Easements: What NZ Homeowners Need to Know

Easements are one of those legal concepts most homeowners do not think about until they become a problem. You decide to build a garage, only to discover there is a drainage easement exactly where you planned to pour the foundations. Or you buy a property with a shared driveway and find yourself in constant conflict over who maintains it and how it can be used.

An easement is, at its simplest, a right for one property to use part of another property for a specific purpose. The property that benefits from the easement is called the "dominant tenement." The property that has to allow the use is the "servient tenement." These rights attach to the land itself, not to the current owners, so they pass automatically to new owners when properties are sold.

Common Types of Easements

The most familiar easement is the right of way, which allows one property access across another. This commonly occurs with rear properties that need to cross a front property to reach the road, or in subdivisions where several properties share a common driveway.

Drainage easements allow water or wastewater from one property to drain through another. These are essential in hilly areas where higher properties need to discharge stormwater across lower properties, or where private sewer lines run through neighbouring land to reach public infrastructure.

Services easements allow utilities to cross private land. Your power might come through an easement across your neighbour's property, or the internet cable serving several houses might run through your backyard.

Party wall easements apply to walls shared between properties, typically in townhouses or terraced housing. These easements define who can do what with the shared structure and usually include rights of support and requirements for maintenance.

Finding Easements on Your Property

Easements are registered on your property's title at Land Information New Zealand (LINZ). When you buy a property, your lawyer should provide you with a title search that lists all registered easements. However, many homeowners file this away and forget about it.

If you are planning any development, retrieve your current title and read every easement instrument carefully. The title itself provides only a brief reference; the actual easement instrument contains the detailed terms defining exactly what rights exist and what restrictions apply.

Living with Easements

If your property is the servient tenement (the one that has to allow access or use), you need to understand your obligations. The fundamental rule is that you cannot do anything that substantially interferes with the rights granted by the easement.

For a right of way, this means you cannot block access, whether by building, parking cars, or placing obstacles. You must keep the access way in reasonable condition if the easement requires it. You cannot plant trees or install gates that would prevent or unreasonably impede the easement holder's use.

For a drainage easement, you cannot build over the pipe alignment. Even structures that do not directly sit on the pipe, like decks or sheds, may be prohibited if they would prevent access for maintenance or repairs.

As the dominant tenement (the one that benefits from the easement), you have rights but also responsibilities. You must exercise your rights reasonably and typically must contribute to maintenance costs. Using a right of way for purposes beyond what the easement allows, or allowing more intensive use than contemplated, can create disputes.

Easements and Building Projects

Easements are one of the most common surprises that derail building projects. A homeowner plans an extension or new garage, goes through council consent processes, and only then discovers an easement that makes the project impossible or requires expensive redesign.

Council building consent processes do not automatically check easement compliance. Getting consent from the council does not override the rights of easement holders. Even with a building consent in hand, if you build on an easement without the benefiting owner's agreement, they can seek court orders requiring you to remove the structure.

Modifying or Removing Easements

Easements can be varied or extinguished, but the process requires either agreement from all parties or a court order.

If both the dominant and servient owners agree, they can jointly apply to LINZ to modify or remove an easement. This might happen when the easement is no longer needed, when a replacement easement in a better location is being created, or when the servient owner is willing to pay for the easement's release.

If agreement cannot be reached, the Property Law Act 2007 allows courts to modify or extinguish easements in certain circumstances. The court must be satisfied that the easement should be modified or removed because it is obsolete, impedes reasonable use of the land, or for other good reason, and that the benefiting owner will be adequately compensated.

Court applications to modify easements are expensive and success is not guaranteed. The courts generally take property rights seriously and are reluctant to remove easements simply because they have become inconvenient for the servient owner.

Creating New Easements

New easements can be created by agreement between property owners. This commonly occurs during subdivisions, when the subdividing owner creates easements to provide access, services, and drainage for the new lots.

If you need an easement over a neighbour's property, perhaps for driveway access or to run a pipe, you need to negotiate with them. This is a commercial transaction; the neighbour is giving up something of value and is entitled to compensation. The amount depends on how much the easement affects their property and how much you need it.

Once agreement is reached, a lawyer prepares the easement instrument defining the rights and obligations. This is registered on both titles, creating permanent rights that bind all future owners.

Easements and Property Value

Easements affect property value, though the impact varies widely depending on the type and location.

A property with a right of way across it will generally be worth less than an equivalent property without one, particularly if the easement crosses a prominent part of the section or involves heavy traffic. Drainage and services easements through back corners typically have less impact.

Conversely, a landlocked property without a right of way is worth significantly less than one with legal access. The easement that burdens one property enables another property to be used at all.

When buying property, understand any easements thoroughly. Ask how they affect what you can do with the land and factor this into your offer price. An attractive-looking property might be less attractive once you realise that the easements prevent the additions or improvements you had in mind.