Newsletter Winter 2019 2019-06-07T12:16:55+00:00

ARL News

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 6 August 2019 1.30 pm – 3.00pm
Where: ARL Office 19 Cornwall Street, Lower Hutt
RSVP: by 2 August 2019. Ph: ARL on 5666 777 or email office@arl-lawyers.co.nz

Places limited to 25 participants, so be in quick.

 

ARL Welcome Paula Campbell – Associate

The Partners of ARL Lawyers are excited to announce that Paula Campbell has joined us as an Associate in our Property Team.

Paula has many years’ experience in conveyancing. She brings a fund of knowledge and know-how in the sale and purchase of property. Her expertise will add value to your property experience. We know you will enjoy dealing with her.

You can contact Paula on phone (+64 4) 650 2160 or email paula.campbell@arl-lawyers.co.nz

 

Rental property standards

The Residential Tenancies Act 1986 requires landlords to provide and maintain rental properties in a reasonable state of repair for the tenants. When deciding what is a ‘reasonable state of repair’, you must consider the age and character of the property and how long it’s likely to remain habitable and available to be lived in. It should also be noted that the Act requires landlords to provide properties in a reasonable state of cleanliness for the tenants – although it does not directly regulate the standard of rental properties. However, it does reinforce that landlords ‘comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises.’

The Housing Improvement Regulations 1947 creates the minimum requirements that must be met when it comes to housing standards, and it is local authorities and councils that are responsible for the enforcement of these regulations within their districts. The premises must comply with each of these requirements unless the dwelling complied with what would be considered an equivalent requirement of the Building Code at the time the dwelling was built. The purpose of the Housing Improvement Regulations is to ensure that properties are warm, dry, safe and sanitary for the tenants occupying the dwelling. The regulations that are found under the Housing Improvement Regulations 1947 are: room size, function and safety, light, ventilation, drainage and dampness, overcrowding, sewerage and sanitation, and heating.

It should also be noted that each dwelling, alteration, and additional ancillary building should have building consent and code of compliance if the dwelling or alterations were made post 1993. If they were made prior to 1993 then it was common for the dwelling to only have a building permit.

Earlier this year new housing standards came into effect. These standards require that all rentals have heaters that can warm the main living rooms up to 18 degrees celsius. Each home must also have underfloor and ceiling insulation that meet the 2008 Building Code standards, while existing ceiling insulation must have a minimum thickness of 120mm.

Private landlords will need to ensure their rental properties comply with the standards within 90 days of any new tenancy commencement date from mid-2021, while Housing New Zealand and registered Community Housing Providers will have until July 2023 to comply with the new standard of housing requirements. If the dwelling does not comply with the above Act and the Housing Improvement Regulations 1947, it should be noted that a tenant can apply to the Tenancy Tribunal for a work order or other type of order if a landlord will not meet their responsibilities for providing a safe and healthy home.

Where the rental property cannot lawfully be used for residential purposes, a tenant may apply to the Tenancy Tribunal for rent to be repaid  because the landlord has received rent that is not lawfully recoverable under the Act. Rentals that cannot be lawfully used for residential purposes could include illegally converted garages, unconsented dwellings and commercial properties used for residential use.

If you have any questions or concerns regarding whether or not the dwelling you are renting meets the required standards and regulations, please contact Jason Taylor, Luke Havler or Paula Campbell.

The importance of Wills and Enduring Powers of Attorney

Having enduring powers of attorney (EPAs) and a Will in place is important for every adult whatever their age. A Will is a legal document that lets you decide how you want your property, care for your dependants (partner, children etc.) and your body to be dealt with after you die. EPAs allow you to appoint a trusted person(s) to make decisions on your behalf regarding your property and health when you are unable to do so yourself, during your lifetime.

Will

A well drafted Will can reduce emotional and financial strain for your loved ones after you pass away. It also reduces the likelihood of family members arguing over your estate and challenging your Will. Accordingly, we suggest seeking legal advice when creating a Will to ensure your intentions are accurately recorded with no room for ambiguity. If your circumstances or wishes change, you can redraft your entire Will or create a codicil, which is a separate binding document read together with your Will.

Regardless of how much property you have, you should have a Will. For example, you may have jewelry that you would like to give to a specific family member due to its sentimental value rather than monetary value.

Dying without a Will is known as dying ‘intestate’. This means that the Administration Act 1969 determines how your property is distributed (provided that the value of your estate is above $15,000), which may not align with your wishes and may result in disputes over your estate. Generally, the property is distributed to a surviving spouse and family members in specified proportions. This process can be more time consuming, costly and complicated than having a valid Will.

EPAs – Enduring Powers of Attorney

There are two types of EPAs. One in relation to your property (including but not limited to any houses, vehicles, bank accounts, investments and household effects) and one in relation to your personal care and welfare. Under an EPA you appoint an attorney to ‘step into your shoes’ and make decisions on your behalf that are in your best interests.

Having an EPA in place for property allows your attorney to make decisions regarding your property, for example, if you are out the country. An EPA for personal care and welfare allows your attorney to ensure you and your property are looked after if you become mentally incapacitated.

Mental incapacity does not always arise due to old age. It can be caused by a car crash or other accident or medical event, and we therefore recommend you have EPAs in place as soon as you turn 18. Your partner or spouse may be able to manage any jointly owned assets, but they cannot sign on your behalf if you are mentally incapable. If an incident like a car crash or stroke does happen and you do not have EPAs in place, your loved ones have to apply to the Family Court to make decisions on your behalf. This is a lengthy and costly process that may not align with your wishes and is easily avoidable by creating EPAs.

It is also important to review your Will and EPAs if your circumstances change e.g. if you start a new relationship, end a relationship, get married or have children.

For assistance making a will or putting in place Enduring Powers of Attorney, please contact Paul Logan or Grace Cummings.

Under what circumstances should you form a Trust

There are a number of circumstances under which you should consider forming a trust. Some of the common purposes of a trust, and the structures utilised, will be discussed in this article.

A trust is managed by trustees who are appointed by the creator of the trust (called the settlor(s)). Trustees manage the assets and debts of the trust for the beneficiaries specified by the settlor(s).

There are several different types of trust structures that can be used. Your circumstances will determine which structure is most appropriate for you. Some types of trusts include:

  • Single/Umbrella Trust – all assets are transferred to one trust
  • Parallel/Mirror Trust – each settlor (for example a husband and wife or de facto partners) transfers assets to separate trusts for which they each hold governing powers
  • Fixed Purpose Trust – provides for a specific purpose, such as the welfare of a child with special needs, for education, or for charitable purposes

Given that a trust may continue after your death (up to a maximum of 80 years), it is often seen as having certain advantages over holding only Wills to deal with your assets and debts.

One purpose of a trust can be to provide for future generations. You may have a family that you wish to provide for into the future and following your death. A trust allows you to ensure any children, grandchildren or any other person you so wish, can be provided with some benefit from the assets transferred to the trust on the basis, for example, of reaching a certain age, or attending a certain academic institute.
The distribution of assets held on trust may not be contested in the same way that gifts under a Will may be under the Family Protection Act 1955.

Another purpose of a trust can be to protect your assets from any liability you may have as a Director of a company, in providing a guarantee or security for the company. If you are considering forming or purchasing a company, then transferring your personal assets to a trust can guard them from any possible future problems with creditors.

It is important to keep in mind that your primary purpose for establishing a trust must not be to transfer assets in order to defeat creditors or spouse’s/partner’s claims, avoid asset or means testing or to avoid or reduce your tax liabilities. Certain legislation prevents this.
We also do not recommend that you rely solely on a Trust to protect your assets in the event of a relationship breakup. Your partner may still be able to prove they have an interest in the trust’s assets, depending on the circumstances of your relationship.

For advice on whether a trust may be suitable for your situation, please contact Paul Logan.

In Brief

KiwiSaver

KiwiSaver was initially created to help people save for their retirement, so the obvious answer for accessing your KiwiSaver funds is at age 65. But under the correct circumstances, funds can be accessed earlier.

There are 4 circumstances under which you can access your KiwiSaver early:

  1. Purchasing your first home
  2. Moving overseas permanently
  3. Significant financial hardship
  4. Serious illness

Remember that if you have received the $1,000 kickstart grant from the government, these funds are required to remain in your KiwiSaver until you reach retirement age.

For more information regarding the criteria which must be met to enable your KiwiSaver funds to be released early, visit www.KiwiSaver.govt.nz.