Easement on property - rights to use etc

Forums › Home Workshop DIY › Easement on property - rights to use etc

1 | 2

wellygary

8328 posts

Uber Geek

#2740680 7-Jul-2021 16:19

Getting back to whether its a paper road or not...

is it on here??

https://maps.walkingaccess.govt.nz/Viewer/?map=b1d1e76a6c754d11b3f3fd9dfce1eb12

The walking access commission have spent a fair bit of time and effort to map out legal public access ways and unformed paper roads. if it not there is likely an easement rather than a full paper road... in chich case dont worry about it as it is your land as opposed to a council paper road

MileHighKiwi

782 posts

Ultimate Geek

ID Verified

Lifetime subscriber

#2740746 7-Jul-2021 17:12

Thanks wellygary, I've used that site previously and it's not there. My solicitor (and neighbours) used the words 'paper road' but I believe it is in fact an easement, which is what is on the original transfer of title in 1953 and on subsequent survey plans from the 60's and 70's. Unfortunately it looks like the scope of the easement has changed to included services which has never been updated (an easement down the road clearly states its for power etc).

I've found a lot of conflicting information about your rights on an
easement and I'm still unclear whether I've broken any laws or not, or if I'll have to pay for any repairs on the cable (assuming they locate the fault on the easement which I have 'developed').

larknz

1695 posts

Uber Geek

ID Verified

Lifetime subscriber

#2740760 7-Jul-2021 17:49

At 4m wide it's definitely not a road, but could be a walkway.
Also I wouldn't always assume that power cables are 600mm deep. You don't know what earthworks have been done in the area since the cable was laid

Aj321

7 posts

Wannabe Geek

ID Verified

#2746162 18-Jul-2021 09:40

MileHighKiwi: This space is 4m wide and the posts at the top of the picture are in the same place as the old fence in the precious image.

In my experiance. Of a ROW and easement. The actual law is unclear. Councils will say "not my problem" its up to the land owner. Lawyers will happily keep writing letters until you run out of funds.
I have an easement across my property as do my other 3 neineighbours.
This easement is for a ROW.the easement will have words to the effect to allow access across it or for a specific use eg public walkway.
The intent of easements is to stop landowners being "awful people". In my case the easment is used as a Right Of Way (access to my property) as this stops it from being landlocked.
ROW mean the land owner must (this is the law bit) provide unimpeeded access. Another words you are completely responsible for ensuring whichever parties have an easement still can . Ie a slip blocking access is you responsibility to clear as its your land.
The tricky bit is if the landowner decides to ignore the easement and the law. As they believe (or chose to believe) it their land and can do anything they like. Off topic so i wont go into it.
I suspect in your case if you required a consent it would have thrown up the easement and you would have had to work through it. Your archgola and landworks are not structures and if under 20m2 not requiring a consent.
If indeed the land is ever required for the purpose of the easement they will need to negotiate with you as to how they use it. In other words (dont be the bastard) let them do what they need to so long as it is put back to how it was prior to the work needing completion. The contractors are usually pretty good about it (my mate experienced this) and may even make it better. Take photos!
There is a small cavet being emergency powers, gas leak, flooding etc
Also in your case the line was not marked. I am not a lawyer but i doubt you will be asked to pay especially if you cooperate as its easier for them to fix the problem.
Its not worth loosing sleep over. Its part of property ownership.
If you want some advice specific to wellington /Kapiti PM me. It takes far to long to long to type

Bung

6487 posts

Uber Geek

Subscriber

#2746202 18-Jul-2021 12:05

Aj321: If indeed the land is ever required for the purpose of the easement they will need to negotiate with you as to how they use it. In other words (dont be the bastard) let them do what they need to so long as it is put back to how it was prior to the work needing completion.

MileHighKiwi has described his boundary as being the "blue" line closest to the house. If the 4m strip was ever needed I suspect he'd be told to remove his patio rather than being asked.

Aj321

7 posts

Wannabe Geek

ID Verified

#2746280 18-Jul-2021 17:21

Another qwirk in law. A precident was set about 30 years ago.
Easements can move. In this case there was an easement with a ROW over it. However due to topography a different route was used. The ruling stated that the intent of the easement was still in force and as the route had been used for (x years 10?) the ROW is actually the One in use.
Councils hate ROWs and easements. Their answer for resolution is "it's a civil matter" another words. Lawyer vs lawyer until funds run out..

There are also other qwirks with "road reserve" some bylaws actually override easements and ownership rights - These probably don't apply in this case as it's not a road it's an easement.

It's a can of worms. My advice is cooperate but don't give in easily as it will be up to the interested party to prove you have done wrong.in this case the installation of the cable did not follow guidelines or safety considerations.which is in landowners favour as it does not supply his house the person that it supplies could possibly be asked to pay. I would consider this similar to overhead power lines....another avenue to follow -this is fascinating but off topic.

If your building work required a consent that's a different story. They can order it to be torn down.
From the photos retaining walls could be classed as garden retainers. Archgola people would not have installed something that required a consent. The concrete is not a structure and as long as the slope is away from the house and drainage reasonable there is no reason for them to pull anything down.

Aj321

7 posts

Wannabe Geek

ID Verified

#2746286 18-Jul-2021 17:41

Bung: IANAL I'm still unclear from MileHighKiwi's description whether the cable was on his property or the paper road.

"Ownership and Maintenance of Paper Roads
As the local council owns and administers all roads in its district (except highways) it is responsible for paper roads. However, the Council is not legally obliged to form, repair or maintain paper roads."

Locally there's an unformed paper road that has been appropriated by the adjoining properties. They've fenced it in but that doesn't make it theirs.

Fences are not legal boundaries. If it' really is a paper road then these can be removed(without notification) when the actual road is formed. Developers knowingly put fences up to improve appeal.
Then "move" them after the sale Another off topic discussion.
For icing on the cake Try asking your neighbor to contribute to half the cost of the boundary fence and see how that goes. A story for another day.

Sharesies

Trade NZ and US shares and funds with Sharesies (affiliate link).

JayADee

2148 posts

Uber Geek

#2746290 18-Jul-2021 18:09

gbwelly:

I have no experience with that type of thing, but I would simply wait and see how it pans out. Power company might come and fix it and that could be the end of it. Neighbour won't rat you out if they too have landscaped theirs.

This. Chances are it'll be fixed and end of. No point worrying over something that may not happen. Your new structure looks very nice.

MileHighKiwi

782 posts

Ultimate Geek

ID Verified

Lifetime subscriber

#2747911 22-Jul-2021 06:23

Aj321: Another qwirk in law. A precident was set about 30 years ago.
Easements can move. In this case there was an easement with a ROW over it. However due to topography a different route was used. The ruling stated that the intent of the easement was still in force and as the route had been used for (x years 10?) the ROW is actually the One in use.
Councils hate ROWs and easements. Their answer for resolution is "it's a civil matter" another words. Lawyer vs lawyer until funds run out..

There are also other qwirks with "road reserve" some bylaws actually override easements and ownership rights - These probably don't apply in this case as it's not a road it's an easement.

It's a can of worms. My advice is cooperate but don't give in easily as it will be up to the interested party to prove you have done wrong.in this case the installation of the cable did not follow guidelines or safety considerations.which is in landowners favour as it does not supply his house the person that it supplies could possibly be asked to pay. I would consider this similar to overhead power lines....another avenue to follow -this is fascinating but off topic.

If your building work required a consent that's a different story. They can order it to be torn down.
From the photos retaining walls could be classed as garden retainers. Archgola people would not have installed something that required a consent. The concrete is not a structure and as long as the slope is away from the house and drainage reasonable there is no reason for them to pull anything down.

Thanks for your replies. I got legal advice and am not worried about the ROW. It's been there since 1953 and is completely impractical to use by the owners, and I have rightful use of the area. Our pergola was constructed as two separate roofs to keep within regulation. The terrace can be passed over and we have improved drainage with new drains and sumps. The only thing preventing the owners from accessing the ROW is a bank and fence about 15 feet high that they errected years ago.

As for the cable, they located a fault on another part of the cable that must have been damaged at an earlier stage but I had no awareness of it. The cable strike I called in was repaired at the time so it may have happened a couple of weeks earlier, no idea.

They have told me they think they can recover repair costs - my advice suggests otherwise.

Thanks again.

1 | 2