Are Covenants Legally Binding in New Zealand?

Covenants are an important legal tool used in New Zealand, particularly in property law, to enforce certain conditions or restrictions. These agreements can be legally binding, meaning that all parties involved must adhere to them. However, the enforceability and flexibility of covenants in New Zealand depend on several factors, such as the specific terms of the covenant and the consent of the involved parties.

Understanding Covenants in New Zealand

Covenants are unilateral or bilateral promises or agreements made between property owners concerning the use and maintenance of certain property. In New Zealand, covenants are typically recorded in the title deed of the property, ensuring they are legally enforceable. This means that a covenant can legally bind the current and future owners of the property to comply with its terms.

Common Scenarios Involving Covenants

Covenants can cover a wide range of property-related matters. For instance, they can regulate the appearance of the property, restrict the types of activities that can be conducted on the land, or dictate the maintenance and repair responsibilities of the property owners. In other cases, covenants can be used to establish community agreements, such as shared access or common property usage.

Changing Covenants in New Zealand

While covenants are generally legally binding, there are specific circumstances under which changes can be made. One such scenario involves unit title properties, where multiple owners share common areas. In these cases, alterations to covenants require the consent of all involved parties.

Unit Title Properties and Covenants

Unit title properties are a type of ownership structure common in New Zealand, where multiple owners share the title to a building or complex. Each unit owner is responsible for their individual unit, while the common areas, such as gardens or hallways, are shared.

Suppose you own a unit and your neighbor also owns an adjacent unit. If the land between the two units is considered common ground, and a covenant restricts the use of this area, both unit owners would need to agree to make any changes. This consensus is crucial, as altering the covenant without mutual consent could lead to legal disputes.

Practical Steps to Amend a Covenant

Amending a covenant involves several steps, including:

Consulting a Surveyor: Accurately determining the boundaries and allocation of the common ground is essential. A surveyor can measure and mark out the exact areas to be divided or fenced off.

Agreeing on the Changes: Both unit owners must agree on the proposed changes. This includes the specific areas to be fenced off and the division of the common ground.

Revision of Legal Documents: Once the changes are agreed upon, the covenant should be updated. This may involve revising the title deeds and possibly obtaining a new plan of title.

Recording the Changes: The updated covenant must be recorded with the Land Information New Zealand (LINZ) to ensure it is recognized as legally binding.

Legal and Practical Considerations

When amending a covenant, it is advisable to consult with a property lawyer to ensure all legal requirements are met. These lawyers can provide guidance on the specific wording needed and help navigate the legal processes involved. Additionally, any changes should be clear and specific to avoid future disputes.

Conclusion

In conclusion, covenants are legally binding in New Zealand, provided they are recorded in the title deed and adhere to the legal requirements. While they are generally rigid, they can be modified under specific circumstances, such as when multiple unit owners agree to changes regarding common ground. Proper planning, legal guidance, and mutual consent are vital when seeking to amend covenants in New Zealand.