Understanding Easements
Property law involves many confusing and challenging concepts. Perhaps one of the most complex is the term ‘Easements’. These are legal rights that are given to someone to allow them to use another person’s land for a specified purpose. They can greatly impact property rights, often causing complications for both the dominant and servient estates involved. When not well executed, easements can affect land use and valuation, leading to subsequent legal challenges.
In this article, we will discuss the different types of easements, their creation and termination, and how they impact certain areas of property law.
Types of Easements
There are many different types of easements. Each has its own unique qualities that are intended for a specific purpose. In property law, there are two main types of easements.
- Positive Easements: Also known as affirmative easements, they grant someone the right to use a specified portion of another person’s property for a particular purpose. It allows the holder of the easement to perform certain activities on the servient estate. For example, a positive easement would be you granting your neighbour the right to cross your property to access a nearby river for fishing purposes.
- Negative Easements: In contrast, a negative easement imposes restrictions on the use of a property. It prohibits the owner of the servient estate from engaging in certain activities that could interfere with the rights of the holder of the easement. For example, a negative easement would be you restricting your neighbour the right to cross your land to access a nearby river for fishing purposes
Creation of Easements
In New Zealand, the Land Transfer Act 2017 sets the rules and procedures surrounding Easements. Under the LTA 2017, an easement can be created using an easement instrument under Section 109. The most common method of creating easements in New Zealand is through express grants. These involve an explicit agreement between the property owner granting the easement (the grantor) and the party benefiting from the easement (the grantee). This must be in writing, signed by both parties, and executed by an executor.
Termination of Easements
Under New Zealand law, there are several ways to terminate easements. These include mutual agreement between the two parties, expiration of the easement’s stated duration, abandonment by the servient tenant, or application to the court (worst case scenario).
In addition to this, easements can be dissolved if their purpose becomes irrelevant or impractical to fulfill. For example, the construction of a road through a landowner’s property might not be possible due to recent flooding that has altered the ground.
In certain cases, the dominant tenant may also seek an injunction or compensation for the termination through the court. These situations are all unique to an individual circumstance, so it’s important to choose the right procedure when terminating an easement.
Easements and Property Rights
There is a clear complication when it comes to easements and individual property rights. As the dominant estate enjoys the rights and benefits of the easement, the servient estate must accept the burden of allowing such use. For example, the servient estate might have to accept permanent changes to the land. Conflicts often arise when the easement holder extends the scope of the granted rights or when the servient tenant tries to intervene with the easement. This often causes disputes which need to be resolved through the legal system.
Quay Law are subject matter experts when it comes to areas dealing with Easements. If you need assistance with Easements or Property Rights, contact us at 09 523 2408.
