A right of way is one of the most common types of easements registered on property titles in New Zealand — and one of the most misunderstood. Whether you're buying a property with a right of way over it, or you're the benefiting owner who needs access across a neighbour's land, understanding what this means for your title is essential before you proceed.
This guide explains what right of way easements are, how they appear on a New Zealand property title, what rights and obligations they create, and how to check whether a property you're interested in has one.
What Is a Right of Way Easement?
A right of way easement is a registered legal right that allows one party to pass over another party's land for a specific purpose — most commonly for vehicle or pedestrian access. In New Zealand property law, right of way easements are typically created when:
- A rear section is landlocked and must cross a front section to reach the street
- A shared driveway services multiple properties
- A property developer creates a new lot with no direct road frontage
- A neighbour needs access across your land to reach their property
Once registered on the title, a right of way easement runs with the land — meaning it continues regardless of who owns the properties. If you buy a property burdened by a right of way, you take on that obligation.
How Right of Way Easements Appear on the Title
When you order a Record of Title ($42.90), right of way easements are listed in the "Encumbrances, Liens and Interests" section. You'll typically see an entry such as:
"Right of Way appurtenant to lot X DP XXXXX created by Easement Instrument XXXXXXX"
To understand the full terms — including the width of the right of way, permitted uses, maintenance obligations, and hours of access — you'll need to order a copy of the underlying Easement Instrument ($39.90). The Record of Title references the instrument but doesn't reproduce its full terms.
The Two Types of Properties Involved
Every right of way easement involves two types of land:
- The servient tenement: The land that is "burdened" — the property that the right of way crosses. The owner must allow the easement holder to pass over their land
- The dominant tenement: The land that "benefits" — the property that has the right to use the easement. This is typically the landlocked or rear section that needs access
Your Record of Title will indicate which position your property is in — whether the easement runs over your land (burden) or whether you hold the right to use it (benefit).
What Are Your Rights and Obligations?
If Your Property is the Servient (Burdened) Title
As the burdened property owner, you must:
- Allow the easement holder to use the right of way for its stated purpose
- Not obstruct the right of way (no fencing, gates, or structures that block access without consent)
- Contribute to maintenance costs if the easement instrument specifies shared responsibility
If Your Property is the Dominant (Benefiting) Title
As the benefiting property owner, you have the right to:
- Use the right of way for its stated purpose at all reasonable times
- Take reasonable steps to maintain the accessway
You cannot, however, use the easement for purposes beyond those specified — for example, a pedestrian right of way cannot be used for vehicle access.
Shared Driveways and Maintenance
One of the most common disputes involving right of way easements in New Zealand involves shared driveways. When multiple properties share a single driveway, the easement instrument will typically specify:
- How maintenance costs are divided (usually equally)
- Who is responsible for organising repairs
- What standard the driveway must be maintained to
If the easement instrument is silent on maintenance, the law implies a reasonable obligation on both parties. Disputes often arise when the surface deteriorates and neighbours disagree on responsibility. Checking the Easement Instrument ($39.90) before buying a property is the best way to understand exactly what you're taking on.
Can a Right of Way Easement Be Removed?
A right of way easement can only be removed by:
- Agreement between both parties: Both the dominant and servient owners must consent, and the removal must be formally registered
- Court order: Under section 317 of the Property Law Act 2007, a court can modify or extinguish an easement if it is no longer reasonably necessary or if the purpose for which it was created no longer exists
- Unity of title: If one person or entity comes to own both properties, the easement merges and ceases to exist
Attempting to block or interfere with a registered right of way without formal removal is a breach of the easement and can result in injunctions and damages claims.
How to Check if a Property Has a Right of Way
There are two key documents to obtain when checking for right of way easements:
- Record of Title with Diagram ($42.90) — confirms whether any easements exist and their registration numbers. The title diagram (deposited plan) often shows the physical location and dimensions of the right of way on the land
- Easement Instrument ($39.90) — provides the full legal terms of the easement, including permitted uses, maintenance obligations, and any restrictions
If you're conducting full due diligence before purchase, the Pre-Purchase Package ($189.90) includes the Record of Title, deposited plan, and all key instruments — everything you need in one order.
Right of Way vs Other Easement Types
New Zealand property titles can carry several types of easements. A right of way is specifically for access across land. Other common easement types include:
- Drainage easement: Right to run a drain or stormwater pipe across a neighbour's land
- Right to convey electricity/telecommunications: Utility companies running lines across private property
- Easement in gross: An easement that benefits a particular person or entity rather than another piece of land (e.g., utility company easements)
All of these appear in the encumbrances section of the Record of Title and should be investigated before purchase.
Frequently Asked Questions
Does a right of way easement affect property value?
It depends on your position. If your property benefits from a right of way easement (you're the dominant title), it typically has no negative effect and may be essential for access. If your property is burdened by a right of way — especially a busy shared driveway — some buyers perceive this negatively. Always check what the easement involves and how it's used in practice before drawing conclusions.
Can I put a gate across a right of way?
Only if the easement instrument expressly permits it or both parties agree. Erecting a locked gate that prevents the easement holder's access is a breach of the easement. Some instruments allow gates that are kept unlocked or provide for shared keys — check the Easement Instrument ($39.90) for the specific terms.
What documents do I need to check a right of way easement before buying a property?
Order a Record of Title with Diagram ($42.90) to confirm whether an easement exists and see its approximate location. Then order the Easement Instrument ($39.90) to read the full terms. Together, these two documents give you a complete picture of what you're buying.
