What is a defective cross lease title?
The flats plan should correctly reflect the location and size of the existing dwellings and improvements on the land. But what happens when it doesn’t and what can you do about it?
If the following applies, remedy can be made by way of written consent by all flat owners in the cross lease development. This consent must include the names of all owners, the title and lease numbers and an explanation of what is being consented to then signed and dated by all owners within the cross lease.
If the improvement is not attached to the dwelling and is on the exclusive use area for that dwelling (for example a garage or granny flat)
If the improvement is attached to the dwelling and is on the exclusive use area for that dwelling but is not enclosed (for example a carport)
The examples below are when a title needs updating. This can be expensive as the area of the entire cross lease will need to be re surveyed which can cost tens of thousands of dollars and can take several months to complete.
If the improvement is attached to the dwelling and is enclosed
If the improvement is located on the common area but is designed for the exclusive use of one flat owner (for example a garage that is situated on a shared driveway)
If a structure has been removed from the flats plan but is referred to as part of the legal description of the title (for example a garage) NB It could be more cost effective to reinstate the garage than to update the title.
Why update the title if it has a defect?
Lenders and banks are taking a cautions approach to such title sand therefore can limit the buyer pool of the home. In some instances, a purchaser has taken early possession of the home prior to settlement while the vendor updates the title.
It is important that I recommend you seek your own legal, independent advice regarding any matter relating to titles or property conveyancing.
Credits: REINZ Spring 2018 publication