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Easements – get them right first time

Published: 5th April 2018

Author: Neil Dent, Gifford Devine

Published in: Rural e.Speaking | Issue #26

In the Autumn 2015 issue of Rural eSpeaking we pointed out some aspects of rights of way and water easements, and the rights attached to them.

Expanding on this topic, we discuss another feature of easements that is important and, in many cases, is not properly understood – the permanence of an easement and issues that might arise from that over time. Virtually all easements are granted ‘in perpetuity’ which means they last forever.

When granting an easement over your property, or you’re purchasing a property that is subject to easements, you need to consider not only the situation as it is now but also potential issues that might arise over time.

 

Potential users of an easement

One of the issues that arises out of the permanence of an easement relates to the number or type of users of that easement. For example, if a farmer subdivides his or her land into two with one part of it being sold, but to ensure access there’s a right of way over the land that hasn’t been sold – what happens when that sold land is further subdivided?

With the increasing popularity of lifestyle or farm park subdivisions a right of way easement that might have originally served only one user could end up serving maybe eight or 10 users depending on its original width. While that in itself may not be a problem – there are more people to share the costs of maintenance and so on – the more users of the right of way means the greater the possibility that the original owner faces competition for the use of that right of way.

 

Changing use of land with an easement

What happens if the use changes on one of the parcels of land that has the right to use the right of way? For example, on the east coast of the North Island is the well-documented ‘wall of wood’ planted on what used to be pastoral farmland. It could be that a right of way easement, rather than serving a farm with the only use being stock trucks and other similar farm type use, could end up having heavy logging machinery and, at harvest time, very significant use by logging trucks.

The implied terms for vehicular rights of way in the Fifth Schedule to the Property Law Act 2007 includes the right:

“To go, pass and repass at all times, by day and by night and is exercisable with or without vehicles, machinery, and equipment of any kind.”

Looking at your own situation, what can you do about this? There are only very limited options to vary easements:

  • They can be varied by agreement of all of the parties who have the use of them, or
  • Application could be made under ss316-317 of the Property Law Act 2007.

Varying an easement

The courts generally adopt a fairly conservative approach to any attempt to vary the terms of an existing easement under ss316-317. Application can be made, however, on the following grounds:

  1. The easement ought to be modified or extinguished because of a change since its creation in all or any of the following:
  • The nature or extent of the use being made of the benefited land, the burdened land, or both
  • The character of the neighbourhood and/or
  • Any other circumstance the court considers relevant, or
  1. The continuation in force of the easement or covenant in its existing form would impede the reasonable use of the burdened land in a different way or, to a different extent, from that which could reasonably have been foreseen by the original parties to the easement or covenant at the time of its creation, or
  2. Every person entitled who is of full age and capacity:
  • Has agreed that the easement or covenant should be modified or extinguished (wholly or in part), or
  • May reasonably be considered, by their actions or omissions, to have abandoned or waived the right to the easement, or
  1. The proposed modification or extinguishment will not substantially injure any person entitled.

The court process is expensive and any outcome is uncertain. Therefore when creating such easements thought should be given to future-proof (as much as possible) the land that is going to be subject to the easement. The rights and obligations attached to easements are those set out in the document creating the easement and these can replace, modify and vary the implied terms of the Land Transfer Act 1952 and the Property Law Act. Typical restrictions that can be included in easement instruments might be:

  • A limit on a number of users
  • A limit on the type of vehicle, and
  • Limits on the times of day that the rights might be exercised.

As you can see, creating and changing an easement is complex and can be very expensive. If you’re creating an easement over your rural land, do talk with us early on so we can help you get them right – first time.

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