New Zealand Case Law: Decisions & Judgments | LexChat

New Zealand Case Law

Modification of restrictive covenants

  • 11 Apr 2019

    RE BARFILON INVESTMENT LTD, L & W RISING LTD, BURBERRY DEVELOPMENTS LTD and BURBERRY ROAD 32 LIMITED [2019] NZHC 780

    Citation
    [2019] NZHC 780
    Court
    High Court

    The Court found sufficient change since creation of the 1995 covenant — notably the establishment of a Special Housing Area, rezoning to urban/mixed housing zones and the grant of qualifying development resource consent — such that the covenant impeded reasonable use of the burdened land in a way not reasonably foreseeable in 1995; weighing sanctity of contract and private rights against the public interest in enabling the SHA development and applicants' purchases made with knowledge, the Court exercised its discretion to modify the covenant by removing the four applicants' properties from La…

    • Modification of restrictive covenants
    • Sections 316 and 317 property law act 2007
    • Housing accords and special housing areas act 2013
    • Rezoning and special housing area
    • Compensation for covenant modification

  • 29 Nov 2017

    AKLANDER INVESTMENT LTD [2017] NZHC 2939

    Citation
    [2017] NZHC 2939
    Court
    High Court

    The covenant was modified because the neighbourhood's character materially changed since the covenant's 1996 registration—from rural to residential—there was majority consent and evidence demonstrated no significant deleterious effects, permitting the court under s317 Property Law Act 2007 to modify covenant D083110.1 so it no longer applies to Lot 1 DP 178443 (NA105B/641).

    • Modification of restrictive covenants
    • Compensation for covenant modification
    • Change of neighbourhood character

  • 22 Sept 2017

    FENG FAMILY INVESTMENTS LIMITED v WHITELAW & ORS [2017] NZHC 2297

    Citation
    [2017] NZHC 2297
    Court
    High Court

    Modification ordered under s 317(1)(d): the court concluded that permitting a two-storey dwelling on Lot 11 would not substantially injure any person entitled, and s 317(1)(a) could not be relied upon because the applicant must be taken to have had knowledge of the registered covenant and the change in use resulted from the applicant's actions.

    • Modification of restrictive covenants
    • S 317(1)(d) substantial injury
    • Deemed knowledge of registered interests
    • Relief against covenant breach