We are delighted to welcome Heather Smith (LLB, BA) Solicitor, and Hayley Furneaux, legal executive, to our Property team.
Heather is a 2019 graduate and she says coming up with creative solutions that work with people and their circumstances is what she enjoyed about her legal studies. “I think that law has a massive impact on people, whether they are aware of it or not and it can seem frightening. I want to be in a position where I can use my knowledge and help others in difficult situations.”
We also have a new part-time staff member, Ted, who has had a bit of a ‘ruff’ time getting blamed for everything that goes wrong. However, Ted is settling in well and enjoying the occasional tummy rub!
The partners at ARL Lawyers would like to take this opportunity to thank you all for your business this year. We wish you all a safe and happy festive season and look forward to working with you again in 2020.
Purchasing a property at auction – what you need to know
When purchasing a property, there are generally two ways you can achieve this.
The first, the traditional offer method, is by offer and acceptance of a signed Agreement for Sale and Purchase between the vendor (seller) and the purchaser (buyer) of a property. The terms of the Agreement for Sale and Purchase can be negotiated between the parties, whether through a real estate agent or a private sale.
These types of agreements can contain terms known as special conditions, to enable the purchaser enough time to complete their due diligence on the property. This might include (but is not limited to) confirmation of finance being approved and obtaining Land Information Memorandum (LIM) reports to check for building consents, code of compliance certificates, location of services such as stormwater and wastewater running through the property, and any intended works by the council or government agencies, such as road construction.
Additional reports may be required such as building and methamphetamine contamination reports and anything else the purchaser may need to satisfy themselves that the property is suitable for their needs. This traditional offer method gives the purchaser the ability to terminate the agreement should they genuinely not be able to confirm their special conditions of sale.
The second method is purchasing by way of auction. For any purchaser using this method, which can be riskier than the traditional method, it is highly recommended that you complete your due diligence of the property being purchased before attending the auction. The consequences of not completing your due diligence could result in the property being purchased with hidden issues, such as weather-tightness or not having had a code of compliance certificate issued for works completed from 1993 onwards. This may invalidate your insurance or prevent your bank from lending you mortgage funds.
The due diligence mentioned under the traditional offer option must also be carried out when the sale is by auction. The only difference is timing. Under the first traditional method, the purchaser has the luxury of having a signed agreement to work with. However, with the auction method, the purchaser must complete their due diligence for the property, including approved finance, before the auction. This is because when the hammer falls in your favour you are bound to purchase the property from that time.
The important steps to be aware of when purchasing by auction include the following:
- Register your interest with the real estate company before the auction.
- Have your conveyancer or solicitor review the auction terms and conditions to the Agreement for Sale and Purchase before the auction.
- Ensure the vendor warranties, which give the purchaser protection in some circumstances, have not been deleted from the auction terms.
- Be prepared to have your deposit amount available at the fall of the hammer. If you are the winning purchaser your deposit is payable immediately.
- The reserve price the vendor has disclosed to the agent will not be known to the general public. Researching the value of the property before you attend the auction will ensure you are not overpaying for it or entering a bidding war and going over your pre-approved finance limit.
- Once you have purchased at auction you are committed to completing the purchase. There is no going back without a great legal battle, and you may forfeit the deposit you have paid.
- If the property fails to sell at auction, you may then be invited to enter into negotiations with the vendor to discuss price, the settlement date and any special conditions of sale.
It is recommended that you consult a legal professional before signing an Agreement for Sale and Purchase, whether it is by the traditional method or by way of auction, to ensure your rights as a purchaser are protected.
Types of trusts and their benefits
There are many types of trusts that can be tailored to achieve a specific purpose. The general purpose of a trust is to protect your assets and provide for desired succession planning for future generations. A trust is created by a trust deed where a person (the settlor) transfers property to the trustees of the trust. The trustees control the property per the trust deed for the benefit of the beneficiaries (which can include the settlor).
This article focuses on four types of trusts that are commonly used in New Zealand. These include family trusts, inheritance trusts, business trusts and charitable trusts.
A family trust is generally set up by a couple that has combined assets such as a family home, investments, etc. for the benefit of the next generation. This type of trust can provide income and capital benefits to its beneficiaries who can be (including but not limited to) the settlor(s) themselves, their children, grandchildren, parents or other trusts. The benefits of a family trust are:
- To assist in protecting the family or the family business from potential relationship property claims or someone contesting a will
- Ensuring assets are retained for family members who may need rest home care
- To manage assets of someone who may not be able to manage their affairs
- Maintaining separation between business and personal assets
- Maximising tax efficiency for the beneficiaries
An inheritance trust is generally created by parents for their children. It not only benefits children when their parents pass away but also during their parents’ lifetime. The benefits of an inheritance trust are:
- allowing parents to ensure that their children’s inheritance is protected from future relationships, business partners or creditors; and
- protecting separate property from relationship funds if you are expecting to inherit significant assets.
A business trust generally holds assets that are separate from family and personal assets to protect you from a business failure or major loss. It also protects your personal or family assets from potential creditors. A common scenario is to have your business trust own shares in your private company, which allows dividends to flow through the business trust and to the beneficiaries. A business trust provides for succession planning if a business partner dies or becomes incapacitated. It may result in tax advantages.
A charitable trust, as the name implies, is a formal arrangement set up for a charitable purpose. This can relate to relieving poverty, advancing education, religion or any other matter that benefits the community. The benefit of a charitable trust is that as a donor, you can provide long-lasting contributions that continue after your lifetime. Furthermore, registering a charitable trust with the Charities Commission can provide tax advantages.
Whether a trust is suitable for your needs is best determined by a lawyer. This is an overview of the more general points about the common trust structures. Each case is different as it depends on the purpose of the trust. It is advisable to discuss your overall asset planning goals, financial and relationship situations with your lawyer who can also liaise with your accountant (if applicable) to determine the best course of action for you.
Stalking and Harassment – Do I need a restraining order?
If you are being harassed by a stranger or someone else within the community, you can take action against them by applying to the District Court for a restraining order. In more serious cases, you can even go to the Police.
‘Harassment’ covers a broad range of behaviours including stalking, abusive messages, threatening behaviour, and unwarranted complaints. The Harassment Act 1997 recognises that behaviour that might seem harmless or trivial on its own but may amount to harassment when seen in context.
When you apply for a restraining order, you must first show that the behaviour amounts to harassment as defined by the Act and second, that the harassment meets the legal test for obtaining a restraining order.
Importantly, if you are or have been in a domestic relationship with your harasser, you will need to apply to the Family Court for a Protection Order. This is a separate process under the Family Violence Act 2018 and beyond the scope of this article.
When can a restraining order be made?
Before the Court can grant a restraining order, the Judge will need to be satisfied with five things:
- The behaviour amounts to harassment, which means the pattern of behaviour described by the Harassment Act
- The behaviour is causing you distress (or is threatening to do so)
- The behaviour would cause distress to a reasonable person in your circumstances
- The distress is serious enough to justify the making of a restraining order
- The order is necessary to protect you from future acts of harassment
What does a restraining order do exactly?
A restraining order makes it a criminal offence for the harasser to contact you in any way, or do things such as watching or following you or doing anything else that would make you fear for your safety.
If the harasser does one of these things, then he or she can be charged with breach of a restraining order. The maximum penalty for a first or second breach is six months’ imprisonment. For a third or subsequent breach, the maximum penalty increases to two years’ imprisonment.
The Harassment Act is not particularly user-friendly or easy to follow for someone unfamiliar with Court procedure.
The process of applying for a restraining order is fairly involved and requires a written application and supporting affidavit, along with written submissions on the law. The application will always be heard in front of the Judge. This can be quite a daunting experience if you have never been to Court before.
If you are contemplating applying for a restraining order (or need to defend an application for a restraining order), please contact Joshua Pietras.
To read the full-length article, please click on the following link: https://www.arl-lawyers.co.nz/news/
The role of the executor
When a member of the family or a close friend asks you to be the executor of his or her will, you should seek legal advice before you say yes. Before accepting the responsibility for this important role, it is important to understand what it entails.
Often the words ‘executor and trustee’ of the will are included together. The roles are often combined these days, with the trustee aspect relating to any testamentary trust set up under the will. For example, if a child under 20 receives a distribution under a will, he or she must wait until the specified age before receipt of such distribution. In the meantime, the executor oversees both the investment of those funds and how access may be affected based on the terms of the will.
The executor works closely with the lawyer for the estate of the deceased to co-ordinate all aspects of the wishes as set out in the will. These jobs include: organising and accepting responsibility for the funeral, obtaining Probate (which is a court document confirming to the world at large that the executor stands in the shoes of the deceased), the distribution of chattels and cars, the itemising of all assets and liabilities of the estate, the investigation of any issue that arises as a result of that itemising, the transfer and distribution of all property and cash and other investments once known, together with the closing off of all matters ending with a final tax return for the estate.
Your lawyer can help every step of the way.