Have you seen that sign?

Wednesday, September 7, 2022

From 16 September until 8 October 2022, New Zealanders will head to the polls to cast their votes at the 2022 Local Elections. The key difference this year is local elections will no longer include District Health Board elections, with these having been replaced by Health New Zealand.

In the lead up to the Local Elections, smiling faces are everywhere on hoardings varying in shape, size, colour and, of course, political message.

Many hoardings are displayed on public property; but many are affixed to the fences, external walls and gardens of private properties. This begs the question in the case of leased residential property as to who has the right to put up an election hoarding: the landlord or the tenant?

As a landlord, are you entitled to put up an election hoarding on a tenanted property? As a tenant, can you do the same? What if a hoarding has been erected on your fence that you do not agree with as the landlord or tenant?

Regulations

Section 113 of the Local Electoral Act 2001 requires election signs to contain an authorised statement setting out the true name and contact details of the person, or name, contact details and address of the organisation or body authorising the advertisement. Local council bylaws govern what an election sign may look like, including the size, content, and materials of election signs.

The placement of election hoardings is also regulated at a local level. Each local territorial authority provides bylaws regarding how election hoardings may be displayed within the territory. Although these bylaws often contain detailed provisions regarding hoardings on public property, they are vague when it comes to electoral hoardings on private property, often containing no more than a single sentence stating that consent is required.

Council bylaws

Council bylaws on election hoardings vary from district to district, and provide limited guidance on what consent is required and the recourse available if consent is not obtained.

In Auckland, the relevant bylaw provides:

“Permission from the property occupier and / or owner is required to display an election sign on private property.”

In Wellington, Whanganui, Rotorua and Hamilton, the relevant bylaws each provide that the consent of the landowner is required before an election sign can be erected on private property.

The council bylaws typically do not specify who must seek consent. Is a landlord’s consent required where a tenant wishes to display a sign?  Is a tenant’s consent required in the reverse situation?  The bylaws are silent as to whether consent need be in writing. And the bylaws do not provide for what might happen where consent is not obtained, or if either party wants the other to remove a sign.

Tenancy agreements

Whether a sign is permitted may also be impacted by the particular terms of a lease. Commercial leases will often include clauses relating to signage; residential lease agreements, less so.

The Auckland District Law Society Deed of Lease - Sixth Edition 2012 (5) provides that a tenant will not put up signs on the leased property without the prior written approval of the landlord. The ADLS deed of lease specifies that the landlord will not withhold consent unreasonably or arbitrarily in respect of any signage related to the tenant’s business. However, as election signs are unlikely to be related to a tenant’s business, the landlord is not required to give consent.

The same applies to residential leases. Where no such clause is provided for in the agreement, the issue may become one of striking a balance between a tenant’s right to quiet enjoyment, and a landlord’s right not to have damage inflicted on their property.

If all of this is too much, do not despair – most council bylaws require all election advertising be removed by 11:59pm, Friday 7 October so the current batch of hoardings have a limited life left.

If you have any questions please contact a member of our litigation and dispute resolution or corporate and commercial team.

 

Disclaimer: the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.

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