UK proprerty surrendering a lease forms.
An easement is a right that a property owner has to some use of the (usually adjoining) property of another â€“ 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:
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.
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).
To enforce an easement you can either:
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.
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:
The courts have a wide discretion in the choice and degree of remedy that may be granted.
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.
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.
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.
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.
A unit title development (such as an apartment block) consists of:
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:
Other names for unit title are "stratum estate" or "strata title".
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.
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".
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 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:
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 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.
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.
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:
The Third Schedule sets out rules relating to unit owners that can be amended by a majority resolution of the body corporate:
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.
If you are intending to buy an apartment or other unit title property, you should consider the following issues:
"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.
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:
An important part of determining whether subdivision is permitted in your case is examining the relevant District Plan. This will reveal:
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.
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:
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.
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 â€“ 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:
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:
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.
Essential documents and forms required to surrender or terminate a tenancy under the 2004 regulations.
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.
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