Easements, Covenants and Consent Notices

In essence, an Easement is a right to do something on someone else’s land; a Covenant is a legally
enforceable promise to do or not to do something on someone’s land, and a Consent Notice is a means of
securing a legally enforceable promise under the Resource Management Act 1991.
One of the principal goals of the cadastral surveyor is to create new land parcels and the surveyor’s
identification of these land rights and defining them spatially is an integral part of this process.

Easements

An easement is the right granted by a landowner (the Grantor) in favour of another (the Grantee) in
respect of the Grantor’s land. Generally easements are positive, giving the Grantee the right to do
something on the Grantor’s land. In land development terms easements are most commonly used to
protect the Grantee’s access and servicing rights in relation to the Grantor’s land such as a right of access
(right-of-way), rights to convey water, telecommunications, electricity, rights to drain stormwater, sewage
etc. Classes of easements are defined under Schedule 5 of the Land Transfer Regulations 2018 and other
easements may be created to address the issues arising from increasingly complex land developments.
Most easement rights bind successors in title (both Grantor and Grantee) in perpetuity.

An easement must contain four separate elements –

  1. There must be a dominant tenement (the Grantee) and a servient tenement (the Grantor);
  2. The easement must accommodate the dominant tenement;
  3. The dominant and servient tenements must be owned by different persons; and
  4. The easement must be capable of being granted to the dominant owner.

In the majority of cases easements, or easements in gross (for the benefit of a legal entity such as the
Christchurch City Council), are identified by the surveyor at the time of subdivision, described in a
Schedule or Memorandum of Easements and defined as secondary parcels on the survey plan/cadastral
survey dataset. Easements must be approved by the territorial authority before the survey plan can be
submitted to Land Information New Zealand (LINZ) for approval as to survey.

The Easement Instrument, agreed by the Grantee and Grantor, is prepared by the Solicitor and, together
with other legal documentation, lodged with LINZ to enable the approved survey plan/cadastral survey
dataset to deposit and new Records of Title (Certificates of Title) to issue. Easements are registered on the
Record of Title of the dominant and servient tenement owners on deposit of the survey plan.

Covenants

A covenant is a promise to do or, as importantly, not do something and can be likened to a negative
easement as it restricts in some way an owner’s use of their land. It is used to enforce an obligation
between two parties, the Convenantor (subject to the covenant) and the Covenantee (enjoys the right of
the covenant), and binds both parties and their successors in title in perpetuity.

In the context of land development, covenants are almost always negative or restrictive and are typically
used by the developer or landowner to protect a right currently enjoyed over land that is being
developed/subdivided and on-sold. These rights may be registered on the Covenantor’s title at the time of
subdivision and are used for a variety of purposes such as restricting a building height on a neighbouring
property to protect a scenic view, subsequent use of the land, prescriptive building styles/types to be
constructed on the land parcel etc.

A developer can impose covenants on a subdivision by transfer i.e. at the time of sale as part of the sale and purchase agreement or by Covenant Instrument before each lot is separately disposed of. Covenants
are registered against the new titles and bind any future land purchaser from that point on.

Covenants can cause difficulty where (for example) developer approval for a new dwelling/alteration etc. is
required many years after the development is complete. Although potentially problematic for the affected
individuals, it is often the case that most purchasers want the conditions of the covenant to remain in
perpetuity to ensure that the character of the neighbourhood is preserved.

Consent Notices

In matters relating to the subdivision of land, an alternative instrument to ensure a promise or obligation is
respected is used. A consent notice is an agreement between a territorial authority/Council and a
landowner that a condition of subdivision consent will be addressed by the owner or their successor in title
at some time in the future rather than at the time of subdivision. Section 221 of the Resource Management
Act 1991 states that ‘… Where a Subdivision Consent is granted subject to a condition to be complied with
on a continuing basis by the subdividing owner and subsequent owners after the deposit of a survey plan
… the territorial authority shall … issue a Consent Notice specifying any such condition.’

The Consent Notice is registered on the Record of Title of the subject (Covenantor) land as an action to be
completed and once completed the landowner may apply to the Council to cancel or vary it. It is
considered to be a land covenant when registered under the Land Transfer Act 2017 and binds all
subsequent owners of the land.

References
Various, 1984, The Surveyor and The Law (various chapters), NZIS
O’Donnell, K, (date unknown) The Nature of Easements, Covenants, Consent Notices and Encumbrances, New Zealand Law Society
Resource Management Act 1991
Land Transfer Act 2017
Land Transfer Regulations 2018
Notes from Easement issues impacting on Solicitors and Surveyors – a joint seminar by the New Zealand
Law Society (Canterbury/Westland Branch) and the New Zealand Institute of Surveyors (Canterbury
Branch) held in Christchurch on 25 August 2010

Written by
Simon Ironside, Associate

March 2019