Considerations when granting an easement

An easement is a right agreed between a landowner and another party or parties to use land for a particular purpose. In order for these rights to be legal, and to run with the land, an Easement Instrument will need to be registered against the title for all affected properties. 

Easements have considerable impact on the underlying property rights.

Easements can either be positive easements or negative easements:

• Positive easements grant another person the right to use a designated portion of your property for a designated purpose.
• Negative easements restrict the use of a property by restricting another person from interfering with the rights of the easement holder.

Common types of easements are:

• a right to convey water:
• a right to drain water:
• a right to drain sewage:
• a right of way:
• a right to convey electricity:
• a right to convey telecommunications:
• a right to convey gas.

There are key considerations when considering granting an easement.

• Resource Management Act (RMA) implications – e.g., do you need a Resource consent?
• Physical limitations – e.g., if you are granting a right of way (perhaps for a driveway), are there pipes underneath it that might be damaged if you dig?
• Seeking consent: To successfully grant an easement, all interested parties and land owners must consent. If you have a mortgage, you will also need to seek consent from the bank or other mortgagee.
• Costs and fees: Granting an easement can be an expensive process- it is important to consider how legal and survey costs should be shared or apportioned.
• Ongoing maintenance: With easements where multiple parties have use of the easement, parties will generally need to equally share any costs of repair or maintenance of that easement facility, unless agreed otherwise.
• Any additional implications: Granting easements can be further complicated when the title is a cross-lease or unit title. Unit titles commonly require a designated resolution process (outlined in the Unit Titles Act and Regulations) to be followed if the easement is going over common property.

Often when people are considering registering an easement, the parties will sign an Agreement to Enter into an Easement as a first step.  This will outline the reason for the easement and who will be responsible for the costs in order to have the easement registered, for example, survey, Council, and legal fees. 

It will also set out the rights and powers of the parties and will form the basis for the Easement Instrument.

If you are considering granting an easement, or wishing to obtain an easement over someone else’s land, it is best practice to seek legal advice from an experienced legal advisor.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Laurie Pallett and Raiyan Azmi