Easements

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Author

Brian Foote

Published On

05/08/2015

Category

Advice to Surveyors, Claims Experience, General

Easements

A recent High Court case in the North Island that has featured in the National newspapers, has highlighted the need for the claims committee to prepare a newsletter on the subject of easements.

What has the Claims Committee learnt?

Over the years the Claims committee has seen a large number of claims emanate from the easement area.  All of the errors have been simple in nature and realistically should not have happened.  One can only assume that many surveyors treat easements, and in particular, the easement schedule, too lightly and as a consequence of that, errors are made.  In most cases they can be relatively easy to fix and usually involve the surveyor preparing a new plan, obtaining the requisite consents from Council and with good will on both sides the correct easements are then registered and the problem solved for relatively little cost to the surveyor.  Relatively little in our view, is anything that is less than $10,000.

However the human psyche is a weird and wonderful thing and one can never predict how the affected parties will react to what appears to be a simple mistake.  The case that has been in the news is a case in point. 

The solution is probably really simple.  The following procedure will go a long way to minimising the chance that an error could occur.

  • Take the easements really seriously right from the scheme plan stage.  Many surveyors treat a scheme plan as simply being a preliminary plan to be worked on later.  This is mistake number one.
  • Fully research all of the easements that exist on the title and ensure that these are accurately depicted on the face of the scheme plan.  Take care to obtain the sourced documents and check those documents for any special conditions or abnormalities that may relate to that easement.
  • Ensure that the existing easement schedule is correctly drafted on the scheme plan.  You are going to need to know this, and the Council will need to know this, as you may want to surrender some of the redundant easements and consent to surrender those easements may be required from Council depending on how they were granted in the first instance. E.g. those that are subject to Sec 243 of the RMA 1991.
  • Carefully consider the new services that are going to be required to support your subdivision and then show the position of these easements on the scheme plan and record that either in the schedule or the memorandum.  Consider whether or not you want the easements to be conditional (i.e. must be created as a condition of the consent) and include a discussion on this in your application to Council.  Some easements are best left unconditional and you should state your reasons why this is so.
  • When the final scheme plan has been prepared, take the time to go back over the easements again, working through them one by one to ensure that you have correctly identified the servient tenement and the dominant tenement.  This is a very common area to make an error and we have seen several cases where the Lots were reversed or the dominant tenement was incorrectly identified meaning that a particular lot no longer had right of way access to a legal road.
  • When the survey dataset is prepared, try to keep the lettering the same as you used on the scheme plan which is why it is important to identify every easement on the scheme plan so that you don’t end up with additional letters that were not originally contemplated.  It is well known that once you depart from your original plan, the chance of making an error increases exponentially, so put the time in right at the beginning and you are then less likely to make an error at the end.
  • Always have an independent check made of the easements by someone else in the office to confirm that you haven’t missed anything.  Do a full check of the easement schedule in the dataset as part of your process of making application to Council for certification under sections 223 and 224(c).
  • It is a good idea for you to place a small mark on the final draft of the easement schedule to ensure that the correct schedule is attached to the dataset as part of that 223/224 process.  An insignificant mark in the top corner of the sheet will be an easy identifier for you to pick up when you are looking at the schedule on the screen just prior to pushing the submit button.
  • One final check of the plan before you submit it to LINZ for approval is always a good idea.  It will probably be on a new day when you have a fresh head and what harm can that do.  If the schedule is particularly complicated and you find yourself feeling that “I don’t need to check that again” then think what are the consequences of me missing one easement?  It can’t be all that bad.  Read on and I will take you through some real examples of when that has happened.
  • If the easement schedule is really simple (only two lines) how long is it going to check that?  What have I got to lose by doing one final check?

Real Cases

These cases are real, so I will make very subtle changes to my description so as to preserve the anonymity of the member concerned.

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