Easement on property - rights to use etc

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MileHighKiwi

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#288520 6-Jul-2021 10:12

We have an easement on our property that according to documents from our solicitor when we purchased the property 3 years ago, we have ‘arguable access to’ and that the easement is ‘unused’. I also have the original transfer documents from 1953 that state the easement is ‘for the purpose of giving better access to x road’. The area used to be a farm and the easement documents refer to stock movements etc. Our property backs on to a private lane, and back in the day the plan was to connect a road/alleyway from this lane, past our property and onto the ‘main’ road that our driveway is on. Due to the steep geography (we are on a ridgeline) this has never happened and never will. The easement is about 2m wide.

The ’paper road’ as indicated on the aerial map has been used for years as a vegetable garden by previous owners and was in a state of overgrown mess when we purchased it. We have recently landscaped our property, including putting a patio over a portion of the paper road.

The problem I have is that during excavation we uncovered, i.e. damaged, a mains power cable running down the paper road! This was about two months ago. This paper road also runs through our neighbour's property, which they too have landscaped, and they had no idea about the power cable either. We didn’t get a mark up from Wellington Electricity because we had no idea a mains cable ran past our back door, about 400mm underground.

When we hit the cable with the digger we called it in right away and Wellington Electricity inspected it, and North Power repaired it. The cable jointer said we didn't damage the mains cable, only the protective sleeve, however last week some neighbour's lost power and it looks like the fault is from our cable strike. They will probably have to cut a small section out of our new patio to repair it! Not the end of the world, the spa pool is going there anyway. I’m trying to stay positive!

I am worried about the council fining and/or prosecuting me for using this paper road and I am unsure if I should be proactive and let them know, or wait for them to find out from the power company?!

Has anyone had experience with this type of thing?

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#2739625 6-Jul-2021 11:36

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.

wellygary

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#2739643 6-Jul-2021 12:05

Couple of points,

What exactly is it? You initially describe the access as an easement but later call it a paper road..?

A easement is a right to access YOUR property for a certain purpose

A Paper road, while unformed, still has the same access rights as a regular road, and is usually owned by the Council.....

In law they are very different things.....

If its as you said initially an easement, then don't worry its still your land,... there doesn't need to be any council involvement...

Journeyman

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#2739649 6-Jul-2021 12:10

I wouldn't admit anything to the council. They probably don't even know about the paper road and wouldn't unless they look it up.

MileHighKiwi

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#2739659 6-Jul-2021 12:21

Journeyman:

I wouldn't admit anything to the council. They probably don't even know about the paper road and wouldn't unless they look it up.

The documents we have from the council don't seem to have been updated since the 1960s!

MileHighKiwi

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#2739662 6-Jul-2021 12:28

wellygary:

Couple of points,

What exactly is it? You initially describe the access as an easement but later call it a paper road..?

A easement is a right to access YOUR property for a certain purpose

A Paper road, while unformed, still has the same access rights as a regular road, and is usually owned by the Council.....

In law they are very different things.....

If its as you said initially an easement, then don't worry its still your land,... there doesn't need to be any council involvement...

Hi there; the wording from my solicitor is "We have previously reported to you on the Easement Transfer (xxxxx) registered on the title which relates to a paper road which you do arguably have access to but which we understand is unused". The original document dated 1953 says...."the vendor doth herby transfer to the said X his executors administrators and assigns as and in the nature of an easement appurtenant to the land.....also goes on to say the purpose of it is for better access etc...and that it can be "lawfully used and enjoyed".

Other docs refer to a 'right of way'.

There's a lot of gobbledygook I don't understand on the old documents.

Journeyman

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#2739672 6-Jul-2021 12:48

Honestly it sounds like whatever it's called, the intention of it was to provide for access - not for building on. However - is your (or your neighbour's) patio actually blocking access? It sounds like no. I would just keep my mouth shut and plead ignorance if anyone complains about it.

Wheelbarrow01

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#2739826 6-Jul-2021 16:57

Journeyman:

Honestly it sounds like whatever it's called, the intention of it was to provide for access - not for building on. However - is your (or your neighbour's) patio actually blocking access? It sounds like no. I would just keep my mouth shut and plead ignorance if anyone complains about it.

Agreed - a patio is not a building. Assuming it's just some concrete laid on the ground, then it's materially no different to laying concrete on any accessway (or driveway) subject to an easement, for the purposes of driving on.

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gregmcc

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#2739833 6-Jul-2021 17:12

Back prior to 1993 the Electricity Act gave power companies the authority to install network assets on private property (take a look at the power poles that wander thru paddocks in rural areas)

After the re-write of the electricity act in 1993 the had a provision that any assets installed on/under ground were deemed to be legally installed. Now days powers companies routinely seek legal easements from private property owners.

I'm not 100% sure, but if the power company wants to repair a fault on this failed cable, legally they must be granted reasonable access, but they must return the property to the state it was in. This would be a good opportunity for the power company to re-route the power cable around the private property, or talk to you about a easement.

larknz

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#2739962 6-Jul-2021 21:27

You are not quite right. Power lines could only be installed with land owner permission. If they were installed prior to 1993 they are considered to have a right to be there, after 1993 easements were required.
The OP mentions that the neighbors power went off when the cable was damaged. This might mean the cable is the neighbors service cable and nothing to do with the network company.
The status of the land needs to be clarified. Is it a paper road or a right of way. I would do a title search through Linz, which would clarify the presence of any easements.

MileHighKiwi

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#2740397 7-Jul-2021 10:21

Thanks for the replies. I downloaded everything I could from LINZ yesterday including the original survey maps from the 1950's - 1970s. It shows all the 'easements' in a table and says the one on/by our property is a 'right of way', and it crosses several neighbours properties (some since sub-developed). You can also see the nature reserve we back onto and the intended access way from this to the main road that passes beside our place. About 100 metres down the road on the original plans you can see an easement that is marked for 'power'. Our title refers to a right of way easement.

I'm beginning to think the cables were laid down on the easement because it makes sense to, but it was never updated on the title. North Powers records are incomplete.

Overall it's really confusing and legal speak is hard to understand at the best of times, letalone transfers from the 1950s!

MileHighKiwi

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#2740400 7-Jul-2021 10:24

larknz: You are not quite right. Power lines could only be installed with land owner permission. If they were installed prior to 1993 they are considered to have a right to be there, after 1993 easements were required.
The OP mentions that the neighbors power went off when the cable was damaged. This might mean the cable is the neighbors service cable and nothing to do with the network company.
The status of the land needs to be clarified. Is it a paper road or a right of way. I would do a title search through Linz, which would clarify the presence of any easements.

The power outage was 2 months after our cable strike, which was repaired by North Power the next day. The fault is in the direction of our property. They are cutting the other end today to test. I think I know where they will fine the fault.

tchart

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#2740427 7-Jul-2021 10:43

AFAIK Right of Way <> Right for Utilities but Im not a lawyer

Our neighbours property has an easement on it for utilities - specifically sewage which our sewer pipes connect to.

I am surprised that you found electrical conduit there since there is no easement for that purpose.

BTW how deep were you excavating? They should be at least 600mm below ground. How big is the conduit?

Im surprised that North Power fixed it, I would have thought it would have been the owners problem. This would line up with them not knowing about it as its probably a house feed rather than distribution.

Bung

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#2740452 7-Jul-2021 11:35

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.

MileHighKiwi

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#2740669 7-Jul-2021 15:52

tchart:
AFAIK Right of Way <> Right for Utilities but Im not a lawyer

Our neighbours property has an easement on it for utilities - specifically sewage which our sewer pipes connect to.

I am surprised that you found electrical conduit there since there is no easement for that purpose.

BTW how deep were you excavating? They should be at least 600mm below ground. How big is the conduit?

Im surprised that North Power fixed it, I would have thought it would have been the owners problem. This would line up with them not knowing about it as its probably a house feed rather than distribution.

We hit a 400w cable that runs along our boundary and across the easement, and provides power to several houses behind our property. We are also tapped onto this cable with a junction. Wellington Electricity found an old map today that shows our original feed coming directly from the main rd (which was always my understanding of the power source), but was disconnected and for some reason attached to the cable we discovered.

The cable is about 400mm deep. We scraped it drilling a post hole for a new fence. Picture below showing the old fence.

Wellington Electricity inspected it first, then called in North Power and they got onto it immediately.

Blue line is our boundary, yellow is the neighbours. They consider the hedge to be the boundary- not many fences around here. You can see the easement in the middle. It's a steep drop down to the road from the top of the picture. We have scraped it out to ground level and put a patio in most of this area.

MileHighKiwi

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#2740675 7-Jul-2021 16:03

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.

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