Posted by Neeru Kesry on April 21 2021 in News
A legal boundary adjustment is a form of subdivision (and is classified as a subdivision by the Resource Management Act 1991) involving two or more adjacent properties changing the common boundaries, rather than the creation of additional lots. Boundary adjustment subdivisions between neighbours are likely to involve the owners, a surveyor, any concerned mortgagee, the Council, and the solicitors for each owner.
Reasons for completing a Boundary Adjustment
There are several and varied reasons for parties wanting to adjust their boundary, for example; commonly, to account for natural divisions, fences or driveways or other structure which are incorrectly located causing encroachment on the neighbouring land, purchasing/acquiring additional land to enable greater subdivision potential, or purchasing/acquiring land to create a driveway if a subdivision and building of another dwelling is contemplated and perfecting what might otherwise be a defective cross lease title.
Agreement/consent of all parties
First and foremost, all parties need to agree and consent to the boundary adjustment. Then there are various ancillary matters which need to be agreed, including, amongst other things:
- The terms and conditions to be inserted in the agreement,
- The agreed price for the land being acquired/relinquished,
- The share of the lawyers/surveyor’s costs (they may be shared equally, or one party may agree to pay all costs),
- Dispute resolution machinery,
- Requirements/obligations for all parties to co-operate and sign all documents and do all things necessary and required to complete the boundary adjustment subdivision.
We would always recommend that the above terms (and any situation specific terms) are included in a formal written agreement, signed by the involved parties, to record the intention of the parties and mitigate potential for dispute as to what has or has not been agreed.
Scope/process and role of professionals
The scope/process of a boundary adjustment can vary, and each situation is unique, but a boundary adjustment will generally follow the basic process set out below:
- Engaging the services of a skilled property lawyer and surveyor.
- The surveyor preparing the application for resource consent and a scheme plan for submitting and monitoring the approval of the resource consent process with the Council.
- Once the resource consent has been granted and any conditions imposed by the Council have been satisfied, the surveyor then prepares the Land Transfer plan to peg the new boundaries and a Land Transfer dataset is prepared for approval by Land Information New Zealand (LINZ).
- The lawyer’s role involves the preparation of the legal documents for signing by the parties to adjust the areas of the titles (i.e. by way of a transfer of the area being adjusted), forwarding the surveyors documents and legal documents to all parties’ mortgagee(s), obtaining consent of mortgagees/discharge of mortgage over the part of the land to be transferred and, the surveyor and lawyer working together to ensure everything is ready for the deposit of the plan by the surveyor with LINZ for the processing of the boundary adjustment subdivision and lodgment of all legal documents by the lawyer for the issue of the new titles.
Where neighbours cannot agree, there may be options for either parties to consider, for example, section 317 Property Law Act 2007, which allows on application for an order, a court may, by order modify or extinguish (wholly or in part) the easement or covenant to which the application relates, or other options.
If you need any advice on boundary adjustments or subdividing your property, then please contact Richard Hatch (Partner) or Neeru Kesry (Senior Registered Legal Executive) for further assistance.
Richard Hatch | Partner | Richard.Hatch@shieffangland.co.nz
Neeru Kesry | Senior Legal Executive | Neeru.Kesry@shieffangland.co.nz
This paper gives a general overview of the topics covered and is not intended to be relied upon as legal advice.