LINZG20707
Guideline for application for
removal of redundant
easements
TABLE OF CONTENTS
TERMS AND DEFINITIONS............................................................................................. 4
FOREWORD ....................................................................................................................... 5
1
INTRODUCTION ...................................................................................................... 7
1.1
Scope .......................................................................................................................... 7
1.2
Intended use of guideline ........................................................................................... 7
2
MAKING AN APPLICATION.................................................................................. 7
2.1
Who can make an application .................................................................................... 7
2.2
Form of application .................................................................................................... 7
2.3
Types of application ................................................................................................... 7
2.4
Application based on determination by effluxion of time .......................................... 7
2.4.1
2.4.2
2.5
Application based on determination by specified event ............................................. 8
2.5.1
2.5.2
2.6
When an application can be based on determination by specified event ..... 8
Statutory declaration .................................................................................... 8
Application based on merger ...................................................................................... 8
2.6.1
2.6.2
2.7
When an application can be based on determination by effluxion of time .. 7
Statutory declaration .................................................................................... 8
When an application can be based on merger .............................................. 8
Statutory declaration .................................................................................... 8
Application based on redundancy .............................................................................. 9
2.7.1
2.7.2
When an application can be based on redundancy....................................... 9
Statutory declaration .................................................................................... 9
2.8
Additional evidence in support of application ........................................................... 9
3
EXCEPTIONS............................................................................................................ 9
3.1
Doctrine of abandonment ........................................................................................... 9
3.2
Determination or extinguishment by other means ................................................... 10
4
NOTICE REQUIREMENTS ................................................................................... 10
4.1
Notice required ......................................................................................................... 10
4.2
When notice is not required...................................................................................... 10
4.3
Notice to interested persons ..................................................................................... 10
4.4
Content of notice ...................................................................................................... 10
4.5
Addresses for service................................................................................................ 11
4.6
Public notice ............................................................................................................. 11
5
MAKING AN OBJECTION .................................................................................... 11
5.1
Who may object........................................................................................................ 11
5.2
Consideration of objection ....................................................................................... 11
5.3
Notifying the objector and applicant ........................................................................ 11
5.4
Requisitioned application ......................................................................................... 11
5.5
Rejected application ................................................................................................. 12
6
MAKING AN ENTRY ON THE REGISTER ......................................................... 12
6.1
Acting judicially ....................................................................................................... 12
6.2
Wording of entry ...................................................................................................... 12
Appendix A: Example of notice to interested persons ..................................................... 13
Appendix B: Example of public notice............................................................................ 14
TERMS AND DEFINITIONS
Term/Abbreviation
Definition
dominant land
the land, or interest in land, which has the benefit of an easement
dominant owner
person acquiring an easement, or the registered proprietor of land
having the benefit of an easement
easement
a right to use servient land in a particular way, but without the right to
possession of that land.
An easement may be created as attached or “appurtenant” to dominant
land, eg a right of way over servient land leading to dominant land, or
“in gross”, eg the right for a network operator to place pipes or lines
for the benefit of the network.
In this guideline, where the context permits, “easement” includes a
profit à prendre.
Gazette
The New Zealand Gazette - Te Kahiti o Aotearoa
identifier
a combination of letters or numbers, or both, by which a Register,
instrument or other document is uniquely identified
LINZ
Land Information New Zealand
LTA
Land Transfer Act 1952
LTR
Land Transfer Regulations 2002
profit à prendre
the right for a dominant owner to take from certain land of a servient
owner some product or natural resource of that land, without right to
possession of that land
Register
means a land transfer Register constituted under the Land Transfer
Act 1952
RGL
Registrar-General of Land
servient land
the land, or an estate in land, which bears the burden of an easement
servient owner
person creating or granting an easement, or the registered proprietor of
land subject to an easement
Guideline for application for removal of redundant easements
LINZG20707
Effective date: 14 September 2007
Registrar-General of Land
Land Information New Zealand © Copyright
4
FOREWORD
Section 70 of the Land Transfer Act 1952 (LTA) sets out certain circumstances when the RegistrarGeneral of Land (RGL) may remove a redundant or expired easement or profit à prendre from the
Register. Schedule 2 of the Land Transfer Regulations 2002 (LTR) provides Form 1, which must
be used for applications to the RGL for the removal of easements and profits à prendre.
Purpose of guideline
The purpose of this guideline is to provide additional guidance on the application and registration
procedures for removal of redundant easements under s 70 of the LTA.
This guideline is to be read in conjunction with these statutory provisions and is designed to ensure
that:
(a)
persons with delegated statutory authority to undertake these functions apply these provisions
consistently and in a legally sound manner; and
(b)
the requirements for applications and supporting evidence are transparent and well
understood.
Rationale for new guideline
Land Information New Zealand (LINZ) is tasked with meeting the Government’s desired economic,
social, and environmental outcomes in relation to its mandated subject areas. Accordingly, end
outcomes, intermediate outcomes, objectives, and sub-objectives have been developed to clearly
articulate the regulatory framework for each subject area.
A risk-based approach is then used to determine the optimum level of intervention. If there is a high
risk of not achieving an objective or sub-objective, then, generally, a high level of intervention is
required. Similarly, a low risk of not achieving an objective or sub-objective means a low level of
intervention is necessary. The desired intervention is then developed to manage the identified risks
and thereby achieve the relevant sub-objectives, objectives and, therefore, the outcome.
This guideline has been developed to mitigate the risk of not achieving the following end outcome
and objectives.
End outcome
Objectives
Registered land owners or right holders have
confidence that their rights are secure, well
understood and easily tradeable

Transactions are completely and accurately
entered and maintained in Register

Only legally valid types of transaction are
submitted

All transactions are authorised by or on behalf
of entitled parties
Guideline for application for removal of redundant easements
LINZG20707
Effective date: 14 September 2007
Registrar-General of Land
Land Information New Zealand © Copyright
5
The outcomes and objectives developed by the RGL for the land transfer system also reflect the
objectives stated in s 4(3) of the LTA.
Brief history of guideline
This guideline supersedes the following documents:
LINZ 2003, RGL Standard 29: Application for the Removal of Redundant Easements,
Registrar-General of Land, LINZ, Wellington.
LINZ 2003, RGL Standard 30: Processing Applications for the Removal of Easements,
Registrar-General of Land, LINZ, Wellington.
LINZ 2003, RGL Guideline 32: Guideline for Removal of Easements, Registrar-General of Land,
LINZ, Wellington.
References
This guideline should be read in conjunction with the following:
Section 70 of the Land Transfer Act 1952
Schedule 2 of the Land Transfer Regulations 2002
Guideline for application for removal of redundant easements
LINZG20707
Effective date: 14 September 2007
Registrar-General of Land
Land Information New Zealand © Copyright
6
1
INTRODUCTION
Section 70 of the LTA sets out requirements for both the applicant and the RGL before the
removal of a redundant easement or profit à prendre can be noted on the Register.
Schedule 2 of the LTR prescribes the form that must be used to apply for the removal of a
redundant easement or profit à prendre.
1.1
Scope
This guideline suggests procedures which, if followed, will generally ensure compliance
with s 70 of the LTA.
1.2
Intended use of guideline
This guideline is intended for use by:
(a)
persons with delegated authority to undertake registration functions on behalf of the
RGL under the LTA, and
(b)
persons who wish to apply for the removal of a redundant easement or profit à
prendre.
2
MAKING AN APPLICATION
2.1
Who can make an application
Any person can apply for the removal of an easement or profit à prendre from the
Register. The applicant will usually be the dominant or servient owner. The RGL should
be consulted when an application is received from any other person.
2.2
Form of application
The correct form for an application for removal of an easement or profit à prendre is
contained in Form 1 of Schedule 2 of the LTR. The form also contains a statutory
declaration which should be used with the statutory criteria to prove the easement or profit
à prendre is determined, extinguished, or redundant. Additional annexure schedules may
be used to support the statutory declaration.
2.3
Types of application
Section 70 of the LTA sets out the ways that an applicant can apply for an easement or
profit à prendre to be removed and for this to be noted on the Register.
2.4
Application based on determination by effluxion of time
2.4.1
When an application can be based on determination by effluxion of time
An application can be based on determination by effluxion of time if the easement
instrument specifies a finite term of days, months, or years from the commencement date,
or a specific expiration date.
Guideline for application for removal of redundant easements
LINZG20707
Effective date: 14 September 2007
Registrar-General of Land
Land Information New Zealand © Copyright
7
2.4.2
Statutory declaration
The accompanying statutory declaration should:
(a)
state that the easement is extinguished by effluxion of time, and
(b)
cite the clause or provision in the registered easement which unconditionally limits
the term or duration of the easement.
2.5
Application based on determination by specified event
2.5.1
When an application can be based on determination by specified event
An application can be based on determination by specified event if the instrument creating
the easement provides that the easement shall determine or be extinguished upon the
happening of a specified event, ie without any requirement for execution of an instrument
of surrender.
2.5.2
Statutory declaration
The accompanying statutory declaration should:
(a)
state that the easement has been determined or extinguished; and
(b)
cite the clause or provision in the registered easement which provides for
determination or extinguishment upon the happening of a certain event; and
(c)
confirm the occurrence of the event and affirm that the easement no longer benefits
the dominant land and is no longer in force, used, or operative; and
(d)
be accompanied by either:
(i)
a corroborative statutory declaration by a disinterested party with knowledge
of the relevant facts, or
(ii)
other independent evidence to verify the applicant’s statutory declaration.
2.6
Application based on merger
2.6.1
When an application can be based on merger
An application can be based on merger if the ownership and possession of fee simple
estates in both the dominant and servient land become vested in the same person. Relevant
registers in the name of the same registered proprietor will usually be sufficient
verification for this type of application.
2.6.2
Statutory declaration
The accompanying statutory declaration should state that:
Guideline for application for removal of redundant easements
LINZG20707
Effective date: 14 September 2007
Registrar-General of Land
Land Information New Zealand © Copyright
8
(a)
the easement has determined due to merger; and
(b)
the easement no longer benefits the dominant land; and
(c)
the ownership and possession of fee simple estates in both the dominant and servient
land have become vested in the applicant; and
(d)
there are no registered or unregistered interests at law or in equity to prevent the
removal of the easement from the Register.
2.7
Application based on redundancy
2.7.1
When an application can be based on redundancy
An application can be based on redundancy if the dominant land, or part of it, has become
separated from the servient land due to subdivision or other means and the easement no
longer benefits the dominant land. In order to verify that the dominant and servient lands
have become separated as a result of subdivision, the relevant LINZ records should be
checked.
2.7.2
Statutory declaration
The accompanying statutory declaration should:
(a)
state that the dominant land, or part of it, has become separated from servient land
due to subdivision or other means; and
(b)
state that the easement no longer benefits the dominant land, and either
(c)
2.8
(i)
cite the subdivision plan number, or
(ii)
explain any other reason for separation of the dominant and servient land; and
cite the identifiers or reference number of any relevant LINZ records.
Additional evidence in support of application
If LINZ records do not verify the matters contained in the statutory declaration, a
supporting statutory declaration by a disinterested person with knowledge of the relevant
facts should be submitted to verify the application.
3
EXCEPTIONS
3.1
Doctrine of abandonment
The common law doctrine of abandonment does not apply to registered easements.
Guideline for application for removal of redundant easements
LINZG20707
Effective date: 14 September 2007
Registrar-General of Land
Land Information New Zealand © Copyright
9
3.2
Determination or extinguishment by other means
Section 70 of the LTA does not apply to claims that an easement has been determined or
extinguished by other circumstances, such as a breach of term, covenant, or condition.
In these cases, the applicant should rely on other authority to modify or extinguish
easements; for example, the Court’s jurisdiction under s 126G of the Property Law Act
1952.
4
NOTICE REQUIREMENTS
4.1
Notice required
The notice requirements are set out in s 70 of the LTA and r 39 of the LTR.
4.2
When notice is not required
The notice requirements do not apply where the determination or extinguishment of the
easement is by effluxion of time or merger (s 70(6) of the LTA).
In addition, interested persons who have given written consent to the removal of the
easement need not be served with notice of the application.
4.3
Notice to interested persons
Section 70 of the LTA requires the RGL to give notice to all persons appearing to him or
her to be entitled to any interest under the easement. This includes:
(a)
the registered proprietor of the dominant land;
(b)
the grantee of an easement in gross;
(c)
the lessee of the dominant land/easement;
(d)
the mortgagee/encumbrancee of the dominant land;
(e)
the mortgagee of an easement in gross; and
(f)
the caveator of a caveat against the dominant land or against an easement in gross.
A suitable notice to interested persons has been approved by the RGL and is contained in
Appendix A.
4.4
Content of notice
The notice requirement will ordinarily be met if the notice specifies:
(a)
that the RGL intends to make the entry on the Register on a specified date; and
Guideline for application for removal of redundant easements
LINZG20707
Effective date: 14 September 2007
Registrar-General of Land
Land Information New Zealand © Copyright
10
4.5
(b)
the circumstances in which the easement is said to be determined, extinguished, or
made redundant; and
(c)
the address of the applicant and the applicant’s solicitor, or other contact details for
further enquiries.
Addresses for service
The RGL should send notices to interested persons at the addresses for service supplied by
the applicant. If there is any doubt as to the accuracy of the address, further steps should
be taken to verify it.
4.6
Public notice
The requirement to give public notice will ordinarily be met by publication of a notice in
the Gazette and in one or more newspapers published in the locality of the relevant land.
A suitable public notice has been approved by the RGL and is contained in Appendix B.
5
MAKING AN OBJECTION
5.1
Who may object
An objection for the purposes of s 70(4)(c) of the LTA should be in writing and may be
made by any interested party. A person does not necessarily have to be a registered
interest holder in order to be an interested party.
5.2
Consideration of objection
If the objection is material, ie raises substantive conflicts of fact or evidence, the
application should be rejected or requisitioned. If the objection is clearly spurious or
immaterial the application may proceed. Further information may be sought from either
the applicant or the objector if required.
5.3
Notifying the objector and applicant
Having decided on the merits or otherwise of the objection, the RGL should notify both the
applicant and the objector of the outcome.
5.4
Requisitioned application
If an application is requisitioned, the applicant should:
(a)
respond to the objection; or
(b)
withdraw the application; or
(c)
obtain the objector’s consent to the removal of the easement; or
(d)
obtain withdrawal of the objection.
Guideline for application for removal of redundant easements
LINZG20707
Effective date: 14 September 2007
Registrar-General of Land
Land Information New Zealand © Copyright
11
5.5
Rejected application
An application should be rejected if the applicant and objector fail to reach agreement
within the time specified in a requisition notice, or in any extension of time.
6
MAKING AN ENTRY ON THE REGISTER
6.1
Acting judicially
The RGL is required to act in a quasi-judicial manner when assessing applications of this
nature. The RGL must be satisfied with the proof of determination, extinguishment, or
redundancy and should not make an entry on the Register unless:
6.2
(a)
the requirements of s 70 of the LTA have been met, and
(b)
any material objections have been resolved.
Wording of entry
An entry on the Register for the purposes of s 70(1) of the LTA should be worded as
follows:
“[Identifier] (Partial) Removal of the [easement] created by [Transfer] [number] –
[date/time]”
Guideline for application for removal of redundant easements
LINZG20707
Effective date: 14 September 2007
Registrar-General of Land
Land Information New Zealand © Copyright
12
Appendix A:
Example of notice to interested persons
[Date]
[Name of Interested Person]
[Address]
Client Ref:
Land Transfer Act 1952 – Section 70(4)(a)
Notice to persons entitled to an interest under an easement or profit à prendre
Land Registration District:
[Insert]
Application Number:
[Insert]
Applicant
[Applicant’s name]
c/- [Solicitor's name]
PO Box [ ]
[Town/City]
Easement:
[Right of way] over part Lot [1] on Deposited Plan [S5432],
comprised in Computer Register [SA500/100A], created by Transfer
[S123456], registered on [22 June 1936]
Circumstances:
[Part of the dominant land has become physically separated from the
servient land as a result of subdivision.]
Your interest:
As registered proprietor of part of the dominant land being Lot [4]
Deposited Plan [S111111] comprised in Computer Register
[SA23B/456].
The purpose of this notice is to advise you that an application has been made to me for the removal
of the [easement] [profit à prendre] described above, pursuant to section 70 of the Land Transfer
Act 1952. The applicant claims the [easement] [profit à prendre] is redundant by reason of the
circumstances set out above. I am notifying you as a person appearing to me to be entitled to an
interest under the easement, as set out above.
I intend to remove the easement on [expiration date] if no objections have been received before that
date.
Please contact the Help Desk at the office detailed below if you have any queries regarding this
notice.
for Registrar-General of Land
Guideline for application for removal of redundant easements
LINZG20707
Effective date: 14 September 2007
Registrar-General of Land
Land Information New Zealand © Copyright
13
Appendix B:
Example of public notice
The applicant described below has applied under section 70 of the Land Transfer Act 1952 for the removal
of an easement. The applicant claims the easement is redundant by reason of the circumstances set out
below.
I intend to remove the easement on [expiration date] if no objections have been received before that date.
Application Number:
[1357911.1]
Applicant:
[Applicant’s name]
c/- [Solicitor's name]
PO Box [ ]
[Town/City]
Easement:
[Right of way] over part Lot [1] on Deposited Plan [S32952], comprised in
Computer Register [SA500/100A], created by Transfer [S123456]
registered on [22 June 1936]
Circumstances:
[Part of the dominant land has become physically separated from the
servient land as a result of subdivision]
Guideline for application for removal of redundant easements
LINZG20707
Effective date: 14 September 2007
Registrar-General of Land
Land Information New Zealand © Copyright
14