Residential Tenancies – Termination

Land covenants are very commonplace in modern subdivisions and often impose significant restrictions on the way a property can be developed and used, now and into the future (sometimes indefinitely). While usually intended to promote and protect the amenity of subdivisions and preserve property values in the years to come, covenants can stymie development, prevent neighbourhoods from moving with the times and create difficulties for owners trying to renovate and extend or sell their properties. Common issues are: Requirements that the developer or other third party approve in writing any plans and specifications for construction of buildings on the land. Often these requirements are overlooked, and approval is not actually sought or there is nothing in writing to show that this requirement was complied with. This causes issues when the property is sold as a purchaser inherits (and could be required to fix) any covenant compliance issues when they buy a property. These requirements can also be written in such a way that it’s not clear whether approval has to be obtained for the initial construction of buildings on a property, or whether the obligation is ongoing and approval must be obtained for any new additional buildings (like a tiny home or extra garage) or changes to original buildings - which would cause further issues if the developer no longer exists. Prohibitions on subdivision or the number of dwellings that can be constructed. It is very common for covenants to specify that only a single dwelling can be constructed on a property, which can prevent an owner from redevelopments such as converting their property into a home and income and inhibits intensification of residential land. Inflexible material requirements, like obligations to use only certain types of cladding, which have become obsolete or problematic over time. These requirements can also prevent the use of new superior materials and building innovations. It is possible to put a time limit on covenants and to update or remove them, but the process of doing so (if not provided for in the original registered covenants) can be painful. Updates or removal can be done by: Obtaining the consent of all owners in the affected subdivision - but often this is simply not practical due to the number of impacted owners or the risk of one or more owners refusing to cooperate or requiring some sort of payment to do so. Making a Court application for an order under sections 316 and 317 of the Property Law Act 2007. Court proceedings can be costly and lengthy, with no guarantee of success. To be successful, an owner would have to convince the Court that: There has been some relevant change (such as the use of the land or in the character of the neighbourhood) which means that the covenant should be modified or removed; The continuation of the covenant as is would impede the reasonable use of the property; and There is no-one who will be substantially detrimentally impacted by the modification or removal of the covenant. If you are considering buying, selling, developing or redeveloping a property that you know or suspect is affected by covenants, it is prudent to check the property’s title and understand the impact the covenants may have on your plans and what your options. Our property team can assist with this, please get in touch.

Holland Beckett is pleased to announce that Hilary Anderson has joined the firm as Special Counsel.    Hilary is a specialist property and commercial lawyer and joins our property and commercial law practice working closely with Dean Thompson and his team.   “The appointment comes at a time of significant momentum for the firm as we grow our commercial and development practices,” says Dean Thompson, Partner at Holland Beckett. “Hilary has always impressed us in past dealings with her common sense and commercial approach. She will be a great addition to the team.”    Hilary enjoys a wide variety of work for private clients, property developers and commercial clients, with expertise in residential and commercial property transactions and finance, property development, conveyancing, subdivisions, commercial leasing, franchising and contract matters. She also has a special interest in trusts, asset planning and protection with significant experience in complex or large estates. Named as one of New Zealand Lawyer’s Rising Stars in 2022, Hilary is a driven but straightforward and approachable lawyer.   Born in Ōhope, Hilary has strong connections to Whakatāne and the Eastern Bay of Plenty. She has called Tauranga home for more than a decade and has strong relationships and an incredible reputation in the community.    Holland Beckett is delighted to have identified a talent and to have her join the team at a time of growth. The Bay of Plenty based firm has almost outgrown their current Tauranga premises and will move to new offices in the CBD next year, marking the next phase in the firm\'s success. Dean Thompson adds, “we have always got room for good people.”   Please reach out to Hilary for any property or commercial enquiries hilary.anderson@hobec.co.nz or 07 571 3836. 

To complete a Kiwisaver First Home Withdrawal you need to have been a member for at least three years. These funds must be applied toward the purchase of a residential property which you intend to live in for at least six months. If eligible, you can withdraw all your Kiwisaver savings other than $1,000 which you must keep in your Kiwisaver account. The funds from your First Home Withdrawal may either be applied towards the payment of a deposit where you have entered a conditional agreement or towards the balance required to purchase the property on the settlement date. A withdrawal application cannot be completed until you have a signed agreement to purchase a property. Most Kiwisaver providers take between ten to fifteen working days to process a withdrawal on receipt of your fully signed application. The amount of days your particular provider requires is set out on their respective first home withdrawal form which can be found online. Depending on whether you are wanting to use Kiwisaver funds for the deposit on the unconditional date or on the settlement date, you need to ensure that you give your provider enough time before your required date to complete the withdrawal. This can catch out first home buyers wanting to use their Kiwisaver funds to pay a deposit on a property going to auction, as at auction the deposit is usually payable the same day you sign the agreement upon your winning bid. The withdrawal forms include a statutory declaration to be signed whereby you declare that you are eligible to make the withdrawal. Only certain people can witness signing of the statutory declaration including a Solicitor, Justice of the Peace or Notary Public. These forms also include a letter to be signed by your Solicitor. It is important that you factor in these signing arrangements when determining the timeframes required to withdraw funds. Once your application is processed by your provider, your Kiwisaver funds are paid to your solicitor. Your solicitor will then use these funds to either make payment of the deposit or towards the purchase price on settlement. We are well experienced at dealing with Kiwisaver providers. If you have any questions or would like any assistance with buying your first home, please get in contact with one of our property solicitors.