servient tenement.
While a licence is the permission to do something on or affecting the land that
would otherwise considered trespass . Restrictive covenants are negative easements .
Public rights resemble profits .

There are four main characteristics of easements:

• There must be a dominant and servient tenement.
• Easement must accommodate the dominant tenement.
• The dominant and servient tenements owners must be different.
• The easement must not be too vague.(Dankwerts J in Re Ellenborough Park 1956)

7.8 Relationship between the Landlord and the Tenant

At common law the relationship of the landlord and tenant arises where:
• One person grants to another an estate in land that is less than freehold and is
also less than the estate held by the grantor.
• One person holding land allows the other to obtain a tenancy at will or a tenancy
on sufferance.

Conditions for the creation of the relationship are:

• The subject matter of the relationship must be land
• The grant must be of a lesser estate
• There must be exclusive possession which means that a mere licence or
permission can not be accepted.
• The term must be certain in the sense that it is necessary to specify the beginning
and the end of the term of years.

7.9 Lease and Licence

A lease is different from a licence in the sense that a lease grants exclusive
possession of the premises to the tenant while a licence does not. The major

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difference between a licence and a lease is that a lease creates a legal estate in land
while a licence confers no rights in land. A lease may be assigned by one tenant
to another just like a landlord may assign his interest. A licence is, on the other
hand , only personal and hence can not be assigned to a third person. Another
important feature of a lease is that it gives the tenant the right to exclude others
including the landlord from the premises while a licence does not provide such
rights. A lease can only be brought to an end in specified circumstances or at the
end of the period of the agreement, but a licence is normally revocable at any time.

A person may gain exclusive possession of the premises but yet that person is not
regarded as a tenant by law. A very good example of this is where there is a
relationship between a wife and husband. It is common practice that the husband may
allow his wife to stay in his house. This does not qualify the wife as the tenant.
Sometimes it is also possible for an act of generosity and friendship to allow a
tenant to live rent free in future. This act automatically changes the relationship
from tenancy to licence. From the above, it has been seen that where there are no
exceptional circumstances, the fact of exclusive possession is decisive as to there
being a lease or not. However, a grant which is described as a licence but gives to
the grantee the exclusive possession of the premises for a certain period of time, may
create a tenancy, not a licence. Whether a tenancy or a licence is created depends
upon the construction of the grant. If the substance of the agreement is to confer on
the grantee the rights and obligations of a tenant and upon the grantor the rights and
obligations of a landlord , then the agreement will be treated as a tenancy agreement.
There are other grants which do not qualify as a lease. These include lodgings and
sporting rights.

7.9.1 Kinds of Licences

• Bare licence is not coupled with a grant of any interest in property. This is a
personal privilege which only makes a action lawful which without it had been
unlawful.
• Licence coupled with an interest includes a grant of an interest in property e.g.
profit a prendre.
• Contractual licence is unconnected with any proprietary interest, being supported
only by consideration for the licensors promise.

7.10 Estate Agency

Estate agency may be defined as a tripartite legal relationship whereby the agent is
appointed by a principal to make a contract on his behalf with a third party. The
principal is usually a landlord or a person looking for a property to buy or rent. The
third party on the other hand may be a tenant or a purchaser. This implies that the
principal and the third party may be interchangeable depending on the circumstances.

The agent makes a contract with the third party in such a way that a direct
relationship between the two is created. The third party has his eyes on the agent in
case of any legal redress. In a situation where the agent alters the interests of the
principal in drafting the contract made to the third party, the principal has powers to

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take any action against the agent for the breach of his duties. Thus, it is mandatory
for the agent to obey the express instructions of the principal duly authorised. This
implies that the agent should be able to interpret the instructions of the principal
properly in order to avoid later misunderstandings.

In a case where the formation of the contract between the agent and the principal was
tainted by fraud, misrepresentation , mistake or illegality then the agreement
becomes null and void. This has made it a point that in any land transactions, a
written evidence is required for it to be enforceable by law.

Since the relationship of the two parties arises out of an agreement in the eyes of
equity, this relationship should be based on utmost good faith. This consequently
gives the agent the duty to act. In this case the agent owes a duty to his principal to
carry out whatever has been instructed to be undertaken. Secondly, the agent needs to
obey the instructions of the principal. Thirdly, the agent needs to exercise
reasonable care and skill in his duties. The care has to be subordinate to the duty of
obeying the principal's instructions because an agent employed can not excuse his
disobedience by claiming to have acted in his principal's best interests. Thus, the
agent must be a professional expert because he is liable if he fails to advise his
principal that certain instructions are unwise.

7.10.1 Duties of an Estate Agent

Where transactions in real property take place, there is usually the need to draft a
deed or a document under seal. In this circumstance, the unqualified estate agent may
not charge anything but since most transactions handled by estate agents do not
involve preparation of deeds , then the estate agent may charge for preparing any
relevant documents. It should be noted that a deed is not usually required for a lease
that take effect in possession for a term not exceeding three years i.e. a periodic
tenancy.

If the owner of property puts it in the hands of an agent on commission terms, no

obligation is imposed on the agent to do anything. This is merely a promise binding
on the principal to pay a sum of money upon the happening of a specified event
which involves the rendering of some service by the agent. This requires the agent to
act in the interests of the principal at the same time disclosing any relevant
information such as personal interest in the transaction.

7.10.2 Relationship between the Principal and Third Party

• Where an agent makes a contract on behalf of a disclosed principal , the principal

may sue or be sued.
• The principal may only be sued where the agent contracts by deed and the
principal is consequently named as party to it and is executed in his name.
• An unauthorised disposition of property belonging to the principal by the agent
may make liable to pay damages for his breach of duty.

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Note: Disclosed principal is one whose existence is known to the third party at the
time of making the contract.

7.10.3 Relationship between the Agent and Third Party

• Where a disclosed principal exists at the time of making a contract, the agent has
acted with the scope of the principals' actual authority. This makes the agent to drop
out of the picture.
• If any person makes a contract without revealing that he is doing so as an agent,
then he is committing himself to be liable personally to the other party.
• Where an agent claims to have authority to carry out a particular transaction he
is liable to the other party for tort of deceit.

7.11 Authority of an Estate Agent

• As has been seen above, an estate agent must act in accordance with the
instructions given to him by his client.
• A person claiming to sell property on behalf of another shall show clear
evidence of his authority to do so.
• The sale of property should not be entered into lightly and without proper
consideration.
• The estate agent may be given the authority to enter into a contract of sale or lease
on behalf of the client.
• However, placing property in the hands of an estate agent does not endow the
agent with any authority to make a contract for the sale or other disposition , but the
authority must be given expressly and according to various judicial remarks.
• If the estate agent asks for deposit and has been paid, either party is free to
withdraw from the negotiations because payment of deposit does not give the
purchaser a right to the property.

The estate agent will constantly be involved in dealing with freehold or leasehold
estates. Therefore, it is prudent to clarify some of the misconceptions. A common
misconception is that someone who owns a freehold or leasehold estate in land, also
owns the land in every sense of the word. The difference between the two is the
period of tenure. This implies that a freeholder or a leaseholder is a tenant for a
specified period. The freeholder holds the title forever while the leaseholder holds the
title for 99 years, say from someone. In Malawi, the government becomes the ultimate
owner of all types of estates.

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REFERENCES

1. Allan, A, Hollowey, J. & Mayes, J, 1968, Practical Field Surveying and

Computations, Heinemann(UK).
2. Allan, A.L, 1993, Practical Surveying and Computations, Butterworth-
Heinemann(UK)
3. Anderson, J.M and Mikhail, E.,1988, Introduction to Surveying.
4. Anderson, J.M & Mikhail, E., 1985, Introduction to Surveying, International
Student Edition.
5. Blachut, T.J, et al , 1979, Urban Surveying and Mapping, New York.
6. Bloom, G. and Harrison, H., 1980, Appraising single family residence, AIREA.
7. Card, M.; Murdoch, J.; Schofield, P., 1981, Law for Land Management Student
8. City of Blantyre, 1996, A Public Guide to the Development Process, Town
Planning and Estates management Department, Blantyre, Malawi.
9. Dale, P. and McLaughlin, J., 1988, Land Information Management: An
Introduction with reference to cadastral problems in Third World.
10. Davies, K., 1979, Law of property in Land , The Estates gazette LTD 1.
11. Easa, S, 1989, General Direct Method for Land Subdivision, Journal of
Surveying Engineering, Vol. 115, No.4, pp 402-411
12. Elfick, M., Fryer, J., Brinker, R. and Wolf, P., 1994, Elementary Surveying.
13. Gluckman, M. (eds), 1969, Ideas and procedures in African Customary Law,
Oxford University Press.
14. Hanson, H (Q.C),1961, A Land Title System for New Brunswick, Proceedings
of the eighth annual meeting of the association of New Brunswick Land
Surveyors, Fredericton, Canada.
15. Haward, M, 1982, Modern English Land Law Second Edition.
16. Johnson, J. 2004, Copyright of Survey Products, www.profsurv.com, professional
Surveyor archives, web-based publication
17. Keeble, L,1983, Town Planning Made Plain, Construction Press.
18. Kellie, A, 1985, The Surveyor and Written Boundary Agreements, Journal of
Surveying Enginnering, Vol. 111, No 2.
19. Laws of Malawi, 1948, Town and Country Planning Act CAP 23:01
20. --------, 1952, Land Survey Act CAP 59:03
21. --------, 1965, Land Act CAP 57:01
22. --------, 1967, Registrated Land Act 58:01
23. --------, 1971, Adjudication of Title Act
24. --------, 1916, Deeds Registration Act
25. Martin, C.G.C, 1980,Surveys and Maps of Malawi, A.A Balkema, Rotterdam.
26. Minchell, R.A, nd, Cartographic Instruction Manual, Department of Surveys,
Malawi
27. Moffit, F.H, and Bouchard, H.,1975, Surveying, Harper & Row, New York.
28. Mueller, I.I, and Ramsayer, K, 1979, Introduction to Surveying, F.Ungar Co.,
New York.
29. Mulford, A.C,1912, Boundaries and Landmarks.
30. Murchison, D.E ,1977, Surveying and Photogrammetry, Butterworths

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Dr Edward J.W.Chikhwenda 03 April 2007

31. Pemberton, J. 2004, Our paradigm problem, www.profsurv.com professional

surveyor Archives, web-based publication
32. Richards, D. and Hermansen, E., 1995, Use of Extrinsic Evidence to Aid
Interpretation of Deeds, Journal of Surveying Engineering, Vol 121, No. 4.
33. Simpson, S.R., 1976, Land Law and Registration, Cambridge Univ.
34. Stapleton, T., 1986, Estate Management Practice .

APPENDIX I: Land Survey Rules

Land Survey Rules

SECOND SCHEDULE

FIELD BOOK S.R No……………

Surveyor: EDWARD J.W CHIKHWENDA, PhD
P.O. Box 31731, Chichiri, Blantyre 3
Theodolite :
Description :
Official No. :

Property Surveyed
Plot CC1100, Chichiri Ward, Blantyre District

Distrct :
Date of Survey :
Height AMSL : Metres
Mean Eastings : Metres
Scale Factor :

Fig 2.1: Field Book

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Dr Edward J.W.Chikhwenda 03 April 2007

Land Survey Rules

FOURTH SCHEDULE
Page……………
LIST OF CO-ORDINATES U.T.M

STN F.B CALCS EASTING NORTHING DESCRIPTION

Note: The fourth schedule also contains the format for

• abstract of observations
• Bearing Sheet
• Traverse comptation
• Consistency check and area computation

Land Survey Rules

FIFTH SCHEDULE

-------------------Region Department of Surveys

-------------------District MALAWI Archive Reference
-------------------Locality Original plan No. SD/------------
Piece---------------------- DEED PLAN of------------------------------------
---------------------------- No.----------- Surveyed---------------------------
Registry Map------------ Scale--------- by-----------------------------------

SIDES AND BEARINGS CO-ORDINATES U.T.M

Side Distance Bearing Beacon Easting Northing Beacon Description

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Dr Edward J.W.Chikhwenda 03 April 2007

The above figure marked------------------------------------------------------------------------

And edged red represents-----------Hectares of land
Drawn by------------------I certify that this deed plan conforms with the Original Plan
No. SD/---------------------
Checked by------------------------approved by the Surveyor General and that numerical
Data shown above are mutually consistent.
------------------------------------------
Surveyor General
Blantyre--------------------------20---------

Land Survey Rules

THIRD SCHEDULE
CONVENTIONAL SIGNS TO BE USED DEED AND WORKING PLANS
Bench Mark --------------------------------------Black-------------------------
.
Borehole---------------------Purple------------------------ BH
Bridge------------------------River Purple, Road Brown, Bridge Black
Path--------------------------Brown
Building----------------------Brown
Church-----------------------Brown
Dam--------------------------Water Purple, Wall Brown
North Point------------------Black
Lake--------------------------Purple
Party Wall--------------------Brown
Pipeline-----------------------Purple
Plantation---------------------Green
Powerline---------------------Brown
Railway line-------------------Black
Fences-------------------------Brown
Spring--------------------------Purple
Reference Mark---------------Black
River----------------------------Purple
Road----------------------------Brown
Roadway, street or lane------Brown
Servitude of right of way-----Black
Subterrain Pipeline-------------Purple
Telephone-----------------------Brown
Trig. Station--------------------Black----------------------------------
Dambo---------------------------Purple
Well------------------------------Purple
Windmill-------------------------Purple
Placed beacons------------------Black----------------------------------
Adopted beacons----------------Black-----------------------------------
Beacons not adopted------------Black------------------------------------

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Dr Edward J.W.Chikhwenda 03 April 2007

Traverse & Survey Station-----Red-------------------------------------

Traverse station permanent-----Red------------------------------------
Measured line--------------------Red---------------------------------
Observed direction--------------Blue--------------------------------
Contours------------------------- Brown------------------------------
Embankment---------------------Brown--------------------------------------

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Dr Edward J.W.Chikhwenda 03 April 2007

Land Survey Rules

SIXTH SCHEDULE

REPORT ON SURVEY

Land Surveyor: Edward J.W Chikhwenda, PhD, MSIM S.R. No.......................

Date of Survey: May 2004

Survey: Survey of public land.

Purpose: a) Title (Land Settlement, Public, Township, Railway etc.

b) New (amended) Title
c) Sub-division with T.P.O approval
d) Sub-division with owner's conditions (give particulars)
e) Replacement Beacons
f) Servitude (access, irrigation…)

Method: a) Triangulation based on trig, previous survey or measured base.

b) Traverse based on previous survey and state closure.
c) Combination of triangulation and traverse.

Computation: a) Co-ordinates from trig. Stations or previous survey

Basis b) Bearings from previous survey, scaled or astronomical
observations
Found Beacons: a) Draw attention to unusual circumstance e.g scattered stones,
no peg, conctreted by owner, fence post.
b) Full details of alignment tests
c) State the adopted lines and why

Placed Beacons: a) Comptation can be fixed on previous survey. State the line and
method of checking.
b) Field work, was it by direct observation or subsidiary traverse?

Comparison of Data: Give sketch showing original data in black and survey data in
red. Other data may be shown in other colours except green.

Replaced beacons: Give details as for placed beacons and state reasons for choice of
position. Include sketch especially if complicated.

Curvilinear: a) Field control and computation; give details of whether a traverse

Boundaries or an aerial photo was used

Unusual: Give details of any mishaps that may have occurred during the
Occurences field observations or computations.

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Dr Edward J.W.Chikhwenda 03 April 2007

Conclusion : This was a straightforward survey.

EDWARD CHIKHWENDA, PhD

LICENSED LAND SURVEYOR

Land Survey Rules

SEVENTH SCHEDULE

FORM 1

Decalaration
I----------------------------- do solemnly and sincerely declare that I will discharge
the duties of a land surveyor varefully and without partiality, fear, favour or
affection, and will conform to all Rules defining those duties which are now in force,
or shall hereafter be established by competent authority.

------------------------------------------------------------------
Delared before me------------------------------------at-----------------------------------------
This--------------------------------day of-------------------------------------------------20-----
------------------------------------------
Commissioner for Oaths
FORM 2

Land Surveyor's Licence

This is to certify that ----------------------------------------having satisfactorily proved his
qualifications as a land surveyor is hereby licensed for surveys of land within Malawi
under, and subject to, the Land Survey Act.

Dated this--------------------------day of------------------------------------------, 20---------

-------------------------------------------
Surveyor General
Note: FORM 3 of the seventh schedule is an agrrement form as to beacons and
boundaries. This is necessary when there is a change in the boundary or the adopted

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Dr Edward J.W.Chikhwenda 03 April 2007

beacons. The neighbours may agree and consent to the positionsof the beacons and
boundries.

APPENDIX I: CUSTOMARY LAND CONSULTATION WITH CHIEF FORM

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Dr Edward J.W.Chikhwenda 03 April 2007

DEPARTMENT OF LANDS AND VALUATION

CUSTOMARY LAND
CONSULTATION WITH CHIEF
Name of Applicant………………of ……………Village …………TA………….District
Name of Chief……………………..District…………………………Region…………….
( hereinafter called “the Chief”)
Name of Village Headman…………………………………………………………………
Property:
Customary land comprising ……...hectares situate or near……………………….

The Chief and the Village Headman state as follows:

ACQUISITION
(1) There is no objection to the proposed acquisition;
(2) No compensation is payable;
Or
(3) Compensation to K…………as proposed in the attached Schedule should be paid;
Or
LEASE for ……………………………years or / Permit to occupy:
(1) There is no objection to the grant of this application;
(2) No compensation is payable;
Or
(3)Compensation to K…………as proposed in the attached Schedule should be paid;
Or
TEMPORARY USE for …………………………… months/years
(1) There is no objection to the temporary use;
(2) No compensation is payable;
Or
(3)Compensation to K…………as proposed in the attached Schedule should be paid;
Or
NOTE: IF THE CHIEF OR THE VILLAGE HEADMAN HAS AN OBJECTION , THE GROUNDS
OF THE OBJECTION SHOULD BE SET OUT IN AN ATTACHED MEMORANDUM.
………………………20…. ……………………………………………
Chief
……………………….20…. ……………………………………………..
Village Headman
The above statement has been read over and explained to the Chief and the Village Headman

……………………….20…. ……………………………………………..
District Commissioner
L. & V.

APPENDIX II: APPLICATION FOR A LEASE FORM

LANDS DEPARTMENT FORM 2

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MALAWI GOVERNMENT

APPLICATION FOR A LEASE

(UNDER THE LAND ACT(CAP. 57:01))
(To be Submitted in Triplicate)

A sketch plan must accompany the application unless the land applied for is a plot in a layout
surveyed by the Survey Department

To: THE DISTRICT COMMISSIONER………………………………………………………...

1. Full Name of the applicant in BLOCK LETTERS.
(If a partnership, the full names and nationalities
of all partners must be given; if company, the full
names and nationalities of the directors.
2. Registration particulars under the Companies Act, Business
Names Registration Act or the Trustees Incorporation Act
3. Nationality of the applicant
4. Particulars of freehold and leasehold property already held
in Malawi (state plot number of description, deed or
instrument number, user or property and whether or not
developed)
5. Home address (i.e. home village, traditional authority and
district) and business address.
6. Address outside Malawi(foreign company only)
7. Purpose for which the land is required:
(a) Residential purposes
(b) Trading purposes
(c) Trading and residential purposes
(d) For any other purposes( if so, furnish details)
8. Capital possessed and of what it consists(furnish details).
9. Name of buildings and the amount to be expended:
(a) Precise nature of all buildings proposed to be
erected on the land
(b) Expenditure on site works and buildings proposed
to be erected
(c) Amount of money now available for this purpose.
(Full particulars thereof may be called for by
Government).
(d) Time in which buildings are supposed to be
erected
10. Date on which occupation is desired
11. Is applicant able to read and write English? If not, state
what language spoken.
12. Particulars of land
(a) Place in which land is situated
(b) Acreage
(c) Number of plot, if in a layout.

I enclose application fee of MK1,000.00 ( I am aware that this is liable to

forfeiture if the application is withdrawn/ not successful.

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Dr Edward J.W.Chikhwenda 03 April 2007

……………………20…………..

…………………………………….
Signature

To: THE COMMISSIONER FOR LANDS,……………………….Ref. No…………………….

………………………,
20……….
1. Whether application recommended or not
2. Whether land has been inspected and ( if buildings are to
be erected) whether suitable building site available thereon
3. Whether land is customary or public
4. In the case of Customary land whether the Chief and
Village Headman have been consulted and have agreed (
form of consultation with Chief and Village Headman to be
attached).
5. Whether acreage given is correct.
6. Confirmation that the description and sketch plan submitted
correctly and fully describe the land
7. Whether the land is in a surveyed layout.
8. Whether the land has been demarcated by permanent
beacons
9. Special comments
10. Application fee of K1,000.00 paid and Receipt
No. of issued.
………………………….(District
Commissioner)

………………………………………….(District)

150
Dr Edward J.W.Chikhwenda 03 April 2007

APPENDIX III: CERTIFICATE OF LEASE

REPUBLIC OF MALAWI
------------------------------
REGISTERED LAND ACT
(Chapter 58:01)

CERTIFICATE OF LEASE
REGSTRATION DISTRICT TITLE NO.

BLANTYRE CITY
……………………….

Lessor ……………………………………………………….
……………………………………………………….

RENT K…………….PER ANNUM

TERM ……………….YEARS FROM……………………..

This is to certify that…………………………………………………………………………

Of P.O Box / Private Bag……………………………………………………………………

Is now registered as the proprietor of the leasehold interest above referred to, subject to the agreements
and other matters contained in the registered lease, to the entries in the register relating to the lease
and to such of overriding interests set out in section 27 of the Registered Land Act as may for the time
being subsist and affect the land comprised in the lease.

GIVEN under may hand and the seal of the

BLANTYRE CITY District Registry

This ……….Day of ……………..20……

……………………………………………
Land Registrar

151
Dr Edward J.W.Chikhwenda 03 April 2007

At the date stated on the front hereof, the following entries appeared in the register relating to the
lease:

PART A – PROPERTY SECTION

(Easements , etc.)

APPROXIMATE AREA………………..HECTARES
REGISTRY MAP SHEET NO. YT……………….
PLOT NO………………………………………….

PART B- PROPRIETORSHIP SECTION

(Inhibitions, Cautions and Restrictions)

No dealings by the proprietor shall be registered without the written consent of the Lessor/ Chargee

PART C- INCUMBRANCES
(Leases, charges etc)

FREE

…………………………………..
Land Registrar

152