Neighbours lawyer up over covenant

Dave Dinneen is taking his objection to the covenant to court.

David Dinneen and his wife downsized to a property in Orewa last year and were very happy in their new home in The Grange subdivision – until a dispute with neighbours over trees began.

The couple spent around $150,000 on landscaping their ‘forever home’ – including buying 24 mature dragon trees at $5000-$7000 each. The slow growing trees are 65-95 years old.

David says poor legal advice meant they were unaware when they planted the garden of the covenant that applies to their property. This places two “view protection corridors” on the Dinneen’s land, with plants in that area to be no more than 2.5m higher than the original ground level.

Developers Cabra put the covenants in place when the subdivision was completed in 2006. Director Lloyd Barker says this was to provide certainty to property owners regarding their views on the seaward side. That protection runs forever and, he says, is not negotiable.

Around five of the Dinneen’s trees have been identified as breaching the allowable height, one of which (an aloe) David says he will remove. He is prepared to fight through the courts to keep four dragon trees, which a plant expert advises are likely to die if topped because of their age.

Initially Cabra pointed out the breach, which carries a potential $5000 fine plus costs. Then the Dinneens’ neighbours, Ian and Raewyn Smeaton, advised they are taking legal action to enforce the covenants if the Dinneens do not voluntarily remove or top their trees to the required level.

“The trees are only 15cm-25cm taller than required and grow sideways from this point, so will get no higher,” David says. “They do not obstruct the neighbours’ view. If they did, I would remove them straight away. It is about common sense and balance. What they are asking for is unreasonable.”

Ian Smeaton says all they want is to ensure that the covenants be kept to protect the views from their property, now and into the future.

The Dinneens have also consulted lawyers, and David says the stressful process even had them considering moving out.

“We are definitely open to mediation, and just want to move on with our lives,” he says.

Covenants – what you need to know
by legal executive Danielle Warbrick, Simpson Western

• Land covenants are becoming more popular and people must be wary when looking at any property. They can be put in place by a developer during subdivision, through legislation such as the Resource Management Act, or by agreement between two parties.

• Common covenants may cover prohibition of certain pets, an obligation to build a house within a certain size or to a certain standard, and restrictions on the type of building material or paint colours that can be used.

• They are recorded on the title, so it is essential to obtain a copy of the title and any relevant covenants as you are likely to be bound by them and they may affect the value of the property and how you can use it.

• You should consider whether you will be happy and able to comply with any covenants and should also check that existing structures on the property comply.

• It is possible to amend or vary a covenant once in force by agreement between all relevant parties. This is the easiest, cheapest option but not always possible. Applying through the court can be costly and the power will only be exercised in limited circumstances, such as if there has been a change in the character of the neighbourhood or the covenant impedes the reasonable use of the land is a way which was not reasonably foreseen by the parties when the covenant was created.

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