PHOTO: The Supreme Court complex. FILE
A couple who have been entangled in a lengthy legal battle over the subdivision of their land are relieved that “common sense” has finally prevailed according to the NZHERALD
Paul and Melanie Lilley found themselves in court two years ago when a buyer of their subdivided land demanded the removal of “restrictive covenants” that he had initially agreed to. These covenants included a provision for a $100 fine per day for non-compliance with certain rules.
The Horowhenua couple expressed their happiness that the dispute has now come to an end, with the court upholding the restrictions. However, they believe that the matter should never have escalated to the Court of Appeal.
“We are pleased that justice and common sense have ultimately prevailed after this long and frustrating process,” the couple told NZME. They added, “[We’re] happy it is finally over, and the covenants remain to protect the integrity of the subdivision and its owners.”
The Court of Appeal recently issued its decision in favor of the Lilleys, after a chemist named Joshua Hürlimann took legal action against them regarding the restrictive covenants on the land he purchased from them in 2020.
These covenants included limitations on constructing any buildings other than a new residential home, which had to be completed within a year using modern materials. There were also size restrictions on residential dwellings, with a minimum requirement of 240 square meters. Additionally, there were guidelines concerning the design and location of clotheslines, and a $100 daily fine for any breaches.
Hürlimann argued in court that these covenants hindered his plans to build a log cabin and establish a small organic farm on the land. He claimed that the covenants, which he had agreed to in November 2020, were too restrictive.
Joshua Hürlimann’s Horowhenua land remains empty. Photo / Supplied
The Lilleys had decided to subdivide their 7-hectare rural property into four sections, keeping one for themselves and selling the others as lifestyle blocks.
In 2019, Hürlimann approached the couple to purchase one of the sections. During the sale process, he signed an agreement for sale and purchase (ASP) that mentioned the potential for covenants on the land. The ASP explicitly stated that if Hürlimann disagreed with the covenants, he could cancel the deal and receive a refund of the deposit.
Hürlimann signed the ASP in January 2020, but several months later, the Lilleys claimed they needed to enforce the covenants due to Hürlimann’s alleged mismanagement of the property. They cited issues such as felled trees, weeds growing through green waste piles, and oil-contaminated soil dumped near the shared driveway as evidence of poor section management.
After seeking legal advice, Hürlimann eventually agreed to the restrictions in November 2020. However, in 2021, he initiated a legal battle, claiming that he had agreed to the covenants under duress.
Hürlimann argued that the covenants imposed on his land were “arbitrary” and “unfair.” However, his case was dismissed in the High Court when Justice Andru Isac ruled last year that the covenants should remain in place and that extinguishing them would not be “just” or “equitable.”
Undeterred, Hürlimann proceeded to the Court of Appeal in March this year, appealing the High Court decision in his quest to have the covenants extinguished or modified.
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