Section 168 Land Transfer Act 1952 (LTA 1952) created statutory rights of way over land which was shown as road on a subdivision plan.
The LTA 1952 was repealed and replaced with the Land Transfer Act 2017 (LTA 2017) on 12 November 2018. There is no equivalent provision in the LTA 2017.
Implied rights of way granted under section 168 of the LTA 1952 may still exist in older subdivisions. However, as roads had for some time vested automatically upon deposit of the subdivision plan, the effects of the provision were rarely considered except when a registered owner (proprietor) wished to disclaim an implied right of way or an application for title by adverse possession under section 19 LTA 1952 or section 3 Land Transfer Amendment Act 1963 was made and notice was required to be given to those with potential section 168 rights as interested parties.
As the implied rights of way were statutory rights of way that affected the underlying land, they existed for a particular title regardless of whether the title included any notation. There was no general requirement that these rights of way were noted on titles, although in some cases the practice was to do so.
Any historical notations made under section 168 remain on records of title and will be brought forward onto replacements. As there is no equivalent provision in the LTA 2017 no new implied rights may be created after 12 November 2018.
Prior to 12 November 2018, it was possible for landowners to disclaim their implied rights of way under section 168. LINZ would then note the title and deposited plan that section 168 has ceased to apply, to the extent specified in the disclaimer.
There are no transitional provisions in the LTA 2017 which are relevant to disclaiming existing implied rights of way. Accordingly, following the commencement of the LTA 2017 on 12 November 2018 it is no longer possible to disclaim an implied right of way under section 168 LTA 1952, and for such disclaimer to be recorded on the register.
Existing rights will continue to apply (refer to section 17 Interpretation Act 1999).