New Zealanders love to talk about property. There are a multitude of topics relating to property that Kiwis have an intimate knowledge and understanding about which form the topic of water cooler and dinner conversation. The cross lease is just one of those many topics of conversation.
Traditional land ownership model
When you’re considering buying a house, you don’t envisage a cross lease form of ownership. You think of owning your own slice of land, subject only to the laws of New Zealand, and what your title says you can and can’t do. This form of ownership is called a fee simple title.
A cross lease is not the same as a fee simple title.
What are the differences?
When you purchase a cross lease property, you buy a joint share of the underlying land together with the other cross lease holders and you lease from the other cross lease holders the rights to the house/ flat/building you will occupy. The terms of this arrangement are governed by a lease registered against the title to the land.
The main difference from a fee simple title is that you are not the sole owner of your land or your home. You own the property jointly with others.
Your rights, obligations and powers in relation to the property are subject to those other interests, and vary from situation to situation. Generally, you will need the consent of your fellow cross lease holders to carry out any structural renovations or any major maintenance or other works to the property you lease. More minor restrictions can extend to the number of pets you are able to keep.
There are general leasing principles to adhere to, such as ensuring that you don’t create a nuisance and allowing the other cross lease holders to quietly enjoy their tenancy. A commonly neglected and overlooked provision is the requirement in most cross lease documents to have a joint insurance policy with the other cross lease holders.
How can you address your obligations?
There is nothing that can’t be done without agreement and, of course, the cost of doing so.
Initially, we recommend talking with us to discuss the issues associated with owning a cross lease property. This should happen before you buy, not afterwards. We will give you an overview of cross leasing and discuss the potential issues you will need to deal with if you purchase the cross lease of that particular property. We will also review the cross lease document and advise you of its terms. It is imperative that you understand the nature of this form of property ownership before you are committed to purchase a property on a cross lease title.
There are other potential issues (which sit outside the scope of this broad-natured article) which we will need to check at this stage as well, such as the aerial plan for the cross leases to ensure that is accurate and doesn’t result in a defective title.
It is better to have an understanding of the issues before you commit to purchase rather than attempting to remedy them after you take ownership.
Most matters relating to cross leasing can be dealt with by agreement between you and the other cross lease holders and their lawyers. However, the cost of attempting to remedy any issues may well be prohibitive for most people and getting other people to agree to what you want and need is never something that should be relied upon.
Although there are significant differences from a fee simple title and sometimes difficulties with purchasing a cross lease property, many thousands of properties in New Zealand operate under this structure with no problems whatsoever. It is important though to understand how cross leasing works and how it differs from what many consider to be the traditional land ownership model.
If you are considering buying a cross lease, the most important thing is to be well- informed and enter into owning one with your eyes wide open.
A cross lease can often be converted to a fee simple title with consent of the other parties involved and their lawyers, and a surveyor. It can be a relatively straightforward process, however costs can vary significantly depending on the characteristics of your particular situation.
If you’re considering buying a property on a cross lease, talk with us early on. It will be time well spent.
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DISCLAIMER: All the information published in the Property eSpeaking, Commercial eSpeaking, Trust eSpeaking, Rural eSpeaking, and Fineprint newsletters 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 article. Views expressed are those of individual authors, and do not necessarily reflect the view of this firm. Articles appearing in Property eSpeaking, Commercial eSpeaking, Trust eSpeaking, and Fineprint may be reproduced with prior approval from the editor and credit given to the source. Copyright, NZ LAW Limited, 2019. Editor: Adrienne Olsen. E-mail: [email protected] Ph: 029 286 3650 or 04 496 5513.