Land and property
Commercial leasing
What happens to my lease if the commercial property has been completely destroyed or damaged by an extreme weather event?
This depends on the terms of the lease. For most leases, if the property has been completely destroyed in the floods or cyclone (for example, the building has collapsed), the lease will end automatically.
Do I need to continue paying rent if the premises have been completely destroyed by an extreme weather event?
This depends on the terms of the lease. For most leases, if the property has been completely destroyed the lease will end automatically and you will not need to pay rent or outgoings from the date of the cyclone/flood. Your landlord should refund you for any amounts paid in advance.
Who is responsible for undertaking repair works where the commercial property has been partially destroyed or damaged by an extreme weather event?
This depends on the terms of the lease.
If the damage is so serious that the building needs to be demolished or reconstructed then the landlord may within 3 months give notice to you to end the lease, and a fair portion of the rent and outgoings may be reduced from the date of damage.
The Auckland District Law Society (“ADLS”) Lease (which is widely used in Aotearoa) provides that if the landlord’s insurance proceeds are not enough to cover the cost of the repair works or the landlord can’t obtain Council consent to the building works then the lease will come to an end.
If the above does not apply, then usually the landlord will be required to fix the damage to the premises itself within a reasonable period of time.
You, the tenant, will usually be responsible for insuring and repairing or replacing your own fitout and belongings.
Do I need to keep paying rent if part of the commercial property has been destroyed by an extreme weather event?
This depends on the terms of the lease. Usually, rent and outgoings will be fairly reduced in this situation. The extent of that reduction may be disputed. Where the premises cannot be used at all, you may argue that no rent should be payable. If you don’t think the rent you are asked to pay in these situations is fair, you should seek legal advice.
Do I need to continue paying rent if part of the commercial property has been damaged by an extreme weather event?
Yes, but the rent and outgoings should be fairly reduced.
Does the landlord need to fix or replace property that is partially or totally destroyed?
This depends on the terms of the lease. If the damage is so serious that the building needs to be demolished or reconstructed then the landlord then the lease ends and the landlord doesn’t have to rebuild. If the building is only partly damaged, then usually the landlord will be required to fix the damage within a reasonable period of time. However, if the landlord’s insurance proceeds are not enough to cover the cost of the repair works or the landlord cannot obtain Council consent to the building works, the lease may come to an end.
Can the landlord access the property to carry out repairs caused by an extreme weather event?
The landlord is allowed reasonable access to the property to carry out repairs. The landlord is usually required to give notice before entering your property.
What if the landlord did something irresponsible (“negligent”) which caused or contributed to the damage or destruction of the property?
It depends on the terms of the lease. You may be able to claim damages against the landlord if an act or omission (i.e., failure to act) of the landlord caused damage to your fittings, fixtures and / or stock.
What if I did something irresponsible (“negligent”) which caused or contributed to the damage or destruction of the property?
It depends on the terms of the lease. If the lease requires the landlord to insure the property, you will not be responsible to pay any damages even if something you did has contributed to the damage or destruction of the property that is also caused by an insured event (such as the cyclone and/or flood) – but only if your act or omission was not intentional and/or does not amount to an imprisonable offence. However, you may be responsible for the landlord’s insurance excess or any increased costs of the landlord’s insurance.
Does the landlord need to do anything to reduce any expected or continued extreme weather damage to the commercial premises?
This depends on the terms of the lease. Usually, the landlord does not have a duty to protect tenants from extreme weather events. While there is usually no obligation to prevent damage arising from a natural disaster, a landlord must still comply with their lease obligations to maintain the exterior and weathertightness of the premises.
Do I need to do anything to reduce any expected or continued extreme weather damage to the commercial premises?
This depends on terms of the lease. Usually, the tenant would not have an obligation to take steps to protect the property in a natural disaster.
Do I have an obligation to pay rent where the commercial property isn’t damaged or destroyed but I can’t access to the property for example, the road is damaged or destroyed?
This depends on the terms of the lease. If the property isn’t damaged but cannot be accessed, a tenant may need to continue to pay rent unless the lease says otherwise.
The ADLS Lease expressly deals with this situation and provides that rent doesn’t have to be paid (or will be reduced) for the period that the tenant can’t access to property. For example, if there is a cordon preventing access to the property or the property has been yellow stickered then you won’t have to pay rent for the time that the cordon is in place / access is denied.
Fencing
Who is responsible to repair the shared boundary fence between my neighbour and I that has been damaged by an extreme weather event?
The costs of the repair of the boundary fence will be shared between you and your neighbour. You will need to talk to your neighbour about the costs of repair and other details such as building materials and height. If you cannot agree, there is a legal process you can initiate by issuing a notice to your neighbour. Following which, you could refer your dispute to mediation, arbitration, a Disputes Tribunal or a District Court. For more information on your rights and responsibilities regarding fences, see: “Neighbourhood life” in the Community Law Manual.
Do I (or anyone else) have to repair damaged or destroyed fences caused by an extreme weather event?
If you are renting a property, then you don’t have to repair the fence as you are not required to repair any damage caused by natural disasters.
If you are the owner of the property and your fence has been damaged, the fence should be replaced with something similar. The costs of the repair will then be shared between you and your neighbour.
What if the civil defence team broke fences or caused damage to my property?
You may be able to make a claim in the Disputes Tribunal or District Court for the damage caused to your property by the civil defence team, if you do not have insurance which covers the damage. Your insurer cannot make this claim on your behalf.
Title
If a portion of my land has been washed away by a flood, will this affect my title?
It might if the size of the land has changed. If there has been a change in the actual size of your property due to a landslide or other event, then your land may have to be re-surveyed. If there has been a change in the ground level of your property, this may not change the size even if there has been a change in the height of your land. For more information go to www.linz.govt.nz.
If your property size has been made smaller by a landslip or a flood, you may be able to claim from Toka Tū Ake EQC for the cost of repair of your damaged land or the market value of your lost or destroyed land which is capped at the land value prior to the damage (see: “EQC and Insurance”).
