TERMS AND DEFINITIONS... 4 FOREWORD... 5 1 INTRODUCTION... 7 1.1 Scope... 7 1.2 Intended use of guideline... 7 2 MAKING AN APPLICATION... 7 2.1 Who can make an application... 7 2.2 Form of application... 7 2.3 Types of application... 7 2.4 Application based on determination by effluxion of time... 7 2.4.1 When an application can be based on determination by effluxion of time.. 7 2.4.2 Statutory declaration... 8 2.5 Application based on determination by specified event... 8 2.5.1 When an application can be based on determination by specified event... 8 2.5.2 Statutory declaration... 8 2.6 Application based on merger... 8 2.6.1 When an application can be based on merger... 8 2.6.2 Statutory declaration... 8 2.7 Application based on redundancy... 9 2.7.1 When an application can be based on redundancy... 9 2.7.2 Statutory declaration... 9 2.8 Additional evidence in support of application... 9 3 EXCEPTIONS... 9 3.1 Doctrine of abandonment... 9 3.2 Determination or extinguishment by other means... 10 4 NOTICE REQUIREMENTS... 10 4.1 Notice required... 10 4.2 When notice is not required... 10 4.3 Notice to interested persons... 10 4.4 Content of notice... 10 4.5 Addresses for service... 11 4.6 Public notice... 11 5 MAKING AN OBJECTION... 11 5.1 Who may object... 11
5.2 Consideration of objection... 11 5.3 Notifying the objector and applicant... 11 5.4 Requisitioned application... 11 5.5 Rejected application... 12 6 MAKING AN ENTRY ON THE REGISTER... 12 6.1 Acting judicially... 12 6.2 Wording of entry... 12 Appendix A: Example of notice to interested persons... 13 Appendix B: Example of public notice... 14
dominant land dominant owner easement Gazette identifier LINZ the land, or interest in land, which has the benefit of an easement person acquiring an easement, or the registered proprietor of land having the benefit of an easement a right to use servient land in a particular way, but without the right to possession of that land. An easement may be created as attached or appurtenant to dominant land, eg a right of way over servient land leading to dominant land, or in gross, eg the right for a network operator to place pipes or lines for the benefit of the network. In this guideline, where the context permits, easement includes a profit à prendre. The New Zealand Gazette - Te Kahiti o Aotearoa a combination of letters or numbers, or both, by which a Register, instrument or other document is uniquely identified Land Information New Zealand LTA Land Transfer Act 1952 LTR Land Transfer Regulations 2002 profit à prendre Register RGL servient land servient owner the right for a dominant owner to take from certain land of a servient owner some product or natural resource of that land, without right to possession of that land means a land transfer Register constituted under the Land Transfer Act 1952 the land, or an estate in land, which bears the burden of an easement person creating or granting an easement, or the registered proprietor of land subject to an easement 4
Section 70 of the Land Transfer Act 1952 (LTA) sets out certain circumstances when the Registrar- General of Land (RGL) may remove a redundant or expired easement or profit à prendre from the Register. Schedule 2 of the Land Transfer Regulations 2002 (LTR) provides Form 1, which must be used for applications to the RGL for the removal of easements and profits à prendre.!"# The purpose of this guideline is to provide additional guidance on the application and registration procedures for removal of redundant easements under s 70 of the LTA. This guideline is to be read in conjunction with these statutory provisions and is designed to ensure that: persons with delegated statutory authority to undertake these functions apply these provisions consistently and in a legally sound manner; and the requirements for applications and supporting evidence are transparent and well understood. #$!"# Land Information New Zealand (LINZ) is tasked with meeting the Government s desired economic, social, and environmental outcomes in relation to its mandated subject areas. Accordingly, end outcomes, intermediate outcomes, objectives, and sub-objectives have been developed to clearly articulate the regulatory framework for each subject area. A risk-based approach is then used to determine the optimum level of intervention. If there is a high risk of not achieving an objective or sub-objective, then, generally, a high level of intervention is required. Similarly, a low risk of not achieving an objective or sub-objective means a low level of intervention is necessary. The desired intervention is then developed to manage the identified risks and thereby achieve the relevant sub-objectives, objectives and, therefore, the outcome. This guideline has been developed to mitigate the risk of not achieving the following end outcome and objectives. "% Registered land owners or right holders have confidence that their rights are secure, well understood and easily tradeable &% Transactions are completely and accurately entered and maintained in Register Only legally valid types of transaction are submitted All transactions are authorised by or on behalf of entitled parties 5
The outcomes and objectives developed by the RGL for the land transfer system also reflect the objectives stated in s 4(3) of the LTA. ' (!"# This guideline supersedes the following documents: LINZ 2003, RGL Standard 29: Application for the Removal of Redundant Easements,, LINZ, Wellington. LINZ 2003, RGL Standard 30: Processing Applications for the Removal of Easements,, LINZ, Wellington. LINZ 2003, RGL Guideline 32: Guideline for Removal of Easements,, LINZ, Wellington. % This guideline should be read in conjunction with the following: Section 70 of the Land Transfer Act 1952 Schedule 2 of the Land Transfer Regulations 2002 6
) * )+) % Section 70 of the LTA sets out requirements for both the applicant and the RGL before the removal of a redundant easement or profit à prendre can be noted on the Register. Schedule 2 of the LTR prescribes the form that must be used to apply for the removal of a redundant easement or profit à prendre. This guideline suggests procedures which, if followed, will generally ensure compliance with s 70 of the LTA. )+, ""!"# This guideline is intended for use by: persons with delegated authority to undertake registration functions on behalf of the RGL under the LTA, and persons who wish to apply for the removal of a redundant easement or profit à prendre., -.,+) '% /#% Any person can apply for the removal of an easement or profit à prendre from the Register. The applicant will usually be the dominant or servient owner. The RGL should be consulted when an application is received from any other person.,+, #% The correct form for an application for removal of an easement or profit à prendre is contained in Form 1 of Schedule 2 of the LTR. The form also contains a statutory declaration which should be used with the statutory criteria to prove the easement or profit à prendre is determined, extinguished, or redundant. Additional annexure schedules may be used to support the statutory declaration.,+0 ( #% Section 70 of the LTA sets out the ways that an applicant can apply for an easement or profit à prendre to be removed and for this to be noted on the Register.,+1 #% "" (#2,+1+) '#%% "" (#2 An application can be based on determination by effluxion of time if the easement instrument specifies a finite term of days, months, or years from the commencement date, or a specific expiration date. 7
,+1+, ("%# The accompanying statutory declaration should: state that the easement is extinguished by effluxion of time, and cite the clause or provision in the registered easement which unconditionally limits the term or duration of the easement.,+3 #% "" ( %",+3+) '#%% "" ( %" An application can be based on determination by specified event if the instrument creating the easement provides that the easement shall determine or be extinguished upon the happening of a specified event, ie without any requirement for execution of an instrument of surrender.,+3+, ("%# The accompanying statutory declaration should: (c) (d) state that the easement has been determined or extinguished; and cite the clause or provision in the registered easement which provides for determination or extinguishment upon the happening of a certain event; and confirm the occurrence of the event and affirm that the easement no longer benefits the dominant land and is no longer in force, used, or operative; and be accompanied by either: (i) (ii) a corroborative statutory declaration by a disinterested party with knowledge of the relevant facts, or other independent evidence to verify the applicant s statutory declaration.,+4 #% "!,+4+) '#%% "! An application can be based on merger if the ownership and possession of fee simple estates in both the dominant and servient land become vested in the same person. Relevant registers in the name of the same registered proprietor will usually be sufficient verification for this type of application.,+4+, ("%# The accompanying statutory declaration should state that: 8
(c) (d) the easement has determined due to merger; and the easement no longer benefits the dominant land; and the ownership and possession of fee simple estates in both the dominant and servient land have become vested in the applicant; and there are no registered or unregistered interests at law or in equity to prevent the removal of the easement from the Register.,+5 #% """%(,+5+) '#%% """%( An application can be based on redundancy if the dominant land, or part of it, has become separated from the servient land due to subdivision or other means and the easement no longer benefits the dominant land. In order to verify that the dominant and servient lands have become separated as a result of subdivision, the relevant LINZ records should be checked.,+5+, ("%# The accompanying statutory declaration should: state that the dominant land, or part of it, has become separated from servient land due to subdivision or other means; and state that the easement no longer benefits the dominant land, and either (i) (ii) cite the subdivision plan number, or explain any other reason for separation of the dominant and servient land; and (c) cite the identifiers or reference number of any relevant LINZ records.,+6 ""#"% #% If LINZ records do not verify the matters contained in the statutory declaration, a supporting statutory declaration by a disinterested person with knowledge of the relevant facts should be submitted to verify the application. 0 7 0+) %" The common law doctrine of abandonment does not apply to registered easements. 9
0+, 2! ' (' Section 70 of the LTA does not apply to claims that an easement has been determined or extinguished by other circumstances, such as a breach of term, covenant, or condition. In these cases, the applicant should rely on other authority to modify or extinguish easements; for example, the Court s jurisdiction under s 126G of the Property Law Act 1952. 1 8* 1+) %9" The notice requirements are set out in s 70 of the LTA and r 39 of the LTR. 1+, '% 9" The notice requirements do not apply where the determination or extinguishment of the easement is by effluxion of time or merger (s 70(6) of the LTA). In addition, interested persons who have given written consent to the removal of the easement need not be served with notice of the application. 1+0 % " Section 70 of the LTA requires the RGL to give notice to all persons appearing to him or her to be entitled to any interest under the easement. This includes: (c) (d) (e) (f) the registered proprietor of the dominant land; the grantee of an easement in gross; the lessee of the dominant land/easement; the mortgagee/encumbrancee of the dominant land; the mortgagee of an easement in gross; and the caveator of a caveat against the dominant land or against an easement in gross. A suitable notice to interested persons has been approved by the RGL and is contained in Appendix A. 1+1 % The notice requirement will ordinarily be met if the notice specifies: that the RGL intends to make the entry on the Register on a specified date; and 10
(c) the circumstances in which the easement is said to be determined, extinguished, or made redundant; and the address of the applicant and the applicant s solicitor, or other contact details for further enquiries. 1+3 "" % The RGL should send notices to interested persons at the addresses for service supplied by the applicant. If there is any doubt as to the accuracy of the address, further steps should be taken to verify it. 1+4 #%% The requirement to give public notice will ordinarily be met by publication of a notice in the Gazette and in one or more newspapers published in the locality of the relevant land. A suitable public notice has been approved by the RGL and is contained in Appendix B. 3 -.: 3+) ' (&% An objection for the purposes of s 70(4)(c) of the LTA should be in writing and may be made by any interested party. A person does not necessarily have to be a registered interest holder in order to be an interested party. 3+, "&% If the objection is material, ie raises substantive conflicts of fact or evidence, the application should be rejected or requisitioned. If the objection is clearly spurious or immaterial the application may proceed. Further information may be sought from either the applicant or the objector if required. 3+0 (!'&%"#% Having decided on the merits or otherwise of the objection, the RGL should notify both the applicant and the objector of the outcome. 3+1 9 "#% If an application is requisitioned, the applicant should: (c) respond to the objection; or withdraw the application; or obtain the objector s consent to the removal of the easement; or 11
(d) obtain withdrawal of the objection. 3+3 &%"#% An application should be rejected if the applicant and objector fail to reach agreement within the time specified in a requisition notice, or in any extension of time. 4 -.;<. 4+) %!&"%##( The RGL is required to act in a quasi-judicial manner when assessing applications of this nature. The RGL must be satisfied with the proof of determination, extinguishment, or redundancy and should not make an entry on the Register unless: the requirements of s 70 of the LTA have been met, and any material objections have been resolved. 4+, "!( An entry on the Register for the purposes of s 70(1) of the LTA should be worded as follows: [Identifier] (Partial) Removal of the [easement] created by [Transfer] [number] [date/time] 12
"2= 2 #% " [Date] [Name of Interested Person] [Address] Client Ref: Land Transfer Act 1952 Section 70(4) Notice to persons entitled to an interest under an easement or profit à prendre Land Registration District: Application Number: Applicant Easement: Circumstances: [Insert] [Insert] [Applicant s name] c/- [Solicitor's name] PO Box [ ] [Town/City] [Right of way] over part Lot [1] on Deposited Plan [S5432], comprised in Computer Register [SA500/100A], created by Transfer [S123456], registered on [22 June 1936] [Part of the dominant land has become physically separated from the servient land as a result of subdivision.] Your interest: As registered proprietor of part of the dominant land being Lot [4] Deposited Plan [S111111] comprised in Computer Register [SA23B/456]. The purpose of this notice is to advise you that an application has been made to me for the removal of the [easement] [profit à prendre] described above, pursuant to section 70 of the Land Transfer Act 1952. The applicant claims the [easement] [profit à prendre] is redundant by reason of the circumstances set out above. I am notifying you as a person appearing to me to be entitled to an interest under the easement, as set out above. I intend to remove the easement on [expiration date] if no objections have been received before that date. Please contact the Help Desk at the office detailed below if you have any queries regarding this notice. for 13
"2= 2 ##%% The applicant described below has applied under section 70 of the Land Transfer Act 1952 for the removal of an easement. The applicant claims the easement is redundant by reason of the circumstances set out below. I intend to remove the easement on [expiration date] if no objections have been received before that date. Application Number: [1357911.1] Applicant: Easement: Circumstances: [Applicant s name] c/- [Solicitor's name] PO Box [ ] [Town/City] [Right of way] over part Lot [1] on Deposited Plan [S32952], comprised in Computer Register [SA500/100A], created by Transfer [S123456] registered on [22 June 1936] [Part of the dominant land has become physically separated from the servient land as a result of subdivision] 14