Easement removal from shared private driveway

[Nan]

Hi,

Has anyone gone down the track of removing an easement from a shared driveway. I see that the district court has the power to do this.

The driveway is 6.12 meters wide so each share is 3.06 meters which is ample for any trucks etc.
This would allow me to fence my 50 meter driveway such that the neighbours and current persons with rights over my driveway would no longer be able to continuously damage my driveway.

This would allow the adjoining neighbours to do what they want on their side and I can then do what I want on my side.

They have just concreted their half as part of a subdivision resource consent, should have been 150mm thick, but they have only poured half way up the 150mm boxing and also cambered to the middle of the drive, so in the middle it is no more than 40mm thick. Nasty surprise for any new owners. They had 4 cars on it on 2 days after the pour (to lazy to walk) so they have also stressed an already weak drive as well.

They have taken their services under ground and I am happy to do the same on my side so easements for services should not be an issue.

I see that district fees are $900 per half day, plus filing fees. If I represent my self what sort of costs could I be in for. To me the case for a judge is fairly straight forward and the property Law Act allows for easement removal if it no longer serves a purpose, thus I would like to convince my opinion to a judge. Therefore would a couple of thousand see this case conclude, even if the judge declines my application. Thus any help on potential costs would be much appreciated.

[Shalodge]

You say it is an easement but talk as though it is an access lot. What does the title say?

[Nan]

Hi,
Definitely an easement over strips A & B with dominant and servant easements in place. Therefore I have right of way over his 3 meter wide strip and he has an easement to use my 3 meter wide strip.

Anyone got any ideas of potential costs to apply to District Court to request removal of this easement. I would represent myself.

[Shalodge]

It sounds like an RMA matter? The easements may have been established during the subdivision and are consent notices which can only be removed /altered under the RMA. You will need a planner/lawyer to have a look at the title and advise you of the correct process. I always suggest that people make an appointment with a local council planner as a first step and go from there. Most Councils will provide some advise for nothing rather than spend time later.

[Nan]

Hi Shalodge,

Surely this is out of the councils jurisdiction.
The easements were created some 50 years ago. The reasons for them being created may no longer exist now. The Property Law Act makes provision for easements to be extinguished. Is this not just a case of making an application to the court to extinguish this easement. The cost of presenting myself is my main question. Thank you.

[motivated]

As a separate matter from any council approvals you will also need the full agreement of any/ all other owners/ parties affected by the existing easements

Under the RMA the changes you advocate will be controlled by the local body and (im not 100% certain on next point) suspect they may be deemed a subdivision. A simple boundary adjustment is deemed a subdivision these days

[Nan]

Hi Motivated,

I don't believe you need the agreement of affected persons of the easement to change it. My understanding of the property Law Act is a judge can rule in favour of the applicant and remove the easement if sufficient evidence to extinguish it is provided to him. I am curious of potential costs to proceed with this in the district court.

[motivated]

Im not sure why you think a judge will simply take away your neighbour's rights to an easement just because you ask for the easement to be extinguished
Whether your neighbour uses the rights they have or not is not the issue. They bought a property with those rights and removing the easement may (or may not) have a massive impact on the value or future use of a property. As Shalodge and I have both said it is an RMA/ council issue and Im certain a council would expect affected party sign off before they will agree to allow the changes you want

Hi Motivated,

I don't believe you need the agreement of affected persons of the easement to change it. My understanding of the property Law Act is a judge can rule in favour of the applicant and remove the easement if sufficient evidence to extinguish it is provided to him. I am curious of potential costs to proceed with this in the district court.

[RollingCloud]

ROW are mostly private matters, so generally Council would not get involved. Council would be quick to tell you so too. However Council's may get involved if the ROW was condition of a subdivision, that is, if you are applying for a change to the ROW or have it extinguished. I only know of extinguishing of an easement with the other parties agreement. s 317 of the RMA seems to indicate this is a requirement. Further, read Breslin v Lyons 2013. Summarised as "Courts are very reluctant to interfere with the land use rights conferred by virtue of an easement. Compelling evidence is required before the Courts will surrender or modify land use rights, even if the party with the 'burden' of the easement suffers inconvenience as a result". Is yours a compelling reason? perhaps you need to spend the $ to find out.

[Nan]

Thank you RollingCloud and all others for your input. Just one last question is anybody aware of potential costs to bring about a case like this to the District Court? I see hearings are $900 per 1/2 day so for a case like this what could the total potential costs be to get an answer one way or the other?

[RollingCloud]

*oops I meant s 317 of the Property Law Act 2007 not RMA. By spending $ I mean employ a solicitor to see if you have any grounds for application. I don't think you do. If you do, I'd be interested to know on what grounds.

[jhab]

The DC is cautious to surrender the easement on the ground of the arrear property has right of way through wide driveway. The court fee is your consideration; however do you consider the court to uphold your case or dismiss it? DC shall consider the all surrounding factors to decide it. The surrender of easement is normally upheld for the outdated one; but your one is different because your neigbor still has right of way to pass and repass. Do you think they shall agree it or object it?

[Nan]

Hi Jhab, My neighbours who are Bangladesh property developers have owned the property for only a year and purchased the property with an existing subdivision resource consent in place are not in agreement to have the easement removed. In there misguided belief they believe it will effect their subdivision of there 1200 meter section into two lots. They are looking at on selling both lot 1 with existing house and lot 2 with approved house plans as soon as the subdivision resource conditions are completed (new storm water drains, concrete drive, underground services etc).

I would not do anything that would limit the drive way use as that could effect any of my own plans should I ever want to in the future subdivide. This said, a 3.06 meter wide driveway is perfectly adequate for any trucks to use. In fact at 3.06 meters, the drive is wider than the new rear lot 2 section as existing lot 1 house has an easement that allows the eaves of the single level house to encroach over lot 2's driveway/access way providing only a 2.6 meter wide drive clearance for any tall trucks.

Primarily I started thinking about the easement removal when for the last 14 years I was the only one to do any drive maintenance as the neighbouring house has been a rental all this time and owners are non existent entities behind property managers. Even in the last year the neighbouring tenants have only used my side of the 6.12 meter drive as there side is so fill of pot holes and resembles a course only suitable for jet boat sprints in the winter months.

By putting in a low fence bisecting the 6.12 meter drive will also improve neighbourly relations. No more using my drive as a parking lot which is a big bug bear in shared drives. If I look at the character of the neighbourhood, my drive is the last of the wide drives. Without researching titles on other properties in the street all other wide drives have dividing fences, whether this is because the same owner owns both properties or not is not known, but this is the norm in the neighbourhood.

Still love to have someone answer on estimated costs if I lodge and present this case myself in the district Court. Also if he defends this case will the applicant (me) always be liable for his costs, especially as he would undoubtedly have legal representation. Would this also be a short case as the claim/facts/issue appears to be straight forward?

[Shalodge]

There is a subdivision standard and carriage width for accessways under the ACC Unitary Plan. If subdivision consent has been recently granted to the neighbour you will not be able to remove an easement if it was specified as part of the consent conditions. I'll only say this once more.. Go see a planner at ACC or wherever you are and go from there.

http://www.aucklandcity.govt.nz/council/documents/districtplanpapakura/307_p9_subdivision_270910.pdf

[Nan]

Hi Shalodge,
Thank you for your advice. Unfortunately councils do not always give correct advice, and this is more than likely a private matter out of their jurisdiction. I believe the Property Law Act to be the guiding authority on this matter, but I will see a planner at the council shortly. As with all research there is an initial gathering of information stage which is what I am doing on this forum. There is a chance someone may have been down this easement road before which is why I am presenting this to this audience.

I have already read the carriage way widths and design standards for urban private ways as part of my research. As for the subdivision consent on lots 1 & 2 for his property, they only refer to right of way "A", which is his 3 meter width. Of course "A" will soon provide access to both his lots, with both having a dominant easement over my "B" 3 meter wide driveway. As Jhab noted earlier, as access will not be restricted because without the easements over A & B's 48 meter long drive, both of his lots 1 & 2 will still have unimpeded access down "A" which is his 3.06 meters.

Still really keen to hear if anyone has approximate costs of taking this to the District Court if I represent myself, and how many 1/2 days at $900 this could possibly take? Thank you every one for your advice so far.