Ōtaki lifestyle village minimum age limit ruled unlawful under Human Rights Act

A High Court-backed ruling has found an age restriction at a seniors’ lifestyle facility, marketed as a retirement-style village for over-50s, was unlawful, breaching the Human Rights Act.

The decision could have implications for age-restricted “lifestyle” developments across New Zealand.

The case was triggered by a dispute over a resident who wanted her unwell daughter, who was under 50, to live with her at Ferniehirst Lifestyle Villas in Ōtaki.

The development’s body corporate refused long-term permission, finding the daughter’s presence breached the rule that residents must be over 50.

Retired home owner Amanda Cashman agreed that having her daughter stay breached the rule. But she said she needed to sell her unit to leave the village and asked for time to make those arrangements.

However, the village’s management company moved to enforce the rule and brought arbitration proceedings.

In defending the case, Cashman’s lawyer, Sarah Wroe, challenged the legality of the restriction, arguing the development did not qualify as a retirement village or similar “establishment” under the law such as a hostel, hospital, club or school, where age limits can apply.

Because the complex was structured as a standard unit-title development, where residents own their properties, it did not fall within that exemption.

The arbitrator agreed, finding the rule breached the Human Rights Act and was unenforceable.

The High Court has now backed that decision, giving it legal effect.

‘I wasn’t going to turn her away’

According to the ruling, Cashman bought into Ferniehirst Lifestyle Villas in Ōtaki in 2023, drawn to a newly built unit in a small community.

The development had 38 villas, each owned individually under a unit title structure, with shared spaces managed by a body corporate.

As part of that purchase, every owner, including Cashman, entered an agreement with the management company that restricted who could live there.

Included was a clause stipulating that units were not to be occupied by anyone under 50 without approval.

The dispute began in December 2024 when Cashman contacted the body corporate committee seeking permission for her adult daughter, who was under 50, to move in with her long term.

Cashman told the Herald her daughter had been unwell and needed support.

“I wasn’t going to turn her away.”

According to the ruling, Cashman told the committee she may need to sell if permission was not granted and asked for time to make those arrangements.

The body corporate decided there were no “exceptional circumstances” to allow her daughter to stay long-term. However, it granted a short extension until the end of December 2024.

Cashman said she had hoped for more flexibility.

“All I wanted… was to have my daughter here until I sold the house,” she told the Herald.

In the evidence, her daughter briefly returned to her own flat but was unable to manage and came back to live with Cashman.

However, Ferniehirst Management began arbitration proceedings in May 2025, arguing Cashman had breached the Management and Services Agreement, which included the over‑50s restriction.

‘No parent should be put in that position’

Cashman told the Herald she did not want the situation to escalate.

“I didn’t want to go through arbitration… I was trying to resolve it. It wasn’t my choice. It was a situation I was put in by the management.

“They were basically asking me to choose between having my daughter living with me or putting her in a very vulnerable position because she had nowhere else to go.

“No parent should be put in that position of having to choose.”

The process led to a hearing in March 2026.

In April, the arbitrator ruled the age-restriction clause in the agreement breached the Human Rights Act.

The High Court has since entered the arbitration award as a judgment, giving it legal effect.

Ferniehirst Management declined to answer questions about the ruling or its implications.

The Herald asked director Leanne Elliot whether the company intended to appeal the decision but she would not comment while discussions with her lawyer were ongoing.

The Ferniehirst development was continuing to operate as normal, she said.

“And everyone’s happy.”

Elliot confirmed the company was involved in other similar developments marketing to over-50s, including Ashmore Park Villas and Villa Estate, both in Carterton, but declined to comment on whether the decision would affect those operations.

The Herald viewed online listings for both developments and numerous associated properties, which promoted the villages as suited to those aged 50 and above.

Decision has implications for private contracts: lawyer

Joanna Pidgeon, of legal firm Pidgeon Judd, said the decision cemented the principle that private contracts must comply with the Human Rights Act.

Covenants, management agreements, encumbrances or rules could not be applied in a discriminatory way, she said.

“What this means is that developers cannot create their own communities where they want to restrict occupiers on the basis of age.

“Communities that don’t want young people and loud music cannot seek to prohibit those people from living there unless they are a registered retirement village.”

Pidgeon said the ruling had implications for developers, current owners and buyers of development properties marketed towards certain age groups.

Developers risked entering into contracts that may be illegal or unenforceable, potentially giving purchasers grounds to exit agreements and exposing them to claims of misrepresentation or breaches of the Fair Trading Act.

For sellers, age‑restrictions would not be enforceable and referring to them could be misleading, she said.

“I would recommend parties check their rules, covenants and agreements and amend them if they are in breach, otherwise they may face legal action, including complaints to the Human Rights Commission or claims for misrepresentation.”

Chris Fahri, Bayleys head of insights, data and consulting, believed property developments using age‑based restrictions outside the registered retirement village framework would be “very niche across the wider market”.

The ruling created a mixed outcome for those developments, Fahri said.

“On the one hand you’ll have residents who aren’t happy about losing control of the sort of age group that can live there, but on the flip side you open up a wider market for buyers.”

The case highlighted the difference between registered retirement villages and unit-title “lifestyle” developments, Retirement Villages Association executive director Michelle Palmer said.

Ferniehirst was not a registered retirement village – “that distinction is really important”, she said.

“Registered villages can legally place age restrictions on occupants as there is a relevant exception in the Human Rights Act. As such, minimum entry ages for registered villages do not amount to age discrimination.”

Home Owners and Buyers Association president John Gray said the case highlighted a broader issue with how some developments were run.

“We see it commonly in relation to introducing body corporate operational rules that are ultra vires [beyond the powers] or, in layman’s slang, in breach of the Unit Titles Act [or] other acts including the Human Rights Act [and] the Building Act,” he said.

“It’s saddening to see these sorts of things happen in terms of putting people to the pains of having to take proceedings against body corporates to enforce their rights.”

Mike Scott has covered stories across New Zealand and internationally for more than 20 years. His work spans writing, photography and video and has won numerous journalism awards.

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