The court heard he wanted to set up an “organic mini farm” and build a log cabin.
The sale went through in early 2020 but months later the Lilleys claimed they needed to enforce covenants because of Hurlimann’s poor management of the property.
The covenants were described by Justice Andru Isac in his High Court decision last year as extensive. They included a restriction on constructing buildings “other than a new residential home”, which had to be built with modern materials.
It had to be completed in a year and to a size of 240 square metres, making it unaffordable for Hurlimann.
There was also a covenant for a clothesline that had to be “aesthetically sensitive in terms of design and location”, and another was a $100 fine each day the rules were broken.
The covenants were at the heart of today’s Court of Appeal hearing in Wellington.
Hurlimann thinks the restrictions should be dropped but the Lilleys want them kept in place.
Hurlimann’s lawyer Matthew Freeman said the imposed covenants were “very prescriptive and restrictive” and were imposed out of animosity toward his client.
Freeman asked the court to extinguish the covenants saying his client was the only one of the four lots in the subdivision to have such restrictions imposed.
“There is an arbitrariness to these covenants,” Freeman said.
“These covenants weren’t really required at all in terms of regulating the subdivision.”
Freeman didn’t deny his client had consented in November 2020 after they were put to him in October, but argued he felt pressured to make a decision by the Lilleys and didn’t know he could stand up for himself.
“He’s stuck and will remain stuck unless something is done about this.”
The Lilleys’ lawyer David Sheppard said his clients believed it was equitable and just to impose the covenants and rejected Freeman’s assertions that it was unfair on Hurlimann.
Sheppard said the covenants were imposed because of maintenance and management of the land in the subdivision, not because of any personal grievance.
The Lilleys said they were concerned about the property, with a mess left on the land, including felled trees. Weeds were growing through the green waste left on site.
Sheppard said Hurlimann had no building experience and had demonstrated an inability “to look after a section”.
Hurlimann dumped oil-contaminated soil near the shared driveway area, which Sheppard claimed demonstrated “a lack of sympathy or thoughtfulness towards the other owners of the other lots”.
The lawyer asked the court to hesitate in concluding the covenants were “for any other reason” other than for ensuring the land was looked after.
When Hurlimann received the covenants in late October 2020 the Lilleys believed he was given ample time to seek assistance from lawyers on making a decision, with the deadline 20 days later.
A number of options were on the table for Hurlimann, submitted Sheppard, and the land owner accepted the covenants in the fear of losing his capital gain.
“It would not be just and equitable to extinguish the covenants,” Sheppard said. “That is the finding this court should reach and the appeal should be dismissed.”
Sheppard said the argument for a modification to the rules couldn’t be made by the court on a satisfactory basis.
The decision was reserved.
