Edmonds Judd

Council

Easements

Property
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Rights of way, draining sewage

An easement is an instrument registered on the title to your property that allows another party, usually your neighbour, to use the part of your property specified in the easement. In this article we explain the types of easements, their maintenance and repair, and your obligations, and what can happen if there are issues around costs and who pays.

 

Types of easements

The most common form of easement is a right of way; these are often used where two neighbours share a common area such as a driveway. Other easements include rights to drain sewage and water, and to convey gas or electricity. These last two rights are common where different utilities need to cross through (under the ground) another person’s property to get to yours.

These easements are registered on your record of title for the benefit of one or more other neighbouring landowners. Landowners who have the benefit of an easement will also have an interest registered on their title noting that their land has the benefit of an easement.

Some easements, called ‘easements in gross,’ are registered against a record of title for the benefit of a local or territorial authority such as your local council or for utility companies. Easements in gross are commonly used to facilitate local councils’ installation of water and sewage, and connecting the drain and sewage systems from roads to each individual property. In respect of a utility provider, an easement in gross allows the provision of electricity to a number of properties from the main grid.

 

Who is responsible for maintenance and repairs?

Disputes most commonly arise when it comes time to repair a shared driveway, or when a pipe bursts and a water easement is disrupted and one or more properties find they are without water. Often the first question for parties involved in this situation is – who is responsible for the cost?

 

The Land Transfer Regulations 2018[1] set out the rights, powers and obligations of parties in respect of easements. Where more than one party has use of the easement, each party is responsible for an equal share of the costs of repair or maintenance of that easement. This applies across all types of easements except for easements in gross where the grantee (the council or other body getting the benefit of the easement) is responsible for the full cost of repairs and maintenance.

 

There are a couple of exceptions to the equal sharing of maintenance and repair costs that we have set out above. The first exception is where one user of the easement causes the damage to the easement area. This may occur where one party engages contractors who cart heavy machinery up and down a shared driveway over a period and damage the drive. In that instance, it would be for the owner using the easement who engaged the contractors to bear the cost.

 

The other exception is where the parties using the easement agree to different proportions of liability for an easement. An example is where a number of properties access a long shared driveway but one access is near the beginning, close to the road and the other is, say, 800 metres further up. It is common for these parties to agree to share the costs equally to the shortest user’s gate and then for the back property to be solely responsible for maintenance and repairs to their driveway past that point. The basis for departing from these rules is that one user of the easement is using much more of the total area than the others and so the parties can agree that they will contribute in unequal shares.

 

In some circumstances, disproportionate shares are recorded in the easement instrument registered on the title.

 

Paying or completing the repairs?

If repairs are required to enable the users of an easement to continue to benefit from it and the landowner whose land is subject to the easement won’t cooperate, the Regulations provide a right of access for any person or their contractors in order to complete works for repairs. Before going onto the property, however, you must give the owner reasonable notice that you intend to access the property to complete the works and cause as little disturbance to the land or the owner as possible.

 

If the owner who caused the damage still won’t pay for the easement area to be fixed, the Land Transfer Regulations set out the dispute resolution process to be followed in order to resolve an ongoing issue.[2]  This involves engaging an arbitrator to determine the appropriate outcome; this should only be considered as a last resort.

 

Understand your obligations

It is important to understand your rights and obligations relating to easements whether you own the land ‘burdened’ by the easement or are simply a neighbour who takes benefit from it. The Regulations are a great starting point but, before you take any steps to enforce your rights or before you buy a property that grants or gains a benefit from an easement, you should talk with us to ensure you are acting within the law.

 

[1] Schedule 5.

[2] R14 Schedule 5, Land Transfer Regulations 2018.

 

 

DISCLAIMER: All the information published in Property Speaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Property Speaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650

Subdivision consents

Commercial, House, Property, Rural
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Recent changes to planning rules

In the Autumn 2022 edition of Property Speaking we discussed different types of resource consents. Since then, the government has released a new National Policy Statement for Highly Productive Land (NPS-HPL), which you can read here. The purpose of the NPS-HPL is to ensure that highly productive land is protected for use in land-based primary production, both now and for future generations. Councils are now required to consider the need to preserve highly productive land when determining any application for a subdivision consent.

Subdivision consent

If you want to change the size of your section by purchasing some of your neighbour’s property and merging it with your own (a boundary adjustment) or you want to split your property into additional property titles, then you will need subdivision consent from your local council.

Requirements

Your region’s district plan sets out the requirements that you must meet in order to subdivide your property. In addition to the requirements being different between regions, the requirements are also different depending on the zone in which your property is located. Properties are divided into zones that consider the standard characteristics expected in that area. The zones are:

  • Residential
  • Commercial/retail/town
  • Industrial
  • Rural lifestyle
  • Rural production, and
  • Special purpose.

The names of the zones may differ between regions but there will be a zone for each of those standard characteristics.

Conditions

Consent for your subdivision is likely to come with conditions.  Your local council may also ask that part of your property is transferred to the council; this is known as ‘vesting.’ Sometimes the council will pay you for that land but other times it will form part of your development contribution.

Areas around waterways may be taken for an esplanade reserve or esplanade strip, whereas areas of land that will become roads may be taken for road reserves.

The council can also require that new subdivisions have certain design specifications which are dictated through the district plan; these are recorded on the property title in a consent notice.

Affected parties

Where your subdivision is not a permitted activity, or it does not fit within the standard requirements for a subdivision in that area, the council may still grant you consent on a ‘notified basis.’ This means that it provides notice to affected people who can then raise any concerns with your proposed subdivision within a specified time.

The council may add further conditions to the development or even refuse the consent depending on any concerns raised.

Highly productive land (HPL)

In addition to the prior considerations that councils had to consider, since 17 October 2022, they now must map the land within their region to determine if it is HPL. In general, land will be mapped as HPL if it is:

  1. In a general rural zone or a rural production zone
  2. Predominantly within an area with a Land Use Capability class of between 1–3. A helpful map shows the current class of land within New Zealand here
  3. Not identified for future development within the relevant district’s district plan as at 17 October 2022, and
  4. Forms a large and geographically cohesive area.

Councils have the next three years to remap all the land within their region. Until that mapping is completed, all land will be treated as HPL if it falls within categories 1–3 above.

Most of the Land Use Capability class 1–3 land is within Northland, Auckland, Waikato, Bay of Plenty (between Tauranga and Whakatāne), Taranaki, Manawatu, Canterbury, Otago and Southland, although there are smaller areas of class 1–3 land throughout New Zealand.

If you are applying for a subdivision consent, your local council will consider whether the land is HPL and, where it is, it will be much more difficult for you to obtain a subdivision consent.

Since the NPS-HPL came into force on17 October 2022, it has caused problems for landowners who had subdivision consent applications for land within class 1–3 areas pending on that date. Councils had to reassess applications taking HPL into account. This, in some cases, resulted in consent being refused.

If you are thinking about subdividing your property, especially in a rural zone, do talk with us and your surveyor early on. We can discuss the specific planning requirements that now apply to your property and help assess whether your subdivision is likely to receive consent before you proceed any further on the development.

 

 

DISCLAIMER: All the information published in Property eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Property eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650