A recent High Court decision involving a unit-title lifestyle development has raised important questions about whether age-based occupancy restrictions can be enforced outside the retirement village framework.
The case involved a resident at Ferniehirst Lifestyle Villas in Ōtaki who wanted her unwell adult daughter to live with her. The daughter was under the development’s minimum age requirement of 50. The body corporate declined permission, and the management company launched arbitration proceedings. In defending the case, the age restriction itself was challenged, and an arbitrator found it breached the Human Rights Act 1993. The High Court subsequently entered that arbitration award as a judgment, giving it legal effect. The case was reported by the New Zealand Herald.
Because the decision arose from an arbitration award entered as a High Court judgment, committees should treat it as important guidance, but should still obtain legal advice before changing or enforcing rules.
If your body corporate has operational rules that restrict who can live in a unit based on age, or if you are buying into a development marketed as an over-50s community, this ruling matters. This article explains what happened, what the law says, and what body corporate committees and unit owners should consider.
Quick Answers
Can a body corporate in New Zealand restrict residents by age?
In general, no. Age is a prohibited ground of discrimination under section 21 of the Human Rights Act 1993. A body corporate operational rule or management agreement that restricts occupancy by age will likely breach sections 53 and 55 of the Act and may be unenforceable, unless the development falls within a specific exemption, such as where accommodation is provided in an establishment for people in a particular age group.
Does this affect retirement villages?
Retirement villages may fall within a specific Human Rights Act exemption for accommodation provided to people in a particular age group. In practice, developments should also be checked against the Retirement Villages Act 2003 registration framework before relying on age-based occupancy restrictions. The ruling does not affect retirement villages that properly qualify for that exemption.
What happened in the Ferniehirst case?
An arbitrator found that an age restriction clause in a management agreement at a unit-title lifestyle development in Ōtaki breached the Human Rights Act 1993. The High Court subsequently entered that arbitration award as a judgment, finding the restriction unenforceable.
What should a body corporate committee do if its rules include age restrictions?
Committees should seek legal advice promptly. Rules or management agreements that restrict occupancy based on age may expose the body corporate, management company or developer to legal action, including complaints to the Human Rights Commission.
What Happened at Ferniehirst Lifestyle Villas?
Ferniehirst Lifestyle Villas in Ōtaki is a development of 38 villas, each owned individually under a unit title structure, with shared spaces managed by a body corporate. The development was marketed as suited to residents aged 50 and over.
When owner Amanda Cashman asked the body corporate committee for permission for her unwell adult daughter, who was under 50, to move in with her, the committee declined on the basis that there were no exceptional circumstances. Cashman said her daughter had nowhere else to go and needed support. She asked for time to sell so she could leave, but the management company launched arbitration proceedings against her.
In defending the arbitration, Cashman’s lawyer challenged the legal basis of the age restriction itself. The arbitrator agreed it breached the Human Rights Act 1993 and was unenforceable. The High Court subsequently entered that award as a judgment, giving it legal force.
What Does the Human Rights Act Say About Age Restrictions?
The Human Rights Act 1993 prohibits discrimination on a range of grounds. Under section 21 of the Act, age is a listed prohibited ground of discrimination.
Section 53 of the Act deals specifically with discrimination in land, housing and other accommodation. Under this section, it is unlawful to refuse or fail to make accommodation available to a person because of a prohibited ground such as age.
Section 55 provides an exemption for certain types of establishments, including hostels, hospitals, clubs, schools, universities, religious institutions and retirement villages, where accommodation is provided for people in a particular age group. The key issue in the Ferniehirst case was whether the development qualified for that exemption.
Because Ferniehirst was structured as a standard unit title development, where residents own their properties outright, it was found not to fall within the section 55 exemption. The age restriction in the management agreement was found to have breached section 53 of the Act and was not protected by the section 55 exemption.
The full details of the case were reported by the New Zealand Herald.
What is the Difference Between a Retirement Village and a Lifestyle Development?
This distinction is at the heart of the ruling and is widely misunderstood.
| Feature | Registered Retirement Village | Unit-Title Lifestyle Development |
| Governed by | Retirement Villages Act 2003 | Unit Titles Act 2010 |
| Ownership | Residents usually occupy under an occupation right agreement (ORA). Some legal structures may differ, so buyers should check the village documents and title position. | Residents own their unit outright under a unit title |
| Oversight | Regulated by the Registrar of Retirement Villages, MBIE | Managed by body corporate under Unit Titles Act 2010 |
| Age restrictions | May qualify for the Human Rights Act section 55 exemption where accommodation is provided for people in a particular age group. Check each village’s documentation. | Not permitted in general, based on the Ferniehirst ruling and Human Rights Act sections 53 and 55 |
| Consumer protections | Retirement Villages Act 2003 protections apply | Unit Titles Act 2010 protections apply |
A development that markets itself as being for over-50s but is structured as a unit title development is not a retirement village. Retirement villages that may qualify for the age-restriction exemption should be registered under the Retirement Villages Act 2003. The Retirement Villages Association of New Zealand confirmed, in response to reporting on this case, that only retirement villages that qualify under that framework can lawfully restrict occupancy by age.
What Can Body Corporate Operational Rules Actually Restrict?
Under the Unit Titles Act 2010, a body corporate may set operational rules to manage how units and common property are used. These rules can cover things like noise levels, pets, parking, alterations to units and the use of shared facilities. For a plain-English overview of how body corporates work, see What is a body corporate?.
What rules cannot do is override legislation. Under section 106 of the Unit Titles Act 2010, any operational rule amendment or addition that is inconsistent with the Act, another enactment or a rule of law is invalid. That means a rule that conflicts with the Human Rights Act 1993 has no legal effect.
One of the most common misunderstandings committees face, as the Crockers Body Corporate team regularly sees, is the assumption that anything agreed among owners or written into a management agreement is automatically enforceable. That is not the case.
Media reporting on the Ferniehirst dispute also raised wider concerns about body corporate rules that go beyond a body corporate’s legal powers. This is a useful reminder for committees to review rules before relying on them in a dispute.
What This Means for Committees, Owners and Developers
The ruling has practical consequences for several groups.
Body corporate committees
If your body corporate has operational rules or is party to a management agreement that restricts occupancy based on age, those restrictions may be unenforceable. Enforcing them could expose the body corporate to complaints to the Human Rights Commission or legal action. Committees should review their rules with legal advice.
Unit owners in lifestyle developments
If you bought into a development partly because of age restrictions and expected a certain type of community, the legal position has now shifted. Age restrictions in unit-title developments are unlikely to be enforceable. You may want to seek advice about what your purchase agreement or management agreement actually allows.
Buyers considering lifestyle developments
Be cautious about any development marketed to a specific age group that is not a registered retirement village. The restrictions you are being shown may not be enforceable. Check whether the development is registered under the Retirement Villages Act 2003 before purchasing. It is also worth reviewing the selling and disclosure statement requirements that apply to unit title properties before committing.
Developers
Legal commentary following the case noted that developers who have built age restrictions into contracts risk those contracts being illegal or unenforceable. This could give purchasers grounds to exit agreements and could expose developers to claims of misrepresentation or breaches of the Fair Trading Act 1986. Existing developments should have their legal documentation reviewed. Crockers Body Corporate Developer Services can assist developers with understanding body corporate obligations from the outset.
A Common Scenario Committees Should Know About
Consider a body corporate in a lifestyle development with a rule that units may not be occupied by anyone under 55. A unit owner’s adult child, aged 28, moves in temporarily after a period of ill health. The committee wants to enforce the rule.
Based on the Ferniehirst ruling, that rule is likely unenforceable if the development is structured as a unit title development rather than a retirement village that qualifies for the Human Rights Act exemption. Pursuing enforcement action could expose the body corporate and management company to a complaint under the Human Rights Act 1993.
The right step in that scenario is to seek legal advice before taking any action, not to rely on the wording of the operational rules alone.
Key Takeaways
- Age restrictions in unit-title lifestyle developments are likely to breach sections 53 and 55 of the Human Rights Act 1993 and may be unenforceable, as confirmed by the Ferniehirst ruling.
- Retirement villages may fall within a specific Human Rights Act exemption for accommodation provided for people in a particular age group. Buyers and developers should check whether a development qualifies and is registered under the Retirement Villages Act 2003.
- Under section 106 of the Unit Titles Act 2010, body corporate operational rules that are inconsistent with another enactment or rule of law are invalid.
- Developers, management companies and body corporate committees that have age restrictions in their documents should seek legal advice and review those documents promptly.
- Buyers considering lifestyle-style developments should check whether the development is a registered retirement village before relying on any age restriction as a selling point.
Final Thoughts
The Ferniehirst case is a reminder that private contracts and body corporate rules cannot override legislation. Age is a protected ground under the Human Rights Act 1993, and restrictions based on it in unit-title developments are unlikely to be enforceable outside the retirement village exemption framework.
For committees, this is a prompt to check that your operational rules and management agreements are legally sound. For buyers, it is a reason to look carefully at what is actually being offered and whether the legal structure matches the marketing.
The distinction between a retirement village that qualifies for the Human Rights Act exemption and a unit-title lifestyle development is not just technical. It has real legal consequences, and this case has made that clear.
How Crockers Body Corporate Can Help
If your committee has questions about what your body corporate operational rules can and cannot include, or if you want to review whether your governance documents are legally sound, the Crockers Body Corporate new business team can help. We work with body corporates across New Zealand and can connect you with the right advice.
Article written by Shanon Aitken, Crockers Property Management
This article was prepared by the Crockers Body Corporate team, drawing on their experience managing body corporates across New Zealand. It references publicly available New Zealand legislation and media reporting by the New Zealand Herald on the Ferniehirst case. It is general information only and is not legal advice.