Who's Liable in a Shared or Leased Car Park? NZ

A cracked, sunken car park is a trip hazard before it is a maintenance line item. When a customer or worker goes over on a lifted edge in a leased lot, the first question is not "whose asphalt is this" — it is "who let the hazard sit there." In a shared or leased car park, that question rarely has one clean answer. The lease says one thing. The Health and Safety at Work Act 2015 says another. They do not always point at the same party.

This post is about untangling that for a commercial lease in New Zealand. It sits alongside our piece on car park repair for property managers and the broader pothole-liability picture covered in our pothole repair guide.

What a standard ADLS lease usually says

Most NZ commercial leases run on the ADLS Deed of Lease template. It splits obligations into two buckets. The landlord keeps responsibility for "structural" repairs — the things that go to the integrity of the building and grounds. The tenant takes on day-to-day maintenance and keeping the premises in good order.

A car park surface usually falls into the grey zone between the two. A failing base course or a subsiding sub-grade reads as structural and lands with the landlord. Surface wear, sealing, line-marking and routine patching read as maintenance and often land with the tenant. The exact wording matters. Schedules and outgoings clauses can push surface upkeep onto the tenant as a shared cost, even when the underlying failure is the landlord's to cure.

Read the lease before you assume. Look for "car park," "sealed areas," "grounds," and "structural." If it is silent, the default split applies — and silence is where disputes start.

Overlapping PCBU duties when control is shared

Here is the part the lease cannot rewrite. Under HSWA 2015, a Person Conducting a Business or Undertaking owes a duty to keep its workplace safe so far as is reasonably practicable. A car park used by a business is a workplace. If more than one PCBU has influence over that area — say a landlord who controls the grounds and a tenant who runs the site day to day — both can hold a concurrent duty.

The Act expects them to consult, cooperate and coordinate. You cannot contract that duty away in a lease. A clause that says "the tenant maintains the car park" allocates cost and the repair obligation between the two of you. It does not move the safety duty off the landlord if the landlord still has practical control. WorkSafe looks at who could have done something, not only at who signed up for the maintenance line.

So in a shared lot, the realistic position is: more than one party may be on the hook for the hazard, and the smart move is to act, not argue about whose name is on the duty.

Who fixes it versus who pays for it

These are two different questions and they often resolve to two different parties.

The party with control of the surface — usually the tenant on site — is best placed to organise the repair, control the area with cones and a spotter, and keep people away from the defect. The party who carries the cost under the lease may be the landlord, the tenant, or both via outgoings.

Treat them in that order. Make the area safe and get the repair organised first. Settle the cost split second. A defect left open while two parties debate the invoice is the worst of both worlds: ongoing exposure plus a worse incident if someone falls in the meantime.

Multi-tenant car parks: apportioning a shared defect

A lot shared by several tenants adds another layer. One pothole in a common aisle does not belong to any single tenant's leased bay. It belongs to the common area, which the landlord or body corporate usually controls and recovers through outgoings.

Fix the common-area defect as a common-area cost and recover it proportionally — on the same basis as other shared outgoings (floor area, bay count, or whatever the leases specify). Pinning a shared aisle defect on the nearest tenant invites a dispute and slows the fix. Keep common defects common.

Getting a fixed-price quote both parties can agree on

Cost disputes drag on when nobody has a firm number. A vague "it'll be a few thousand, maybe more" gives each party room to push the bill across the table.

This is where photo-based fixed pricing helps. Send us a clear photo of the defect with something for scale. We give you a fixed price in 24 hours and can book the work within 48. The number does not move once it is set. Both landlord and tenant are looking at the same fixed figure, which makes the cost conversation short: agree the split on a known total, not on a guess. For live lots we work with cones and a spotter, and can schedule after-hours or around trading so neither party loses access.

We saw-cut back to sound asphalt and seal the joints rather than dropping cold-mix into the hole. That matters to both parties: a sealed permanent repair carries a 12-month workmanship warranty and does not reopen next winter, so you are not splitting the same bill again in twelve months over the same pothole.

Documenting the agreement so the next claim doesn't reopen it

Once you have agreed who fixes, who pays, and on what basis, write it down. A short email exchange or a note on the lease file is enough: the defect, the fixed price, the agreed split, the date repaired, and who held the safety duty during the works.

Pair that with the dated before-and-after photo report we supply on completion. That report is your maintenance record and your liability record in one. If a claim, an insurer query or a WorkSafe question lands later, you can show the hazard was identified, priced, repaired permanently and documented — and that both controlling parties acted. That evidence closes the matter instead of reopening the old who-was-responsible argument.

Sort the hazard first, the split second

If you are a landlord or a tenant staring at a defect and unsure whose problem it is, the safe order is clear: control the hazard now, get a firm number, agree the split against that number. Send us a photo and we will give you a fixed price in 24 hours that both parties can sign off. Get a fixed quote and turn an open liability into a closed, documented repair.

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