Keep good records or else

A recent Court decision highlights the need for land owners and governing bodies to keep good records. The case involved two related families who both believed they had rights to a section of land.

In 1993 one of the families built a small house and other improvements on the disputed land with no objection by the other family. However, when their relationship deteriorated both claimed to have rights to the land. One family claimed that their rights stemmed from a written agreement to occupy and use the land with the Incorporation that administered the land in 2004, while the other family claimed that they had rights under a lease from the Incorporation in 1984.

The parties failed to settle their dispute at a meeting and proceedings were brought before the Court.

The Court’s decision turned on which side had better evidence. One family was able to provide a copy of their 2004 written agreement with the Incorporation that clearly applied to the disputed land. On the other hand, the other family could not provide a copy of the alleged 1984 lease. They claimed that they provided their only copy to the Incorporation, which had subsequently misplaced it. Further, the Incorporation could not provide clear evidence from its records and meeting minutes that the 1984 lease existed.

As a result, the Court held in favour of the family with the 2004 written agreement, declaring that they had a better claim to the disputed land.

It is really important that records are made and kept safe. In this case both parties claimed that written records supported their claim but only one side could produce those records for the Court. In other cases, deals are done but not recorded in writing at all. If the terms in those cases had been reduced to writing and signed by the parties that would have provided some support for the claims. Even a file note of what happened can provide good evidence. To be effective the note must be made at the time or immediately afterwards. It should record the subject of the discussion, what was agreed, who took part, where the discussion was held and the date and the time (if relevant). Written evidence like this enables a Court to be more confident that people’s memories are correct. In one case a client relied on receipts written about 30 years before the dispute over ownership of an asset got to Court. Those receipts had been carefully kept by one of the people involved all those years before. The other party denied that the deal had been done but the Court was able to rely on the original receipts produced, which confirmed the payments made and the reasons for them. Small and scrappy after 30 years the pieces of paper may have been, but vital to the outcome they were.

The cases provide a clear lesson to land owners and governing bodies (indeed to everyone) that a failure to keep good records and retain important documents like leases can result in lengthy and potentially costly disputes later down the road and the potential loss of the argument when you cannot produce the documents.

Alan Knowsley
Partner
Wellington