Frequently Asked Questions
I have been told my Cross-lease Plan (or Flats Plan) needs updating. Why?
Property owned under a cross-lease arrangement is held in equal and undivided shares by the cross-lease owners (generally there will be two Flats on a cross-lease title but sometimes more). The owners agree to allow exclusive occupation of the land covered by structures by identifying the footprint of the structures and showing them on a Cross-lease or Flats Plan providing for their exclusive occupation of that portion of the site. These exclusive occupation areas will be shown as “Flat 1”,” Flat 2” etc… and are generally the footprint of buildings present on the day the Surveyor measured the Flats for the purpose of drawing the Cross-lease Plan. Any subsequent additions such as conservatories, bedrooms and the like will not show on the plan and will need to be measured and a new plan prepared. Typically this issue does not arise until the property is marketed for sale and potential purchasers note the differences between what they see on site and what is shown on the Cross-Lease plan. Addressing the issue requires agreement of other cross-lease owners. It is therefore prudent to resolve any changes to the Flat footprint before marketing the property to avoid delays in the sale process or reductions in the sale price being negotiated around the cost of upgrading of the Cross-lease Plan.
What is the difference between Cross-lease and Freehold and should I consider upgrading my Cross-lease to Freehold?
This is a complex question which can only be briefly covered here. Freehold ownership is the traditional form of tenure using pegged boundaries whereas Cross-lease is a more recent invention which does not involve pegged internal boundaries. There were advantages in using cross-lease tenure through lower survey costs and a loophole which allowed cross-lease developments to escape paying a reserve fund contribution to Council. Changes to LINZ and Council rules have almost entirely removed the cost advantages of cross-lease which once existed and new cross-lease developments would now be a rarity. Freehold property owners enjoy the right to develop their property without reference to others (subject to Council Planning Rules) whereas Cross-lease owners will require approval of their cross-lease neighbour(s) in order to formalise any external changes to their improvements. When changes to building footprints on a Cross-lease plan require the plan to be updated it is worth considering conversion to free-hold (subject to agreemenAgaint by the other cross-lease owners) as the costs of free-holding may not be significantly more than updating the cross-lease.
Is a Unit Title the best form of ownership for a multi unit development?
Again, this is a complex question with many factors to consider. Unit titles are well suited to multi-storey apartments and comprehensively designed developments. Smaller scale developments may be less suited to the obligations imposed under the Unit Titles Act and should be assessed for suitability for freehold ownership using party wall easements, right of way access and independent ownership of the units. Early discussion between Architect, Surveyor and Lawyer should be carried out to identify the best form of ownership and to deal with any issues arising out of responsibility for weathertight elements in the building design.
Can I subdivide my property?
This question requires comprehensive research into Council planning rules applying to the site, availability of services, development contributions applicable, costs of providing services and any restrictive covenants, easements or restrictions registered on the certificate of title. When asked this question by clients we generally carry out a preliminary assessment to identify any show-stoppers before carrying on to detect any hidden fishhooks. In some instances we can offer a preliminary assessment during a free initial consultation. The detailed research required once an encouraging initial assessment has been carried out is then required to provide project costings and the base information contained in a resource consent application for subdivision approval.
Will I need to obtain neighbours’ approval for my resource consent application?
Resource consent applications fall into assessment categories based on their degree of compliance with Council planning rules. The Resource Management Act allows Council to require neighbours approvals (Affected Persons Consents “APC”) on all categories of application. Sometimes these approvals are required from more than immediate neighbours depending on the nature of the application. However as a rule of thumb lower level “Controlled Activity” applications generally do not require APC’s. “Discretionary Applications” may or may not need APC’s depending on the scale of non-compliance with the planning rules. Where Discretionary Applications sit outside Council Officer delegated authority range for a decision the application will be referred to a Council Planning Committee hearing (or a Commissioner). Generally applications requiring a hearing will also attract the need for APC’s.
Will I need a specialist reports to support my resource consent application?
The answer to this question will depend on the nature of your site and the planning rules applying to it. If your site is in an area of identified instability within a slope risk overlay then you will require a geotechnical report to accompany your application. If your site does not have access to a reticulated sewerage system then an on-site effluent disposal report will be required to assess suitability of soils and area required for effluent disposal fields and system recommendations. Developments within sensitive landscape areas may require a Landscape Architect report. Each site and its development will need individual assessment by our planning staff to advise on likely reports required.
How long does my resource consent last?
The resource consent should state the time period when it will lapse. It is important to note that consents need to be “given effect” and this action may be different to a duration which includes the period following the date at which the consent is given effect. For example a Land Use consent may be given effect by erecting a commercial building within five years after which the duration may be in perpetuity. Generally subdivision consents last for five years unless a specific longer duration is specified however it is possible to ultimately “deposit” a subdivision plan up to eight years following consent with careful management of the approvals process (the subdivision consent is given effect by issue of a Sec 223 RMA certificate). Land Use consents may have a variety of durations depending on whether they are issued in conjunction with a subdivision consent or have been issued as a stand-alone consent for a particular ongoing activity on the land. Discharge consents, once given effect, have limited durations usually between 10 and 35 years prior to renewal. It is vital to monitor your consent expiry date and contact us well before expiry as the Resource Management Act also imposes some constraints around status of the consented activity whilst any extension to consent is being sought. It is advisable to be reviewing your intentions at least nine months in advance of consent expiry to provide sufficient time to give effect (or avoid lapse of duration) inside RMA timeframes for exercising or extending consent. You should not assume that Council will issue an extension to consent.
What levies will be payable on my development?
This question can be particularly complex and will depend on the Territorial Authority under which the development is being carried out. Council levies are imposed under both the Local Government and Resource Management Acts and will depend on the location of the site and services present. Council levies are a constantly changing landscape and each development needs expert assessment to ensure that the correct levies are being imposed along with advice on timing of the payment of levies.
What is a Sec 223 certificate?
Under Sec 223 of the Resource Management Act Councils are required to approve the formal plan of subdivision as being in general agreement with the resource consent application, plan and issued consent. The Sec 223 certificate is essentially a rubber stamp to certify that the final survey is in agreement with what has been applied for.
What is a Sec 224 certificate?
Under Sec 224 of the Resource Management Act LINZ are unable to issue new certificates of title until a Sec 224 certificate has been lodged by your Solicitor. Your Surveyor generally handles the Sec 224 application by providing Council with evidence that all resource consent conditions such as servicing, payment of levies, creation of appropriate easements etc… have, or will be, completed upon deposit of the survey plans. Issue of the Sec 224 certificate is generally Council’s last involvement in the subdivision process.
I have been told by Council that my subdivision servicing needs to be certified. Who can carry out this certification?
The answer to this question varies from local authority to the next. Generally subdivision engineering works can be certified by Registered Professional Surveyor (RPSurv) or Chartered Professional Engineer (CPEng). Holders of these qualifications will be tertiary trained with recognised qualifications in surveying or engineering who have demonstrated competence in the design and testing of engineering works. It is vital that a qualified professional is engaged to certify engineering works before any work commences on site. Be sure to establish that your consultant holds the necessary qualifications.
The above FAQ’s provide a brief outline answer to some common questions and are not intended as comprehensive guidance to be relied upon for specific circumstances. Please contact us to confirm how your specific question may require additional explanation.