Consents – caveator
Practitioners certifying and signing instruments must ensure they hold the appropriate consent (if applicable).
Why are consents required?
In various legislation, there is a legal requirement for the consent of the mortgagee/ chargeholder/caveator etc to the registration of instruments. LINZ is required to ensure compliance with these legal requirements.
Consents are required to ensure that an existing interest holder (eg mortgagee, chargeholder or caveator etc):
- is aware of any transaction that may affect their interest
- is not disadvantaged by a transaction (eg variation of mortgage increasing the priority amount of a prior mortgage) without their knowledge and consent, and
- has agreed to any change to the title that may affect their interest (eg creation or surrender of an easement).
Certifications
The practitioner certifying and signing an instrument must ensure they hold the appropriate consent (if applicable). Before they complete a certification, they must ascertain if a consent is required and ensure the consent has been received.
If a lodged instrument does not display the certification but the consent is required as listed in one of the tables below, the consent should be attached as an image to the instrument.
Instruments that require caveator or claimant consents
The following instruments require caveator’s or claimant’s consent (eg from notice of claim) as they either transfer, charge, or prejudicially affect the estate or interest protected by the caveat/notice of claim and are not on the list of exclusions specified in section 140(2) of the Land Transfer Act 2017.
| Type | Description |
|---|---|
| ASP | Agreement for Sale and Purchase 1 |
| BON | Bond under Local Government Act 1974 or Resource Management Act 1991 |
| C232 | Esplanade Strip under Resource Management Act 1991 |
| C240 | Covenant Against Transfer of Allotments under s240 Resource Management Act 1991 |
| C417 | Certificate Specifying Mining Rights under s417 Resource Management Act 1991 |
| CFL | Crown Forestry Licence |
| CONO | Consent under s221(4)(a) Resource Management Act 1991 |
| COV | Covenant (All types except Land covenants) 2 |
| E | Grant of Easement Without Transfer (of land) |
| EI | Easement Instrument |
| ENC | Encumbrance |
| FMP | Sustainable Forest Management Plan under s67k Forests Act 1949 |
| JFH | Joint Family Home Application |
| L | Lease |
| LCOV | Land covenant |
| M | Mortgage |
| MP | Memorandum of Priority |
| OL | Licence to Occupy |
| PAE | Public Access Easement |
| PDPL | Partial Surrender of Deferred Payment Licence |
| PP | Profit a Prendre |
| PRLC | Partial Revocation of Land Covenant |
| PSE | Partial Surrender of Easement 3 |
| RASP | Rescission/Revocation of Agreement for Sale and Purchase 4 |
| RLC | Revocation of Land Covenant |
| SDPL | Surrender of Deferred Payment Licence |
| SE | Surrender of Easement without Transfer 3 |
| SFP | Sustainable Forest Management Permit |
| SP64 | Substantive Proposal & Approved Plan under s64 Crown Pastoral Land Act 1998 |
| SPP | Surrender of Profit a Prendre |
| T | Transfers 5 |
| T417 | Transfer of Certificate of Mining Rights under s417 Resource Management Act 1991 5 |
| TAG | Transfer of Forestry Rights Registration Agreement 5 |
| TBON | Transfer of Bond 5 |
| TE | Transfer and Grant of Easement |
| TFL | Transfer of Licence under Crown Forest Assets Act 1989 5 |
| TL | Transfer of Lease 5 |
| TM | Transfer of Mortgage 5 |
| TMEL | Transfer and Merger of Lease |
| TPS | Transfer in Exercise of Power of Sale 5 |
| TSE | Transfer and Surrender of Easement |
| UAPP | Application for Deposit of Unit Title Plan |
| V221 | Variation of Consent Notice Condition under s221(5) Resource Management Act 1991 |
| V234 | Variation of Esplanade Strip under Resource Management Act 1991 |
| VBON | Variation of Bond |
| VCOV | Variation of Covenant |
| VE | Variation of Easement |
| VENC | Variation of Encumbrance |
| VFL | Variation of Licence under Crown Forest Assets Act 1989 |
| VL | Variation of Lease |
| VLC | Variation of Land Covenant |
| VM | Variation of Mortgage |
| VPP | Variation of Profit a Prendre |
1 Applies to Agreements for Sale & Purchase under the Housing Act 1955, Maori Housing Amendment Act 1931, and the Local Government Act 1974.
2 Caveator’s consent is required for covenants that become an interest under the Land Transfer Act 2017 such as covenants created under:
- Section 6 Historic Places Act 1993
- Section 22 Queen Elizabeth the Second National Trust Act 1977
- Section 77 & 77A Reserves Act 1977
- Section 67ZD Forests Act 1949
- Section 19 Crown Forests Assets Act 1989
Covenants created under other legislation should be checked to determine if they create an interest in land.
3 Caveator’s consent is required if the caveat affects the benefited land (dominant tenement) of the easement.
4 Caveator’s consent is only required for surrenders of agreements not for rescissions.
5 Caveator’s consent is required if the caveat affects the estate or interest being transferred.
Notes:
- If a subdivision plan has a lot to vest, before the plan can be deposited and the lot vested, the consent of the caveator is required (s224(b)(ii), 238 & 239 Resource Management Act 1991).
- A caveat prevents registration of the following instruments:
- Applications for Access strips (A185)
- Road reserve dedicated as Road (C111)
For these instruments the caveat must be lapsed or withdrawn before the instrument can be registered, therefore caveator's consent is not allowed.
- If a caveat relates to an estate or interest that is being discharged (eg a mortgage), the caveat should be withdrawn prior to the discharge.
- Applications based on statutory vestings of land (eg Applications under Treaty settlement legislation) will require caveator's consent or be subject to the caveat, if the caveat is explicitly stated in the legislation. If there is any doubt in a particular case it should be escalated to the Registrar-General of Land.
Refer to Consents - mortgagee to find out which instruments require mortgagee/encumbrancee or caveator/chargeholder consents, as well as why consents are required.