Ownership of a dwelling on multiply-owned Māori freehold land

He Tīmatanga/Introduction

The matter of ownership of a dwelling built on multiply-owned Māori freehold land was recently raised again in the case of Herewini – Maungaroa 1 Sec 23K (Keterau) (2013) 85 Waiariki MB 141.  This case is a reminder to those who build on multiply-owned Māori freehold land that, once built, the dwelling, if affixed to the land, is considered to form part of the title to the land, belonging to all of the owners. 

The Māori Land Court (“the Court”), however, has the ability to award the ownership of such a dwelling to the owner who built it.

Herewini – Maungaroa 1 Sec 23K (Keterau) (2013) 85 Waiariki MB 141

This case concerned a dispute over the ownership of a dwelling (in this case a converted skyline garage) on a Māori freehold land block, Maungaroa No. 1 Section 23K. 

The applicants applied under s 18(1)(a) of Te Ture Whenua Māori Act 1993 (“the Act”) for an order granting them ownership of the dwelling. 

The basis of their application was that they had built and occupied the dwelling since 1989, had paid all outgoings from 1993 and had obtained a loan in 2007 which they used to convert the garage into the four bedroom dwelling. 

However, their right to possession of the dwelling was challenged by some of their whānau for the following reasons:

• The house was a fixture and therefore owned by all owners;
• Consent given by other owners was only for  a double garage;
• The original intention of the dwelling was that it would be available for all whānau living away as a temporary home base;
• It was not intended for one whānau to own or occupy the dwelling indefinitely;
• The spiritual connection that all the whānau have for the whenua and dwelling should be maintained and not extinguished.  This was because the site where the dwelling is located is the site of the old whānau homestead.

Ko te Ture/Relevant Law

In its decision, the Court referred to the Māori Appellate Court decision in Tohu – Te Horo 2B2B2B (2007) 7 Whangārei Appellate Court MB 34 (7 APWH 34) where the Appellate Court discussed s 18(1)(a) of the Act stating: 

“Where an owner of multiply owned land, … builds a house on the land, the house if affixed to the land, forms part of the title to the land and belongs to all the owners of the land according to their respective shares.  That is the legal position.  However the Court has, in many such cases, using equitable jurisdiction … awarded the property in the house in an owner who has erected the building, thus giving him or her rights to the house.”

Therefore, the Court is able to use its equitable jurisdiction to award ownership of a dwelling to an owner who erected it.  Where it grants such an order the Court noted that this appears to separate the house from the title to the land and treat it as a chattel. 

The Court also noted that there is no ability to succeed to an order of this nature and that anyone who wishes to sustain a claim for the house needs to apply for another order.

Ko te Whakawā/Decision

Following that line of reasoning, the Court in the Herewini case awarded the applicants ownership of the dwelling.  Factors the Court considered in reaching this decision included:

• The length of the applicants’ occupancy of the dwelling and the improvements they had made;
• The significant work and investment made by the applicants in building and improving the dwelling;
• The fact that the applicants had taken responsibility for payment of the rates;
• The fact that the applicants were the ahi kaa on the land;
• The fact that alternate sites were available on the block for other members of the whānau should they wish to build on the land, meaning that no one would irrevocably lose their bond with the land as a result of the Court’s decision.

It is noted however that, although there was a positive outcome in this case, there is always a risk that the Court will not grant ownership in this type of case.

Tono noho whenua/Occupation Orders

An alternative available to owners, either in this situation or considering building, is an occupation order issued by the Court.  Such an order grants people the right to occupy a house site on Māori freehold land. Occupation orders can be sought for an existing house, but preferably would be sought in advance. 

The owner of a beneficial interest in Māori land or anyone entitled to succeed to a deceased owner may apply for an occupation order. The area of occupation sought must not be more than the proportion of shares the applicant owns, or will own upon succession, in the block. 

The Court may set a period of time that the order is for, or specify that it will end on the occurrence of a defined event, such as the death of the occupier.

He Whakarāpopototanga/Summary

Given the potential ownership issues with dwellings built on multiply-owned Māori land, it is recommended that owners seek advice before proceeding to build to avoid any unwanted repercussions later, such as a challenge to ownership.

Alternatives such as occupation orders under the Act may be more appropriate for those considering building on multiply-owned land and provide applicants with some assurance, before proceeding to build, that their right to occupation will not later be challenged. 

If you would like further information please contact Kylee Katipo on 07 958 7424.