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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 22322
Experience:  37 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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We have a 1/9th share in a driveway - easement right of way.

Customer Question

Hi, we have a 1/9th share in a driveway - easement right of way. The majority of the neighbours wish to have regular repairs/maintenance done to the gravel driveway to keep it at the status quo but are in limbo due to one owner not giving consent. They will only consent to a significant upgrade to current council standards, although the drive was made to council standards at the time and is on private land, and have refused to pay for regular maintenance until we have agreed to their expectations. The below wording is from our property agreement. My question is whether it is unreasonable for this owner to withhold consent for maintenance to the status quo? It seems a bit like we are being held to ransom in their desire for significant changes.
"Any person wishing to carry out any work whatever on the Right of Way or in respect of the other easements referred to in the Schedule hereto shall give to the Registered Proprietor (or Proprietors) and to the occupier or occupiers for the time being of the Servient Tenements notice of such intention and of the nature and extent of the said work at least fourteen days before any such work shall be commenced (except in an emergency situation when the maximum notice reasonably possible shall be given) and shall obtain prior consent in writing of such Registered Proprietor or Proprietors PROVIDED THAT such consent shall not be unreasonably nor arbitrarily withheld."
Submitted: 12 months ago.
Category: New Zealand Law
Expert:  Chris The Lawyer replied 12 months ago.

If all the owners save one are happy with the standard of maintenance you describe, then that is what is reasonable. If this had to go to court I think it very likely the holdout owner would be told not to hold all to ransom. Some easements use arbitration, but otherwise you would need to go to the District Court to get orders about this. But perhaps some mediation may be best as less costly and less harmful to neighbour relations

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