Deed of undertaking between neighbours

Question

Neighbours have an issue about their adjoining land parcels and have verbally agreed to sort it out in a certain way. One of them wants to make sure that the other is aware of the consequences and does not later ask to revert the agreed state of things.

What sort of paper do they need to sign, if any, to have the agreement binding? Deed of undertaking? Do the signatures need to be witnessed?

Example: Bob's land is uphill Rob's. Bob has done some earth moving which has changed the path of rain water drainage which makes Rob's land too wet where he doesn't want it to. Bob and Rob agree that Bob directs the water away from Rob's land completely. Rob is aware that it may cause his land dry out and promises not to complain about that. Bob wants it to be binding before putting effort into redirecting the drains.

Can that be recognised as a contract i.e. Rob's consideration is to refrain from making a certain type of complaints? I doubt this because Rob may never actually want to make those complaints, so there would be nothing moving from him.

Jurisdiction: any common law, though specifically interested in New Zealand.

Answer 1

In the U.S., the common way to address this would be called a servitude among academics and legal scholars, although it would typically be titled either an "easement", or more likely a "covenant" (which is the customary name at common law for a promise that runs with the land).

It would typically be reduced to writing and executed by both parties and recorded with the same formalities as a deed (i.e. it would typically be signed and acknowledged before a notary public, would contain a legal description, and would be coded with both parties in the grantee-grantor index).

In New Zealand, I suspect that the process would be similar.

One complication in New Zealand that might make the formalities different is that, New Zealand has a title certificate based system of real property recording called a Torrens Title system which it adopted in 1870, rather than the less formally structured race-notice recording system that, in principle, allows almost anything to be recorded without requiring that it fit in a particular box of types of documents that are permitted. Since 2017, in New Zealand, valid legal interests in law do not arise unless they are recorded. Since 2017, the New Zealand system's official copies are also now entirely electronic.

Covenants are governed by Sections 240-250 of the Land Transfer Title Act of 2017 and seem to correspond to the kind of contract described in the question.