The listing of 9 Ashmore Park Rd, a unit in the Ashmore Park Villas development, marketed for “those aged 50 and above”.<\/p>\n
Decision has implications for private contracts: lawyer<\/p>\n
Joanna Pidgeon, of legal firm Pidgeon Judd, said the decision cemented the principle that private contracts must comply with the Human Rights Act.<\/p>\n
Covenants, management agreements, encumbrances or rules could not be applied in a discriminatory way, she said.<\/p>\n
\u201cWhat this means is that developers cannot create their own communities where they want to restrict occupiers on the basis of age.<\/p>\n
\u201cCommunities that don\u2019t want young people and loud music cannot seek to prohibit those people from living there unless they are a registered retirement village.\u201d<\/p>\n
Pidgeon said the ruling had implications for developers, current owners and buyers of development properties marketed towards certain age groups.<\/p>\n
Joanna Pidgeon, partner at Pidgeon Law, says the recent decision cements the principle that private contracts must comply with the Human Rights Act.<\/p>\n
Developers risked entering into contracts that may be illegal or unenforceable, potentially giving purchasers grounds to exit agreements and exposing them to claims of misrepresentation or breaches of the Fair Trading Act.<\/p>\n
For sellers, age\u2011restrictions would not be enforceable and referring to them could be misleading, she said.<\/p>\n
\u201cI would recommend parties check their rules, covenants and agreements and amend them if they are in breach, otherwise they may face legal action, including complaints to the Human Rights Commission or claims for misrepresentation.\u201d<\/p>\n
Chris Fahri, Bayleys head of insights, data and consulting, believed property developments using age\u2011based restrictions outside the registered retirement village framework would be \u201cvery niche across the wider market\u201d.<\/p>\n
Chris Fahri, Bayleys head of insights, data and consulting, has shared his thoughts on the court ruling.<\/p>\n
The ruling created a mixed outcome for those developments, Fahri said.<\/p>\n
\u201cOn the one hand you\u2019ll have residents who aren\u2019t happy about losing control of the sort of age group that can live there, but on the flip side you open up a wider market for buyers.\u201d<\/p>\n
The case highlighted the difference between registered retirement villages and unit-title \u201clifestyle\u201d developments, Retirement Villages Association executive director Michelle Palmer said.<\/p>\n
Ferniehirst was not a registered retirement village \u2013 \u201cthat distinction is really important\u201d, she said.<\/p>\n
Retirement Villages Association executive director Michelle Palmer.<\/p>\n
\u201cRegistered villages can legally place age restrictions on occupants as there is a relevant exception in the Human Rights Act. As such, minimum entry ages for registered villages do not amount to age discrimination.\u201d<\/p>\n
Home Owners and Buyers Association president John Gray said the case highlighted a broader issue with how some developments were run.<\/p>\n
\u201cWe see it commonly in relation to introducing body corporate operational rules that are ultra vires [beyond the powers] or, in layman\u2019s slang, in breach of the Unit Titles Act [or] other acts including the Human Rights Act [and] the Building Act,\u201d he said. <\/p>\n
\u201cIt\u2019s saddening to see these sorts of things happen in terms of putting people to the pains of having to take proceedings against body corporates to enforce their rights.\u201d<\/p>\n
Mike Scott has covered stories across New Zealand and internationally for more than 20 years. His work spans writing, photography and video and has won numerous journalism awards.<\/p>\n