43 Beach Rd in Castor Bay. Mortimers (left), McKenzie (right). Photo / Jason Oxenham
43 Beach Rd in Castor Bay. Mortimers (left), McKenzie (right). Photo / Jason Oxenham
A North Shore man has sued his neighbours to try to force them to undo renovations which he claims are illegal in the clifftop residential complex.
In a bitter cross-lease battle that went to the High Court, the man sued his neighbours on Beach Rd in Castor Bay over changesmade to a unit separated only by a wall.
In the case heard just before Christmas, Ian McKenzie and trustees sought an injunction requiring Roger and Sherin Mortimer to "remove all the alterations and reinstate the flat as it was prior to the alteration work". The Mortimers opposed the claim, which they said should be determined at an arbitration as provided by the terms of the cross-lease.
On January 17, Associate Justice Smith Warwick Smith agreed with the Mortimers and said they were entitled to costs. The parties must now enter a post-hearing arbitration process to try to settle their dispute.
Mortimer told the Herald on Sunday this week he had shifted a bedroom, replaced three leaky skylights with six new ones and replaced front windows facing the road. The work had been expensive and he could not return his unit to its original condition due to bracing now in walls to meet new building standards.
Nothing structural had been carried out in the work which would breach the terms of the cross-lease, he said.
But McKenzie disagrees and he not only wants that work undone and the unit reinstated to its original condition but also sought removal of a gate installed out the front of the Mortimers' place before they bought.
Campervan at the Mortimers', with McKenzie's flat far right. Photo / Jason Oxenham
McKenzie says that gate creates road safety and visual issues.
Mortimer told the Herald on Sunday this week that no arbitration had taken place yet and the dispute remained unsettled. He had moved a campervan off the property and was keeping it at Milford after McKenzie said that created issues being parked out the front of the Mortimers' place.
McKenzie could not be reached for comment, although his Christchurch lawyer Hugh Matthews said he had passed on the inquiry.
Joanna Pidgeon, a lawyer who specialises in property and cross-lease issues, said disputes like the one on Beach Rd were unfortunately all too common. What often started as relatively minor interior works often extended when leaks and deterioration to buildings was discovered, she said.
Joanna Pidgeon of Pidgeon Law. Photo / Supplied
"Often, owners of cross-leases are not fully aware of the necessity of getting neighbours' consent for structural works and it appears that here there was a disagreement about what was structural," she said, asking how reasonable each person had been.
There was also a misunderstanding of the requirement to get consent for all neighbours on structural alterations rather than the majority decision clause applying, she said.
"As is often the case, if one cross-lease neighbour sees another as being difficult or not giving consent when they want it, there will then be counterclaims for other matters which may have otherwise been left alone in relation to the parking and gate issues," she said.
The parties went to the High Court when the correct forum should have been arbitration, "and now those owners need to go through the cost of an arbitration anyway", she said.
43 Beach Rd: windows changed at the Mortimers' (left) but McKenzie (right) wants that undone. Photo / Jason Oxenham
The lesson was that people needed to get consent for structural alterations and that getting that could cause difficulties, Pidgeon said.
"In some cases that consent cannot be unreasonably withheld, and for others there is no requirement of reasonableness depending on what form of cross-lease is used. There is often a different view as to what constitutes a structural issue."
It was unfortunate that cross-lease owners did not get to air their grievances in an affordable forum like the Tenancy Tribunal, she said. It was not uncommon to see several rounds of arbitration and High Court proceedings, she said citing other cases.
The Auckland District Law Society had long lobbied for legislative changes on cross-leases.
Because most disputes end up in arbitration, "they are invisible to our policymakers. Giving cross-lease owners access to the Tenancy Tribunal would be a great start, by giving access to justice at a lower cost to owners," Pidgeon said.
