Planning to build a new home, extend an existing one, or add a granny flat in New Zealand? Before you lodge a building consent application — or even before you sign the purchase agreement — you need to understand what your property title reveals about what you can and cannot build. The interaction between building consent requirements and property title restrictions is one of the most overlooked areas in NZ property transactions, and getting it wrong can cost you tens of thousands of dollars.
What a Property Title Tells You About Building Rights
Your Record of Title isn't just proof of ownership — it's a legal document that can enable or restrict your building plans. Here's what to look for:
1. Easements That Restrict Building Footprint
Easements registered on your title grant other parties the right to use part of your land. Common easements that affect building include:
- Right of way easements — shared driveways that limit where you can build
- Utility easements — underground pipes, stormwater drains, and power lines that prevent construction above them
- Drainage easements — particularly common in newer subdivisions where stormwater runs through private property
Building over an easement without permission can result in enforcement action and mandatory removal of the structure. Always check the survey plan alongside the title to identify easement zones.
2. Covenants That Control What You Can Build
Land covenants are private agreements registered on the title that bind current and future owners. They can restrict:
- Building materials — requiring brick cladding, specific roof types, or colour schemes
- Minimum floor area — preventing small dwellings or minor dwellings
- Building height — limiting to single storey even when council zoning allows two
- Setback requirements — minimum distances from boundaries beyond what council requires
- Prohibited uses — banning commercial activity, home businesses, or certain building types
Covenants are enforceable by other landowners in the subdivision, not just the original developer. They run with the land — meaning they bind you even if you bought the property years after the covenant was registered. For more detail, see our guide on how to check for covenants on a property in NZ.
3. Consent Notices Under Section 221 of the RMA
A consent notice is a condition registered on the title when a subdivision consent or resource consent was granted. These are ongoing obligations that apply regardless of who owns the property. Common examples include:
- Requirements to maintain specific building setback distances
- Landscaping and planting obligations
- Restrictions on removing vegetation
- Building design standards (cladding, roof pitch, colour palette)
- Stormwater management requirements
Unlike covenants, which are private agreements, consent notices are imposed by councils under the Resource Management Act. They carry legal weight and councils can enforce them. Our detailed guide on consent notices and Section 221 of the RMA explains these in depth.
Building Consent vs Resource Consent vs Title Restrictions
These three layers of regulation are independent but interconnected. Understanding each one is critical:
| Type | Who Grants It | What It Controls | Where to Check |
|---|---|---|---|
| Building Consent | Local council (Building Act) | Structural safety, weathertightness, plumbing, drainage | Council building consent database |
| Resource Consent | Local council (RMA) | Land use, subdivision, discharge, coastal permits | Council resource consent register |
| Title Restrictions | Private covenants / RMA consent notices | Building design, materials, use, setbacks, minimum size | Record of Title & Instruments |
Here's the critical point: you can get building consent and still be blocked by a title restriction. Council grants building consent based on the Building Act. They don't check whether a private covenant on your title prohibits what you want to build. If a covenant says "no two-storey buildings," the council will still issue building consent for your two-storey addition — but your neighbours can enforce the covenant and force you to remove it.
Before You Build: The Title Checklist
Before submitting a building consent application, run through this checklist using your Record of Title:
- Order a current Record of Title — Get your Record of Title here for $42.90
- Check for easements — identify any rights of way, utility, or drainage easements that overlap your planned building area
- Review covenants — read every covenant in the Instruments section. Look for building material restrictions, height limits, setback requirements, and prohibited uses
- Look for consent notices — check for Section 221 RMA consent notices that impose ongoing conditions
- Order the survey plan — the cadastral survey plan ($49.90) shows exact easement boundaries and dimensions
- Cross-reference with council planning rules — your district plan sets zoning rules, but title restrictions can be stricter
- Check for expired or obsolete interests — some older titles carry restrictions that are no longer enforceable but haven't been removed
For complete due diligence, the Pre-Purchase Package at $189.90 includes the Record of Title, Guaranteed Search, Survey Plan, and Instruments — everything you need to identify building restrictions before you commit.
Common Title Problems That Block Building Projects
"I Didn't Know About the Easement"
This is the single most common issue. A property has a drainage easement running through what you thought was your backyard, and now you can't build the extension you planned. The solution: always order the survey plan alongside the Record of Title. The title lists the easement, but the survey plan shows exactly where it runs on the ground.
"The Covenant Says No Minor Dwellings"
Many newer subdivisions have covenants restricting minor dwellings (granny flats). Even though council planning rules may allow them, the private covenant overrides this. If the title has this restriction, you'll need all affected landowners to agree to remove it — which can be impractical in a large subdivision. See our guide on how to remove a covenant from a property title in NZ.
"The Consent Notice Requires Specific Materials"
A Section 221 consent notice might require "brick veneer construction with a minimum 25-degree pitch roof." If you want to build in weatherboard, you'll need to apply to the council to vary the condition — a process that can take months and isn't guaranteed to succeed.
"There's an Expired Mortgage on the Title"
Old mortgages that have been paid off but never discharged can create confusion during the building consent process. Your solicitor should ensure these are cleared, but checking the title yourself first saves time.
What to Order Based on Your Situation
| Your Situation | What to Order | Cost |
|---|---|---|
| Quick check before extending | Record of Title + Survey Plan | $42.90 + $49.90 = $92.80 |
| Buying a property to build on | Pre-Purchase Package (Title + Guaranteed Search + Survey Plan + Instruments) | $189.90 |
| Checking covenant details | Instruments (document) | $39.90 |
| Full due diligence for developers | Pre-Purchase Package + Legal Owner Search | $189.90 + $65.90 = $255.80 |
What to Do If Your Title Blocks Your Plans
If you discover a title restriction that prevents your building project, you have several options:
- Negotiate with other landowners — if it's a private covenant, you may be able to get agreement to vary or remove it. This requires all bound parties to consent.
- Apply to the Environment Court — under Section 318 of the Property Law Act, you can apply to have an unreasonable covenant removed. This is expensive and time-consuming but possible.
- Apply to vary a consent notice — Section 221 consent notices can be varied by the council that imposed them, but you'll need to demonstrate that the change doesn't undermine the original consent conditions.
- Modify your building plans — sometimes the simplest and cheapest option is to design around the restriction.
The Bottom Line
Building consent from the council is necessary but not sufficient. Your property title can impose restrictions that are completely independent of council rules and just as legally enforceable — sometimes more so. Before you invest in architectural plans, building consent applications, or a property purchase, check the title. A Record of Title at $42.90 or a complete Pre-Purchase Package at $189.90 could save you from a costly mistake.
Frequently Asked Questions
Can I get building consent if there's a covenant on my title?
Yes, the council will issue building consent based on the Building Act regardless of private covenants. However, building despite a covenant is a breach of a legal agreement, and other landowners can take enforcement action — including seeking court orders to remove the structure. Always check your title restrictions before building.
What's the difference between a building consent and a resource consent?
A building consent addresses structural safety and compliance with the Building Code (weathertightness, plumbing, structural integrity). A resource consent addresses land use under the Resource Management Act — things like zoning, building height relative to boundaries, and site coverage. You may need both, and neither replaces checking your title for private restrictions.
Do I need a title search to apply for building consent?
Councils don't always require a title search as part of a building consent application, but they may ask for one in certain circumstances. More importantly, you should check your own title before applying, because a covenant or easement could make your building project impossible regardless of what the council approves.
