Property briefs
There are a plethora of court cases involving property disputes. We highlight two cases – an easement issue and a cross-lease dispute that may resonate with property owners.
Right of way easement
The Wimax case involved a dispute arising between neighbours over a right of way (driveway) easement.
Wimax and Fuge were neighbours along a right of way. Wimax owned the land on which there was the driveway; Fuge benefitted from the free and unimpeded right to use it to access their property.
Wimax had built structures on its property encroaching on the right of way area, including retaining walls and concrete parking walls. The structures replaced earlier structures, improved the driveway’s appearance and did not encroach further than previous structures. They were, however, larger and more permanent than before.
Fuge discovered the structures encroached on the driveway and demanded their removal. Wimax refused, arguing that the structures did not impede Fuge’s access and would be an unnecessary cost to remove.
Fuge initiated arbitration seeking an order to enable the court to enforce the terms of the easement. The arbitrator found that the structures did not substantially interfere with the right of way.
Fuge appealed this decision to the High Court; this overturned the arbitrator’s decision finding that the structures amounted to a wrongful interference.
Wimax then appealed to the Court of Appeal.
The Court of Appeal held that Fuge needed to show that there was a ‘substantial’ interference with their ‘reasonable’ use of the right of way. Fuge could not.
Despite the structures, Fuge could still use the driveway to access the property, just as the previous owners had done for over 60 years. Further, Fuge had no plans to develop their property on which the structures would impact. On balance, Fuge had rights over an adequate and effective driveway which did not need to be widened and was still useable despite the structures.
The Court of Appeal overturned the High Court’s decision and Wimax was entitled to retain the structures.
Fuge, dissatisfied with this decision, appealed to the Supreme Court. The appeal was heard on 17 February 2026, although the judgment has not yet been delivered. It will be interesting to read it once it is released.
If you are a party to a right of way and have any questions regarding your rights and obligations under the terms of the easement, please contact us for advice.
Cross lease dispute
This involved a long-running dispute involving the Goldsburys who withheld consent to their neighbours, the Turners, replacing an existing dwelling on their property which was subject to the terms of a cross-lease.
Most cross-leases provide that alterations cannot be made (or new structures erected) without the prior consent of the other parties. This consent cannot be unreasonably withheld.
The Turners owned the property at the front of a four-way cross-lease. The Goldsburys owned two properties to the rear. The Turner’s property was derelict, and they sought the Goldsburys’ consent to demolish and erect a modern building in its place. There were also issues with recurring flooding and so they wanted to ‘lift’ the property.
The Goldsburys refused to consent to the works, arguing (amongst other things) that their sea views would be impacted. The Goldsburys were only agreeable to a rebuild within the same footprint as long as there was no greater intrusion into the commonly owned airspace.
The Turners referred the dispute to arbitration, where the arbitrator ruled that the Goldsburys’ withholding of consent was not unreasonable, and that it was not unreasonable to withhold consent for demolition where the dwelling was not uninhabitable and the proposal was to extend the existing footprint.
The Turners responded by applying to the High Court for a partition order, separating the Turners’ property from those of the Goldsburys under the cross-lease. Section 339 requires consideration of factors in section 342, including any hardship that would be caused by not making an order in comparison with the hardship that would be caused to any other person if an order was made. The High Court declined to make an order; the Turners then appealed to the Court of Appeal.
In a somewhat surprising move, the Court of Appeal placed greater emphasis on the relationship breakdown between the parties, the previous ‘intransigence’ and stubbornness of the Goldsburys about the development plans and the overall hardship to the Turners. Due to these facts and that the parties had reached an impasse, the court found it was necessary to grant a partition order subject to conditions to be determined by the High Court.
The Court of Appeal usefully confirmed that the test as to whether consent was unreasonably withheld under a cross-lease was to consider whether a reasonable lessor would withhold consent in the particular circumstances, and whether the lessor reasonably believed the proposed use would injure its interests.
If you are a party to a cross-lease and find yourself in a situation where you want to redevelop or are at odds with your neighbour, please be in touch and we can advise you on your options.
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 this firm. Articles appearing in Property Speaking may be reproduced with prior approval from the editor and credit given to the source. Content Copyright © NZ LAW Limited, 2026. Editor: Adrienne Olsen, Adroite Communications. E: adrienne@adroite.co.nz. M: 029 286 3650.