Property Law Assignment: Easements, Covenants, and Leases

This property law assignment analyzes several legal issues related to property rights in New Zealand, focusing on a motel business on Summer Island. The assignment explores the interpretation and application of easements, specifically the right of way, including its scope of use by motel guests and potential limitations. It also addresses the consequences of cutting down trees, the enforceability of covenants (including those in gross), and the implications of leasing property with existing easements. Furthermore, the assignment delves into the requirements for a valid lease agreement, particularly the need for a written instrument, and the application of promissory estoppel. Finally, it examines the impact of covenants in a lease, including the rights and obligations of the lessee, referencing the Property Law Act 2007 and relevant case law and scholarly articles to support its arguments.

Running Head: PROPERTY LAW
PROPERTY LAW
Name of the Student
Name of the University
Author’s Note

1PROPERTY LAW
(a): USE OF RIGHT OF WAY:
Easement is the right to use third party’s land or a right to restrict a landowner from using such
portion of land in a particular way. A legal easement is the right that permanently binds the land
and the future legal successors of the land towards the rights granted until it is surrendered1.
Thus, easement is the right where the public has an exercisable right to the land which belongs to
a third party. Such right is of the permanent nature for the benefit of the people at large.
However, the right can be varied depending upon the legal provisions and the agreement of all
the benefitting parties to the easement agreement and those who exercise such rights.
VEHICULAR RIGHT OF WAY
The vehicular rights of way under the Property Law Act 20072 is embedded in the Fifth Schedule
of the Act stating that the right of way includes the right to go, pass and repass at any time of the
day or night and such right is exercisable with or without the use of vehicles, machinery or
equipments3. However, the easements can be varied by the agreement of all the parties who
exercise the easement right over the land and secondly, by the making an application under
section 316-317 of the Property Law Act 20074.
1 Mead, David, and Stuart Ryan. "Restrictive covenants: is there a case for public plans to control private planning
instruments in New Zealand." New Zealand Planning Institute conference). Retrieved on. Vol. 9. 2014.
2 Marketing, F6, "Rights Of Way – Rights And Responsiblities | NWM", Nwm.Co.Nz (Webpage, 2019)
http://www.nwm.co.nz/rights-of-way-rights-and-responsiblities/
3 BRIAN GREEN PROPERTIES (1971) LIMITED vs. BINDON HOLDINGS LIMITED [2017] NZCA 284
4 Sarshar, Mubashshir. "VIOLATION OF RIGHT TO WAY, RIGHT TO ACCESS OF LIGHT AND RIGHT TO
ACCESS OF AIR AND OTHER EASEMENTARY RIGHTS."

2PROPERTY LAW
INCREASED USE BY MOTEL GUESTS
Increased use of the land by the motel guests shall be embedded by the provision under the
access lots where the guests of the party exercising the easement rights shall have a similar right
as that of the original owner of the easement right. The Landlock Land Application also states
that the parties who are dependent upon the benefit of the other party for their exercise of rights
over the easement property shall have an automatic right towards such property5. It means that
the land is locked for the use of the other people who do not own the land but use it for a specific
purpose determining their ownership rights. Thus, in the given scenario, the customers of mark
were dependent upon the easement rights owned by Mark for the up and down from the shore
and stay in the hotel however, any other person who is not a contracting customer of Mark shall
not be allowed for such exercise of easement right without the agreement with the owner of the
land.
CUTTING DOWN OF TI TREES
Cutting down of trees is laid down in the Property Law Act 20076 as the responsibility of the
owners for any nuisance or damage being caused to the neighbors by the trees grown in one’s
own property7. The same may also be ordered by the Court’s decision however, the cost of order
5 Toomey, Elizabeth. "What is Reasonable Access in a Landlocked Land Application?." New Zealand Law
Review 2016.3 (2016): 543-570.
6 "Property Law Act 2007 No 91 (As At 01 April 2019), Public Act Contents – New Zealand
Legislation", Legislation.Govt.Nz (Webpage, 2019)
<http://www.legislation.govt.nz/act/public/2007/0091/88.0/DLM968962.html>.
7 "Nuisance Trees", Whakatane District Council (Webpage, 2019) https://www.whakatane.govt.nz/residents/being-
considerate-resident/nuisance-trees

3PROPERTY LAW
or action ordered by the Court including that of the repair or removal of the tree shall be borne
by the owner.
Thus, in the given scenario, Mark can cut the trees only with the permission of the owner
of the land which is Freida. However, the costs of cutting the shall be borne by the owner of the
land which is Freida unless otherwise agreed by the parties to the agreement.
(b): LEGAL ISSUES CONCERNING COVENANT
The Property law Act 2007 does not form the complete codification with respect to the
provisions for the property law but only forms as a basis to difference to the amendments being
made to the Land Transfer Act 1952. The provision for the covenant in gross has been laid down
in the Property Law Act 20078. However, the intention for the registration of all the newly made
covenants or their amendments are supposed to be registered under the provisions laid down by
the Land Transfer Act 1952. The covenant in gross is the type of covenant which is made
between the owner and the third party with or without the existence of the payable consideration
against the same but such covenant should be benefitting the third party solely and not the people
at large. Thus, in the given scenario, since Mark had only entered into the agreement for the
covenant but the same was yet to be registered and hence, the legal effect of such covenant
cannot be enforced.
(c): LEASE OF GARAGE
8 Fredrickson, Craig. Land Covenants in Auckland and Their Effect on Urban Development. Auckland Council, Te
Kaunihera o Tāmaki Makaurau, National Science Challenges Building Better Homes, Towns and Cities, Ko Ngā wā
Kainga hei Whakamāhorahora, 2018.

4PROPERTY LAW
If a person leases the property with the easement right the right of easement and the
covenant gets carried away along with the sale. However the easement can be varied by making
an application under section 316-317 of the 2007 Act or by a common agreement with the people
exercising the right of easement. Thus, if Freida sells the property to the purchaser, she required
the easement to be varied as per the provision of law or by the agreement with Mark.
(d): LEGAL RIGHT OF MARK
A contract is enforceable only if the essential elements of a valid contract has been met.
One of the essential elements states that the contract should be a written document. Further the
provision of the Property Law Act 2007 requires all contracts with respect to the lease and sale
of land to be in writing9. However, the provision exempts short term leases which are meant to
be for the period of not more than one year. Thus, in the given scenario, the lease was only an
oral agreement and due to lack of written formal instrument, the lease shall not be exercisable by
law. on the contrary, the doctrine of promissory estoppel, and part performance, the court
undertakes the harsh approach to the fulfillment of the requisites of the discharge of contractual
obligations as per the promise being made. But in the given scenario, no such part performance
or the promise was made and hence, the lease of garage is not enforceable by law.
(e): COVENANT 18
Schedule 3 of the Property Law Act 2007, lays down the provision for the covenants in
case of the lease of the land. Section 8 of the Schedule states that the lessee should not part from
9 Marketing, F6, "When Is An Oral Agreement To Lease Binding? | NWM", Nwm.Co.Nz (Webpage, 2019)
https://www.nwm.co.nz/when-is-an-oral-agreement-to-lease-binding/

5PROPERTY LAW
the grant of the covenant. Hence, the covenant shall be binding upon Mark if the lease is
enforceable and entered into by Sally and Mark. However, Mark has the right the terminate the
lease provided that the property is returned in the same condition except the accidental cases and
the reasonable wear and tear of the property. However, Part 3 and 4 of the Act deals with the
unregistered leases and the binding covenants. It has been explained that such unregistered lease
for short term shall be enforceable and it must be used as any reasonable man would have use the
property in cases of registered leases. Thus, in the given scenario, Mark has the right over the
lease agreement but at the same time he shall be bound by the provision of covenant 18 of the
agreement.

6PROPERTY LAW
BIBLIOGRAPHY:
Journals and Scholars:
Toomey, Elizabeth. "What is Reasonable Access in a Landlocked Land Application?." New
Zealand Law Review 2016.3 (2016): 543-570.
Fredrickson, Craig. Land Covenants in Auckland and Their Effect on Urban Development.
Auckland Council, Te Kaunihera o Tāmaki Makaurau, National Science Challenges Building
Better Homes, Towns and Cities, Ko Ngā wā Kainga hei Whakamāhorahora, 2018.
Sarshar, Mubashshir. "VIOLATION OF RIGHT TO WAY, RIGHT TO ACCESS OF LIGHT
AND RIGHT TO ACCESS OF AIR AND OTHER EASEMENTARY RIGHTS."
Mead, David, and Stuart Ryan. "Restrictive covenants: is there a case for public plans to control
private planning instruments in New Zealand." New Zealand Planning Institute conference).
Retrieved on. Vol. 9. 2014.
Case Laws:
Brian green properties (1971) limited vs. Bindon holdings limited [2017] NZCA 284
Websites:
Marketing, F6, "When Is An Oral Agreement To Lease Binding? |
NWM", Nwm.Co.Nz (Webpage, 2019) https://www.nwm.co.nz/when-is-an-oral-agreement-to-
lease-binding/
Marketing, F6, "Rights Of Way – Rights And Responsiblities | NWM", Nwm.Co.Nz (Webpage,
2019) http://www.nwm.co.nz/rights-of-way-rights-and-responsiblities/

7PROPERTY LAW
"Nuisance Trees", Whakatane District Council (Webpage, 2019)
https://www.whakatane.govt.nz/residents/being-considerate-resident/nuisance-trees
Legislations:
"Property Law Act 2007 No 91 (As At 01 April 2019), Public Act Contents – New Zealand
Legislation", Legislation.Govt.Nz (Webpage, 2019)
<http://www.legislation.govt.nz/act/public/2007/0091/88.0/DLM968962.html>.