Month: October 2024

Properties with shared driveways are extremely common in New Zealand’s real estate market.  While some buyers look at them and appreciate the added privacy and control, others see the potential for issues to brew with their neighbours.  No matter which category you fit into, you may have questions about how exactly things will work after you purchase your new property.

Shared driveways can take different forms for different types of property.

Fee Simple – Right of way easements

One of the most common methods of creating a shared driveway over fee simple property is to register a right of way easement against the title. If your property has an associated right of way, it will include a notation along the following lines:

Appurtenant to Lot X DP XXXXXX is a right of way created by Easement Instrument XXXXXXX.X – DATE at TIME

Subject to a right of way marked X on DP XXXXXXX created by Easement Instrument XXXXXXX.X – DATE at TIME

For a crash course in easement terminology, “appurtenant to” means that the property has the benefit of an easement registered over another piece of land, and “subject to” means that the property has an easement registered over it, that other people or landowners are entitled to use.  If your property is shown on an easement instrument as being the “benefited land”, it gets the right to use the easement, and if your property is shown on an easement instrument as being the “burdened land”, it has the easement area on it.  The owner of the benefited land is known as the “grantee”, and the owner of the burdened land is known as the “grantor”.

The easement area itself is usually described as an area letter on a deposited plan.  Sometimes the relevant plan will be attached to the back of the record of title, and other times you, or your lawyer, will need to request a copy of the plan from Land Information New Zealand to see the exact location of the easement.

During your due diligence, you should always make sure to read the terms of the registered easement instrument to work out exactly what is and is not permitted.  Much of the time though, these terms will be light on detail and the easement will have the following notation:

Unless otherwise provided below, the rights and powers implied in specified classes of easement are those prescribed by the Land Transfer Regulations 2018 and/or Schedule 5 of the Property Law Act 2007.

To summarise right of way terms in plain English:

• Both the grantee and the grantor have the right to travel along the right of way, and can, by default, bring any vehicles, machinery, equipment, or animals along that right of way with them.
• The right of way area must be kept clear and cannot be blocked by parked cars, locked gates, items left behind or anything else that could get in the way of either parties’ use (at any time of the day).
• The only time the right of way does not have to be kept clear is where the parties are repairing or maintaining it.
• The grantee can repair and maintain the right of way as required, and can construct a right of way/driveway in the area if one does not already exist.
• If you share the benefit of the right of way, each person that has the benefit is equally responsible for sharing the costs of the right of way, except for where those costs are caused because of the actions of one party. So, for example:
  1. If all parties are using the right of way and it develops damage due to regular use, all parties must share the costs.
  2. If all parties are using the right of way, and one person causes damage by, say, dropping something heavy on the concrete, or spilling a large amount of oil on it, that party will be responsible for the repairs.
  3. If all parties are using the right of way, and one person is causing more wear and tear than the others, say, by driving a very heavy vehicle over the driveway daily, and a portion of the wear and tear can be attributed to that person, that person will be responsible for a greater share of the repairs and maintenance, with the balance to be split equally.
• If a party breaches their obligations, the other party/ies can serve notice, and if that default is not fixed within 10 working days, the non-defaulting party can fix the problem at the defaulting party’s cost. This means that in situation 2) above, the other parties could step in to fix the driveway and charge that owner for the costs of doing so.
• There is also a statutory process for dealing with disputes if the parties cannot do so themselves (via formal arbitration).

Fee Simple – Access lots

The other common way of creating a shared driveway for fee simple property is to have an access lot, which all the parties sharing the driveway have an equal ownership share in.  On the title, this shows as two distinct freehold interests, one of which will show as a fraction ownership, as below:

Sometimes the access lot will also have an easement registered over it.  However, if it does not, section 298 of the Property Law Act 2007 creates an implied vehicular right of way (under Schedule 5 of that Act), over the access lot and in favour of the various owners. While this schedule is less detailed than the easement rights created under the Land Transfer Regulations, it does, in practice,  re-create most of the terms, and provides a sturdy basis for the ongoing relationships between neighbours.

Cross-lease

Under a cross-lease a shared driveway is usually described as “common property” and its use will be subject to the provisions of the particular registered lease.  Your maintenance obligations will also be set out in the registered lease.

You, or your lawyer, will need to obtain a copy of the registered lease to ensure that the shared driveway is located in the right place and that the rules are clear.

Unit Title

For most unit title developments, a shared driveway will also be described as “common property”.  Their use is governed by the body corporate’s rules, whether registered, or implied under the Unit Titles Act 2010.  The body corporate will generally be responsible for the maintenance of the shared driveway and you will contribute towards the costs as part of the body corporate levies.

What does all of this mean for you?

While shared driveways are only one part of the overall picture of a property, they are often misunderstood and can affect both marketability and desirability of a property.  Demystifying those rights empowers all parties to make more informed choices about such properties, and helps to resolve small disputes between neighbours before they become bigger problems.

If you have any questions about rights of way, easements, or other aspects of property due diligence, please feel free to get in touch with our friendly property team.