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Subdividing with a shared driveway - can't get straight answer from council planners

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  • Subdividing with a shared driveway - can't get straight answer from council planners

    We own a freehold property that can be subdivided under the Auckland unitary plan for mixed housing urban, and it is accessed by a shared driveway in which we own a 1/6th share (I'm unclear on legal terminology but the title for the driveway says "Fee simple - 1/6th share").

    We are wanting to subdivide our property, and in turn split our ownership share of the drive into two 1/12th shares, one for each property title.

    a) Do we need neighbour written approval from all the other driveway owners to do this subdivision?
    b) If we need approval, is there any alternative route we can take and still subdivide our property? e.g. introduce an easement or right of way on our share... (FYI one owner has said no, the rest were fine with it)

    Thanks in advance for any guidance or referral to someone who can help!!

  • #2
    I would suggest that you need to be talking to your surveyor and your lawyer to see if it possible and what the process is.


    • #3
      The way it works is that when you subdivide the original property it and the new one get new titles each however retains the rights under the old one, that is r.ow over a drive consisting of parts owned by the various preceding properties and easements over the other parts. The easements give the right of passage. One could have an easement without any ownership. Once the easement is established the original owners or grantors have no say in what happens. The subdivided property must be given an easement of r.o.w over your original property. The new part of the r.o.w applies only to your and the new property so you bear the costs of maintenance and share the costs of maintenance of the original since you both use it.
      I have done it and a surveyor and good conveyancer will be familiar with it. Not all lawyers are, nor real estate agents.
      You might find other planning issues eg r.o.w widths have changed and there is a limit to the number of properties served 10 in Auckland however your surveyor can advise.However with 6 original an extra one from you won't make a difference.


      • #4
        This prompted me to login for the first time in a while. This sounds like it isn't a right of way, but is an undivided 1/6 share in an access lot and, as such, you won't be able to transfer your undivided 1/6 to become 2 x1/12 without the other owners (and their mortgagees) being involved in the transfer.

        I also doubt that they would allow your "share" to be halved into 2 x 1/12...they would more likely (if they agreed at all) want it to go from 1/6 to 1/7, so that everyone shares in expenses, all things being equal. In essence you would have one group of six "undivided" proprietors transferring to a new group of seven "undivided" proprietors; ie you would end up with 2/7 as proprietor of two properties using the access lot.

        You cannot grant an easement over your undivided share...once again, all the owners and their mortgagees would need to participate in granting an easement.

        In addition to this, there may well be an encumbrance, covenant or consent notice on the access lot that places further restrictions on transfers and further subdivision. Chris's comments on access widths and limits will also apply.

        This is definitely a situation where you need to discuss with your surveyor and lawyer.
        Last edited by Ivan McIntosh; 17-05-2021, 04:20 PM.


        • #5
          I had a 1 strip out of three ...
          1: one property split to four
          2: one property (not one of the three) joined
          3: one property split into 12 units


          I had no say in the matter
          PM for further details


          • #6
            One strip out of three says to me each strip owner has granted reciprocal easements to the others. The easements benefit all of the land being subdivided so in reality there is no change.....a certain area of land has ROW access over another area or areas of land...whether that certain area of land is split into more lots is neither here nor there as far as the easement is concerned (Council of course being a separate matter).