Property Disputes

Brookfields has a cross-discipline approach to property disputes. Experienced property lawyers work alongside our litigators (including specialists in planning/resource management areas) to resolve any problems or issues relating to property. Property disputes often arise out of:

  • transactions such as leases, or agreements for sale and purchase
  • boundary and fencing disputes
  • right of way usage
  • construction contracts
  • leaky building issues
  • planning/resource management issues
  • nuisances originating on property

Property transactions using standard form agreements are frequently before the courts and it is important to remember they are not bullet proof. Standard form agreements tend to be relatively complex as they have to cover a number of legal eventualities. They are usually not ideal for use by lay people. As much as each property is different, the clauses required are different. And when something needs to be renegotiated mid‑transaction, it is important that you don't just insert some other clause to deal with it - you could be waiving a legal right that you don't know about.

Any agreement must clearly set out the obligations and rights of each party. Failure to do so can lead to misunderstandings and court action. With leases this can include applications for cancellation of the lease or for relief from cancellation, rent review disputes or reinstatement or refurbishment issues. Another area of frequent legal action is usage and maintenance of a right of way, often arising from a failure to clearly set out the terms in an agreement.

Nuisance is one of the oldest areas of law. It deals with the situation where an activity (or an omission to do something) extends beyond the boundaries of a property and interferes with the quiet enjoyment of a neighbouring property. Examples of this can include odours or pollution, tree roots undermining neighbouring property, or noise (provided that it is beyond what might be expected in the normal quiet enjoyment of a property).

Brookfields' approach when dealing with any dispute is to assess the degree of harm and the urgency involved. Our lawyers then advise you about your options. We often find that people who are in a property dispute want to continue their relationship with each other (or have no choice other than to do so) and what is required is a workable agreement for how they will do that in future.

If there are difficulties in reaching that agreement, we may suggest mediation with an independent mediator who will consider relevant aspects of the situation. Sometimes an agreement may contain an alternative dispute resolution (ADR) clause requiring that the matter be referred to an arbitrator and we can help you present your best argument.

Usually litigation through the courts is viewed as a last resort. But that isn't necessarily always true. Sometimes it is the most effective and efficient tool. For example, where there is a nuisance that needs immediate abatement, we would look at the possibility of obtaining an injunction. Or if a party to a purchase agreement refused to complete it, we might consider applying to the court for an order for specific performance. We consider each client and their needs according to their desired outcome.

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