a) Jim owns an investment property, a building tenanted by radiologists and x-ray

specialists. He mortgaged it to Lucky Lending to secure a loan. He has not been

making the mortgage payments, and Lucky Lending has served a Property Law Act
notice.

In what circumstances in exercising its power of sale is Lucky Lending obliged to set
a discharge sum, when does that discharge sum become important, and what are its
consequences?
s 189(1) PLA 2007
Vendor mortgagee must nominate discharge sum
(1) In an application for a sale under section 187, the vendor mortgagee must nominate, for the land proposed to be sold, a sum
upon payment of which the vendor mortgagee will become bound to discharge the mortgage over the land. - Discharge Sum is only relevant where (a) the
mortgagor seeks to redeem before the
s 187 PLA 2007 Sale by mortgagee through Registrar mortgagee sale, or (b) the mortgagee
The Registrar may, in accordance with sections 188 to 198, conduct the sale by public auction of the whole or any part of purchases the property at the Registrar’s sale
mortgaged land. - Where the mortgagee bids at the sale, the
purchase price is equal to the greater of the
s 189 PLA Vendor mortgagee must nominate discharge sum amount of the mortgagee’s successful bid, or
(1) In an application for a sale under section 187, the vendor mortgagee must nominate, for the land proposed to be sold, a sum the Discharge Sum nominated, s 196(2)
upon payment of which the vendor mortgagee will become bound to discharge the mortgage over the land. - At any time before the land is sold or
s 193 PLA Withdrawal of land from sale withdrawn from sale (s 193 PLA), the current
(1) The Registrar may approve, under section 190, conditions of sale that include a right on the part of the vendor mortgagee to mortgagor or any other person entitled to
withdraw from the sale the whole or any part of the land proposed to be sold, at any time before the land has been sold, and redeem the mortgage may redeem the land by
whether or not the bidding has reached the discharge sum nominated for the land. paying either the Discharge Sum or all
outstanding amounts secured by the mortgage
s 195 PLA Current mortgagor or other person may redeem on payment of nominated discharge sum at the time of payment (s 195(1) PLA 2007)
(1) The current mortgagor or any other person who is entitled to redeem the mortgaged land may, at any time before the land is - Discharge Sum = “sum upon payment of
sold, or is withdrawn from sale under section 193, redeem the land, in whole or in part, by paying to the vendor mortgagee which the vendor mortgagee will become
either— bound to discharge the mortgage over the
(a) the discharge sum nominated by the vendor mortgagee under section 189 for the land, or, if the land is to be sold in separate land”
lots, the discharge sum so nominated for all or any lots; or - Registrar has no power to fix a reserve
(b) all amounts secured by the mortgage at the time of payment. - mortgagee seeking a sale through the
Registrar of the High Court, must nominate a
s 196 PLA Mortgagee may purchase at sale through Registrar discharge sum
(1)The vendor mortgagee may be a bidder at a sale by public auction of mortgaged land conducted by the Registrar - Discharge Sum is meant to provide a measure
under section 187. of protection for the mortgagor The
(2) If, at the sale, the vendor mortgagee is declared to be the purchaser of the land, or, if the land is sold as separate lots, the mortgagee does this via a s 187 PLA
purchaser of all or any lots, the vendor mortgagee is bound to purchase the land, or the lot or lots, at a purchase price equal to application.
the greater of—
(a) the amount of the vendor mortgagee’s successful bid; or
(b) the discharge sum nominated by the vendor mortgagee for the land or the lot or lots.
 b) Lucky Lending delays the sale by 6 months, during which time the market falls in
value. Can Jim object to this?
- Mortgagee free to choose when to sell
s 119 PLA Notice must be given to current mortgagor of mortgaged land of exercise of powers, etc mortgaged property, but needs to
(1) No amounts secured by a mortgage over land are payable by any person under an acceleration clause, and no comply with requirements of s 119
mortgagee or receiver may exercise a power specified in subsection (2), by reason of a default, unless—
PLA 2007 and any restrictions over
(a) a notice complying with section 120 has been served (whether by the mortgagee or receiver) on the person who, at the
date of the service of the notice, is the current mortgagor; and the power of sale in the mortgage
(b) on the expiry of the period specified in the notice, the default has not been remedied. - Postponement in selling is not itself a
(2) The powers are— breach of the s 176(1) duty of care, for
(a) the mortgagee’s power to enter into possession of mortgaged land: the mortgagee to decide if and when it
(b) the receiver’s power to manage mortgaged land or demand and recover income from mortgaged land: will sell: Countrywide Banking Corp v
(c) the mortgagee’s or receiver’s power to sell mortgaged land.
Robinson [1991] 1 NZLR 75 (CA) at
(3) Subsection (1) is subject to sections 125 and 126.
(4) A notice required by this section may be given in the same document as a notice under section 118. 77 lines15-18
- so should be a decision not to delay
- Mortgagee not bound to postpone or
s 176 PLA Duty of mortgagee exercising power of sale speed up a sale in the hope of a better
(1) A mortgagee who exercises a power to sell mortgaged property, including exercise of the power through the Registrar price, or to adopt a piecemeal method
under section 187, or through a court under section 200, owes a duty of reasonable care to the following persons to obtain
of sale over a period at some risk of
the best price reasonably obtainable as at the time of sale:
(a) the current mortgagor: loss: Countrywide Banking Corp v
(b) any former mortgagor: Robinson [1991] 1 NZLR 75 (CA), Tse
(c) any covenantor: Kwong Lam v Wong Chit Sen [1983] 3
(d) any mortgagee under a subsequent mortgage: All ER 54 (PC)
(e) any holder of any other subsequent encumbrance.
(2) A mortgagee who exercises a power to sell mortgaged property may not become the purchaser of the mortgaged
property except in accordance with section 196 or an order of a court made under section 200.
c) You are consulted by Jim. You are also consulted by Nell, who guaranteed Jim’s
mortgage repayment obligations to Lucky Lending.
Nell did not receive the Property Law Act notice so she wants to know if she is
bound by the guarantee.
Jim and Nell are also concerned that Lucky Lending intends to sell the property
quickly, to sell it quietly, and to sell it to business associates.
Jim and Nell are particularly concerned that Jerry Bonecrack, one of the tenants in
the property, wishes to purchase the building at the cheapest possible price.
Jerry Bonecrack is married to the solicitor for Lucky Lending and it is she who is
organising the sale of the property.

Advise them of Lucky Lending’s obligations to carry out the sale properly.
 Potentual Buyer Mortgage Sale

Mortgage
Tenancy Agreement
Radiologists/ Jim Notice
Lucky Lending
X-ray Specialists

Mortgage repayment guarantor

Nell

Jerry Bonecrack Solicitor

s 121 PLA Copy of notice under section 119 must be served on former mortgagor, covenantor, subsequent - as a guarantor, Nell should have received a copy
mortgagee, and caveator of the PLA notice per s 121 PLA
(1) A copy of the notice served under section 119 must, as soon as possible, be served (whether by the mortgagee or - failure to comply with this section does not
receiver) on the following persons if either the mortgagee or receiver has actual notice of the name and address of
prevent the exercise of the mortgagee’s powers
the person:
(a) any former mortgagor: - mortgagee will be liable in damages for any loss
(b) any covenantor: arising from the failure to serve the notice on Nell
(c) any mortgagee under a subsequent mortgage, and any holder of any other subsequent encumbrance, over the - For guarantors to show loss, they are likely to
mortgaged land if— have to show they relied upon the mortgage to
(i) the subsequent mortgage or other subsequent encumbrance is registered; or give such notice, and that if they had been served
(ii) the subsequent mortgage or other subsequent encumbrance is unregistered, but either the mortgagee or receiver
they would have been able to take steps to reduce
has actual notice of it; and
(d) any person who has lodged a caveat under section 138 of the Land Transfer Act 2017, or a notice under section their liability for the deficiency: s 122(5) PLA
42 of the Property (Relationships) Act 1976 having the effect of a caveat, against the title to the mortgaged land or Certainly, the failure to serve does not obviate
any part of it. Nell’s obligations as guarantor
(2) A failure to comply with this section does not prevent— - Mortgagee has rights of action against the
(a) any amounts secured by the mortgage from becoming payable; or mortgagor personally
(b) the exercise of the mortgagee’s power to enter into possession of the mortgaged land; or
- Jim is liable for the shortfall
(c) the exercise of the receiver’s power to manage the mortgaged land or demand and recover income from it; or
(d) the exercise of the mortgagee’s or receiver’s power to sell the mortgaged land. - But mortgagee’s duties of care s 176(1) of PLA
(3) However, if there is a failure to comply with this section, the mortgagee is liable in damages for any loss arising - a mortgagee owes a duty of reasonable care “to
from that failure. obtain the best price reasonably obtainable as at
the time of sale”
s 122 PLA Notice of intention to recover deficiency in relation to mortgages over land
(1) This section applies if, under a mortgage over land,—
- Whether there was a breach of the duty is a
(a) the mortgagee or receiver proposes, by reason of a default, to exercise a power to sell the morgaged land; and matter of fact, all relevant facts are to be
(b) the mortgagee proposes to recover any deficiency on the sale from a former mortgagor or a covenantor. considered
(2) The mortgagee or receiver must serve notice of the intentions referred to in subsection (1) on the former - Obligations include proper means of sale, advice,
mortgagor or covenantor concerned at least 20 working days before the exercise of the power of sale. advertising, following up inquiries: Tse Kwong
(5) However, a former mortgagor or a covenantor who is prejudiced by a failure to serve a notice under subsection Lam v Wong Chit Sen [1983] 3 All ER 54 (PC)
(2) is, to the extent of the prejudice, released from liability to the mortgagee for the deficiency.
 d) Lucky Lending has recently exercised its power of entry into possession of another
property of which it is mortgagee.
What steps must it take to enter into possession?
s 137 PLA Exercise of power to enter into possession
(1) If a mortgagee becomes entitled under a mortgage, after compliance with subpart 5, to exercise a power to enter into possession of - Mortgagees cannot
mortgaged land or goods, the mortgagee may exercise that power by—
(a) entering into or taking physical possession of the land or goods peaceably and without committing forcible entry under section 91 of take possession without
the Crimes Act 1961; or first serving the
(b) asserting management or control over the land or goods by requiring a lessee or occupier of the land, or a lessee or bailee of the goods,
as the case may be, to pay to the mortgagee any rent or profits that would otherwise be payable to the current mortgagor; or mortgagor with notice
(c) applying to a court for an order for possession of the land or goods. and notifying them of
(2) A mortgagee may do all or any of the things referred to in subsection (1) before or after taking any steps to exercise any power to sell
the mortgaged land or goods. the default and their
(3) Subsection (1)(a) is subject to section 138. right to remedy it, s 119
(4) Unless the context otherwise requires, a reference in this subpart to land or goods includes a reference to land and goods.
PLA
s 138 PLA Mortgagee may not enter into or take physical possession if mortgagee has consented to lease - s 137 PLA, s 138 PLA
(1) If a mortgagee has consented to a lease of all or part of the mortgaged land or goods, the mortgagee may not, in accordance - limitations imposed by
with section 137(1)(a), enter into or take physical possession of any land or goods that are subject to the lease, except in the exercise of a
power conferred by section 147. s 91 of the Crimes Act
(2) Subsection (1) applies whether the consent was given, or the lease was entered into, before or after— 1961 concerning
(a) the mortgagee entered into the mortgage; or
(b) the default occurred; or peaceable entry
(c) the goods became at risk.
e) The property is a garden centre and the registered proprietor is Gordon Green, who is the
mortgagor. Green leased the garden centre to Plant Place (PP) and PP continues to pay the
rent.
PP has asked Lucky Lending to make repairs and improvements to the buildings by
refurbishing the customers’ toilets and setting up a new area where customers can sit and
have refreshments.

Is Lucky Lending empowered or obliged to do the things PP asks?

s 150 PLA Mortgagee in possession may protect or repair mortgaged land or goods
(1) A mortgagee in possession of mortgaged land or goods may take any proper and necessary measures for the protection,
insurance, maintenance, preservation, or repair of the land or goods.
(2) A mortgagee in possession of mortgaged land or goods is not under any duty to take the measures referred to in subsection (1), - rights set out in ss 141-164
except so far as the cost of those measures can be met from income from the land or goods received as mortgagee in possession.
PLA
s 152 PLA Application of income received by mortgagee in possession - Mortgagees in possession
(1) A mortgagee in possession of mortgaged land, goods, or accounts receivable must apply all income from the land, goods, or
accounts receivable received as mortgagee in possession as follows:
may use income from the
(a) first, to the payment of all amounts (if any) referred to in subsection (2), together with interest on those amounts at the agreed mortgaged land to effect
rate (if any) at which interest is payable on the principal amount secured by the mortgage:
(b) secondly, to the payment of amounts secured by any other mortgage, encumbrance, or security interest over the property to the
repairs or take steps to
extent that it has priority over the mortgagee’s mortgage and so far as payment is then due: ensure the protection,
(c) thirdly, to the repayment of all amounts (if any) paid or advanced by the mortgagee for the purpose referred to in paragraph (b),
together with interest on those amounts at the agreed rate (if any) at which interest is payable on the principal amount secured by
maintenance, insurance,
the mortgage: or preservation of the
(d) fourthly, to the payment of amounts secured by the mortgage so far as payment is then due (and to the extent that those amounts
have not been paid under paragraphs (a) to (c)):
land, s 150 PLA
(e) fifthly, to the payment of amounts secured by any subsequent mortgage, subsequent encumbrance, or subsequent security - Actions covered by the
interest over the property so far as payment is then due if—
(i) the subsequent mortgage, subsequent encumbrance, or subsequent security interest is registered; or
provisions in s 150 (1)?
(ii) the subsequent mortgage, subsequent encumbrance, or subsequent security interest is unregistered, but the mortgagee has actual - alterations etc. made the
notice of it:
(f) sixthly, to the payment of any surplus to the current mortgagor.
business more profitable
(2) The amounts are amounts reasonably paid or advanced at any time by the mortgagee— - proper application of
(a) for the protection, insurance, maintenance, preservation, or repair of the mortgaged land, goods, or accounts receivable; or
(b) for the payment of rates or other outgoings; or
money by the mortgagee
(c) to meet the expenses of the mortgagee in entering into possession, or in doing anything that a mortgagee in possession is in possession, s 152 PLA
required or entitled to do; or
(d) with a view to the realisation of the security (including any additional amount referred to in section 120(2) or 129(2)); or
(e) to meet the expenses of carrying on a business that the mortgagee is entitled to carry on as a mortgagee in possession (for
example, to pay for inventory).
f) Lucky Lending also have a mortgage with George and Nancy. Nancy and George
are both pensioners, and Nancy is in a retirement home. Their son Keith wanted
funds to invest in his business, but the lender would only advance funds if it obtained
a mortgage over George and Nancy’s property.
Keith told the lender’s solicitor, Helen, that he didn’t think his parents would agree.
Helen told him “you won’t get the loan without giving Lucky Lending the mortgage.
So, you need to get those signatures”. Keith forged his parents` signatures and
returned the signed loan documents to Helen, where he joked “I got them – just don’t
ask me what I had to do to get them!” Keith failed to repay the loan and Lucky
Lending proceed to issue a Property Law Act Notice, advising George and Nancy of
the default. Nancy and George say they never signed any loan agreements and they
cannot repay the loan. They don’t want to lose their home.

Advise George and Nancy.

 PLA Notice

George Nancy
Lucky Lending

Keith Helen
s 6 LTA 2017 Meaning of fraud
(1) For the purpose of this Act, other than subpart 3 of Part 2, fraud means forgery or other dishonest conduct by - Nathan v Dollars & Sense Ltd [2008] 2
the registered owner or the registered owner’s agent in acquiring a registered estate or interest in land. NZLR 557
(2) For the purposes of subsection (1), the fraud must be against— - Assets Co v Mere Roihi [1905] AC 176
(a) the registered owner of an estate or interest in land; or - we do not know how Keith has obtained his
(b) the owner of an unregistered interest, if the registered owner or registered owner’s agent,—
mother’s signature, but unconscionable
(i) in acquiring the estate or interest had actual knowledge of, or was wilfully blind to, the existence of the
unregistered interest; and conduct and the possibility of forgery could
(ii) intended at the time of registration of the estate or interest that the registration would defeat the be considered
unregistered interest. - Fraud?
(3) For the purpose of subpart 3 of Part 2, fraud means forgery or other dishonest conduct by any person. - Was Keith acting as agent for Lucky
51 Title by registration Lending when obtaining signature?
(1) On registration under this Act of a person as the owner of an estate or interest in land, the person obtains a title - Can fraud be inputted to Lucky Lending?
to the estate or interest that cannot be set aside. - scope of the agency in this situation
(2) The title of the registered owner is free from estates and interests in the land that— - Was Keith expressly or impliedly
(a) are not registered or noted on the register; or appointed to engage with his parents in the
(b) are not capable of being registered or noted on the register.
(3) Despite subsections (1) and (2), the title of the person registered as owner of the estate or interest is subject to—
mortgage transaction?
(a) the exceptions and limitations in sections 52 to 56, subparts 1 and 3 of Part 4, and section 204; and - vicarious liability arising out of agency in
(b) any enactment other than this Act that overrides or limits the title. contrast to theories based on authority
(4) Subsections (1) and (2) apply whether or not the registered owner acquired the estate or interest— - s 62 and 63 LTA 1952 / ss 51, 52 LTA 2017
(a) for valuable consideration; or - fraud exception to indefeasibility
(b) from a fictitious person. - If Keith’s fraud can be brought home to
[…]
Lucky Lending then Lucky Lending will
52 Exceptions and limitations not be able to rely on the mortgage that
(1) The title of the registered owner to an estate or interest in land is subject to the following exceptions and was acquired through fraud and have no
limitations: indefeasible interest
(a) in a case where the title of the estate or interest of the registered owner is acquired through fraud on the part of
the registered owner or the registered owner’s agent:
[…]
g) David purchased a waterfront property next to a beach. An easement over David’s
property was granted in 1920, benefits the neighbouring property, and allows persons
from the neighbouring property to cross David’s land to access the beach. This easement
provided for:

“the owners and occupiers for the time being of the dominant tenement, their
servants, invitees, licensees, and any person who had authority to enter the property,
to pass over the servient tenement (using the path marked on the attached map)
whether on foot or otherwise”

In 1920, when the easement was granted, the neighbouring property was a large family
home. Today it is run as a homestay and a number of guests have been making use of
the easement to access the beach. David is not happy, and asks you if he has to allow the
homestay guests to cross his property to access the beach.

Advise David.
s 317 PLA Court may modify or extinguish easement or covenant
- principles elucidated in White v
(1) On an application (made and served in accordance with section 316) for an order under this section, a Grand Hotel (Eastbourne)
court may, by order, modify or extinguish (wholly or in part) the easement or covenant to which the - The grant of easement must be
application relates (the easement or covenant) if satisfied that—
(a) the easement or covenant ought to be modified or extinguished (wholly or in part) because of a change
construed according to its plain
since its creation in all or any of the following: meaning and is not to be
(i) the nature or extent of the use being made of the benefited land, the burdened land, or both: restricted
(ii) the character of the neighbourhood: - If the easement was granted for
(iii) any other circumstance the court considers relevant; or general purposes it makes no
(b) the continuation in force of the easement or covenant in its existing form would impede the reasonable difference that the use of the
use of the burdened land in a different way, or to a different extent, from that which could reasonably have house has changed
been foreseen by the original parties to the easement or covenant at the time of its creation; or
(c) every person entitled who is of full age and capacity—
- But s 317 PLA 2007 gives the
(i) has agreed that the easement or covenant should be modified or extinguished (wholly or in part); or court the power to modify or
(ii) may reasonably be considered, by his or her or its acts or omissions, to have abandoned, or waived the extinguish an easement
right to, the easement or covenant, wholly or in part; or - s 317 (b) PLA difficult for David
(d) the proposed modification or extinguishment will not substantially injure any person entitled; or to show as the extinguishment of
(e) in the case of a covenant, the covenant is contrary to public policy or to any enactment or rule of law; or the easement would substantially
(f) in the case of a covenant, for any other reason it is just and equitable to modify or extinguish the affect the dominant tenement
covenant, wholly or partly.
(2) An order under this section modifying or extinguishing the easement or covenant may require any person
who made an application for the order to pay to any person specified in the order reasonable compensation as
determined by the court.
h) In March 2013, Donald lent $600,000 to Mike, with Mike’s farm as security. This
mortgage was not registered. In October 2013, Mike borrowed $600,000 from Perry.
Again, Mike’s farm was offered as security for the loan, but the mortgage was also
unregistered. Perry did caveat the title to protect his interest, however.
Perry was unaware of the prior mortgage to Donald.
In January 2015, Donald became concerned about Mike’s ability to pay, and caveated the
title. Mike’s farm is worth $800,000 but the market has dropped in value, so Donald is
concerned about his priority and recovering the $600,000. There are no other mortgages
over the property.

Advise which mortgage takes priority?

 - equitable priorities result from time
of creation, rule “first in time” unless
conduct of the parties justifies
reversing the priority order, as per
Butler v Fairclough 919170 23 CLR
78 and approved by the Privy
Mike Council in Abigail v Lapin [1934] AC
491, 502, and Australian Guarantee
Corporation (NZ) Ltd v CFC
$ 600,000 $ 600,000 Commercial Finance Ltd [1995] 1
Donald Perry NZLR 129
March 2013 October 2013
Unregistered, Unregistered - Here, Donald has not caveated the
caveated in Jan but Caveated title to protect his interest, which
2015 may have led Perry to act to his
detriment
- But, we do not know if Perry
searched the title before making the
loan
- priority order should remain
according to the first in time
determination
i) Jane owns a one-storey property which she purchased about 3 years ago.
The house was built in the 1960s and a covenant was imposed at that time providing that
Jane cannot add another storey to her property, in order to preserve her next door
neighbour’s view.
15 years ago, another covenant was created over Jane’s property requiring her to keep
the trees trimmed to below 1.8m, which was also done to preserve the next door
neighbour’s view.
Jane has not been trimming the trees and they have started to grow very tall. She also
wants to add another floor to her property to improve its value. As far as Jane is
concerned, she did not agree to the covenant, so it should not apply to her.

Advise Jane.
s 301 PLA Construction of covenants relating to land: benefits
(1) This section applies to a covenant benefiting land of the covenantee, whether expressed in an instrument or implied by
this Act or any other enactment in an instrument, and whether a positive covenant or a restrictive covenant.
- Does the covenant benefit or “touches and concerns” the
(2) Unless a contrary intention appears in the instrument, the covenant is enforceable by— dominant land?
(a) the covenantee; and - covenant must benefit or “touches and concerns” the dominant
(b) the covenantee’s successors in title; and land, ANZCO Foods Waitara Ltd v AFFCO NZ Ltd, CA 181/04,
(c) persons claiming through the covenantee or the covenantee’s successors in title. Court of Appeal 23 June 2005, the NZCA clearly rejects Staples v
(3) For the purposes of this section, the covenantee’s successors in title include an occupier for the time being of the Corby , requirement of dominant tenement is re-affirmed in Ceda
benefited land. Drycleaners Ltd v Doonan [1998] 1 NZLR 224
- first covenant from 1960s created before 1 January 1987
s 302 PLA Construction of covenants relating to land: burdens - equitable rules
(1) This section applies to a covenant burdening land of the covenantor, whether expressed in an instrument or implied - burden of the covenant can only run if it is restrictive, Tulk v
by this Act or any other enactment in an instrument, and whether a positive covenant or a restrictive covenant.
Moxhay (1848) 2 Ph 774, Ceda Drycleaners Ltd v Doonan [1998] 1
(2) Unless a contrary intention appears in the instrument, the covenant binds—
NZLR 224
(a) the covenantor; and
(b) the covenantor’s successors in title; and - covenant does not require Jane to do anything, but not to do
(c) persons claiming through the covenantor or the covenantor’s successors in title. something, so it is negative (rather than positive) and can be
(3) For the purposes of this section,— enforced
(a) the covenantor’s successors in title include an occupier for the time being of the burdened land: - test of whether the covenantor must put his/her hand into his/her
(b) a restrictive covenant may relate to a subject matter not in existence when the covenant is made. pocket, Ceda Drycleaners Ltd v Doonan [1998] 1 NZLR 224 at 227
- second covenant made 15 years ago created after 1 January 1987
- ss 301 and 302 of the PLA
s 313 PLA Court may enforce easements and positive or restrictive covenants
(1) In determining a question or dispute concerning the existence or effect of an easement, positive covenant, or - benefit and the burden of the covenant will run with the land
restrictive covenant, a court may make an order, on any conditions the court thinks fit, concerning all or any of the whether or not the original covenant was granted by Jane or her
following matters: predecessor in title
(a) the existence of an easement, positive covenant, or restrictive covenant benefiting or burdening land: - As a successor in title, Jane is bound by the covenant unless an
(b) the enforceability of an easement, positive covenant, or restrictive covenant by or against any person, and whether application is made under s 317 to modify or extinguish the
under this Act or otherwise: covenant
(c) the question whether any work is work required to be done under the terms of an easement, positive covenant, or - But Jane must show that the conditions in s 317 (1) are fulfilled
restrictive covenant (required work) and, if so, the nature and extent of any required work at the time in question: - Anyone who enjoys the benefit of the covenant may enforce it
(d) the reasonable and proper cost of any required work, including interest on outlay, expenses of survey, and reasonable under s 301 PLA
remuneration for the superintendence or work of a person entitled or person bound who is or has been personally
- court may enforce the covenant and make any order or impose
engaged on that work:
any conditions it thinks fits, s 313 PLA .
(…)
j) Jane owns another apartment in town.
It is subject to the Unit Titles Act 2010.
Jane’s apartment needs some repairs to be undertaken.

Does she need to advise the body corporate of the repair work?

Who is responsible for paying for the repairs – Jane or the body corporate?
 - ss 79 and 80 UTA 2010
s 79 UTA 2010 Rights of owners of principal units
An owner of a principal unit— - Permission to do the work
(a) has all the rights derived from being registered as the owner of the stratum estate in a unit under this Act: will not be needed, as it is
(b) holds a share in the common property in accordance with section 54(2): possible to do modifications
(c) is entitled as a body corporate member to exercise a vote in respect of his or her unit, subject to section 96 and
any other requirements in the regulations:
to unit without seeking
(d) is entitled to have quiet enjoyment of his or her unit without interruption by other unit owners or occupiers, or consent if it does not
the body corporate or its agents, except as authorised by this Act or the regulations: “materially affect any other
(e) subject to section 80(1)(h) and (i), may make any alterations, additions, or improvements to his or her unit so unit or the common
long as these are within the unit boundary and do not materially affect any other unit or common property:
(f) has the right to have any dispute resolved in the manner set out in subpart 1 of Part 4: property”
(g) has the right to enforce the body corporate operational rules: - But Jane “must notify the
(h) has the right to attend the general meetings of the body corporate. body corporate of his or
her intention to carry out
any additions or structural
s 80 UTA 2010 Responsibilities of owners of principal units
(1) An owner of a principal unit— alterations before the
(…) commencement of any
(h) must notify the body corporate of his or her intention to carry out any additions or structural alterations work.”
before the commencement of any work:
(i) must not make any additions or structural alterations to the unit that materially affect any other unit or the - Jane will be responsible for
common property without the written consent of the body corporate: paying for the repairs,
(j) must comply with the body corporate operational rules: unless they touch on the
common property or
[…]
another unit