To enable a building to be constructed over a legal boundary, it is required that each of the affected allotments (whether on the same certificate of title or not) are tied so that one cannot be sold or leased without the other.
There are two legal ways of addressing this issue: either by tying each of the allotments by means of complying with section 77 of the Building Act 2004, or by legally amalgamating the allotments by way of survey plan which places all the affected land under the same certificate of title.
In either case the affected properties must be under the same ownership.
Please feel free to discuss these options further with us before making a decision.
Building Act 2004
Section 77 to the Building Act requires that when a building application is made to us (as building consent authority) to construct a building over an existing legal boundary(s), the consent cannot be granted until we issue a certificate under this section that the affected land cannot be sold or leased except in conjunction with the other land subject to the building work.
This condition is set out in a certificate authenticated by us and signed by the owner, and lodged with the district land registrar who makes an entry on each certificate of title or each affected allotment to which the condition applies.
Section 77 of the Act allows us to accept the building consent for processing, but the consent cannot be issued until the certificate under section 77 has been registered against all affected property titles. This is the simplest method of allowing a building to be constructed over legal boundaries.
The fee can be paid at the time of application, or when the process is completed, but the fees must be paid before the building consent can be issued.
- To have the title(s) of the allotments amalgamated by way of survey plan, which removes the internal boundaries of the affected land, or
- Restructure the affected boundaries so that the whole building is on one allotment.
These options require redefinition of the boundary by way of the survey plan to create a single allotment. This requires the services of a surveyor and can take four-to-six months to process.
We are unable to grant a building consent until the resurvey has been completed. This can cause lengthy delays to commencing construction. The costs involved in this process are significantly higher than that incurred with a section 77 certificate.