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Certificates of title

Key things to look for on a certificate of title

Case Law

Reading and interpreting certificates of title

Certificates of title

Almost all privately owned land in New Zealand is held under the land title system of the Land Transfer Act 1952. All property rights are derived from the Crown, and title to land in private ownership is a matter of public record. A certificate of title is the official document showing ownership of the land described in it. Land Information New Zealand is responsible for all land transfers and for keeping title records.

Documents listed on a certificate of title may include mortgages, leases, various types of charges, and rights and restrictions that affect the land in some way. These are held in the Land Registry Office in the district where the land is situated and are available for public search. Copies of unregistered documents are also available on the Land Titles Database.

The system of registration of title to land in New Zealand is known as the Torrens system or the land transfer system. A parcel of land under the land transfer system has an individual certificate of title setting out:

Certificates of title are based on survey plans, which are the record of the ground marking − the ‘monumentation’ of the boundaries − which is carried out by licensed cadastral surveyors. Unless the titles are ‘limited as to parcels’, the Crown guarantees the area and dimensions on the title.

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Key things to look for on a certificate of title

Limited as to parcels titles

Titles that are ‘limited as to parcels’ are for sites where the area and dimensions of the title are not guaranteed. The notation of whether the site is limited is usually found at the top of the certificate of title under the heading ‘Computer Freehold Register Under Land Transfer Act’ or ‘Certificate of Title Under Land Transfer Act’.

Sites that are limited to parcels are generally older subdivisions where a proper survey was never undertaken. Sites may end up being much smaller once the formal survey occurs, affecting land-use matters such as density, and bulk and location controls.

Generally, if subdivision is to occur, a surveyor will need to survey not only the entire site but also the surrounding sites in order to gather evidence as to where the boundaries are. The surveyor will use fencing, buildings, spouting (worst case scenario!) and driveways to assist in determining official boundary positions.

You should always be cautious about any types of applications (land-use or subdivision) involving sites that are limited as to parcels, given that the site boundaries and area are not guaranteed.

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Building line restrictions imposed under the 1928 Public Works Act

Some properties will have building line restrictions recorded on the title, whereby a memorial is placed on the title stating “subject to building line restriction” (or BLR) plus the document number.” Historically these were placed on the title at the time of subdivision where the road was less than 20 metres wide. Although they have little real relevance, they still have legal standing and can only be removed under section 327A of the Local Government Act, or must be complied with.

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Marginal Strips and s58 Strips

Part IVA of the Conservation Law Reform Act 1990 superseded the Land Act 1948. Section 58 of the Land Act required that when Crown land that adjoined a water body was being sold or otherwise disposed of, a strip of land not less than 20 metres in width running parallel to that water body be reserved from sale or disposal. Part IVA of the Conservation Law Reform Act 1990 introduced the term ‘marginal strips’ and has a similar provision to the replaced section 58 Land Act. Specifically, when Crown land is sold or otherwise disposed of, a strip of land no less than 20 metres wide is deemed to be reserved. Where a marginal strip is reserved following a sale or other disposal, this is required to be recorded on the certificate of title of the subject land. All marginal strips previously created under section 58 of the Land Act were deemed to become marginal strips under the Conservation Act.

The key difference between marginal strips created under section 58 and marginal strips created under the Conservation Act are that those created prior to the Conservation Act do not move with any change of shape or alteration of the course of the abutting water body, while those created under the Conservation Act do move.

Land that has been sold by the Crown will generally have a memorial on the title relating to Part IVA of the Conservation Act. This memorial will generally reserve the first 20 metres of this property (where it abuts a waterway) from sale. Therefore, effectively, the owner of an ex-Crown property, which is located adjacent to a waterway, would not actually own the first 20 metres of that property. Management rights over this strip can be obtained from the Department of Conservation. (See the Conservation Law Reform Act 1990 (NZ Legislation website, in the Statutes database) for more information.)

  • As a general rule, when reviewing an application that requires resource consent, consider the marginal strips that are noted on the title.
  • Where land is subject to Part IVA of the Conservation Law Reform Act 1990 you need to check to see if works are occurring within 20 metres of the mean high water mark(or near the edge of a lake or river). If they are, the applicant will need to obtain rights to use this land by the Department of Conservation. This is a separate process from determining who might be adversely affected.

 

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Encumbrance/ covenant

The certificate of title may record an encumbrance or covenant on the property. It is important to check all the way through the title, as the information may not be recorded at the top.

Encumbrances or covenants might relate to issues such as parking or view protection. Some encumbrances/covenants may be private agreements between parties; others may be imposed by the council. Information on why a council encumbrance or covenant was imposed should be able to be found in the files.

A land covenant is an interest in land according to section 126A(1)(c) of the Property Law Act 1952. A covenant is registered on the certificate of title of a property. The intent of a covenant is to limit or restrict the owner and any future owners as to how they use the land/property.

Consent notices are a form of covenant between the council and the landowner, and can only be imposed through a subdivision consent. A covenant would be used where a council wanted to limit or restrict the use of land, as identified through the assessment of a land-use consent application, or for longer-term protection, as identified through a subdivision consent application.

Many councils use covenants for the protection of native bush, wetlands, the use of minor residential units, and historic places. It is becoming increasingly common for developers to use covenants to control how future owners both develop and maintain the land, particularly for residential developments that are being marketed with certain characteristics.

Types of restrictions that may be imposed through covenants include:

A council would generally only enforce a covenant that has been imposed by the council, and would not get involved with private covenants.

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Easements and rights-of-way

An easement is defined as a right for the owners of one lot to carry out some form of activity over another lot (eg, an electricity easement allows electricity to be conveyed to a property over another property). A right-of-way is a particular type of easement, which allows the owners of a lot access over a portion of another lot.

It is important to:

A right-of-way or easement will be described as having ‘servient’ and ‘dominant’ tenements. A servient tenement is the lot that owns the land over which the right-of-way or easement passes. A dominant tenement is the lot that has the right to pass over or access the land over which the right-of-way or easement passes.

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Consent notices section 221

Consent notices are imposed as part of the subdivision process, and relate to conditions that must be complied with on a continuing basis by the subdividing owner and subsequent owners after the deposit of the survey plan. Such conditions may include engineering works, site coverage, and the location of building platforms. Because a consent notice is an agreement between the council and the landowner, the council would enforce any non-compliance.

Consent notices are legally deemed to be an instrument creating an interest in the land within section 62 of the Land Transfer Act 1952, and a covenant running with the land when registered under the Land Transfer Act. Section 221(3) of the RMA enables conditions specified in consent notices to be varied by agreement between the landowner and the council, at any time following the deposit of the survey plan.

Notices under section 36 of the Building Act 1991 regarding hazard-prone land Section 36 of the Building Act 1991 prohibits building consents for buildings, or major alterations, on sites subject to hazards in some specified circumstances. However, there is an exception in this section that a building consent can be issued where certain requirements are met, one of which is that a notation is placed on the certificate of title that a consent has been issued.

Specifically, under section 36(1) a building consent can not be issued at all if the land and the proposed building work can not be adequately protected from the particular hazard. However a development could be allowed under section 36(2), even if there is still a risk from the hazard, as long as the work itself will not accelerate or worsen that risk, provided there is a warning on the title.

It is important that you discuss any proposals involving a site with a section 36 restriction on a certificate of title with the building officers.

Sections 71 to 74 of the Building Act 2004 provide the same ability to issuebuilding consents for hazard-prone land.

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Notices under section 37 of the Building Act 1991 relating to two or more titles being held together where buildings are over the boundary

Section 37 of the Building Act 1991 gives the council the ability to issue a building consent to construct a building over land that is owned by the applicant in fee simple, and comprises or partly comprises two or more allotments of an existing subdivision or subdivisions, provided that a notice is registered on the certificate of title requiring that the allotments that are affected can not be transferred or leased except in conjunction with any affected allotments.

It is important that you discuss any proposals involving a site with a section 37 restriction on a certificate of title with the building officers.

Sections 75 to 83 of the Building Act 2004 will replace section 37 from 30 November 2004, retaining the same ability to issue building consents for buildings located over title boundaries.

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Amalgamation conditions imposed under section 241 of the RMA

Sections 220(1)(b) and 220(2)(a) provide for a subdivision consent to be issued subject to a condition requiring that land be amalgamated and held either in one certificate of title or subject to a covenant between the land owner and the council that restricts its disposal, lease or otherwise except in conjunction with other land.

Section 241 requires that this condition is entered on the certificate of title as a memorandum. This then restricts the landowner from disposing of any separate parcels of land or being held on other certificates of title, unless the approval of council is obtained.

It is important to discuss any proposals involving a site with a section 241 memorandum with a subdivision officer.

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Memorials relating to the resumption of land in terms of section 27A of the State Owned Enterprises Act 1986 (which provides for the resumption of land on the recommendation of the Waitangi Tribunal)

Section 27A requires that a memorial (a formal notation or record) be placed on all titles to Crown land transferred to any state-owned enterprises under that Act. The effect of such a memorial is that under section 27B of the State- Owned Enterprises Act 1986, the Waitangi Tribunal, in specified circumstances, can order the Crown to take back or ‘resume’ a property to be used in settling a Treaty claim, unless the Crown and claimant groups first agree on a settlement. There is provision for similar memorials to be noted on the titles of former Crown railway land, and land transferred by the Crown to tertiary educational institutions.

These memorials remain on the titles even if they are sold to third parties, and are not removed until claims over the area concerned have been settled, or affected Maori groups agree to their removal. The memorial warns third parties that the property may be used for settling Treaty claims through resumption by the Crown. If this happens, compensation is paid as if the property were being acquired under the Public Works Act 1981.

  • It is important to discuss any proposals involving a site with a section 27A memorandum with a subdivision officer or legal adviser.
  • You should advise an applicant proposing to develop or purchase land with a section 27A memorandum to seek legal advice.


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Case law

Mawhinney v Waitakere City CC CIV-2006-485-000627 (HC) -an allotment, in the context of subdivision means any parcel of land that is a continuous area and whose boundaries are shown separately on a survey plan.

Big River Paradise Limited v Congreve [2008] NZCA 78 - a restrictive covenant seeking to prevent the development of more than three dwellings on a rural area of land was upheld. The proposal involving the creation of leasehold interests for a term of less than 30 years was an unsuccessful attempt to develop the site without falling within the definition of "subdivision of land" in the RMA (note the Supreme Court has upheld this decision.)

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