Newsletter Autumn 2020 2020-03-16T16:17:55+00:00

ARL News

Our Team

We thought it was time to update our team photo so when you come and visit us, you will recognise all our faces. Thank you for your business!

 

 

We welcome Sophie, Joyce, Scott and Sam to our team

Once again ARL Lawyers is growing its team. We welcome Sophie Aitken and Scott Balloch in the role of Law Clerks. Joyce Glennie, Legal Secretary, has joined the Disputes Resolution Team and Sam Park, Legal Secretary has joined the Property team. Great to have you on board!

Left to right: Sophie Aitken, Joyce Glennie and Scott Balloch -(Sam Park absent)

 

 

 

Heather Smith is admitted to the Bar!

Ian Avison, Partner ARL Lawyers, was privileged to admit Heather Smith to the Bar on the 13th December 2019. The Ceremony took place at the Old High Court in Wellington. Heather works in the Trusts and Estates Team and the Property Law Team. ARL is investing in the next generation of lawyers and will admit two more solicitors later this year – also a great opportunity to give the wig and gown another outing!

 

 

ARL Lawyers Charitable Trust Scholarships

Each year, ARL Lawyers present scholarships for Academic Excellence to Hutt Valley High School, Wainuiomata High School and Naenae College.

The scholarships are funded by the ARL Lawyers Charitable Trust which supports health and educational, for children in the Hutt Valley.

The 2019 ARL Lawyers Charitable Trust scholarship winners are Te-Heke Rurehe from Wainuiomata High School and Sarah Gullery from Hutt Valley High School who both plan to study Architecture, along with Pi U Thang Langle from Naenae College who plans to study Commerce. All three students will use their scholarships to study at Victoria University. Congratulations to the winners!

Left to right: Paul Logan (Partner) Te-Heke Rurehe (Wainuiomata High School), Pi U Thang Langle (Naenae College), Sarah Gullery (Hutt Valley High School), and Ben Sheehan (Partner).

 

ARL supports Child Cancer

 

ARL Lawyers recently attended the Bevvies and Bid Charity Auction for Child Cancer. To support all the wonderful work they do, they purchased a painting by artist  Stephanie Hayes – age 12. Stephanie was wearing several strands of beads around her neck – an acknowledgement of her cancer journey, but she also wore a huge smile when ARL bought her painting.

 

 

Free Seminar – The good, the bad, and the ugly of retirement villages.

Thinking of going into a retirement village but want to know more? Confused about what an occupation licence is and what it means?

ARL Lawyers are running a free seminar. Experienced in dealing with all villages in the Wellington region including Ryman Group (Shona McFarlane), Summerset Group, Aroha Care Centre, Masonic Village, Met Life Group – and the list goes on, ARL Lawyers can answer all your questions about buying an occupation licence.

If you or a family member are thinking about retirement village living, come to our free seminar.

When: Tuesday 24 March 1.30 pm – 3.00 pm (afternoon tea will be served)
Where: ARL Office 19 Cornwall Street, Lower Hutt
RSVP:  Essential – spaces fill up quickly. Please phone 5666 777 or email office@arl-lawyers.co.nz


 

Overview of the Residential Tenancies Amendment Act 2019

The Residential Tenancies Amendment Act 2019 (“RTAA”) addresses key issues that have implications for both landlord and tenant, including:

  • Tenant’s liability for damage
  • Insurance statements
  • Contamination of premises
  • Unlawful residential premises

Tenant’s liability for damage:

The RTAA provides that if tenants or their guests damage a rental property due to their careless behaviour, the tenant will have to pay for the cost of the damage up to a maximum of four weeks’ rent or the landlord’s insurance excess (whichever is the lower).

This amendment aims to encourage tenants to look after the property they are renting while ensuring they are not responsible for unreasonable repair costs. On the other hand, it also ensures that landlords are not burdened with the entire repair cost as a result of their tenant’s damage to the premises.

Despite this, tenants are still fully responsible for the cost of intentional damage to the property.

Insurance statements:

Landlords must provide a copy of their insurance details to the tenant, including whether the property is insured, and if so, what the excess is. With an existing tenancy (pre 27 August 2019), the tenant can request this information from the landlord. If the landlord does not provide the information or inform any tenants of changes to insurance details, the landlord may be fined up to $500.

Contamination of premises:

Landlords can test for methamphetamine contamination, while the rented premises are occupied, by giving tenants at least 48 hours’ notice.

Landlords must notify their tenant that they are testing for methamphetamine and the tenant has the right to see the test results.

Recently there have been discussions regarding methamphetamine testing and what the acceptable standard of contamination (if any) is. The RTAA allows for regulations (which are yet to be introduced) for determining the process for testing, the acceptable contamination level, and the decontamination process. Landlords will not be able to rent premises that they know are contaminated at an unacceptable level.

Unlawful residential premises:

Under the RTAA, the definition of ‘residential premises’ is amended so that even if a premises cannot be legally lived in (such as a garage or an industrial building) but is lived in or intended to be lived in, they will still fall within the definition of a ‘residential premises’ and accordingly be captured under the RTAA. This means it will fall within the jurisdiction of the Tenancy Tribunal. The Tenancy Tribunal can enforce the RTAA against landlords who breach the RTAA regardless of whether the premises are suitable for living in or not.

This change ensures that landlords are providing premises that meet all requirements relating to buildings and health and safety.

If a landlord provides an unlawful residential premise to their tenant, the landlord may be liable to pay back all or some of the rent to the tenant, the tenancy may be terminated, the landlord may be liable to the tenant for damages, or any other order the Tenancy Tribunal may determine.

For advice or assistance, please contact Rebecca Dickie or Ian Avison.

 

How do you enforce land covenants when a neighbour is in breach?

Land covenants place rights and obligations on the land or property you own. It is an instrument that is registered on a Record of Title, which creates a legal obligation to do, or not to do, something about the land or property.

Such restrictions can relate to anything from the colour of your house or what you use the property for – to where you put your rubbish or park your vehicle. These restrictions are commonly found in new suburban subdivisions to maintain the quality of the neighbourhood.

If you, or your neighbour, breach one of the covenants, steps can be taken to enforce and rectify the breach. Processes to enforce a breach will largely depend on what is written in each individual covenant instrument.

In recent times it has become more common to put a time limit on covenants. In some cases, covenants are no longer enforceable as the current law no longer supports them.

Common practice is to give written notice to your neighbour specifying the breach, the work to be undertaken, whether you believe contractors or other workers need to enter the land to remedy the breach, and the consequences that will follow should the notice not be adhered to.

Under section 310 of the Property Law Act 2007, your neighbour will have 15 working days to respond to your notice. If they do not respond in this timeframe, then it can be treated as them agreeing with what was written.

You can then take action to rectify the breach and pass all reasonable costs on to your neighbour. However, your neighbour is entitled to respond with a cross-notice if they believe there has been no breach, or they are not liable.

You must not take action to remedy the breach before the 15 working day timeframe has expired, or if a dispute arises between you. Should you choose to take action anyway, your neighbour will not be liable to contribute to the costs.

Should you be unable to resolve a dispute, an application can be made to the court for resolution. The court can make an order on:

  • The existence/enforceability of the covenant
  • Whether any work is required and if so, the nature and extent of any required work
  • The reasonable and proper cost of any required work
  • Who shall pay the cost of any required work
  • The time any required work is to be undertaken
  • The entry onto any land for the purpose of doing any required work
  • Any other matters arising
  • Any order a court makes is binding on all parties

If you are purchasing a property with land covenants it is important you understand the implications of this before completing the purchase. If you own land subject to covenants it is important you know what these are and your avenues for enforcing any breach.

For further assistance, please contact Luke Havler or Jason Taylor.


What is a Calderbank offer and when it should be used? 

A Calderbank offer, otherwise known as a “Without Prejudice Save as to Costs” offer, is a tactic that can be used to settle a dispute for a lower amount and avoid going to a court trial.

This tactic is named after a case from 1975 in the English Court of Appeal, between Mr and Mrs Calderbank.

A Calderbank offer is an offer made by one party to the other side of a dispute. It puts the other side on notice that if the dispute goes before a court, and the outcome is less favourable to the other side than the Calderbank offer being made to them, the party making the offer is entitled to more of their costs of the trial process being recovered, as the court may take into account the offer when they decide on the costs awarded.

It was decided in the 1975 Calderbank v Calderbank case that the offer, made by Mrs Calderbank before the dispute proceeded to the courts, showed she had a willingness to settle the dispute. If Mr Calderbank had accepted the offer that was made to him before trial, then he would have been in a better position as the judgment was less favourable to him than Mrs Calderbank’s offer, and neither party would have had to go through the court process. It was also held by the court that Mrs Calderbank was entitled to her costs as from the date that she made her willingness to settle known.

Either side to a dispute can make a Calderbank offer. If the defender of a dispute offers to settle out of court but for a lower amount than is being pursued, and the plaintiff rejects the offer, this Calderbank offer may be considered by the Judge when costs are being awarded. The plaintiff may be successful in their claim against the defendant in court, but for a lower amount than what the defendant offered them to settle out of court in their Calderbank offer. In this situation, the Judge can reduce the costs that are payable by the defendant to the plaintiff, leaving the plaintiff with an even lower amount in the end than first sought.

In the same dispute, it may be the plaintiff that makes a Calderbank offer to the defendant to accept to settle out of court for a lesser amount than they were originally claiming. If the defendant thinks they may get a better outcome at trial and refuses this offer, and the plaintiff is awarded a greater amount at trial than their Calderbank offer, the plaintiff may be able to seek increased costs from the defendant.

It is important to weigh up carefully whether to make or to reject a Calderbank offer. It is important to work out if you would want to make such an offer, and when you would make it, as costs are awarded from the date a Calderbank offer is refused. It is equally important to consider at what point you would want to refuse an offer, and similarly when you would be prepared to accept it and settle the matter without proceeding to court.

For further assistance, please contact Joshua Pietras.

 

In Brief

Statutory entitlement for sick leave

We all get sick from time to time and New Zealand law, in the form of the Holidays Act 2003, recognises that an employee will be paid for some of those times.

As a rule, the minimum sick leave available is five days per year. Employees receive another five days sick leave for each twelve-month period following on from that. This entitlement should be enshrined in an employee’s agreement with their employer.

A prerequisite to using sick leave is that an employee must have been in the same job for a continuous period of six months. There are also a minimum number of hours each week that underpin the entitlement.

Sick leave is available if an employee is sick or injured, or when a spouse or partner who depends on the employee is sick or injured. The availability of ACC is relevant when injuries occur.

Longer sick leave periods can be negotiated with an employer. Any unclaimed leave can be carried over from year to year, but accumulation options are to be clarified on a case-by-case basis.

For further assistance, please contact Joshua Pietras.