Damage, Destruction, Distress: Shared Ownership Debacles

Abstract

Shared ownership models of land use are part and parcel of our modern environment. In order to build high density, vibrant cities it is important to appreciate the types of problems that can occur where there is shared ownership on a single title of land. This article explores some of these problems, beginning with cross leases. After outlining the history, principles and essential characteristics of cross leases the article suggests that many of these problems could have been avoided if proposals made by the Law Commission in 1999 had been adopted. The article then analyses the Unit Titles Act 2010, aspects of which are working well, despite public concern about its effectiveness. However, there are a number of situations, especially in relation to insurance entitlements, where the Act does not apply, such as liability in negligence where damage has occurred to commercial or multiple use buildings and the role of contributory negligence. In situations of mixed commercial and residential use, problems arise as a result of definitional issues across a range of legislation, such as the Earthquake Commission Act 1993 and the Weathertight Homes Resolution Services Act 2006. Without careful consideration, the unintended consequences of these issues may well create impediments to building more vibrant cities. Finally, the article notes that central to any vibrant city will be the well-being of its residents. Both the cross lease and unit title models pose challenges in this sphere and careful thought should be given to balancing both the affordability and environmental benefits of higher density living with the need for all ages and types of people to be able to live together with easy access to services and open space.