Registering easements can be a time-consuming process but there are ways to avoid unnecessary delays.
Engage Key Parties Early
The process to register an easement usually begins with the parties to the easement reaching an agreement to create an easement. This is usually between neighbouring properties which are intended to benefit from or be burdened by the easement. However, a party can obtain the benefit of an easement which is not connected to their ownership of any neighbouring property; this is known as an easement in gross. Sometimes creation of easements is imposed by a Council as a condition of granting consent to a subdivision and these compulsory easements have to be registered before the affected properties are able to be transferred into separate ownership.
Where easements are being voluntarily created, the parties should at a minimum reach an agreement in principle to create the easement and record this in writing before incurring surveying or legal costs. The parties may also wish to enter into a formal agreement to create the easement with a scheme plan of the easement areas attached which will be used as a starting point for creating a survey plan. Where a formal agreement is required, lawyers are often engaged to assist with preparing and/or reviewing the agreement.
Once the parties have reached agreement to create the easement, the next step is to engage a surveyor to prepare a survey plan of the easement areas. It is important that you engage a trusted, reliable surveyor. Unnecessary delays are often caused by surveying errors which end up needing to be corrected and slow down the easement registration process.
It is important to engage a lawyer early in the process too. Once a draft survey plan (Land Transfer (LT) plan) has been prepared by the surveyor this should be sent to your lawyer who can:
- review the LT plan from a legal perspective;
- advise you on the process to complete registration of the easement;
- prepare the easement instrument; and
- request any third party consents.
Putting your surveyor and lawyer in contact with each other early in the process enables them to coordinate effectively to ensure that registration can be completed in a timely manner.
Consider Location and Suitability of Existing Access and Easement Equipment
Where a right of way is being granted over an existing access way it is important to make sure that the surveyed easement areas shown on the LT plan align with the actual location of the access way. The parties may also need to consider whether the existing access way is sufficient for the intended use and any increase in use by the parties. For example, where no suitable access way exists in respect of a vehicular right of way, the benefiting users have the right to establish a suitable access way and the parties share those costs unless agreed otherwise.
Where there will be an increase in use of the access way or the nature of the use will change, for example heavy goods vehicle using an access way which was previously only used by light vehicles, it is important for the parties to engage appropriately qualified roading contractors to investigate whether upgrades to the access way are required and if so for the parties to reach agreement as to how those upgrade costs will be apportioned.
Where easement rights are granted in respect of existing underground equipment such as pipes for conveying or draining water or underground electricity or telecommunications lines, additional care needs to be taken to ensure that the surveyed easement areas shown on the LT plan align with the location of that equipment. This can be determined with reference to as built plans, and you should ensure that your surveyor has a copy of those plans when they start preparing the LT plan.
Drafting Documents
Easement instruments are typically drafted by lawyers, but certain organisations like Council and electrical lines companies often require their own easement template forms be used as a starting point which reduces the scope for negotiation. If you are granting Council or a lines company an easement over your property, then they will typically provide their easement template to your lawyer so that it can be populated with the relevant details.
The terms of the easement instrument will depend on the nature of the easement and its use. For common easements such as rights of way or rights to drain water between a few properties, the implied easement terms in the Land Transfer Regulations 2022 and Property Law Act 2007 are usually sufficient. These are standard terms that lawyers are familiar with so it is unlikely that negotiation of these terms will be required. For less common easements such as party wall easements and loading bay easements, bespoke terms will need to be drafted into the easement instrument which will need to be reviewed by the lawyers acting for other parties and increases the likelihood of protracted negotiations.
Consents
Consents may be required from third parties in order to register an easement. A couple of common examples of consents are:
- Where a mortgage or caveat is registered against the title to any of the burdened land, the consent of the mortgagee and caveator to registration of the easement will be required. Typically, mortgagee and caveator consent is requested once the LT plan is drafted and the easement instrument is in agreed form.
- Where the easement instrument includes a private road or private way, Council’s consent is required. This is known as a section 348 certificate and must be registered together with the easement instrument.
Survey Plan Approval
The LT plan needs to be approved by Land Information New Zealand (LINZ). Your surveyor will submit the LT plan to LINZ for approval together with any other necessary approvals. For example, where the LT plan is being deposited as part of a subdivision, Council approval to the LT plan will be required under section 223 and often section 224 of the Resource Management Act 1991.
If you are looking to register an easement over your property, we recommend you talk with the Holland Beckett property law team so that we can assist you with keeping the process moving forward smoothly and avoid unnecessary delays.
John Mackay
Tauranga
Daniel Young
Tauranga
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