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  1. #11

    Default

    *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.

  2. #12
    Join Date
    Feb 2009
    Location
    Auckland
    Posts
    47

    Default

    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 The surrender of easement is normally upheld for the outdated one; but your one is different because your neigbor still has right of way to pass and repass.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?

  3. #13
    Join Date
    Jul 2012
    Posts
    41

    Default

    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?

  4. #14
    Join Date
    Mar 2008
    Posts
    934

    Default

    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/coun...ion_270910.pdf

  5. #15
    Join Date
    Jul 2012
    Posts
    41

    Default

    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.

  6. #16
    Join Date
    Oct 2007
    Posts
    363

    Default

    You are wasting your time going straight to court. Shalodge is on the right track-- unless you get council approval in principle to do what you want to do you are wasting your time. Step 1 = professional advice (surveyor or planner) then step 2= council approval in principle then step 3 = neighbour sign off. if that is not agreed to, you would need to have a VERY STRONG case before you have a good chance in court
    Quote Originally Posted by Nan View Post
    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.

  7. #17

    Default

    Hi Nan,

    Not sure if you are monitoring this thread, but I'm curious about how you got on. Did you take it to court?

    Did you resolve it in some way to your satisfaction?

  8. #18
    Join Date
    Dec 2010
    Location
    Cambridge, NZ
    Posts
    1,375

    Default

    I'd be astonished if this got anywhere....there didn't seem to be any chance of it succeeding whatsoever. This kind of thing only potentially works when, for example, a property that used to exit over your land has been subdivided with a road built through it that all the properties now use, and the garage of the as-small-as-it-can-get lot that has the ROW faces the other way towards the road, and the ROW is now overgrown and has a fence across it.


 

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