Our German Desk
Where land is subject to covenants and easements, owners might find themselves in a position where they are unintentionally or unknowingly in breach of a covenant or easement or have purchased land that is burdened by an interest that restricts the use of their land.
A land covenant is a private agreement between parties (and usually binds all future owners) to do or not to do a thing in respect of the land, such as height restrictions, specifications of building materials and design, or restrictions on further subdivision of the land.
An easement (which binds all future owners) is required to give a party rights over another party’s land in relation to access, water, electricity, telecommunications, etc.
These agreements are registered on the parties’ titles to protect their interests. However, in some cases a land covenant (or easement) may no longer be appropriate.
How do I remove a land covenant (or an easement)?
As land covenants and easements are contracts relating to land, courts are hesitant to override these contractual property rights in the absence of good reason. However, a court may modify or remove a land covenant or easement if it is satisfied that specific requirements have been met, such as a change to the property use or character of the neighbourhood, or the restrictions are no longer reasonable, or all the parties agree to the modification or removal.
There is no quick resolution for a removal. You must apply to the court for an order to modify or remove the land covenant (or easement) and serve notice of your court application on all affected parties as well as the territorial authority.
Will my reason for wanting to remove the land covenant be accepted by the courts?
Each application to the court will be assessed on its own facts as illustrated by the cases below.
Wilkinson v Campbell [2020] NZHC 159 was a successful application by an owner of a property bound by a height restriction. The previous owner of the property added a second storey to part of the house, and while the renovation complied with Council regulations, the owner was in breach of the height restriction in favour of its neighbouring properties. Five of the six neighbour owners provided express consent to allow the property to remain as is. The Court found the remaining owner had implicitly waived their right to the benefit of the covenant as they purchased their home after the covenantor’s home had stood in its current form for 12 years, and because that owner failed to take any action after they had been made aware of the breach.
In Pollard v Williams [2019] NZHC 2029, a covenant restricted the owners of a 10 lot development from relocating second-hand houses on to the land, or using second hand materials, and only allowed owners to construct new houses. The Williamses owned a section in the development and wished to relocate a native timber 1911 historic homestead onto their land. The homestead would be renovated to look new and finished to a high standard from the outside with the interior being restored in its original state as much as possible. All affected parties, with the exception of Mr Pollard, agreed to vary the covenant to allow for the house to be relocated onto the land. The Williamses won their case in the District Court, however Mr Pollard appealed the decision as he objected to the modification because he thought it would negatively impact the development in the future.
The High Court noted that the purpose of the covenant was to maintain the visual appearance of the development and to prevent anything that may become an eyesore to owners within the development, and that it did not prescribe a particular style or quality of build. In assessing whether the modification would injure Mr Pollard’s rights, the judge said that the anticipated injury of setting an unwarranted precedent was not substantial in the circumstances. Accordingly, the High Court upheld the decision of the District Court and noted that the Williamses proposal was so unique and one-off in its nature that a similar undertaking is unlikely to be carried out by other lot owners especially given the expense involved.
Finally, in the case of Re Barfilon Investment Limited [2019] NZHC 780 the Court allowed the removal of a covenant that did not allow the construction of low-cost buildings in the Drury, South Auckland area. The Court noted a combination of factors, which included the issue of the Special Housing Order by Council, the change in zoning from rural to residential (zone mixture of apartment building, mixed housing urban and suburban etc), and the issue of Council’s resource consent that effectively allowed the building of a large number of affordable houses. These factors combined, provided a sufficient change in circumstance since 1995 when the restriction was first put in place. The Court concluded that it would modify the covenant taking into consideration the general public interest and need for large scale affordable housing development conveyed in the Special Housing Order.
Final Thoughts
It is important to obtain proper legal advice about your obligations in respect of a property by carrying out thorough due diligence before purchasing, building or renovating a home.
If you have any questions about land covenants or easements, please get in touch with our Property Team or your usual contact at Hesketh Henry.
Disclaimer: The information contained in this article is current at the date of publishing and is of a general nature. It should be used as a guide only and not as a substitute for obtaining legal advice. Specific legal advice should be sought where required.
