This page covers lodging, varying, and surrendering easements under the Land Transfer Act 2017.

An easement is a right agreed between a landowner and another party to use land for a particular purpose, and can be registered against the property’s title.

The land subject to the easement is the ‘burdened land’ (previously known as the 'servient tenement'). An easement may be:

  • for the benefit of the owner of other land, when it is said to be 'appurtenant to' or attached to the ‘benefited land’ (previously known as the 'dominant tenement') or
  • an easement 'in gross', meaning it is for the benefit of a specific person or corporation.

The ‘grantor’ of an easement is the registered owner of the burdened land. The ‘grantee’ is the registered owner of the benefited land, or the person who receives the benefit of an easement in gross. 

Creating an easement

Section 108 of the Land Transfer Act 2017 (LTA) sets out how an easement or profit à prendre may be created or surrendered. An easement may be registered by using:

  • an easement instrument under section 109
  • a transfer instrument under section 73, or
  • a deposit document under section 110, together with the deposit under section 224 of a plan to which the deposit document relates.

An easement instrument or transfer creating an easement may be in any form but must include certain prescribed information, as set out in the Land Transfer Regulations 2018. A deposit document must be in the prescribed form. LINZ has developed approved forms for certain instruments under the Land Transfer Act 2017, including an easement instrument, which may be found here.

If the burdened land is subject to a registered mortgage, the mortgagee's consent to an easement needs to be obtained.

An instrument creating an easement must be executed by the registered owners of the burdened and benefited land or, in the case of an easement in gross, by the owner of the burdened land and the grantee.

Rights and powers implied in easements

Schedule 5 of the Land Transfer Regulations 2018 sets out the rights and powers that may be implied in certain classes of registered easement. An instrument to register an easement may adopt these implied rights and powers, vary them, include other rights and powers or exclude the implied rights and powers completely.

If an easement is intended to include the implied rights and powers, the type of easement as described in the instrument must precisely match the classes prescribed in the Regulations, or otherwise make it clear that the implied rights and powers are to apply with any necessary modifications.

Surrendering an easement

An easement may be surrendered by using:

  • an easement instrument under section 109
  • a transfer instrument under section 73
  • a deposit document under section 110, together with the deposit under section 224 of a plan to which the deposit document relates.

Whichever instrument is used, the consent of any registered mortgagee (or encumbrancee) of the benefited land or the easement itself is required (section 110(6) LTA).

A surrender must be executed by the registered owners of the burdened and benefited land or, in the case of an easement in gross, by the owner of the burdened land and the grantee.

The instrument must contain the information prescribed by the Regulations, but does not need to be in any specific form. LINZ has developed approved forms for certain instruments under the Land Transfer Act 2017, including an easement surrender instrument, which may be found here.

Varying an easement

An easement may be varied under section 112 LTA by using an easement variation instrument.

An easement variation instrument must be executed by the grantor and the grantee and requires the consent of:

  • any registered mortgagee of the easement, and
  • any registered mortgagee of both the burdened land and any benefited land.

The instrument must contain the information prescribed by the Regulations, but does not need to be in any specific form. LINZ has developed approved forms for certain instruments under the Land Transfer Act 2017, including an easement variation instrument, which may be found here.

Removing an easement

The Registrar-General of Land (RGL) may remove merged, extinguished or redundant easements or profits à prendre from the register when the criteria in sections 113-115 of the Act are met. An application can be made when:

  • the benefited and burdened land are owned by the same person (merger) – section 113
  • an easement has expired (extinguishment through lapse of time) – section 113
  • an easement has ended because of a specific event specified in the document that created the easement (extinguishment) – section 114
  • the benefited and burdened land have become separated and as a result the easement has no practical effect (redundancy) – sections115. (This section does not apply to profits à prendre or easements in gross).

More information about removing easements is found here.

Compulsory easements

Easements can be compulsory under the Resource Management Act 1991 (RMA) or earlier equivalent legislation.

Before a compulsory easement is varied or surrendered, section 243(a) of the RMA requires the territorial authority to consent to the variation or surrender.

The condition imposing the compulsory easement may also be revoked under section 243(e) of the RMA.

 
Last Updated: 3 December 2018