Why Your Property Title Matters for New Builds
So you've bought a section and you're ready to build. The architect has plans, the builder has a quote, and the council has your consent application. But have you checked your property title?
Your Record of Title isn't just a piece of paper — it's the legal foundation that determines what you can build, where you can build it, and whether your building consent will even be approved. Overlooking title issues before construction is one of the most expensive mistakes a new-home builder can make. Fixing a title problem after foundations are poured is orders of magnitude more costly than catching it on day one.
What to Check on Your Title Before Building
Ownership and Estate Type
First, confirm the estate type on your title. Is it freehold (fee simple), leasehold, or cross lease? Each has different implications:
- Freehold — You own the land outright. Full building rights, subject to council rules and title restrictions.
- Leasehold — You need the leaseholder's (landlord's) consent for any development. Building on leasehold land without consent is a breach of the lease.
- Cross lease — You share ownership of the underlying land with others. Any structural changes typically require unanimous consent from all cross-lease owners, and you may need to update the flats plan on the title.
Order a Record of Title with Diagram ($42.90) to confirm the estate type and see the exact property boundaries.
Covenants: The Hidden Build Restrictions
Covenants are private rules registered on your title by a previous owner or developer. Common covenants affecting new builds include:
- Minimum floor area — e.g., "No dwelling shall have a floor area less than 150m²"
- Building materials — e.g., "All exterior cladding must be brick or weatherboard"
- Height restrictions — e.g., "No building shall exceed 8 metres in height"
- Setback requirements — e.g., "No structure within 5 metres of the front boundary"
- Design approval — e.g., "Plans must be approved by the Developer prior to construction"
- Single dwelling only — e.g., "Only one residential dwelling per lot"
These covenants run with the land, meaning they bind every future owner — not just the person who agreed to them. A Legal Owner Search ($65.90) can help you understand the full chain of title and identify who registered the covenant.
Important: Covenants are enforceable regardless of whether the council's district plan would allow your build. Even if your building consent is granted, a covenant can still prevent construction. The council will not check covenants for you — that's your responsibility.
Easements: Where Others Have Rights Over Your Land
Easements grant someone else the right to use part of your land for a specific purpose. For new builds, the most critical easements are:
- Right of way — A shared driveway may limit where you can build or landscape
- Drainage and sewerage — Underground pipes may restrict building near the easement area
- Water supply — A water main easement may prevent structures within a set distance
- Power and telecommunications — Overhead lines or underground cables may have clearance requirements
- Stormwater — A stormwater easement may require you to maintain drainage paths
Building over or obstructing an easement can lead to serious consequences, including court orders to remove the structure.
Consent Notices Under Section 221 of the RMA
If your section was created through subdivision, the title may carry a consent notice under Section 221 of the Resource Management Act. These notices can impose conditions such as building platform restrictions, geotechnical requirements, on-site wastewater management, landscape planting obligations, or flood-risk mitigation measures.
Order a Historical Title ($42.90) to see the full history of consent notices and how they've changed over time.
The Complete Pre-Build Title Checklist
Before you submit your building consent application, make sure you've checked:
- ✅ Estate type — Freehold, leasehold, or cross lease?
- ✅ Covenants — Are there any private building restrictions?
- ✅ Easements — Where do others have rights over your land?
- ✅ Consent notices — Any s221 RMA conditions?
- ✅ Encumbrances — Any registered financial or use restrictions?
- ✅ Boundary dimensions — Does the title diagram match your survey?
- ✅ Survey plan — Is there a recent Survey Plan ($49.90) confirming boundaries?
- ✅ Mortgage — If the property is mortgaged, does the bank need to consent to building work?
If you're buying a section to build on, the Pre-Purchase Diligence Package ($189.90) combines the Record of Title, Guaranteed Search, and key documents — everything you need to identify title issues before committing.
Common Title Problems That Delay New Builds
Problem 1: Outdated Flats Plan (Cross Lease)
If you're building on a cross-lease property and your proposed changes alter the footprint shown on the flats plan, you must update the title. This requires surveying, legal documentation, and consent from all parties — adding weeks and thousands of dollars to your project.
Problem 2: Restrictive Covenants
A developer's covenant limiting your choice of building materials, colours, or minimum house size can force design changes. Get your title early, read every covenant carefully, and factor compliance into your budget.
Problem 3: Building Over an Easement
Councils will generally not grant building consent for structures over active easements. If your planned garage or extension falls within an easement area, you'll need to either redesign or negotiate an easement variation — which requires the consent of the party who benefits from the easement.
Problem 4: Missing or Incomplete Title Information
If your title doesn't clearly show boundaries, easements, or encumbrances, order a Guaranteed Search ($45.90). This provides certified copies of all documents referenced on the title, including the full text of covenants and easement instruments.
What to Do If You Find a Title Issue
- Don't panic. Most title issues are resolvable, but they take time and money.
- Talk to a property lawyer. Some covenants can be varied or removed; others can't. Legal advice is essential.
- Check the covenant expiry. Some covenants have sunset clauses or expire after a set period.
- Negotiate with the benefiting party. If the covenant benefits a specific person or entity, they may agree to a variation.
- Apply to the court. As a last resort, you can apply to have an unreasonable covenant removed — but this is expensive and uncertain.
Key Takeaways
- Your property title is the starting point for any new build — check it before you design, not after you submit consent
- Covenants, easements, and consent notices can all restrict what you build
- The council doesn't check covenants for you — that's your responsibility
- Cross-lease properties require special attention, particularly around flats plans
- Order your title documents early so issues can be resolved before they delay your build
Frequently Asked Questions
Can I build if there's a covenant on my title?
It depends on the covenant. Some restrict specific things (materials, height, setbacks); others are broader. You must comply with all registered covenants, regardless of whether the council's district plan would allow your build. Check with a property lawyer if a covenant conflicts with your plans.
Do I need to update my title after building a new house?
In most cases, no — unless you're on a cross-lease title (where the flats plan needs updating) or you've subdivided. However, any new easements (such as a shared driveway for a battle-axe section) should be registered on the title.
What's the difference between a covenant on the title and a council rule?
A covenant is a private agreement registered on your title. A council rule (district plan provision) is a public regulation. You must comply with both. The council won't enforce covenants, and the covenant holder won't enforce district plan rules — but both can stop your build.
This article is for informational purposes only and does not constitute legal advice. Consult a qualified property lawyer and building professional before starting any construction project.
