Written by Jonathan Killick, 08/09/24 for Sunday Star Times.

Unfit rules set down decades ago are now resulting in scores of bitter ‘neighbours at war’ conflicts, legal experts say. Jonathan Killick reports.

Warren and Linda Turner came to the conclusion that their cross-lease neighbours in Bucklands Beach were “unreasonable” when they caught one throwing rubbish over their fence.

In Court of Appeal documents obtained by the Sunday Star-Times, they alleged that when caught, neighbour Christine Nightingale screamed in their faces that she was “glad” to have been seen doing so.

The Turners told the courts that petty incidents were a regular occurrence, including Nightingale allegedly once screaming out the window at Mrs Turner that she was “a cow”.

The smallest of issues would turn into a major argument, they said – for instance, when they tried to have fibre internet installed, Nightingale “abused” work crews, causing a five-month delay.

Nightingale and her husband Kelvin Goldsbury have disputed most of the Turner’s claims, and Nightingale told the Star-Times she also wanted an end to the acrimony.

Regardless, the neighbours have been stuck with each other thanks to a cross-lease title that requires both parties to consent to any alteration made to either of their properties.

Their squabble is one of many in a long-predicted avalanche of ‘neighbours at war’ conflicts in Auckland, decades after cross leases first became popular as a council zoning workaround.

Under cross-lease agreements, neighbours have an equal share in the land underlying their homes, meaning each property owner technically functions as a legal landlord to the others. This works fine so long as everyone stays on the same page, but can be problematic when neighbours fall out.

Various legal and property experts have called upon the Government to clear up the legal minefield, but the issue has been left to fester.

Nearly 20% of Auckland’s housing stock is made up of cross leases, and these titles often include at least one house that is much older than the others.

Linda Turner told the courts she and her husband felt like they were “stranded in a legal nightmare”.

Their coastal house often floods during a king tide, with waters reaching knee-height. They want to rebuild and raise their home, but permission from their neighbours has not been forthcoming.

Nightingale and Goldsbury insist the Turners should continue to maintain the dwelling as per the requirements of the lease document on the cross-lease title. The other option, they say, would be to rebuild a single-storey home, improving views for those at the rear of the property.

In a separate incident described in court documents, the Turners alleged that Nightingale erected a fence by her own house and didn’t seek permission from them.

When Linda Turner took a photo of the fence, Nightingale went to the Turners’ front door and confronted her, saying she was “the dumbest f…ing bitch she had ever met”, it was claimed in the documents.

Turner said when she asked Nightingale to leave, Nightingale suggested that she couldn’t be ordered off the property as it was all part of their shared cross-lease title: “You don’t f…ing own it.”

That, in a nutshell, is the problem, according to cross-lease title conversion expert Brent Clode. People buy into cross leases thinking they own their property, but wherever there’s a lease, there’s a landlord.

“You can’t have a pet, you can’t change the carpets or the colour of the walls, or make any alteration without the landlord’s consent, and in this case that’s your neighbour,” Clode explained.

If “the wrong person” wielded that power against their neighbour it could make repairing defects a nightmare, he said.

And the rules that come with leases are often far more prescriptive than most people realise, while real estate agents often don’t warn prospective buyers.

“Most people don’t believe me, and then I show them a copy of their lease,” said Clode.

Part of the problem is that lease rules don’t automatically come with a title search or LIM (Land Information Memorandum) report; they have to be specifically ordered from Land Information NZ.

The Star-Times obtained several leases and found a number that allowed neighbours to inspect the insides of homes “at all reasonable times”.

One written in 1974 for a house in Mt Albert prohibits use for “immoral purposes” or excessive noise.

The leases also include provisions for forced sale of properties if neighbours issue a notice because lease terms are not adhered to.

Property lawyer Joanna Pidgeon said it was becoming more common for cross-lease property owners to have to go to court because relationships with neighbours had become “dysfunctional”.

She said Kiwis, who often saw their home as their castle, didn’t necessarily understand that with a cross lease, neighbours also had an ownership stake in their property.

“I had an elderly lady who for many years planted fruit trees and the neighbour has started picking her lemons and she’s mortified, but in the end it’s common property.”

In a 2019 dispute, a Te Atatū daycare centre fought its cross-lease neighbour after buying a second unit in order to expand. The residential neighbour refused to allow the centre to look after 20 children in the unit, but said it could purchase his home for $1.5 million, well above the $730,000 CV at the time.

In another case, in Takapuna, a cross-lease owner built a pool within what appeared to be the curtilage of his home, but it encroached on shared cross-lease land which meant the title was defective when he tried to sell.

Clode, of Cross Lease Converter NZ, said seeking a court judgement could cost half a million dollars, especially if it was appealed.

And to make matters more difficult, he said Auckland Council had been “obstructive” when it came to processing applications for title conversion and subdivision.

In one recent case, he successfully took legal action against the council at the Environment Court on behalf of seven cross-lease home-owners, tackling onerous requirements for the maintenance of shared pipes.

He wants the Government to create a streamlined pathway for converting cross leases to freehold titles as part of its revamp of the Resource Management Act.

However, Housing Minister Chris Bishop told the Star-Times that while he was aware of the issues “in a general sense”, it wasn’t his “immediate focus”.

Calls for change have dragged on for decades, with a Law Commission report as far back as 1999 calling for legislative change to phase out cross leases.

The Turners, meanwhile, have twice had to go to arbitration, followed by action at the High Court and then the Court of Appeal, to eventually get an order against Nightingale and Goldsbury that allowed the Turners to convert their property to freehold.

Christine Nightingale told the Star-Times she felt the case was an attack on her and her husband’s character, when they were simply asserting their property rights.

“It’s been going on for seven years and we’ve put up with a lot of shit.”

Yet, Nightingale said she still believed in cross leases, as they protected people “in the new world of infill housing where you can wake up the next morning and find there’s 10 new houses next door”.

The Turners, on the other hand, said they would never buy another cross lease.

“It got to the point where we were between a rock and a hard place because we couldn’t demolish it, we couldn’t leave it as a flood risk and we couldn’t sell,” said Linda Turner.

“It’s really soured us on the whole process.”

Learn more: https://www.thepost.co.nz/home-property/350385758/stranded-legal-nightmare-auckland-faces-avalanche-cross-lease-disputes