This is our second blog in our series on preliminary development queries you can answer or at least look into yourself. In this blog we’ll be looking at the Certificate of Title, sometimes shortened to the “title” or “CT”. This is a really important document to look at early in your investigations, as it can refer to restrictions in addition to whatever is in the District or Regional Plan, and these apply whether you have a resource consent or not. It can also contain restrictions people other than the Council have placed on the land and that they can enforce; you need to know about these restrictions at the start of the process.
What is a certificate of title?The title is a legal document that identifies the legal owners of a property and also identifies the key facts in relation to the property, including:
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- The lands legal description (usually described as a Lot Number and Deposited Plan (“DP”) Number, such as “Lot 3 DP 587021”)
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- A unique identifier. For older titles, the identifier refers first to the area the site is located in, for example “NA” refers to “North Auckland”, “WN” to “Wellington” etc. This is then followed by a series of numbers that are specific to your site. For newer sites, the identifier is just a number.
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- If the title is freehold, a unit title or a cross lease,
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- The size of the land area,
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- And restrictions on the property such as mortgages, encumbrances, covenants, consent notices and easements.
Sometimes the title will say the land is “Limited as to Parcels”. This will be near the top of the document. A title to land that is “limited as to parcels” means that at the time the first title was issued for that land, a guaranteed title could not be issued. This is because either the survey information was insufficient or there could have been someone else in adverse possession of part of the title. These titles can be more complicated to develop, and we suggest you get professional advice about the implications of this for your project.
What should I look at?
You should look at everything! You need to be fully informed when making decisions regarding development. We are always amazed at the number of people who don’t look at the title and find out late in the process that they don’t meet a covenant or consent notice. This can have a big impact, so do your homework up front!
Easements
An easement is a right agreed between a landowner and another party (usually a previous owner) to use a property or part of the property for a particular purpose, such as vehicle right of way, an easement for a service line or to drain water. An easement does not change ownership of the land – it is simply the right for another person to use part of the land. It does however restrict what you can do on that piece of land, so you need to know what the easement relates to and the land area that it affects.
Land covenants
A land covenant is a legal obligation to do or not to do something in relation to the land. Land covenants can be placed on the title by a private person, company and sometimes the local Council. They are quite common now, especially as developers try to control the type of development that happens in a specific area. Sometimes this is to maintain a certain level of amenity or quality of development, for example there may be a minimum dwelling size, restrictions on material types or using relocated buildings. It can also restrict what can happen on the land, for example the types of business that can establish, if a minor dwelling can be built etc.
The restrictions can be far reaching.
Consent notices
Consent notices are placed on the title by the Council as part of the subdivision resource consent. They contain resource consent conditions that must be complied with in perpetuity. Compliance with these can be checked at any time, and consent notice conditions are usually reviewed at building consent stage, and randomly at other times. The Council is able to take enforcement action if you don’t comply with these conditions so it’s important you know what they are.
Who enforces the restrictions?
The instruments are usually enforced by the parties who are referred to in the documents themselves. For example, a consent notice is a Council document; this will be enforced by the Council. A land covenant is usually a private restriction placed on the title by developers; the developers (or their successors) can enforce this but the Council generally can’t. if the land covenant was put on by the Council, then they can enforce it. This will be clear in the wording of the land covenant document.
Some land covenants may be “in gross”; for the benefit of a specific person or legal entity, rather than being attached to benefited land.
How can I get a copy?
Usually when you purchase a property, your lawyer will get a current copy of the title and will review the restrictions on it. This means that you may already have a copy and the instruments noted on it. If you don’t, you can easily get a copy from Land Information New Zealand, and if the title you have is old we would suggest you get a new one to make sure nothing has been added. Once you have the title, it will show you the specific reference number for each instrument. You can then use this reference number to order the instrument (such as the easement, land covenant etc).
Where to now?
Keep in mind that a certificate of title is one piece of the puzzle in doing your due diligence for development. There are a lot of other things you need to look at, and we’re covering a few of these in this blog series. Some are also detailed in existing blogs on our website, If you want to talk to a real person, give our friendly team a call. You can contact us on 09 427 9966 or hello@planningplus.co.nz
Disclaimer
As with all our blogs, the information detailed here is general in nature and meant as a preliminary guide only. This should not be substituted for your own investigations or use of your own professional’s. Planning Plus is not liable for any errors or omissions.
© Planning Plus Ltd 2023
Hannah Thomson is Director of Planning Plus™ and has over 17 years of resource management experience working in both local government and the private sector. This includes five years at Rodney District Council in roles including Senior Planner and Team Leader. Hannah has a wide range of experience including commercial, rural, residential and coastal development and subdivision on small to large scales and appearances at both Council and Environment Court as an expert witness for mediation and hearings. Hannah has assisted Councils with policy development and has also assisted private individuals with submissions to Council.
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