Height matters

A recent case regarding height restrictions on a property at Mt Maunganui illustrates the importance of clear drafting, and the difficulties of deciphering what parties intended when an agreement was concluded over twenty years ago and the parties have completely different recollections of what happened.

In Menzies v Goodley [2015] NZHC 1481, the Goodleys were subject to a height restriction covenant limiting what could be built on their beachfront property. They sought to build a two storey house with a flat roof rising at a 22.5 degree angle, which they understood to be within the bounds of the restriction recorded on a memorandum of transfer.

Their neighbours, the Menzies, sought a permanent injunction to prevent the building from going ahead, and an order rectifying the height restriction agreement between the Goodleys and a Mr Broughton (a builder and developer) over 20 years prior, to reflect what they said were the actual intentions of the parties.

The Goodleys vehemently stated that they always intended to build a 2 storey house, whereas Mr Broughton stated that he understood the defendants would build single storey. Due to the passage of time, no contemporaneous records were available, and both parties’ recollections were imperfect (and conflicting). In addition, the memorandum of transfer and the deposited plan conflicted – the plaintiffs, the Menzies, sought to rely on various details of the plan in support of their interpretation of the height restriction recorded in the transfer.

As the memorandum of transfer was the operative document, the details on the deposited plan were found to not form part of the parties’ agreement. The Court ultimately accepted that the defendant never agreed to restrict to a single storey, and that the height restriction on the memorandum of transfer reflected this.

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