KEY POINTS:
Q. About a year ago I purchased a property operating as a restaurant. Down the side of the building runs a long-standing right of way easement which passes over my property to a small factory which has been operated as a family business for about 30 years. My customers use the shared driveway to access carparks at the rear of my property which is on a busy street where it is difficult to park. Several problems have arisen:
1. Factory trucks have been parking in the right of way overnight which has caused problems for our customers trying to use the carparks. According to the factory owner, he and his father before him have done this for many years and no one has objected. However I was not aware of this happening until recently and nothing was mentioned to me when I purchased the property. Does he have a right to park there?
2. The factory owner has bought another piece of land adjoining his site where he has expanded the factory resulting in a significant increase in traffic to and from the factory. Can he use the right of way to access the additional land?
3. Who is responsible for repairing the surface of the right of way which has deteriorated severely recently?
A. The starting point is the document that created the right of way which should be searched at Land Information New Zealand and the wording carefully checked.
Also search the survey plan that defined the area of the easement.
Unless there is a specific right in that document allowing parking of vehicles within the defined easement area, parking is not permitted.
Parking would not be allowed because the implied rights in the Ninth Schedule of the Property Law Act 1952 would apply including the right to have the land over which the easement is granted kept clear of obstructions, including parked vehicles.
Long usage, even for 30 years, does not generally give rise to an enforceable easement, since in New Zealand the acquisition of easements by the legal rule known as "prescription" has been abolished.
However, it is possible that statements or actions by former owners may have given rise to enforceable legal promises. If so, whether or not you would be bound by those promises raises complex legal issues outside the scope of this answer.
There may also be an issue as to statements made (or not made) to you by the vendor of your property.
Assuming the easement document contains no right to park vehicles, and there is no other enforceable legal promise, you would be entitled to require the rear neighbour to stop this practice which can be enforced through court proceedings.
On the second point, a grant of a right of way or other easement is limited to the benefiting land specified in the easement document (referred to as the "dominant tenement").
The area of this cannot be expanded, except by the grant of a further right by the owner of the land over which the easement passes (the "servient tenement").
Put simply, your neighbour as the dominant owner cannot use the right of way to access his adjoining site and he could be required to cease using the right of way for that purpose.
If that leaves his adjoining site landlocked, it may be possible for him to obtain a court order under section 129B of the Property Law Act requiring a further easement to be granted to that land.
But you would be entitled to receive further compensation if the right should be granted.
If the wording of the easement document is silent on repairing the right of way, the implied rights in the Ninth Schedule of the Property Law Act again apply.
These include the right to a reasonable contribution from other occupiers towards the cost of upkeep of the driveway, and the right to recover from other occupiers the cost of repairs caused by abnormal usage or negligent action.
* Michael Wood is with national law firm Simpson Grierson.
