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 a right to use or restrict the use of land for a defined purpose. Land benefited by an easement is commonly called the dominant tenement and land burdened by it the servient tenement. A registered easement commonly benefits or burdens the identified land, but its duration, beneficiaries and detailed operation depend on the title, instrument and law.

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.

• Right of way: Access for vehicles, pedestrians, or both
• Drainage: Stormwater or wastewater pipes crossing property
• Services: Power lines, water pipes, gas lines, telecommunications
• Party wall: Shared walls between adjoining properties
• Support: Right to have your building supported by neighbouring land
• Light and air: Right to receive light through specific windows (rare in NZ)

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

A current Record of Title from Toitū Te Whenua LINZ lists registered interests such as easements and their instrument numbers. Buyers can ask their lawyer or conveyancer to explain the title and obtain the relevant instruments.

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.

• Order a current title search from LINZ or through a property information provider
• Look for any registered easements in the "Interests" section of the title
• Order copies of the actual easement instruments to read the detailed terms
• Review any survey plans showing the location and dimensions of easement areas
• Ask your lawyer to explain anything unclear before proceeding with development

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.

The benefiting owner must stay within the rights granted. Maintenance and repair responsibilities depend on the instrument and, where applicable, the implied terms in the Land Transfer Regulations 2018; use and responsibility for damage can affect the allocation.

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.

Always check your title for easements before finalising building plans. Identify exactly where each easement is located on your site. If your plans affect an easement area, you will need to either redesign or negotiate with the benefiting property owner for their consent. Getting this wrong can be extremely expensive.

Modifying or Removing Easements

LINZ identifies registered processes to vary, surrender or remove easements, including statutory routes for merger, redundancy or extinguishment; a court application is another route where the legal tests are met.

Where the necessary parties agree, a property lawyer can prepare and lodge the appropriate variation or surrender instrument. Required consents and registration steps depend on the titles, easement and proposed change.

Section 317 of the Property Law Act 2007 gives the court discretion to modify or extinguish an easement wholly or partly when one or more listed statutory grounds are established. Meeting a ground does not guarantee an order, and the court may award compensation.

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.

Any value effect is property- and market-specific. It can depend on the easement's location, permitted use, traffic, maintenance obligations and effect on development; a registered valuer can assess the particular property.

Legal access can materially affect how land can be used, but the effect on value depends on the property, access arrangements and market evidence. Check the title and seek legal and valuation advice for the specific land.

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.