I would check with a property solicitor. Debbi Mcnab at Vallant Hooker is good. The law may have changed but I have done it countless times. It's just designed to get their attention. I would argue you have a caveatable interest as they have encroached your boundary and are now trying to sell the property. That is borderline "illegal" and you are fully within your rights to prevent the sale till it is rectified.
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First rule, don't buy a house with a ROW if you want a simple life. Not sure why you are asking advise here. Your lawyer should be dealing with this. They only have the right to pass and repass as per the Property Law Act. I would say that the access would be for their major dwelling and further access onto the ROW cannot be created unless by agreement. I know Council's don't get involved in ROW issues but what about the minor dwelling. If this was approved then access to the dwelling should have been shown on the site plan (unless this is a very old building), and likely the minor dwelling is sharing the main access into their property. I'm afraid whether you fence the boundary or go forth with the lawyer, your neighbour isn't going to play ball nicely.
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Back in the days before electronic registration we could get the client to sign the caveat themselves and we didn't need to certify it was in order for registration. Nowadays we are forced to sign and certify, and most lawyers are reluctant to lodge a caveat that has doubtful validity, because it exposes us to personal liability for any land owner losses and also to deregistration by LINZ for certifying non-complying documents....I am informed that has happened to at least one lawyer that was in the habit of lodging groundless caveats for their clients, and a sole trader at that so it would have been the kiss of death for their business.
Caveats also get checked a lot more often than they used to, seems like all of them actually although can't be sure, and one that does not disclose a clear registrable interest in land will get rejected.
This link that ATM posted: http://iloverealestate.tv/what-you-n...about-caveats/ has only very sketchy application to NZ law and you shouldn't pay any heed to it. You need to be able to demonstrate that the owner of the property has granted you an interest in their land.
Switching to potentially helpful points, you mentioned the difficulty of getting out the garage due to parked cars. A ROW easement does not usually allow someone to park on it. Unless their ROW is also a parking easement, you would be within your rights to remove the cars.
Secondly, if their fence is on your property and is not permitted by the easement, you would also be within your rights to remove it, after giving fair warning, and using the Fencing Act to get one built on the boundary and them to pay half the cost.
Retaining wall work to create the driveway is a more complex issue and I couldn't offer any thoughts without reading the easement and seeing the lay of the land. Your lawyer has no doubt given you advice on it.Last edited by Ivan McIntosh; 25-08-2015, 11:05 AM.
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We will never buy a ROW property again, its pretty special so we were swayed with this one.
My lawyer isnt a property lawyer he's commercial, if anyone knows of a good property lawyer near Red Beach I'm in the market clearly.
It is my understanding that as the easment runs along our boundaries they can take can come off the easement onto their land where ever they like.
The problem is they have taken an access which begins from the already formed driveway about 1/3rd of the way across the easement, at approx 120 degrees with a gradient of more than 1- 8 (minimally) due to the ramped and retained nature of it it is impairing the use of the easement for everybody else.
How it has come about.
Before they applied for a resourse consent they built the access, the first resource consent was for a barn/ home occupation office, which still doesnt have COC as it was a "barn" the access was not governed by council. when we bought our property they had just begun building the barn. We were concerned about the access and recieved copies of their application and the decision for resource consent.
The site plan shows an access however they did not build it acccording to the site plan on the site plan the access was contained within their own property. We then approached council who said it was a civil issue.
At this point we had a surveyor reinstate our corner boundary/easment peg which was found as we suspected in the middle of the concreted access they had constructed.
We had our lawyer write a letter asking them to remove the encroachment and pay for the reinstated peg
They said they did not move the peg and didn't need to know where it was it at the time for their construction purposes, as for the encroachment they argue that they are allowed to form an access over the easement. Their property went on the market 18 months ago and still is. The home occupation was found to be not complying with the rules, longer than 1 year later a warning to comply letter was sent to them from council regarding this.
They applied for a resource consent in June of which we were not notified, council agreed that as per there application a minor dwelling would have less impact on us than the home occupation,
This is unfair in itself, due to zoning a MHU is a non complying activity here.
A home occupation would have had less impact on us if council enforced the rules
They have not made it conditional upon the property not being allowed to have home occupation, and so there is now potential for two which would asssist the curent owner to spread his bussinesses over the two dwellings in order to comply thus effecting us more.
The access to the MHU was simply put in the application as exsisting. With the same site plan used although ammended to show open space areas which also don't comply and are directly visable from our front yard.
The access is not as built on the plan.
We had brought to councils atttention in the past the fact that th accesses gradient was to steep it was causing vehicles to damage our property, we contacted council once more as we believe it is no longer a civil issue with the granting of a resorce consent for a dwelling requesting that someone comes out to assess it, and asked to meet with them as there were also other issues we should discuss with them, they replied there is no rule in the district plan that requires access to a MHU to be of a minimum gradient. As such the matter was not addressed in the resource consent as no rule in the plan was infringed.
My reply - RMA-Definitions- Minor Household Unit
-The Minor Household Unit shall be subject to the same rules as a Household Unit unless otherwise specified.
This was 3 weeks ago, I have not heard from council since
I was informed in the same email from council that as they could not reconsider the decision the only recourse to challenge would be a Judicial review.
We all know our democracy is not democratic and that authorities largely rely on the fact that the average hard worker that is just above a legal aid threshhold will not have the finance to do so.
We are between a rock and a hard place, believe we have a very strong case, which cold run into incompetent/illegal/potentially corrupt involvement.
It would seem that there is some one looking out for our neighbour
We are seriously concerned that the next step is subdivision (also non complying)due to zoning of Landscape protected and coastal.
The neighbour cleared approximately 40m2 of this protected land (bush) last year including earthworks
To form a carpark for their business with sign up stating this with no resorce consent. Council have approved it we are told but cannot find a paper trail in council of this approval. In the decision for the consent for MHU council are now calling this a driveway, please note this is not shown on any of the plans.?
Our neighbour doesn't even live here and never has. He is abusing everything and everyone elses rights
We need help, what do we do
I think if we take the neighbour for encroachment and prove the drive way itself causes damage, and is not safe( we have photos and video footage of vehicles with wheels of the ground, slid into the fence, bottoming out.) We will get an engineer to assess it in lieu of a council assessment. the rest should be easier to prove. I have got so much documation that backs up nearly 2 years of trying to fight for the right we have to enjoy peacfully and without nuisance what we have paid a premium price for down here.
All advice welcome
P. S we have the total support of two other residents down here
1 resident unfortunately is a Real estate agent whom got a listing for their property, so now we don't get on either.
Anyone consider pro bono?
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PS a kitchen went into the barn over a year ago, the barn is 81.4 sq m MHU max is 65sq m
Advertising for the property shows this
Council have known this too
Someone from council bottomed out trying to use the access
I called in relation to this but unfortunately didnt follow up the complaimt proccess as it was too complicated.
It was only when I made a complaint about Rodney councils handling of the home occupation issue with the Auckland council that an investigation was done and we were told that a warning letter would be sent to the owners and if it continued to breach let them know an abatement notice would be issued... Auckland signed out and Rodney failed us again.
Fair Go?
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We will never buy a ROW property again, its pretty special so we were swayed with this one.
My lawyer isnt a property lawyer he's commercial, if anyone knows of a good property lawyer near Red Beach I'm in the market clearly.
It is my understanding that as the easment runs along our boundaries they can take can come off the easement onto their land where ever they like.
The problem is they have taken an access which begins from the already formed driveway about 1/3rd of the way across the easement, at approx 120 degrees with a gradient of more than 1- 8 (minimally) due to the ramped and retained nature of it it is impairing the use of the easement for everybody else.
How it has come about.
Before they applied for a resourse consent they built the access, the first resource consent was for a barn/ home occupation office, which still doesnt have COC as it was a "barn" the access was not governed by council. when we bought our property they had just begun building the barn. We were concerned about the access and recieved copies of their application and the decision for resource consent.
The site plan shows an access however they did not build it acccording to the site plan on the site plan the access was contained within their own property. We then approached council who said it was a civil issue.
At this point we had a surveyor reinstate our corner boundary/easment peg which was found as we suspected in the middle of the concreted access they had constructed.
We had our lawyer write a letter asking them to remove the encroachment and pay for the reinstated peg
They said they did not move the peg and didn't need to know where it was it at the time for their construction purposes, as for the encroachment they argue that they are allowed to form an access over the easement. Their property went on the market 18 months ago and still is. The home occupation was found to be not complying with the rules, longer than 1 year later a warning to comply letter was sent to them from council regarding this.
They applied for a resource consent in June of which we were not notified, council agreed that as per there application a minor dwelling would have less impact on us than the home occupation,
This is unfair in itself, due to zoning a MHU is a non complying activity here.
A home occupation would have had less impact on us if council enforced the rules
They have not made it conditional upon the property not being allowed to have home occupation, and so there is now potential for two which would asssist the curent owner to spread his bussinesses over the two dwellings in order to comply thus effecting us more.
The access to the MHU was simply put in the application as exsisting. With the same site plan used although ammended to show open space areas which also don't comply and are directly visable from our front yard.
The access is not as built on the plan.
We had brought to councils atttention in the past the fact that th accesses gradient was to steep it was causing vehicles to damage our property, we contacted council once more as we believe it is no longer a civil issue with the granting of a resorce consent for a dwelling requesting that someone comes out to assess it, and asked to meet with them as there were also other issues we should discuss with them, they replied there is no rule in the district plan that requires access to a MHU to be of a minimum gradient. As such the matter was not addressed in the resource consent as no rule in the plan was infringed.
My reply - RMA-Definitions- Minor Household Unit
-The Minor Household Unit shall be subject to the same rules as a Household Unit unless otherwise specified.
This was 3 weeks ago, I have not heard from council since
I was informed in the same email from council that as they could not reconsider the decision the only recourse to challenge would be a Judicial review.
We all know our democracy is not democratic and that authorities largely rely on the fact that the average hard worker that is just above a legal aid threshhold will not have the finance to do so.
We are between a rock and a hard place, believe we have a very strong case, which cold run into incompetent/illegal/potentially corrupt involvement.
It would seem that there is some one looking out for our neighbour
We are seriously concerned that the next step is subdivision (also non complying)due to zoning of Landscape protected and coastal.
The neighbour cleared approximately 40m2 of this protected land (bush) last year including earthworks
To form a carpark for their business with sign up stating this with no resorce consent. Council have approved it we are told but cannot find a paper trail in council of this approval. In the decision for the consent for MHU council are now calling this a driveway, please note this is not shown on any of the plans.?
Our neighbour doesn't even live here and never has. He is abusing everything and everyone elses rights
We need help, what do we do
I think if we take the neighbour for encroachment and prove the drive way itself causes damage, and is not safe( we have photos and video footage of vehicles with wheels of the ground, slid into the fence, bottoming out.) We will get an engineer to assess it in lieu of a council assessment. the rest should be easier to prove. I have got so much documation that backs up nearly 2 years of trying to fight for the right we have to enjoy peacfully and without nuisance what we have paid a premium price for down here.
All advice welcome
P. S we have the total support of two other residents down here
1 resident unfortunately is a Real estate agent whom got a listing for their property, so now we don't get on either.
Anyone consider pro bono?
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P.S kitchen went into the barn over a year ago, I note in the application that as the staff had no access to the use of the PHU this is allowed for? At this point it became a dwelling?
Council seem to have no regard for the rules this is a controled activity, council seem to have made decisions on the consents that are based on misinformation and opinins taken out of context ie planning application letters that mis quote regarding the home occupation argument.
And have chosen to ignore the rules we have been asking them to address.
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