By senior associate Ian Jespersen and solicitor Robert Wilson from Simpson Grierson
Q. I am a half-owner of a cross-lease property and wish to build a small deck that will involve taking out some of the native bush on the property. Do I need the written consent of the other owner? I do not see this as a structural matter, more a basic landscaping of an area which is designated as mine.
A. As the owner of a cross-lease title you have an undivided share in the land as a tenant in common with your neighbour and also a long-term lease for your property. Under the lease you and your neighbour are both lessors and lessees. The leases govern the relationship and each role carries with it certain rights and obligations.
The designated area you refer to is usually called an "exclusive use" area. This area can be treated as your own for the purposes of use and occupation but not ownership. It is able to be used and enjoyed without interference from your co-lessor as long as you use it in a manner that does not breach the lease terms.
As a lessee you must comply with the terms of the lease. Usually leases require that a "lessee will not make structural alterations to the building nor erect on any part of the land a building, structure, or fence, without the prior consent of the co-lessors". Most leases require that this consent be in writing while some others are silent as to the form the consent should take. It is prudent that any consent is in writing in case a dispute arises at a later date. If consent is not sought, a co-lessor can seek an injunction from the court to halt the building works until such time as the dispute is resolved.
For building purposes, a deck is not always classified as a structure and therefore a building consent is not always required from the council. Generally, a deck less than 1m high that is not enclosed will not be regarded as a structure. However, this should always be checked to determine if a building consent is necessary.
In terms of the lease, if an addition is made to a building the flats plan may need to be updated. The plan outlines the basic dimensions of the buildings on the land. If it does not match, then this may be considered a defect in title and can cause problems when selling the property.
However, if you propose only a non-enclosed deck and it is erected within your "exclusive use" area with the consent in writing of your co-lessor, then it should not be necessary to have an updated plan completed or your title updated.
To ensure there is no dispute with your neighbour it would be prudent to seek their consent to even minor building works such as the building of a small deck.
In most leases such consent cannot be unreasonably withheld.
In terms of removing the bush, you should take into account: council requirements under the district plan, legal matters affecting your title such as covenants or encumbrances, and the terms of the lease before undertaking its removal.
The extent to which you should seek consent from your co-lessor relating to the removal of the bush will depend entirely on the terms of your lease. However, it is important to investigate these matters thoroughly with the council and your solicitor before proceeding so as to avoid any potential risk of prosecution by the council for removing bush that may be protected under the district plan, or being sued for a breach of a covenant or encumbrance, or a breach of the lease terms.
Even if you do not require a building consent for the deck, your co-lessors consent in writing should be obtained. Courts have ruled quite consistently in this regard.
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