Easement disputes are among the most common property law disputes in New Zealand, and if you’re buying, selling, or developing land, you’ll almost certainly encounter one. Here’s what you actually need to know.
This article is general information only and does not constitute professional advice. For your specific situation, consult a qualified professional.
An easement is a right attached to a piece of land that lets someone else use that land in a specific way. The property that gets the benefit is called the benefited land (or dominant tenement), and the one that carries the burden is the burdened land (servient tenement). These aren’t personal rights — they attach to the land itself. When either property sells, the easement carries over to the new owner automatically. That’s why checking the title before you buy matters more than most people realise.
The Key Things to Know
Types of Easements and How They’re Created
Easements come in several varieties, and each carries different obligations. The most common you’ll come across in New Zealand is the right of way — typically over a shared driveway or access lane to reach a public road when the benefited land has no direct frontage. But there are others that can catch you out if you’re not looking.
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| Type | Who holds the benefit | Key obligation on burdened owner |
|---|---|---|
| Right of way | Neighbouring landowner | Allow access, keep surface in good repair |
| Utility (power, gas, water) | Network company or local authority | No building or obstruction in easement area |
| Drainage | Neighbouring landowner or council | Keep drain clear, allow inspection |
| Rights to light/air | Neighbouring landowner | Do not build structures blocking light |
| Conservation easement | Council or conservation body | No clearing, development, or modification |
| Walkway | Public / Crown | Allow public foot access, maintain surface |
How Easements Are Created
Easements can be created in several ways under New Zealand law. The most straightforward is by express grant — the owner of the burdened land grants the easement by deed, which is then registered on the title at LINZ. This is governed by sections 107 to 115 of the Land Transfer Act 2017. The easement instrument must contain the prescribed information set out in the Land Transfer Regulations 2018 and be executed by both the grantor (the burdened owner) and the grantee (the benefited owner or corporation). Consent of any registered mortgagee of the burdened land must also be obtained before registration.
Easements can also be created by reservation when land is subdivided — the seller reserves easements over the land being sold. In limited circumstances, courts will imply an easement where the parties clearly intended one to exist, for example when land is sold and access to a public road is only possible across the retained land. Some legislation also provides for compulsory easements, for example to allow utility companies to install infrastructure. Under the Resource Management Act 1991, territorial authorities have wide powers to impose conditions requiring the creation of easements on subdivision.
How Easements Are Extinguished or Varied
Once registered, an easement doesn’t expire automatically. It can be removed by express agreement — both the benefited and burdened owners agree in writing to extinguish it, and the instrument is removed from the title at LINZ. Under section 317 of the Property Law Act 2007, the court can extinguish or modify an easement if it’s obsolete, causes unreasonable interference, or the original purpose has been satisfied. An easement can also merge and cease to exist if the same person comes to own both the benefited and burdened land, though it may revive if the properties are later separated.
Varying an easement is handled under section 112 of the Land Transfer Act 2017 using an easement variation instrument, which must be executed by both the grantor and grantee and have consent from any registered mortgagee of the easement and of both the burdened and benefited land.
Common Problems and How to Avoid Them
The most common mistake buyers make is not reading the easement instrument carefully before settlement. Every easement registered against a property appears on the Record of Title as an encumbrance, but the details — exactly what’s allowed, what’s restricted, and who pays for what — are in the separate easement instrument. A property lawyer reviewing the title will check what easements are registered on the burdened title, whether the property benefits from easements over neighbouring land, and the terms of each instrument.
Another frequent error: assuming an unregistered easement will hold up. If you’re relying on an informal arrangement with a neighbour — say, a track you’ve used for years to access your property — and that arrangement isn’t registered on the title, a new owner of the burdened land can block it. An unregistered easement may be enforceable between the original parties, but it won’t automatically bind a purchaser who buys the burdened land without notice of it.
Building or planting in an easement area is another trap. A utility easement typically restricts what you can build or plant in the easement zone. Building a deck or planting large-rooted trees over an underground power cable easement can expose you to liability and require costly removal at your expense. The same goes for rights of way — the burdened owner must not obstruct or interfere with the exercise of the easement, even unintentionally.
Maintenance obligations cause endless friction. Where the easement instrument is silent on maintenance, the Property Law Act 2007 fills the gap with default rules. The default position is usually that the benefited owner bears the primary cost since they’re the one benefiting. But if both parties use the infrastructure, both may have obligations to contribute. These defaults can sometimes produce unexpected outcomes, so reading the easement instrument carefully is essential.
Frequently Asked Questions
What happens if I buy a property with an easement I didn’t know about? ▾
Can I build a fence or shed over a right of way easement? ▾
Who pays to maintain a shared driveway with a right of way easement? ▾
How do I remove an easement from my property title? ▾
What counts as using an easement beyond its scope? ▾
Doing Your Due Diligence
Easements affect property values in both directions. On the benefited side, a right of way can make an otherwise inaccessible property marketable and significantly increase its value. On the burdened side, an easement over a usable area of land — particularly one that limits development potential or introduces ongoing maintenance obligations — can reduce the property’s value and marketability. Property valuers typically account for easements when assessing market value, but the impact varies significantly depending on the type, location, and scope of the easement.
Before developing a site, you need to identify any easements that restrict building in certain areas, whether a proposed development would breach the terms of an existing easement, and whether access for the development can be achieved through an existing right of way or whether a new easement needs to be created. Resource consent conditions often require easements to be created or varied as part of a subdivision, so your lawyer and resource management consultant need to work together on these.
If this was useful, you might also want to read NZ Land Ownership: Are You Ready for the Responsibilities?
Remember: this article is general information only. For advice on your specific situation, speak to a qualified professional.
Sources and Further Reading
NZ Legal (2026). Property Easements in New Zealand. 🔗
Land Information New Zealand. Creating, Surrendering and Varying Easements. 🔗
Property Law Act 2007 (NZ). 🔗
Land Transfer Act 2017 (NZ). 🔗
Resource Management Act 1991 (NZ). 🔗
