It took a High Court order to enforce rights of vehicle access to their Auckland property after owner of a neighbouring flat extended his outdoor patio into the right of way.
The Botevs purchased flat three at a Half Moon Bay address in 2009. Three years later, Shane Tait purchased flat two next door. His mother lives there; he does not. The Botevs access to flat three takes them past flat two. Mr Tait claimed they had pedestrian access only. Without consent of other owners of the cross-leased flats he attached a conservatory to flat two and extended the patio out into the disputed right of way. The Botevs were further annoyed by Mr Tait’s mother renting out flat two on Airbnb.
Cross lease terms required owners’ disputes go to arbitration. A 2019 arbitration saw the arbitrator rule that rights of way created in 1975 allowed the Botevs vehicle access and that renting flat two on Airbnb was in breach of the cross lease. A written agreement between Mr Tait and the Botevs followed: a formed driveway past flat two would be constructed with the patio rebuilt behind a retaining wall. Auckland City refused consent to the earthworks; reducing size of the patio meant ‘usable outdoor space’ requirements were no longer met. This could be remedied by removing the illegally constructed conservatory, the High Court was told.
The Botevs applied to the High Court, asking the 2019 arbitration be registered as a court judgment. This would enable enforcement.
Mr Tait said the 2019 arbitration was superseded by their subsequent written agreement. This subsequent agreement was simply a failed attempt to implement the 2019 arbitration, Justice Campbell said. The arbitration award still existed.
Mr Tait further argued enforcement of the 2019 arbitration would be against public policy; it would breach Auckland City planning rules. There was no evidence the arbitration award breached fundamental principles of law and justice, Justice Campbell said. The Botevs were entitled to enforce their right of vehicle access.
Botev Trustee Ltd v. Tait – High Court (26.08.21)
21.142