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CONTENTS |
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1. Introduction |
1 |
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Acknowledgements |
2 |
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2. The Nature of Easements, Covenants, Consent Notices and Encumbrances |
3 |
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Easements |
4 |
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Covenants |
6 |
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Traditional Land Covenants |
6 |
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Building or development schemes |
7 |
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Consent notices |
8 |
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S 240 Covenant |
8 |
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S 108(2) Covenant |
9 |
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Encumbrances |
9 |
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Practical exercise 2A: Introduction to Kim Jackson |
11 |
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Attachment 2A(i) |
11 |
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Attachment 2A(ii) |
14 |
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3. Types of Easement and Issues with Covenants |
17 |
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Positive and Negative Easements |
17 |
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Types of Easement |
17 |
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Rights of Way |
18 |
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Attachment 3(i) |
20 |
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Rights to Drain Water/Convey Water |
23 |
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Rights to Convey Electricity and Telecommunications |
24 |
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Party Wall Easements |
30 |
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Rights to Light and Air |
30 |
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Land Covenants – Statutory Issues |
32 |
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Positive and Restrictive Covenants: Definitions |
32 |
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Positive and Restrictive Covenants: Legal Effect |
33 |
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Land Covenants - General Comments |
34 |
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Land Covenants – Conceptual Issues |
40 |
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Land Covenants vs Body Corporate Rules |
40 |
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Covenants vs the limits of the Unit Titles Act |
41 |
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Land Covenants vs Consent Notices |
42 |
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Covenants vs Grant of Resource Consent |
43 |
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Practical exercise 3A: Kim and Covenants |
45 |
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Attachment 3A(i) - 1 |
46 |
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Attachment 3A(ii) – 1 |
49 |
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Attachment 3A(iii) – 1 |
57 |
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Practical exercise 3b: Kim and the E-Survey |
65 |
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Attachment 3B(i) – 1 |
66 |
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4. Drafting of Easements and Covenants |
75 |
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Preparation of easements for registration |
77 |
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Preparation of covenants for registration |
79 |
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Building Schemes |
80 |
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Background |
81 |
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Definition of terms |
81 |
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Referencing legislation |
82 |
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Dispute resolution clauses |
83 |
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Preparation of encumbrances for registration |
83 |
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practical exercise 4b: Kim and the Resource Consent |
85 |
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Attachment 4A(i) – 1 |
86 |
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Attachment 4A(ii) – 1 |
92 |
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Attachment 4B(iii) – 1 |
94 |
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5. Interpretation of Covenants |
97 |
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Interpreting a Contract |
97 |
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Interpreting a Public Document |
97 |
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Why the Difference is Important |
98 |
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Congreve in the High Court |
98 |
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Bonnar v Summerland – a forgotten case? |
100 |
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Thompson in the High Court |
100 |
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Comment |
101 |
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The Australian Approach – Westfield |
102 |
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Comment |
102 |
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Congreve and Thompson in the Court of Appeal |
103 |
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A Case Example and Comment on the Interpretation of Easements |
105 |
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practical exercises 5A: Kim and the Title |
109 |
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Attachment 5A – 1 |
110 |
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6. Modification and Surrender of Easements and Covenants |
127 |
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Variation of easements and covenants |
128 |
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Variation of easements and covenants by agreement between the parties |
128 |
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Modification of easements and covenants by the court |
129 |
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Surrender of Easements and Covenants |
129 |
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Surrender of easement or covenant by agreement between the parties |
130 |
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Surrender of easements and covenants by the court |
130 |
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Removal of easement from the Register |
132 |
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Additional extinguishing options |
134 |
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Merger |
134 |
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Abandonment |
134 |
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7. Enforcement |
135 |
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Enforcement of easements |
135 |
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Enforcement of Positive Covenants |
135 |
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Enforcement of Easements and Covenants |
135 |
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Abatement |
136 |