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A question re shared driveways and section 310 of the

Hi there - a...

Hi there - a question re shared driveways and section 310 of the property law act 2007

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New zealand

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Just the definition of "carried out" in that section and 15 days notice period. we started a small amount of work on day 14 but by no means had finished the driveway until 3 months later

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Answered in 9 hours by:
2/26/2018
Chris The Lawyer
Category: New Zealand Law
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Experience: 38 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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I don’t fully understand, have you served a cross notice? Is this about the work taking longer than expected? Some more detail would help me answer better
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Customer reply replied 4 months ago
Hi There - we have an easement certificate in respect of our shared ROW in Wellington governed by PLA. It needed URGENT repairs done. We served a valid notice specifically complying with PLA2007 requirements. Neighbour served a cross notice that we think is invalid. On day 15 some work commenced on shared driveway at our request, but work was only exploratory, not started. It was finished some 3 months later.
Neighbour claims that work was "carried out" within the 15 day time period stated in Section 310 PLA2007 therefore they do not have to contribute due to this breach. Carried out means completed in our view, work was completed / carried out some 3 months later. To date still no valid cross notice. Who is right?
Customer reply replied 4 months ago
Also Easement certificate says that all must contribute in accordance with a defined formula, but that PLA applies where Deed is not clear. Easement Certificate is silent on notice for required work so presumably PLA applies.Even if notice provisions were breached is there still sufficient grounds to claim reasonable costs under Deed provisions?
The neighbour is clearly wrong and must contribute. Each use must contribute in equal shares or according to the formula and he is trying to over complicate a simple situation. If he refuses just file a claim in the Disputes Tribunal and he will have to pay
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Customer reply replied 4 months ago
the possible procedural breach he is claiming (i.e. starting the work within the 15 day period in Section 310 PLA2007) is irrelevant? Sorry just double checking as want to be confident of my position
It’s not critical especially if it was urgent and only site exploration
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Customer reply replied 4 months ago
Thanks and one could assume the term "work was CARRIED OUT" should,as it states roughly in secrion 310 PLA, be construed as meaning the work was completed..as opposed to just started. It was only "carried out" on its conclusion some months later.

You will need to separate out the value of the work done within the 15 day period, but if it is only exploratory work then it may not matter. Why do you think the cross notice is not valid? What did the neighbour propose on the cross notice?

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Customer reply replied 4 months ago
The neighbour simply wrote that they are not paying and that no work should proceed on their portion of the shared driveway, which would have been nonsensical as a portion halfway down the driveway would remain in a sate of disrepair. As we understand it, a cross notice needs to ate what specific parts of the work are disagreed with and the like per s310 of the PLA. Of note is the fact that these people refused to meet for 2-3 mths to discuss the required work (we feel that is unreasonable and would have resulted in further damage and cost to all neighbours).

In this case the cross notice may fail because it did not, as required by the act give "in the same detail required for a notice served under section 308, any counter-proposals of the person bound."

A notice simply refusing to contribute would not qualify in my view

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You should just file a claim in the Disputes Tribunal and let them have to explain why they have been so unreasonable

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Customer reply replied 4 months ago
Thanks will look into that asap
So we could assume that the Tribunal may not necessarily see the notice timeframes issues (already discussed) as fatal to our claim and would err on the side of what is fair and reasonable given the need for the work and the benefits all neighbours get from the improvement.

That is the likely outcome. They won't necessarily want to look at the strict requirements, so as to achieve a fair result. But my view is the cross notice just does not comply with the purpose of the section, which is to engage in a discussion about what work is actually needed

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Customer reply replied 4 months ago
Much appreciated. Thanks

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