United Kingdom Legal Documents


Surrender a lease

UK proprerty surrendering a lease forms.

5

How to enforce your rights under an easement

Introduction

An easement is a right that a property owner has to some use of the (usually adjoining) property of another – for example, a right of way such as a driveway. If your rights under an easement are being interfered with you can take action to remove the interference yourself ("abatement") or you can bring proceedings in the courts.

This area has its own special terminology:

  • The person who enjoys the easement over the other person's property is called the "dominant owner", and that person's land is called the "dominant tenement".
  • The land subject to the easement is called the "servient tenement", and the owner of that land is referred to as the "servient owner".

"Legal" and "equitable" easements: when are they binding?

An easement may be binding either legally or equitably (for this distinction and the ways in which these different types of easement can be created, see How to create an easement). A legal easement is created by being registered on the Certificate of Title to the property that is subject to the easement, and will ordinarily bind subsequent owners of the property. An equitable easement binds a subsequent owner only if he or she was aware of the easement at the time of the sale.

Easements are unenforceable if the same person owns both properties

For rights and obligations under an easement to be enforceable, there must be separate ownership of the dominant and servient land. If the ownership of the servient tenement becomes vested in the dominant owner, the easement will be considered to have been extinguished; this is called extinguishment by "merger" (see How to extinguish an easement).

How do I take action to enforce an easement?

To enforce an easement you can either:

  • take action to remove the interference with your rights yourself ("abatement"), or
  • bring legal proceedings in the courts in the form of an action for private nuisance

Abatement

Abatement is regarded as a self-help remedy, which in certain circumstances permits the dominant owner to go onto the land and remove an obstruction if it is interfering with an easement. An example would be unlocking a locked gate that was blocking a driveway through which you have a right of way.

Bringing legal proceedings to enforce the easement

A wrongful disturbance of an easement is regarded by the courts as a legal nuisance, and therefore you will need to bring an action in private nuisance to enforce your rights. However, the disturbance cannot be a merely trivial or nominal one: there must be some substantial interference with the enjoyment of your rights.

Remedies for wrongful interference of an easement include:

  • an injunction (where the court makes an order prohibiting the servient owner from interfering with your rights)
  • a declaration (where the court makes a binding statement of the parties' rights and obligations), or
  • damages

The courts have a wide discretion in the choice and degree of remedy that may be granted.

Agreement to extinguish or vary the easement

The parties may agree between them to extinguish the easement by "surrender": see How to extinguish an easement.

The parties can also agree between them to vary the easement by both of them executing and registering a Memorandum of Variation of Easement under the LAND TRANSFER ACT 1952. This is then noted on the Register in the same way as the original Memorandum of Transfer that created the easement. This is done through the Land Titles Service of Land Information New Zealand.

Easements may be modified or extinguished by the court

If you bring an action to enforce your rights under an easement, the other party can apply to the court to have the easement modified or extinguished. For the grounds on which the court can make the order, see How to extinguish an easement.

An occupier of land subject to an easement may also apply at any time under the same provision to have the court exercise this power.

Court may rectify mistakes

If there are mistakes in either the descriptions or rights conferred by an easement, the court may rectify such a mistake if it is clear the document does not reflect the parties' intentions. This is an expensive remedy.

Cautionary notes
  • Certain rights in respect of unregistered easements are protected under the LOCAL GOVERNMENT ACT 1974.
  • If you wish to bring legal proceedings to enforce an easement, you will need to consult a lawyer.

How to: Unit title ownership of apartments and other properties

Introduction

In the late 1960s and early 1970s, there was a dramatic increase in the urbanisation of New Zealand. To satisfy the new demands raised by the proliferation of apartment and office blocks, a new legal structure called "unit title" was created (by the UNIT TITLES ACT 1972) to provide for multiple ownership of common spaces and facilities, such as driveways and lifts.

How is unit title different from the standard form of land ownership?

A unit title development (such as an apartment block) consists of:

  • two or more principal units (to be used as a residence or business)
  • the accessory units to be attached to the principal units (such as a garden, garage, pool or carparking space)
  • any common property (that is, common spaces such as lawns and driveways, and common facilities such as lifts and laundries)

As a form of ownership, unit title is similar to other property in that it can be bought and sold, or leased or mortgaged. But unlike other forms of title, it is made up of three components:

  • ownership in the particular unit
  • an undivided share in the ownership of the common property
  • an undivided share in the ownership of the units if the unit plan is cancelled

Other names for unit title are "stratum estate" or "strata title".

Ownership of accessory units

An accessory unit is an inseparable part of the principal unit and therefore ownership of the accessory unit accompanies ownership of the principal unit. The accessory unit can be let under a monthly or weekly tenancy, but it cannot have a totally separate owner.

Ownership of the common property

The unit owners own the common property as "tenants in common". This means that, when a unit owner dies, the share of that owner passes to his or her estate and therefore according to his or her will. This is in contrast with ownership as "joint tenants", whereby an owner's share passes to the other owners if he or she dies.

Each owner's share in the common property is proportional to their "unit entitlement".

The unit entitlement

Each unit has assigned to it a "unit entitlement". This is a figure fixed by the Valuer-General or a registered valuer calculated on the basis of the relative value of the unit in relation to the other units on the plan.

The amount of the entitlement is very important as it determines:

  • the unit owner's share in the common property
  • the unit owner's voting rights
  • the unit owner's obligations to contribute to the fund of the "body corporate"

The "body corporate"

The body corporate is a unique feature of the unit title scheme, and consists of all the owners of the units acting as a group.

The body corporate has two main duties:

  • to organise and maintain insurance for all buildings and other improvements
  • to keep the common property in a good state of repair

The body corporate also has duties that apply under its rules (see below for the rules).

In larger developments there is usually a Manager or Management Committee employed to carry out the body corporate's duties.

The body corporate's fund for administration expenses

The body corporate establishes a fund from which payments are made for insurance, rates, maintenance and other expenses. The body corporate levies the owners in proportion to their unit entitlement.

The fund usually runs to a set budget. However, if work or levies are required over a certain sum a Special General Meeting of the body corporate is called to discuss this.

The rules of the body corporate

A body corporate has rules, which govern the unit owners' relationships with each other and with third parties. The UNIT TITLES ACT 1972 sets out rules in its Second and Third Schedules; these will apply to any unit title development unless they are varied by the body corporate.

The rules in these Schedules include the powers and duties of the body corporate, and also the responsibilities of unit owners.

Responsibilities of unit owners under the rules

The Second Schedule of the Act sets out a number of rules that automatically apply unless they are varied by a unanimous resolution of the body corporate.

These include the following duties of unit owners:

  • Unit owners must allow the employees or agents of the body corporate to enter at reasonable times in order to:
    • check the unit's condition
    • maintain and repair pipes, cables and so on that are also used by other units
    • maintain repair common property
    • ensure that the unit owner is complying with the rules
  • Unit owners must comply with all laws and bylaws relating to the use of the unit.
  • Unit owners must immediately carry out any work ordered by local councils or public bodies.
  • Unit owners must pay all rates, taxes and so on payable to local councils or public bodies, and all amounts levied by the body corporate.
  • Unit owners must repair and maintain their units to avoid damage to common property or other units.
  • Unit owners must have the consent of the body corporate before they make any additions or structural alterations to the unit.

The Third Schedule sets out rules relating to unit owners that can be amended by a majority resolution of the body corporate:

  • Unit owners must not use the unit, nor allow it to be used, for any purpose that is illegal or that might harm the reputation of the building.
  • Unit owners must not make undue noise in or about any unit or common property.
  • Unit owners must not keep any pets on the unit or the common property without the consent of the body corporate.
  • Unit owners must not use the common property in any way that unreasonably interferes with the use and enjoyment of the other owners.
  • Unit owners must not use the unit, nor allow it to be used, in such a way as to cause a nuisance or disturbance to occupiers of other units.

Creating a unit title development

To create a unit title development you will need to subdivide the land into units by depositing a plan with the local office of the Land Titles Service, which you can contact through the regional offices of Land Information New Zealand.

The plan is called a "unit plan". Your unit plan will need to show the principal units, the accessory units, and the common property.

Once the unit entitlements are set and you have obtained the necessary consents of any parties who have an interest in your land (anybody who has lent you money or who has a charge over your title), you will be able to deposit the plan.

You will need to address the issue of what additional rules will be needed over and above the standard rules.

Things to consider when buying a unit title property

If you are intending to buy an apartment or other unit title property, you should consider the following issues:

  • Is there adequate insurance for the whole of the unit title development?
  • Is there anything in the body corporate rules that is contrary to the rules in the Second and Third Schedules of the Act? If so, what is the effect of this?
  • Is the seller liable for any unpaid levies?
  • Are there any weekly or monthly tenants in any of the accessory units? For example, is someone hiring a garage or storage space?
  • You should check the land transfer register at an office of the Land Titles Service to make sure that there are no separate dealings in relation to the common property by the current registered owners.
Cautionary notes
  • If you are creating a unit title development, it is important to get the advice of a lawyer. Not only will your lawyer draft the necessary documents, including the rules for the body corporate, but he or she will also advise you generally as to the merits of creating a unit title plan.

How to subdivide your property

Introduction

"Subdividing" is where land is divided and separate legal title is established for each of the new sections that are created. A separate title is established by the District Land Registrar issuing a certificate of title (in the Land Titles Office at Land Information New Zealand (LINZ)), after receiving an application and a subdivision plan.

There are various reasons why you might want to subdivide your property. It may be that your residential section is now too big for your needs, or you may own a farm that is capable of being subdivided into lifestyle blocks. Your section may have been re-zoned, so that you are now permitted to subdivide.

The subdivision of land is controlled and restricted by a number of Acts, the most important of which is the RESOURCE MANAGEMENT ACT 1991. This Act brought planning and subdivision controls under one system. The effect of the Act is to prohibit all subdivisions unless they're specifically allowed by a rule in a District Plan or by a resource consent.

What is the procedure for subdividing?

If you're considering subdividing your property, you'll need to consult a lawyer who is experienced in this field to examine, first, whether subdivision is permitted and, second, whether it's feasible. This will involve searching the legal title to your property and examining the District Plan that applies to your property (see below).

The subdivision process is lengthy and involved. However, the following is an overview of the likely steps:

  • obtaining a resource consent from your local council (see How to obtain a resource consent)
  • preparing a survey plan
  • the sealing of your plan by your local council
  • lodging the subdivision plan with Land Information New Zealand
  • the approval of the plan by LINZ
  • lodging the new titles with the Land Titles Office at LINZ

Complying with the District Plan

An important part of determining whether subdivision is permitted in your case is examining the relevant District Plan. This will reveal:

  • the zoning that applies to your land
  • whether subdividing is a "prohibited activity" under the plan, and if not, then what type of activity it is (for the different categories of activity, see How to obtain a resource consent)
  • what conditions apply
  • what discretion the council can exercise
  • specific restrictions on subdividing

It's also likely that the District Plan will specify the minimum areas for the new subdivided lots. Often it will be necessary for you to consult a surveyor or planner on this question.

Is subdividing worth the time and cost?

If you're considering subdividing, you should give particular attention to the time and cost involved. It's almost certain that the standard process will be lengthened by delays caused by, for example:

  • any hearing that is necessary
  • the need to complete specific work so that you comply with conditions that are imposed
  • the need to obtain consents from the council
  • the preparation of legal documents

Subdividing is also a costly exercise. The costs you will be likely to incur include fees charged by consultants, surveyors, the local council, LINZ, engineers and your lawyer.

If you're relying on the proceeds of selling the subdivided land to finance the venture, you should be aware that it may be some time before you receive this money. Numerous costs will have to be met at various stages, and it's unlikely that you'll be able to delay paying them. Further, it's unlikely that a lender will be prepared to treat potential profits as adequate security for any borrowing that may be required.

Will I have to pay income tax on the profits I make from selling the land?

This depends on when you begin your subdivision scheme and on how much work is involved.

If you begin the subdividing process within 10 years after you first bought or were given the land, you'll have to pay income tax on the profits if the work involved in subdividing the land is not "of a minor nature". (It makes no difference when you sell the subdivided land.)

You may come within an exception to this rule, and not have to pay income tax – for example, if you subdivided the property to build a private home for you or for a member of your family, or for the purposes of you carrying on a business from the property.

In deciding at what point you can be said to have begun subdividing, Inland Revenue will look for the first definitive step you took. This might consist of engaging surveyors or applying for a resource consent.

In deciding whether or not the work involved is minor, IRD will make an overall assessment of your case, taking into account the time, effort and cost involved, measured both in absolute terms and relative to the nature and value of the land. The IRD has given the following example of a "minor" subdivision. Half a hectare is subdivided off a 50-hectare property, and is sold for $50,000. The costs are $4,700 for surveying, $550 for an entrance way, and $1,000 for legal fees. The IRD says, however, that this is a borderline case, and additional work such as fencing or removing gorse could make it more than minor.

If the first step in subdividing is taken more than 10 years after you acquired the land, you will have to pay income tax on the profits if subdividing the land involved significant spending on:

  • earthworks, contouring, levelling, drainage, roading, curbing or channelling, or
  • any other work, service or amenity that's customarily provided in major projects involving the development of land for industrial, commercial or residential purposes

Will I have to pay GST on the profits?

You may have to pay GST if the IRD can establish that your subdivision is a "taxable activity" for GST purposes (see How to work out whether you must register for GST). If you merely do a one-off subdivision of your land into two lots, with no development work, and you continue to live on one lot and sell the other lot, this won't be a taxable activity and therefore you won't be liable for GST. In other cases it will depend on factors such as:

  • how many lots you're creating
  • the amount of development work involved
  • the amount of your financial investment
  • how much time and effort is involved

For example, the Courts decided that the following subdivision was a "taxable activity", and therefore the taxpayer was liable for GST: the subdivision created six residential sections, water was installed for two of them, an engineer's report was obtained, easements for stormwater discharge were created (although the physical works were not done) and local authority rating and reserve contributions were paid.

Cautionary notes
  • If you're contemplating subdividing as a profit-making venture you should be aware that it's a speculative and risky exercise, with many pitfalls and hurdles. It's virtually impossible, unless you're experienced with the process yourself, to complete a subdivision successfully without the services of a lawyer who's familiar with this area of the law.

NZ$36.00

Essential documents and forms required to surrender or terminate a tenancy under the 2004 regulations.

Document Delivery Format:Delivery format: Download MS Word file
Document Source:Complies with current English Law
Document User Guide Available:Comprehensive document Guide Notes
Document Assembly Method:User fills in template blanks
Document Preview/Sample Available:Incomplete sample available
Help Support Email/Telephone:Limited - not legal advice
Country:England, Wales or Scotland jurisdiction
State:n/a
MainSiteUrl:www.NetLawman.co.uk
NZ$36.00

This is a surrender document to terminate any business lease by mutual agreement. It includes optional provisions for a payment by one party to the other and for all obligations to cease.

Document Delivery Format:Delivery format: Download MS Word file
Document Source:Complies with current English Law
Document User Guide Available:Comprehensive document Guide Notes
Document Assembly Method:User fills in template blanks
Document Preview/Sample Available:Incomplete sample available
Help Support Email/Telephone:Limited - not legal advice
Country:England, Wales or Scotland jurisdiction
State:n/a
MainSiteUrl:www.NetLawman.co.uk

United Kingdom
Fast & cost effective answers to your unique legal questions
Ask a Lawyer now





United Kingdom
Fast & cost effective answers to your unique legal questions
Ask a Lawyer now




Not legal advice Disclaimer

HowToLaw includes links to other websites. These links are provided for your convenience to provide further information and educational purposes only. They do not signify that we endorse the website(s). We have no responsibility for the content of the linked website(s). These links to other websites not controlled by HowToLaw. You should be aware that these sites will have their own privacy policies and that these may differ from our own. Any links on HowToLaw to any document does not constitute legal advice and is not a substitute for legal advice. HowToLaw gives you no legal advice as to the suitability of any document to your specific circumstances nor as to what provisions contained in a document might be suitable to your specific circumstances. The basis on which you view or purchase any document through any website links is that it is suitable to be used only together with legal advice as to how the document should be applied and adapted to your specific circumstances. For legal advice for your specific situation, you should consult a lawyer. HowToLaw is not liable for any loss or damage that results from the use of or reliance on a purchased document or that is caused by you not obtaining legal advice for your specific circumstances, or that results from any action you take with any document that is provided through any links on the HowToLaw site.


  Bookmark this page in your web browserwww.howtolaw.co - UK proprerty surrendering a ...CartNo Items in your Cart