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24/07/2025·3 min read
Bubble, bubble, spa-pools and trouble - Swim-spa found to be a "structure" in cross-lease circumstances
In the recent decision of Hall & Anor v Geary Limited & Others [2025] NZHC 1004 the High Court found that a large swim-spa structure sitting above the land could be a “structure” for the purposes of the Property Law Act 2007 (PLA), and therefore required the consent of the other cross-lessors prior to installation.
Factual background
The case concerned a dispute between three owners of a cross-leased apartment complex situated on a prime beachfront property in Milford, Auckland. The plaintiffs are the owners of the first-floor apartment. The defendants were the owners of the second-floor apartment. The dispute arose when the plaintiffs installed a large “swim-spa" with a hydraulically operated cover (which also functioned as a roof) within a part of the cross-lease property that was designated for the plaintiffs’ exclusive use.
The defendants wanted the swim-spa removed. They claimed that the spa was a substantial intrusion on privacy and also a visual intrusion that could potentially adversely impact their property value. They said that the installation of the swim-spa without their permission as cross-lessors breached the terms of the cross-lease.
The defendants issued a notice of intention under section 246 of the PLA, which stated that the cross-lease would be cancelled unless the swim-spa was removed from the property within 21 days of the notice being issued. The plaintiffs’ application to the High Court sought relief against this cancellation, claiming the swim-spa was not a structure within the terms of the cross-lease, and therefore that they did not need to obtain consent from the other cross-lease owners prior to its installation.
High Court decision
The Court found that the swim-spa was a structure for the purposes of the cross-lease, and therefore its installation without consent was in fact a breach. In particular:
- Definition of “structure”: Despite the ordinary and natural meaning of a “structure” being something that is built up on the site and permanently affixed to the land, the Court favoured the defendants’ definition, which encompassed both fixed and moveable buildings. The Court said that the plaintiff’s definition was “overly narrow and technical in this context”, and despite being moveable, the swim-spa was large and permanent enough to constitute a structure.
- The defendants acted reasonably in withholding their consent: The Court found unequivocally in favour of the defendants on the question of whether there was an objectively reasonable basis for them to withhold consent to the placement of the swim-spa within plaintiffs’ exclusive use area. The visual intrusion, as well as the potential adverse effect on the defendants’ property value, was held to be valid grounds for withholding consent.
The Court exercised its discretion and granted relief against cancellation expressly on the condition that the plaintiffs remove the swim-spa from the property within two months of the judgment.
Key takeaways
This case serves as a cautionary reminder for owners of cross-lease properties, or prospective purchasers of cross-leased properties. The key takeaways from this decision are:
- Understand your cross-lease and flat plan: These documents govern what you can and cannot do on a cross-leased property. Had the plaintiffs properly understood the obligations imposed on them by the terms of the cross-lease, they could have carefully considered whether they needed to obtain consent prior to installing the swim-spa and could have potentially avoided this litigation.
- Seek consent for changes: Any modification to exclusive use and common areas should be formally agreed by all parties to the cross-lease and documented. Other cross-lease owners may withhold their consent to protect their own interests (e.g. undisturbed views, privacy, property value).
- Neighbourly relationships are important: This case highlights the ongoing challenges posed by cross-lease titles and the need for clear communication and documentation between parties to a cross-lease.
Checklist for cross-lease owners
Owners and prospective owners of cross-lease properties should consider the following:
Understand your title
- Review your lease agreement and flat plan carefully.
- Identify which areas are exclusive use and which are common areas
Before making changes
- Seek written consent from all other owners within the cross-lease before altering any common or exclusive use areas.
- Ensure any proposed changes are reflected in the flat plan and formally documented.
- Seek legal advice to assess whether a lease variation is required.
Navigating disputes
- Engage in early dialogue with neighbours to resolve concerns informally.
- Use mediation or legal advice before escalating to litigation.
- Keep written records of all communications and agreements.
Consider conversion
- Explore the possibility of converting to fee simple or strata title, especially if the cross-lease arrangement is causing ongoing issues.
- Seek advice on the costs, process, and implications of conversion.
If you need advice about anything discussed in this article, please get in touch.
Special thanks to Lucy Scottwood for her assistance in preparing this article.
