Clarifying the registration of certificates when a licence is granted over common property

by Matthew Whimp - Morrison Kent

The Unit Titles Act 2010 contains a number of technical quirks. One that has given legal practitioners some difficulty is section 216. This contains the requirement for bodies corporate to register a certificate informing Land Information New Zealand (LINZ) that a licence or lease has been granted over common property. But the legislation and the regulations are not clear about how the registration process works differently when the certificate refers to a licence rather than a lease. We will now clarify.

The confusion arises because section 216, on first glance, seems to require that certificates are to be registered together with the corresponding lease or licence. The same impression is given by the text on the prescribed certificate (Unit Titles Regulations, form 33). But this cannot be so because licences do not grant registrable interests.

To give some more context, under the Unit Titles Act 2010 bodies corporate can only grant licences and leases over common property after having gone through the processes set out in sections 56 and 213-216. This includes passing a special resolution, and checking for any objections from unit owners and dealing with them appropriately. Once this is done, bodies corporate need to complete form 33 of the Unit Titles Act Regulations which certifies that they have been through the correct process and describes the lease/licence they have granted.

This certification is required to be registered per section 216. But the Act also specifies that this certificate should be registered “together with other documents required to be lodged with the Registrar”. This makes sense when there is another document that is required to be lodged, such as a lease which is registrable. But when the body corporate has granted a licence, there will be no other document that is required to be lodged.

Form 33 also refers to registering documents together, but does so even more explicitly. It states “this certificate must only be lodged with the Registrar together with a required document. It should not be lodged separately”. This further implies that you must only register the certificate together with something else.

However, having encountered this scenario in our work, LINZ has confirmed to us that the correct approach is to register the certificate alone, notwithstanding what form 33 says. So the certificate is to be registered without attaching the licence. The licence remains unregistered. This will be sufficient to meet LINZ’s requirements and, importantly, to comply with the legislation.

If you would like any further information or advice please contact either the article author:  Matthew Whimp or the Morrison Kent Wellington office (04) 472-0020. 

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