Edmonds Judd

Subdividing

Neighbourhood subdivisions

House, Property
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What is going up over the fence?

As urban land becomes more expensive, landowners and developers are constantly looking for ways to get the most out of their patch of dirt. Adding to the equation, a housing shortage across the country has led to increasing land development and subdivision to create additional dwellings. More recently, there has been a move to more compact multiple unit developments in many neighbourhoods.

 

Types of developments

Multiple unit developments have become popular with Kāinga Ora and other government or charitable agencies as they can build multiple dwellings onto a section that in the past may have been limited to a single dwelling.

Whether these types of developments on your neighbour’s property are being built for social housing or privately, you may have concerns about the effect they may have on your property.

 

What about my view?

Strictly speaking, no one has a legal right to a view. If you have concerns about a potential development at the property next door, you should first check the title of that property. If it is subject to any restrictive covenants that prevent certain development or subdivision, the landowner with the right to enforce the covenant could potentially put a stop to the prohibited developments. Often this will be you as the neighbouring property owner, otherwise if the covenant is ‘in gross’ it is enforceable by anyone.

Falling short of that, there may be restrictions in a covenant meaning that any new dwelling should comply with specific design specifications or building height restrictions that protect certain views or ‘view shafts.’ This may ease concerns knowing the new buildings next door should not affect your property too much.

 

No covenants, no choice?

Where there are no covenants in place that restrict the developer’s use of the land, the developer is bound solely by the relevant district plan and the Resource Management Act (RMA). The district plan sets out the local authority’s rules and restrictions for land use and development, and any application to develop a property is determined based on its compliance with the relevant district plan.

 

Consent

Where a development next door looks as though it may affect you, the developer may ask you to sign a consent. This will be either in preparation for their submission to the relevant local authority or may be a requirement set by the local authority following their application.

In either case, you do not have to sign the consent if you are unhappy with the development as it is presented. There may be a particular aspect of the design or location of the new dwellings that you don’t like; sometimes neighbours can negotiate amendments to the developer’s plan in consideration for their consent. Other times, you may simply not want it to proceed.

It is important to understand that not consenting to the developer’s request does not automatically mean that the development won’t go ahead.

 

Notification

If you are a potentially affected neighbour and you have not approved the application, the developer can request that the local authority notify the potentially affected parties of their application. At this point, you would be invited to submit your objections to the local authority for it to finally determine whether the development can take place.

In other circumstances, the relevant local authority will require that the developer notify affected parties as part of their application process. You can view the relevant district plan on your local authority’s website to determine if the development next door is compliant with the various rules relating to land and new housing.

In some circumstances, the proposed development will be wholly in compliance with the district plan and have no effect on your property. Where that is the case, you may not have any grounds for an objection or even be required to be notified of the development making it difficult to raise any objection.

 

RMA review

At present, the RMA is under review which is likely to result in a significant overhaul to the legislation governing land use and subdivision. Time will tell as to the effect of these changes on the rights of neighbours regarding subdivision and developments over the fence.

If you are approached by a neighbour about their development and need help to find out more about what they can do or what you can do to stop it, please don’t hesitate to contact us.

 

 

DISCLAIMER: All the information published in Property Speaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Property Speaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650

Property briefs

Property
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First Home Partner scheme: on pause

The coverage of the First Home Partner scheme has been extended, but its availability is currently on pause.

The scheme appears to be a victim of its own success. In late September, Kāinga Ora announced that it is no longer accepting applications as the scheme is now full.

As part of government assistance for first home buyers, the First Home Partner scheme was established to bridge the gap if you are struggling to save a full deposit. As long as you meet eligibility criteria, including being financially able to make the mortgage repayments, Kāinga Ora can pay additional deposit funds up to the lesser of 25% of your home’s equity or $200,000. In return, Kāinga Ora becomes a co-owner until you repay its contribution.

Since August, the scheme has covered purchases of existing homes instead of being limited to new builds. The eligibility criteria were also extended to allow households with a total income up to $150,000 to apply (the previous limit was $130,000) and joint purchases by whānau groups of up to six people who normally live together.

The scheme may reopen in time as Kāinga Ora works through existing applications; we recommend you ask us or Kāinga Ora about the scheme’s availability if you are interested in applying.

 

Council delays for property developers

Subdividing off the back section or otherwise developing your property may seem like a way to ‘get rich quick’; but be prepared for a long process.

Resource and building consents have never been an overnight job. The last few years particularly have seen developers face significant delays for reasons varying from staffing shortages to larger numbers of consent applications. In some areas, councils have struggled to meet mandatory timeframes for processing applications, with some taking many months longer than expected. The extent of ongoing delays differs from council to council, depending on current resources and the number of other developments underway in the area.

Regardless of your local situation, preparation remains key. A detailed application can help avoid additional information requests from the council that may cause delays. If you are undertaking any land development, do talk with us about the process involved and, particularly, the current timeframes so you can get a clearer measure on how your proposed development might progress.

 

Short-term accommodation – take care

As the summer holidays approach, the lure of offering a spare bedroom or sleepout on websites such as Airbnb or Bookabach to earn extra money is tempting. You should take care, however, to ensure you are aware of the rules around offering short-term accommodation.

Some of the constraints include:

  • Resource consent: The extent of council restrictions will depend on the rules applying where your property is located. Some councils require a resource consent where your property is let out for more than a certain number of days or for a certain number of guests per year.
  • Other restrictions: Properties with a body corporate, title covenants or a mortgage all may be subject to restrictions around letting the property for short-term accommodation. Likewise, if you are a tenant, both commercial and residential tenancies are usually subject to limits on how the property can be used or sublet.
  • Tax: Depending on your situation you may need to pay both income tax and GST on the revenue. Further information can be found here.
  • Insurance policy limits: Check with your insurer that your policy will cover you letting the property.

In addition, you should ensure the booking site’s terms and conditions suit your individual circumstances; their T’s and C’s are not all the same. You should also check they include all obligations you might expect of a guest as they will form the main part of your agreement with these visitors.

To help avoid penalties or other legal disputes, we strongly recommend that you consider these points well before listing your property. If necessary, talk with us and your accountant to ensure you are not inadvertently breaking the law and to ensure your guests have a good experience.

 

Election impact on property issues

The election’s outcome is set to determine the future of many property issues, such as the fate of the recently passed Natural and Built Environment Act 2023 and the Spatial Planning Act 2023 as well as policy around foreign buyers, property tax rules and public housing.

At the time of writing, the election results have yet to be formally confirmed, but we will keep track of any developments and provide a fuller update in later editions. In the meantime, if you have any questions regarding the effect of government policy on your property plans, please do contact us.

 

 

 

DISCLAIMER: All the information published in Property eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Property eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650