Do I need neighbour consent for my subdivision or second dwelling?

[Exotic pumpkin]

Would appreciate help!

I have a 700sqm section with an existing house sitting at the front of it. It shares a driveway with my neighbor (whose property is behind mine). The driveway belongs to my neighbor and I have right of way. My title shows there is no covenant to the right of way. I understand if I were to subdivide or building a second dwelling on the rear section, I will not need neighbor consent, is this correct? I'd hope the resource consent application would be non-notified?

What happened was, I talked to my neighbor and explained my intention out of courtesy. He actually rejected my idea, saying building another house will mean more traffic down the driveway and he didn't like it that way.

What does it mean to me? Shall I get the Council to decide whether the consent process will be notified?

Would love all opinions.

[charlotte30]

I suggest that you talk to a surveyor and or solicitor before going to the council. I think you are assuming that because you have right of way you will automatically have it by creating another lot. This may not be the correct. You may have to get an easement over your neighbour's land for the new lot that you are wanting to create which will require the agreement of your neighbour. If this is the case I suggest you make an offer to him that would make the deal worthwhile. Your section size also seems small, do you have to build first before you subdivide?

Cheers
Charlotte 30

[Exotic pumpkin]

Thanks for your reply.

Yes I did talk to the surveyor. I was told that my section has Right of way easement over neighbor's land and this easement doesn't have any conditions/restrictions on it, meaning I should not require neighbor consent for either second dwelling building or subdivision. However, I did ask my neighbor out of courtesy and he didn't like my idea. That's why I think maybe I should ask the Council as to what's happening?

[SuperDad]

It sounds like you are getting mixed up.

A ROW is created by an easement. Think of an easement as a right granted by one bit of land to another bit of land. In your case, the ROW is granted by your neighbour's lot to your lot - the right to convey traffic over his lot to access your lot.

As such, if you subdivide and create another lot, that third lot does not automatically enjoy the right created by the easement.

It is an entirely different story (I understand) if you are putting a second dwelling on the existing lot.

Now, I am not an expert in this by any means, but there is a clear difference between subdividing and adding a second dwelling in respect to the ROW created by an easement.

Also, the people to talk to are not the council, but your solicitor. He or she will be able to view the Title and explain the easement(s) to you.

Paul.

[Xav]

As such, if you subdivide and create another lot, that third lot does not automatically enjoy the right created by the easement.

Actually easements do pass down to new titles, so you don't need the neighbours consent for that.

You should talk to the Council. If they indicate that the application will definitely be notified it may not be worth proceeding as it sounds like the neighbour will oppose the application.

[SuperDad]

Actually easements do pass down to new titles, so you don't need the neighbours consent for that.

I did not know that.

Thanks Xav, that gives me something to learn about.

Paul.

[SuperDad]

So just to clarify, suppose Lot A grants Lot B a ROW across a certin part of Lot A.

Lot B is then subdivided so that it is 2 lots, Lot B and Lot C. Doesn't the easement need to be changed to mention both Lots B and C? How can this be done without the permission of the servient tenement?

[Xav]

The easement instrument still refers to the old Certificate of Title, which is cancelled when the new Certificates of Title issue. The easement will be noted on both of the new titles by LINZ.

If you look at survey plans you will see that they always include existing easements in the easement schedules for that reason.

It can get time consuming to trace the origin of the easement and whether it is even still used once it has happened enough!

Technically speaking, it is possible to challenge under common law or (more likely) section 317 of the Property Law Act. It would be very unusual though, primarily because the costs involved would usually far exceed the additional inconvenience.

[Edit] Just to clarify a bit more, the way it works isn't that lots 1 and 2 become lots 1, 2 and 3. Rather there is a new survey plan, so you end up with Lot 1 on plan X and Lots 1 and 2 on plan Y (the later two previously being Lot 2 plan X). So obsoleted references are unavoidable unless you manually update everything each time, which would be bad on a cost/benefit analysis. The previous references are traceable, as titles cancelled because of a subdivision state which new titles were issued, and new titles refer to the title they originated from.

[Exotic pumpkin]

Thank you very much, Xav, for your clarification.

I'll talk to the Council and see what they suggest...

Now, suppose I will only build a second dwelling on the rear section (using the existing ROW), without the subdivision, and suppose my neighbor is still against it (same result to him whether it be subdivision or second dwelling), will it become an obstacle for me applying for building consent? I suppose resource consent won't be required if I can comply with all council rules?

[SuperDad]

Thanks for that Xav, it is a really clear explanation.

Paul.

[Xav]

Now, suppose I will only build a second dwelling on the rear section (using the existing ROW), without the subdivision, and suppose my neighbor is still against it (same result to him whether it be subdivision or second dwelling), will it become an obstacle for me applying for building consent? I suppose resource consent won't be required if I can comply with all council rules?

No, it won't be an obstacle.

If you fulfill all the requirements in your local district/city plan you won't need a resource consent, which is the one he can object to. Building consent only covers the construction, to ensure that it is of an acceptable standard (in theory anyway).

I would think it likely that if you could build the second dwelling without needing a resource consent the subdivision would be non-notified anyway.

[Perry]

That expression 'non-notified' is the nub, right?

Depending on the details in your District Scheme/
Plan, certain activities can drop from the 'notified'
list to the 'non-notified' list, if all neighbours consent.
That makes the process simpler and cheaper.

But if a secondary dwelling (no title changes) is
already on the 'non-notified' list, then the courtesy
you extended to the neighbour was just that,
because you don't need the neighbour's assent.

[Kim 4 regent]

Hi,
A search of the title will definitely assist with your question. Secondly, you will also need to be aware if you a have mortgage registered over the Title, the Banks consent will also be required. Happy to check out the title if you need any help

[Shalodge]

You will normally need a resource consent (land use) to build a second dwelling on a lot even if you are not subdividing. Without actually looking them up it is very unlikely a second house will comply with the rules. Where land area is tight, setback rules and shading rules will be a problem as will minimum yard sizes depending on the size of the proposed dwelling. Even without a subdivision access will be required to the new dwelling and this will need to be provided to a set standard.. The best you can hope for is limited notification which will include your neighbour. If he objects there will be a hearing.

Good luck..

Russell ORR
note: Without knowing all the specifics of the situation none of what I have told you may be relevant. It is intended to provide a general idea of what is involved..

[rueben]

You will normally need a resource consent (land use) to build a second dwelling on a lot even if you are not subdividing. Without actually looking them up it is very unlikely a second house will comply with the rules. Where land area is tight, setback rules and shading rules will be a problem as will minimum yard sizes depending on the size of the proposed dwelling. Even without a subdivision access will be required to the new dwelling and this will need to be provided to a set standard.. The best you can hope for is limited notification which will include your neighbour. If he objects there will be a hearing.

Good luck..

Russell ORR
note: Without knowing all the specifics of the situation none of what I have told you may be relevant. It is intended to provide a general idea of what is involved..

It totally depends on the zoning rules for the council concerned. Our local council allows a second dwelling without resource consent.