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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 or corporation who receives the benefit of an easement in gross.
Easements are dealt with under sections 107 to 115 of the Land Transfer Act 2017 (LTA).
Creating an easement
Section 108 LTA sets out that an easement may be registered using an easement instrument (EI) under section 109.
The easement instrument must:
- contain the prescribed information set out in the Land Transfer Regulations 2018 (Regulations), and
- be executed by the grantor and the grantee.
Consent of the registered mortgagee of the burdened land must be obtained before registration of an easement instrument.
An easement instrument may be lodged in Form 22 of either the Approved Paper Forms or the Approved Electronic Forms.
Find the forms under Land registration forms
Section 108 LTA specifies that an easement may also be created using:
- a transfer (TE) instrument under section 73, or
- a deposit document under section 110, together with the deposit under section 224 of a plan to which the document relates. Landonline functionality does not yet enable easements to be created this way.
Leases can no longer be used to create easements. In limited circumstances, section 95 of the LTA 2017 will apply and a replacement lease will be issued subject to existing easements.
Find more information at Creating easements in leases
Rights and powers implied in easements
Schedule 5 of the Regulations 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 of easement prescribed in the Regulations, or otherwise make it clear that the implied rights and powers are to apply with any necessary modifications.
Specific information about creating easements for rights to convey telecommunications and media can be found at:
Easements for telecommunications and computer media
Surrendering an easement
Section 108 LTA sets out that an easement may be surrendered using an easement instrument (SE or PSE) under section 109.
The easement instrument must:
- contain the prescribed information set out in the Regulations, and
- be executed by the grantor and grantee.
Consent of a registered mortgagee of any benefited land or the easement itself must be obtained before surrendering the easement.
An easement instrument may be lodged in Form 23 of the Approved Electronic Forms or the Approved Paper Forms.
Find the forms under Land registration forms
Section 108 LTA specifies that an easement may also be surrendered using:
- a transfer (TSE) instrument under section 73, or
- a deposit document under section 110, together with the deposit under section 224 of a plan to which the document relates. Landonline functionality does not yet enable easements to be surrendered this way.
Varying an easement
Section 112 LTA sets out that an easement may be varied by using an easement variation instrument (VE).
The easement variation instrument must:
- contain the prescribed information set out in the Regulations, and
- be executed by the grantor and the grantee.
Consent from the following must be obtained before varying an easement:
- any registered mortgagee of the easement, and
- any registered mortgagee of both the burdened land and any benefited land.
An easement variation instrument may be made in Form 24 of the Approved Electronic Forms or the Approved Paper Forms.
Find the forms under Land registration forms
Removing an easement
The Registrar-General of Land may remove merged, extinguished or redundant easements from the register when the criteria in sections 113-115 LTA are met. An application (EE) 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) – section 115. (This section does not apply to easements in gross).
Find more information at Removal of easements
Compulsory easements
Territorial authorities have wide powers under the Resource Management Act (RMA) to impose conditions requiring the creation of easements on subdivision (including easements over or in favour of land that is outside the subdivision).
Such easements appear in a Memorandum of Easements on the relevant plan. In these circumstances, the easements must be created before the affected allotments are transferred into separate ownership, as provided in section 243(c) of the RMA.
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.
Documentation to create the compulsory easement(s) should ideally be lodged with the plan deposit dealing. However, provided the allotments remain in common ownership, LINZ has no authority under the RMA to insist on the creation of compulsory easements at this stage. Instead, if compulsory easements have not been created, then to enable the new title(s) affected by the easement condition to be issued, a section 243(c) RMA memorial is recorded. This acts as notice to affected landowners that LINZ cannot thereafter register a dealing disposing of the servient or dominant allotments until the compulsory easement(s) have been created.
It is preferable to have the documentation to create any compulsory easements lodged with the new title dealing to deposit the plan. If left until later when the affected lots are sold, this may cause avoidable last minute problems and delays.