Easements, covenants and consent notices on a commercial title: reading the record of title for how you will use the site
A record of title is the official electronic land record that proves who owns a property and sets out the rights and restrictions that apply to it: the registered owners, the type of estate, the area, the legal description, and every registered interest such as mortgages, easements, covenants and other land restrictions, each with its instrument number. For a commercial site, the useful reading is operational: whether trucks can use the right of way, whether the services run under a neighbour's land, and whether the car parks the listing counts are on a title that is actually in the sale. This is not legal advice on the instruments. It is the physical and operational reading that sits alongside your lawyer's opinion.
What the title shows, and what it costs to get
Land Information New Zealand describes a record of title as an electronic land record in PDF format that proves the ownership of land and the rights and restrictions that apply to it. Through LINZ's online search a current record of title with diagram costs $8, as does each instrument and survey plan, GST inclusive. That pricing matters for method: the title only lists each interest as a memorial with an instrument number. The wording that tells you what the easement or covenant actually does is in the instrument, a separate $8 document. Read the instruments, not just the memorial lines.
The estate type is the first line to check. Titles in New Zealand can be freehold (fee simple), leasehold, unit title (a stratum estate in freehold or leasehold), cross-lease or composite. The standard ADLS/REINZ agreement (now published with The Law Association of New Zealand, TLANZ) lists those estate options on its front page, and if none is deleted the estate being sold defaults to freehold. Check that the estate on the front page matches the estate on the title.
Easements: who can cross, and what runs underneath
In plain terms, an easement is a registered right for someone to use part of the land for a stated purpose, such as a right of way over a driveway or a right to run a drain or a cable, or a right the land itself has over a neighbour's land. The operational questions for a commercial site are mostly about vehicles and services:
Which land does the easement burden, and which does it benefit? The memorial says which; the instrument says what.
What may use it? The wording on vehicles, loads, hours and purpose is in the instrument, and only there.
Who maintains it and who pays? Again, the instrument.
Where do the services run? A LIM shows private and public stormwater and sewerage drains as recorded by the council, so cross the easement plan against the LIM to see whether your outfall depends on a right over someone else's land, or theirs on yours.
An example (invented, for illustration): a right-of-way easement across a neighbour's yard was registered when the site was a small office in the 1990s, and the buyer intends to run a freight depot from it. Whether 20 truck movements a day are within that right is decided by the words of the instrument, not by the fact that a driveway exists. If the instrument is silent or narrow, that is a question for your lawyer before the due diligence date, and possibly of price.
Covenants: what the land has promised
In plain terms, a land covenant is a registered promise about how land may or may not be used or built on, binding whoever owns it. On commercial titles they commonly restrict use, building height, materials or the type of business, or protect a neighbour's outlook or access. Read each one against your intended use and any expansion you have in mind. How long a particular covenant lasts depends on its own terms; we could not find a single published rule that applies to all of them, so read the instrument for any expiry and ask your lawyer where it is unclear.
Consent notices: council conditions that stay with the land
In plain terms, a consent notice is a notice registered on the title recording conditions the council imposed when the land was subdivided or developed, which continue to bind current and future owners. A LIM must also record information on the use to which the land may be put and the conditions on that use, so read the LIM and the title together here. Whether a particular notice can be varied or removed is a council and lawyer question we could not verify in general terms, so treat what is on the title as binding until advised otherwise.
More than one title, and the parts that are not on any of them
Commercial sales often involve several titles, and the listing does not always say so. Check each legal description in the agreement against a record of title, and each title against its survey plan. The point to test is whether everything the listing describes is on a title that is in the sale: car parks and yard areas are the usual casualties, and our note on information memorandum red flags covers how often the car-park count and the title count disagree. Whether the building sits inside the boundaries on the survey plan is a question only a surveyor can answer on site; the desk check tells you to ask.
If the property is a unit title, the estate is a stratum estate in the unit plus a share of common property owned by the body corporate, and the body corporate's records matter as much as any covenant. Before you enter an agreement the seller must provide a pre-contract disclosure statement, which under the Unit Titles Regulations 2011 must include body corporate knowledge of weathertightness, earthquake-prone or other significant defects, three years of financial statements and minutes, the current levies, the long-term maintenance plan with the works proposed for the next three years and their estimated costs, and an insurance summary. The former right to request additional disclosure was repealed on 9 May 2023, so ask for everything up front.
Where the title reading sits in the conditional period is set out in the commercial property due diligence checklist, and how the dates run is in our note on the due diligence period.
What this doesn't tell you
It is not legal advice on what any instrument means or whether it is enforceable. That is your lawyer's opinion; this reading sits beside it.
It does not show unregistered rights or interests. The title shows what is registered against it.
It cannot confirm the building is inside its boundaries. That is a surveyor on site.
It does not tell you whether a lender will accept a particular easement or covenant. Ask the lender.
FAQ
What is a record of title and how do I get one?
A record of title is the electronic land record held by Land Information New Zealand that proves who owns the land and lists the registered interests over it, such as mortgages, easements and covenants, with their instrument numbers. A current title with diagram costs $8 through LINZ's online search, and each instrument referred to on it is a further $8.
What is the difference between an easement and a right of way?
In plain terms, an easement is a registered right for someone to use part of the land for a stated purpose, and a right of way is one type of easement, giving a right to pass over the land. Other easements cover things like drainage, water, power and telecommunications; the instrument sets out exactly what each one permits.
What is a consent notice and can it be removed or varied?
In plain terms, a consent notice is a notice registered on the title recording conditions a council imposed when the land was subdivided or developed, and in practice it binds current and future owners. Whether a specific notice can be varied or removed depends on the council and the conditions, which we could not verify in general terms, so treat it as binding and ask your lawyer.
How long do land covenants last in NZ?
It depends on the terms of the covenant instrument itself; some state an expiry and many do not. We could not find a single published rule that applies to every covenant, so read the instrument and ask your lawyer where the duration is unclear.
Does a right of way make a title harder to sell or finance?
Not in itself; rights of way are common on commercial titles. What matters to a buyer or lender is whether the right supports the intended use, who maintains it, and whether the building's access depends on it.
What if the sale includes more than one title?
Check every legal description in the agreement against its own record of title and survey plan, and confirm that everything the listing describes, particularly car parks and yard areas, sits on a title that is actually in the sale. Each title needs reading separately.
Get the title read against the listing
If you have a listing, an information memorandum or a title and instruments for a commercial property, send them through and we will tell you in writing what the records show and which questions belong with your lawyer, surveyor or lender. Independent analyst, not a valuer, engineer, surveyor, building inspector or lawyer.
Comments