Have you seen the sign?
On 19 September 2020, New Zealanders will head to the polls. They will be casting their votes at the ballot not just in the General Election but also on two highly charged political and social issues: cannabis and euthanasia law reform.
In the lead up to the General Election, the landscape has become littered with the usual election hoardings: Jacinda, Todd (now Judith) and Winston’s 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?
The Electoral (Advertisements of a Specified Kind) Regulations 2005 govern what an election sign may look like. The Regulations contain strict rules regarding the size, content, and materials of election signs.
The placement of election hoardings is 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 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:
“a person who displays an election sign on a private site visible from a road must have the consent of the occupier, or if an occupier cannot be located the consent of the owner of the private site must be obtained for the display of an election sign.”
In Wellington, Whanganui, Rotorua and Waikato, 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.
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 – the effect of section 197 of the Electoral Act 1993 is to require all election advertising to be taken down by midnight the night before the election, so the current batch of hoardings have a limited life left.
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.