AUTHOR: Surveyor José D. BELAGA, Professor (*) - geoinfcons@infovia.com.ar
(*) Land Management Department - School of Surveyors - College of Exact Sciences, Engineering and Surveying - National University of Rosario (Universidad Nacional de Rosario) - Av. Pellegrini 250 (2000) Rosario - Argentina

ABSTRACT

             One of the most traditional and specific fields in Surveying is the precise identification of the land objects of real rights, by means of the technical-legal operation called "Measurement". Through this transcendent act, the lawful and factual boundaries of properties are determined by means of real rights interpretation and territorial application in relation to the territorial extension of the effective possession or occupation of the property. The measured plans are the geometrical basis of the cadastral system structure.
             In this paper we analyse the essential contents that should be included in the curricula of Surveying studies, in the areas of Real Rights, Legal surveying, Cadastre and Land Management.

SUMMARY

             Surveying is a universal profession which dates back to 40 centuries ago and has been taught at university level in our country since 1877. Among its various concerns, one of its most traditional and specific scopes has been the accurate identification of real property which is subject to real rights, by means of a technical-legal operation called “Measurement”. This operation determines the lawful boundaries of private as well as public properties, They derive from real rights interpretation and territorial application relative to the territorial extension of the effective possession or occupation.
             Thus, the “measurement” grants lawfulness in real estate transactions, since the property buyer is accurately informed about the occupation status of the real estate to be bought, whether there are intrusions of or from adjoining property, and if there are overlapping titles or other defects which could affect the normal exercise of the property rights. Also, the measurement constitutes a public element on civil as well as administrative boundaries and constraints which could affect a piece of real estate -easements, front lot lines, block centre (edification restraining regulations), among others-.
             The practice of Surveying is closely related to society's general interest. Interests and property subject to surveyors' juridical-technical examination are extremely important. This applies not only to the private ones, which are limited to the patrimony of an individual, but also to the general and collective ones, which are directly linked with public interest, since every act of measurement, involves a preliminary demarcation of public property adjoining the private real estate (streets, paths, roads, avenues, etc.).
             Unfortunately, since the enforcement of the Civil Code in 1870, cadastres -which arose during the period known as “Derecho Patrio” (Law of the country)- were separated from real estate transactions and publicity, due to the gap in lawfulness of real rights in the Civil Code. Cadastres were limited primarily to a mere tax function as reflected in the cadastral legislation on the first half of the twentieth century. Also, the decline of surveying was extensive to university studies, and in many universities, Surveying remained dependant on Civil Engineering curriculums. Subjects related to Real Estate Law, such as Legal Surveying and Cadastre, were substantially reduced and, in some cases, excluded from curriculums. This resulted in a mere topographic conceptualisation of surveying, with the essential objective of surveying physical facts materialised in existent occupations or possessions without studying the titles and territorial application of real rights.
             Only after the creation of Federación Argentina de Agrimensores (Argentinean Federation of Surveyors) in 1958, a slow and gradual professional recovery is experienced. In the 1960s there is an improvement in the university curriculums and Surveying regains independence from Engineering.
             The Final Statement of the National Meeting of Surveying Specialists from National and Private Universities which took place at the National Ministry of Education and Justice in 1987 defined “measurement” as: “The surveying operation that involves a set of acts pursuing research, identification, measurement, location, representation and documentation of real estate and its boundaries in compliance with the juridical causes which originate it, and its relation with the signs of possession.”
             The basic principles of measurement are: identity, demarcation, location, publicity, lawfulness and authenticity. These principles can be briefly defined as follows:
             Identity: The measurement should unequivocally identify the juridical causes applied to the land, differentiating possession or ownership from mere occupation.
             Demarcation: The boundary between two adjoining lots must be simultaneously incidental to both in accordance with the basic topologic principles expressed in the graph theory.
             Location: The location of a lot should be unique. The measurement plan should include all necessary elements to undoubtedly locate the lot or lots it represents.
             Publicity: It is assumed that documents which identify, demarcate and represent each piece of real estate, are available to third parties once they are filed in cadastral public registries.
Lawfulness: It is assumed that the territorial application of the law through measurements filed in cadastral registries is correct. Whoever questions the correct territorial application of the law should produce evidence to that effect.
Authenticity: The measurement plan should be certified by an authorised professional Surveyor. A difference should be made between people who can measure (including professionals from allied disciplines) and people who are able to and know how to carry out measurements. Only Surveyors are sufficiently trained in Legal Surveying, Real Rights, Cadastre, Registry Law, Topography, Geodesics, and Cartography, in order to fulfil the subtle task Professor Juan S. Fernández clearly defined over a hundred years ago.
             It is worth mentioning that in the last few decades, all curriculums in national and private universities where there is a Surveyors School include a wide range of subjects related to measurements, real estate boundaries and cadastral organisation.
             However, the Real Estate Law area (including Legal Surveying, Cadastre and Land Management) has an allocated average of 386 hours, ranging from 240 hours, in one university, to 519 hours in another (based on the current studies plan in national and private universities) according to a survey by CONEA. The curriculum standarisation for Surveyors Schools sets the time allocation for these areas at 490 hours, i.e. approximately 13.1 % of the proposed total of 3750 hours for the whole curriculum. We believe that this percentage is very low and it shows an imbalance in the importance of each area, especially if we bear in mind that the main social function of Surveying is precisely the country's Land Management and that these areas are the most relevant to this profession and the most desputed by other professions. We believe 20% more time should be allocated to the overall timetable of these areas, including at least the following issues related to Legal Surveying, Cadastre, Land and Urban Management and Measurements. The present statement should neither be construed as restrictive nor should it be referred to a particular subject:

             The above mentioned list only includes issues directly or indirectly linked to Real Estate Law but not strictly technical issues which are included in subjects such as Cadastre (e.g. Cadastral survey techniques, Cadastral systems update and maintenance, etc.)
             These basic contents should be included in all curriculums of Surveyors Schools, standarised and with similar time allocation, in order to achieve a sound training in the Real Estate Law area. Thus, Surveyors will efficiently fulfil one of their main and transcendent functions: Land Management.




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