Laws around residential tenancies have undergone massive change in the past few years – and it’s not letting up any time soon.The Government has just released the highly-anticipated standards, which formed part of the Healthy Homes Guarantee Act 2017, and are designed to improve the overall quality of rental homes. The finer detail of the regulations is still being worked on, and, once that’s completed in the next few months, landlords and industry professionals will be provided tools and guidance.For starters, though, this is what the Healthy Homes Standards will look like:Heating – Rental homes must have fixed heating devices in living rooms, which can warm rooms to at least 18°C.Insulation – Rental homes must have ceiling and underfloor insulation which either meets the 2008 Building Code, or (for existing ceiling insulation) is at least 120mm thick.Ventilation – Rental homes must have the right size extractor fans in kitchens and bathrooms, and opening windows in the living room, dining room, kitchen and bedrooms.Moisture and drainage – Rental homes must have efficient drainage and guttering, downpipes and drains. If a rental home has an enclosed subfloor, it must have a ground moisture barrier, if it’s possible to install one.Draught-stopping – Rental homes must have no unnecessary gaps or holes in walls, ceilings, windows, floors, and doors that cause noticeable draughts. All unused chimneys and fireplaces must be blocked.So, if you’re a landlord, how long do you have to ensure your rental(s) is up to legal scratch?From July 1, 2021, private landlords’ rental properties must comply with the new Healthy Homes Standards within 90 days of any new tenancy, while Housing New Zealand and Registered Community Housing Providers have until 2023.All rental properties in New Zealand must meet the standards by July 1, 2024. For the latest information on the changes, check out the Ministry of Housing and Urban Development.Insulation countdown heating up.Another major change comes into effect as of July 1 this year: minimum insulation standards.Given the costs involved, and the numbers of rental homes needing upgraded insulation to be compliant, there has been a long lead-in time (the new requirements were passed into law in 2016 under the Residential Tenancies Act). However, latest Government stats indicate there are thousands upon thousands of rental properties that still need ceiling and underfloor insulation installed, where the space is accessible to do so.If you’re a landlord and have properties that don’t yet meet the minimum standard, our strong recommendation is to arrange your insulation installation right now – especially if you plan to use a professional installer. You don’t want to leave it any longer, and risk being delayed by the late run of landlords seeking their services. From what we’ve seen, the Ministry of Business, Innovation and Employment’s Tenancy, Compliance and Investigation Team will be straight to work come July 1, ensuring landlords’ properties are not running foul of the new laws. Those who do face coughing up exemplary damages to their tenants of up to $4000 per property.But, what impact do the latest Healthy Homes Standards, which also cover insulation, have?If you’re a landlord, and you’ve installed new installation since 2016, your property should meet the 2008 Building Code, as required – so, you’ll already be compliant once the new Healthy Homes Standards come in.However, there will be some landlords (whose properties had ceiling and underfloor insulation that was at least 70mm thick and in good condition) who didn’t need to take action under the 2016 law changes, but will under these newly-released standards. These will require all rentals to have insulation in line with the 2008 Building Code, or that is at least 120mm thick.But wait … there’s moreIf you missed it in the hectic lead-up to Christmas, letting fees were abolished in December. Word on the street – and on online forums – suggest, in some cases, these are being passed onto landlords as a one-off fee, or as an ongoing “administration” fee, and that these are being reflected in higher rents for tenants.There is a raft of further changes in the wind, the details of which are currently being teased out in Parliament.Firstly, the Residential Tenancies Amendment Bill (No 2) had its second reading in Parliament in November, but is generally supported by all parties. It, essentially, centres on three changes around rental properties that are unlawful for residential use, contamination of residential properties and clarifying tenant liability for damage.The Bill allows a tenant to terminate their tenancy by giving not less than two days’ notice, and also allows the Tenancy Tribunal to take action if it’s determined that a rental premise is unlawful for residential purposes. The tribunal would look at the particular circumstances of each case, but could make orders requiring the landlord to pay the tenant a full or partial rent refund, require work to be done to comply with legislation within a specified timeframe, award damages, or terminate the tenancy, among other things.If the proposals are adopted, landlords will be allowed to enter properties on short notice to test for contaminants, such as meth, and take samples for analysis. (Short notice is 48 hours for non-boarding houses, but landlords must tell tenants what they are testing for and share the results within seven days of receiving them.)Where a property is found to be contaminated, consequences could include the termination of a tenancy where the property is uninhabitable. The Bill also makes provision for regulations, including the likes of maximum acceptable level of contaminants, the way testing is to be carried out and the decontamination process.The third aspect of the Bill is aimed at clarifying tenant liability for careless damage, and to require landlords to provide their insurance information to tenants. The Bill outlines that, if tenants damage a rental property due to careless behaviour, they are liable for the cost of repairs up to four weeks’ rent or the insurance excess – whichever is lower. A tenant will still be fully liable for the whole cost of damage if the:damage was intentionally caused by the tenant (or tenant's guest)damage was the result of an act or omission by the tenant (or tenant's guest) which constitutes an imprisonable offence, orinsurance money is irrecoverable because of the tenant's (or tenant's guest's) act or omissionTaxing times may be aheadA tax Bill, which has ramifications for landlords, is at the select committee stage. It proposes loss ring-fencing rules, which, basically, mean that landlords with residential properties will no longer be able to offset tax losses from those properties against their other income (for example, salary or wages, or business income), to reduce their tax liability. Under the Bill’s proposals, the losses could be used in future years, when the properties are making profits, or if the person is taxed on the sale of land only. IRD has proposed that these new rules apply from the start of the 2019-20 income year.Two further legislative reviews could bring further, significant change.The Residential Tenancy Act is set for a major overhaul, with Parliament currently considering:providing security of tenure for tenantsremoving the 90-day no cause noticehow a landlord can sell their rental propertyallowing tenants to modify their rentalpotentially making it compulsory to allow petsConsultation closed in October, and we now await what changes the Government intends to pursue. Watch this space.There is clearly much to keep up with currently, but landlords simply cannot afford to fall behind or fail to factor in the financial impact of the reforms. Change almost inevitably comes at a cost – but so does non-compliance, and increasingly so with residential tenancies.Feedback, comments and questions are always welcomed – please feel free to e-mail me on [email protected].

What can be done?For wills to be valid they must comply with a number of legal formalities; they must be in writing and there must be two witnesses who must attest to the will-maker signing the will in their presence.However, some people create their own wills that do not comply with these formalities and these wills could be invalid. Sometimes people will express what they want to happen to their property after their death in an electronic document, such as a text message.Since 2007 the High Court has had power to validate these documents so that they have the effect of being a valid will, even though they do not comply with the legal requirements of the Wills Act 2007.When a person dies, you will usually find their will and contact their lawyer. Usually their will is perfectly in order, but sometimes it’s found that the will isn’t legally compliant. What can be done?Two-step processThere is a two-step process when it comes to validating non-compliant wills. Firstly, there must be a document in existence which appears to be a will but does not comply with the formal requirements. Secondly, if there is such a document in existence, the court will then consider whether the document expresses that person’s ‘testamentary intentions’, or what they wanted to happen to their property after they die.A number of ‘documents’ have been validated as wills. Electronically stored documents can meet the requirement that a ‘document’ be in existence. In a 2014 case [1], a draft will stored on a computer was validated. An email expressing what was to happen to a person’s property after their death was validated as a will in a 2015 case [2].While New Zealand courts have not yet validated a text message as a final will, the Queensland Supreme Court [3] has validated an unsent draft text message as a final will.As a will must be ‘a document’ to be validated, oral instructions for a will cannot be validated by the High Court. However, if a person’s wishes have been recorded in writing then a document would exist which could be validated. In a 2012 case [4], instructions were given over the phone to a lawyer. The lawyer took notes, but did not prepare the draft will before the person died. The lawyer’s notes were validated as the deceased’s final will.In a case this year [5], an audio recording of the deceased’s will instructions did not qualify as a ‘document’, however, the written notes taken of his oral instructions were a document which the court could, and did, validate. The court also said that in the modern world, with “widespread use of smartphones and other personal devices”, it is increasingly likely that people having important conversations will record their oral instructions. It was suggested that while a recording itself might not qualify as a ‘document’ which could be validated as a will, a transcript of such a recording might be validated.Validating a will can be expensiveWhile going to court to get a non-compliant will validated can be expensive and time-consuming, informal documents which express a deceased person’s wishes can be validated to dispose of their property after their death in the manner that they wanted.It is highly likely that in future, an increasing number of electronic documents such as, for example, Facebook posts, might be validated as wills.Even though the High Court can validate imperfect wills, we would recommend that you ensure your will is correctly drawn up and that you sign it in front of two witnesses. This will help save not only time and money, but also make life much easier for the family you have left behind.© NZ LAW Limited, 2019. Aspiring Law is proud to be a member of NZ LAW Limited, an association of 55 law practices working together to proactively share ideas and expertise for the benefit of our clients.[1] Blackwell v Hollings [2014] NZHC 667[2] Pinker v Pinker [2015] NZHC 660[3] Nichol v Nichol [2017] QSC 220[4] Re Estate of Feron [2012] NZHC 44[5] Pfaender v Gregory [2018] NZHC 161

When your employee becomes ill, or has an injury, with long-term effects, it takes not only a toll on them of course, but also on you as their employer as there is sometimes quite a disruption to your business. How long must you wait for your employee to return to work? Answering this question is not straightforward. Every situation will have its own unique circumstances that will influence timeframes around your staff member returning to work. If your staff member is unlikely to return within what you consider to be a reasonable time, or is taking long periods of leave for similar reasons, you may be considering terminating their employment. Before making this decision, it’s essential that you undertake a fair and reasonable enquiry – both from a legal standpoint and also to simply be a fair and reasonable employer.The first step in this enquiry process is to write to your staff member:Explaining your reasons for the enquiryExplaining the possible outcomes, such as reduced duties or terminationAsking for relevant medical informationOffering an independent assessment by another medical professional, and Providing an opportunity for your employee to respondOnce you have the above information, you should liaise with your employee to establish whether they can return to work full-time or on reduced, light or alternative duties. If, after hearing their response, you believe there is no suitable alternative to termination, you need to provide appropriate termination notice to them.Your employment agreements should address the entire process from the first sick day to the notice of termination. If they don’t, or if you are unsure, we recommend you talk with us before making any move to talk with your employee.Please remember, this information is designed as a general guide, and should not replace specific legal advice on a particular issue.© NZ LAW Limited, 2019. Aspiring Law is proud to be a member of NZ LAW Limited, an association of 55 law practices working together to proactively share ideas and expertise for the benefit of our clients.

While most people are aware they need a Will, and might have given clear directions as to how they wish their business duties to be dealt with after they pass, many don’t give a second thought to how their business would fare if they were suddenly mentally incapacitated.It’s a common, although mistaken, assumption that where a business person has, in their personal capacity, an Enduring Power of Attorney (EPOA) in place for Property, that would allow their nominated personal representative to take over their business affairs as well. But it isn’t quite so simple.While an EPOA does, in fact, continue after you lose capacity, it only gives your delegate power over your personal property – not trusts, businesses or companies, which are considered separate legal entities.An ordinary Power of Attorney (POA) or Deed of Delegation would be the typical way a businessperson would give signing authority to a delegate if they were out of the country or temporarily unable to sign for the entity in question. However, this ceases to have effect if the person giving the authority loses mental capacity.However, if the incapacitated person is a director of a company, the company itself, as a distinct legal entity, can grant a POA in order to elect a new director or to appoint someone to vote on a specific matter. This is a good solution to cover a sole director-shareholder situation – but does involve some forethought and planning.It is also worth noting that shareholder consent is often required to appoint a new director of a company. So, if an incapacitated person is a majority shareholder, then their Attorney for Property appointed via an Enduring Power of Attorney may be able to step in.If nothing at all has been put in place by the person who has lost capacity (no EPOAs, no POA, no Deed of Delegation, or no allowance in the company constitution to appoint a POA), then an application to the Court to appoint a Property Manager (like the Public Trust), can be made.While there is no silver bullet – especially for businesses that don’t fit in to any of the above categories – businesspeople cannot afford to procrastinate on this one: right now is the best time to assess what you have in place to keep your business functioning should you lose capacity, and bolster it, where needed. Be sure to check your company constitution to ensure it allows for the appointment of a POA if desired; confirm that you have an EPOA for property in place appointing someone who understands your business; and, have a discussion with other people involved in your business to set up a contingency plan and make your wishes known to them, if they ever need to act. Run your plans by your legal adviser to check you have the right bases covered as best as you can – and then enjoy the peace of mind that comes from knowing, in getting your affairs sorted, you’ve done the best by yourself, your loved ones, and any staff and business associates you have responsibilities to, should you be incapacitated.Feedback, comments and questions are always welcomed – please feel free to e-mail me on [email protected]: 03 443 0900W: www.aspiringlaw.co.nzDanielle Ward is a Solicitor at Aspiring Law, and specialises in Elder Law and Life Planning, including Wills, Trusts and Enduring Powers of Attorney.Please remember, this information is designed as a general guide, and should not replace specific legal advice on a particular issue.

Invercargill City Council’s decision early last year to abruptly close the Southland Museum and Art Gallery shone the spotlight back on earthquake strengthening, and serves as a reminder to all owners and occupiers of commercial buildings of the new laws now at play.Comprising several buildings built between 1940 and 1988, the complex had its doors suddenly shut in mid-April, following safety concerns raised by a 2013 seismic assessment, concerns which were subsequently reiterated in a peer review.Experts assessed the museum and art gallery as achieving only 30 percent of the new building standards (NBS), rather than the 34 per cent or more which is now required for a building to be considered safe enough to remain open for use.The decision resulted in protests, with one architect maintaining that the assessment was flawed, and that the museum actually achieves 50 percent of “NBS”, rather than 30 percent.This controversy comes in spite of the Building (Earthquake Prone Buildings) Amendment Act 2016, which came into effect last July. It was designed to ensure the way earthquake-prone buildings (EPBs) are identified and managed under the Building Act is consistent across New Zealand.More recently, and closer to home, Cromwell Memorial Hall was also identified as at-risk, with a seismic assessment reportedly finding it was 10-15 percent of the NBS, but has kept its doors open for now. The Luggate Memorial Hall was also closed by the Queenstown Lakes District Council in August 2017 when it was estimated as meeting 15 percent of the NBS.The Amendment Act categorises New Zealand into three seismic risk areas (high, medium and low), and sets time frames for identifying and taking action to strengthen or remove earthquake-prone buildings.It also provides more information for people using buildings, such as nationally-consistent EPB notices, with ratings for at-risk buildings recorded in a public earthquake-prone buildings register.The new system requires:·      Councils to identify potentially earthquake-prone buildings·      Councils to decide whether buildings are earthquake prone, assign ratings, issue notices and publish information about the buildings on the public register·      Owners, who are notified by the council, to obtain engineering assessments of the building, carried out by suitably-qualified engineers·      Owners to display notices on any sub-standard buildings, and to remediate it so that it meets the required minimum standardsIf a building is classified as a “priority building”, due to its construction, type or location, it must be remediated in half of the time allowed for other buildings in the area.The Southland Museum case is a high-profile example of a council working through the process of assessing and dealing with an earthquake-prone building, and, undoubtedly, there will be plenty more cases to come.The Central Otago District Council is currently working on a policy for dealing with earthquake-prone buildings in its area.The Queenstown Lakes District Council recently announced it has identified 45 buildings as potentially earthquake prone. To ensure the list is accurate, QLDC will be sending letters to owners asking for evidence that their building has either been strengthened to at least 34 percent of the new building standard, or that it is outside the profiling categories, as set down by the Ministry of Business Innovation and Employment. Building owners will be asked to supply this evidence within six weeks.However, if proof isn’t forthcoming, the Council says owners will then receive a formal notice asking for either an Initial Seismic Assessment or a Detailed Seismic Assessment.The Council also plans to embark on a public consultation process in the New Year seeking feedback around the buildings and thoroughfares which have been categorised as priority or high risk. Details of the consultation process are expected soon.Many of our clients buy investment properties, or lease premises, in various parts of the country. If you are considering buying or occupying a building, there are several variables when it comes to considerations and risks, so give us a call first-up for some initial advice, and be sure to check out the Earthquake-prone building register (https://epbr.building.govt.nz/) to see whether the building you are dealing with already features.Feedback, comments and questions are always welcomed – please feel free to e-mail me on [email protected]: 03 443 0900W: www.aspiringlaw.co.nzMike Toepfer is a Director of Aspiring Law. Please remember, this information is designed as a general guide, and should not replace specific legal advice on a particular issue.

Some separated couples start divorce proceedings the very day they’re legally entitled to. Others wait years before bothering. And, then, there are those who go to their graves still legally hitched to someone they’ve been apart from for decades.What many don’t realise, however, is that timing – either moving too quickly, or leaving it too long – can be everything when it comes to dissolving a marriage or civil union, with potentially serious ramifications for the spouses or civil union partners, and their loved ones. And, remember, you can only remarry or enter into a new civil union once your divorce is finalised and the dissolution order has taken effect.Some people see divorcing as an important psychological step in “moving on”, and can’t wait to formalise the split – but, if you haven’t yet sorted out the relationship property, do not proceed with a divorce application until you’ve taken legal advice. Unless you’ve already formalised an agreement over assets, you have only 12 months after divorcing to file relationship property proceedings in court, although the timeframe can be extended in special circumstances.On the other hand, it tends to come as a huge shock when a loved one dies and those close to them discover, because the correct legal protections weren’t in place and the parties never divorced, an erstwhile husband or wife, or civil union partner, can lay claim to the deceased’s estate – even years and years after the split.How to divorceDepending on your circumstances – and whether the other party agrees – the path to divorce can vary.For starters, there are no “quickie” or fault divorces in New Zealand. The law dictates you must have been separated for two years or more before you can seek a dissolution order. There is a small allowance – during that period you can have lived together, but for no more than three months, if you were trying to work on reconciling. Any more than that, however, and the clock resets.Jurisdiction can sometimes be an issue. At least one of you needs to be “domiciled” in New Zealand before you can apply for a divorce here. (Explaining the legal intricacies of “domiciled” is worthy of an article all of its own – but, in brief, regardless of where you were born, if you have made New Zealand your home with an intention to live here permanently, then you are domiciled in New Zealand. The fact you got married in New Zealand is not, by itself, sufficient to allow you to get divorced here. At least one of you needs to be domiciled in New Zealand.)Be sure you have a copy of your marriage certificate. (Note – when you were married, you would have completed a “notice of particulars”. Most people think – and many have even tried to convince me – that this is their marriage certificate. It isn’t.) When you file your application, you need to either produce an extract of your original marriage certificate or a certified copy of it.To divorce, you must submit the requisite paperwork to your local Family Court together with the $211.50 fee. If you have children together, the court will also need to be satisfied that there are satisfactory arrangements in place for their day-to-day care and welfare.You’ll also need to complete this form, if both parties agree to divorce, or this form, if you’re making an application on your own.As well as attesting to when you separated on your dissolution application form, the court also requires verification of your date of separation. If you had a separation agreement, or a separation order was granted, either of these can be used. Otherwise, you will need to provide other evidence. Your affidavit is sufficient.If you and your former spouse or civil union partner are making a joint application to divorce, the Family Court Registrar will check the forms and make the dissolution order, a month after which the divorce takes effect. If you can’t wait, you can apply to appear in court together and a Judge can make the dissolution order, with the divorce taking effect immediately.Going it aloneMatters tend to be somewhat more complex if you are making an application by yourself (a single application.) Your ex can choose to defend the application. If that is the case, there are strict timeframes. If they are resident in New Zealand, then they have 21 days; if they live in Australia, it is 30 days, and, anywhere else in the world, they have 50 days.Things can sometimes get tricky with a single application. Once the application has been filed, the court will provide you with a set of documents that needs to be served on your spouse or civil union partner. The court does not serve these types of applications, but will provide instructions about what you need to do. You can’t serve them yourself, but they can be served by someone who knows your former spouse or partner and can identify them. Alternatively, a professional process server can be used. A complication that I regularly come across is if the other party lives overseas. Should this scenario apply to you, you’ll need to get permission from the court to serve the papers outside of New Zealand. That is pretty straight forward, but service can sometimes be challenging, especially if foreign languages are involved.The person who serves the papers needs to complete an affidavit of service, which documents how they served the papers and how they know that the correct person was actually served. That affidavit must be returned to the court, so that the Judge or Registrar can be satisfied the papers have, indeed, been served properly.If your application, however, is not opposed within the time limit, it goes to the Registrar to be checked. Your divorce takes effect one month after the dissolution order is made. If your application is opposed by your ex, a defended hearing will be held, during which a Family Court Judge will hear from both parties and decide whether or not to grant a dissolution order.When to seek helpYou do not need to use a lawyer to file an application, although many people do for a variety of reasons – particularly where there are challenges around the all-important serving of the divorce papers.Don’t forget, either, it’s so important you double check your position with your legal adviser if you plan to divorce before the relationship property agreement has been finalised. Similarly, talk to your lawyer if you have assets and haven’t yet formally divorced to check whether you need to put protections in place to prevent your ex laying an unwanted claim to your estate.Feedback, comments and questions are always welcomed – please feel free to e-mail me on [email protected]. T: 03 443 0900W: www.aspiringlaw.co.nzGillian Stuart is Aspiring Law’s Family Law specialist.Please remember, this information is designed as a general guide, and should not replace specific legal advice on a particular issue.

With record-breaking real estate prices in and around the Upper Clutha and wider Queenstown Lakes District, it’s not surprising so many property owners have swarmed to peer-to-peer accommodation platforms, like Airbnb, to reap the rewards.Such is its popularity, we’re increasingly seeing new house builds include a separate flat, exclusively for Airbnb letting. Many are finding it a great way to boost home loan payments.However, anyone considering taking the plunge needs to be aware that major changes – including extra costs and compliance measures – are in the wind, and you need to be going into any Airbnb – or other peer-to-peer accommodation – venture with eyes wide, wide open. Over and above the incoming changes, there are already rules and regulations by which you must abide. Just as with any other real estate venture, it is imperative you do thorough due diligence and take legal, accounting and insurance advice, because there are plenty of (largely avoidable) traps for the unwary.Ensure you properly insureOne of your first priorities when considering getting into the Airbnb game is making sure you fully understand the insurance requirements and have the right type of cover in place before hosting guests. Hosts can be lulled into a false sense of security by Airbnb’s Host Protection Insurance, which covers guest damage up to $US1 million. However, there are several exclusions; for example, if you allow guests to arrive earlier than the check-in date or stay later than the check-out date, the insurance cover will be invalidated.You should also be aware that Airbnb use could affect the house and contents insurance cover you already have in place. Typically, home owners have a “residential” policy in place, which covers occupation by owners or long-term tenants. However, Airbnb is a form of short-term accommodation, so commercial cover may be required (depending on your level of Airbnb use) meaning higher premiums are payable. If you make a claim under a residential policy but your insurer considers commercial cover should have been in place, there is a risk that your claim could be denied (even if it relates to damage caused by you) due to breach of contract. It's a good idea to also discuss liability protection (not just house and contents insurance) with your insurance provider. If a guest injures themselves or is killed during their stay, and you, as the owner, are found to have been negligent (a loose balcony balustrade, for example), a claim could be made against you under health and safety legislation, and you may be excluded from making a claim under the Host Protection Cover, depending on the circumstances.  Crunching the numbersWhile, for many, Airbnb started as a little sideline, nowadays it’s big business – but regardless of how much you’re making, it’s really important you run the numbers with your lawyer and accountant to ensure you’re complying with what you need to, and have properly structured your affairs.Do you need to register for GST? If your gross rental income exceeds $60,000 in any 12-month period, the answer will be yes. However, if the rental income is only slightly over $60,000, it may be more beneficial to scale back your Airbnb use to keep it under the cap. You also need to be mindful of any GST implications when it comes to selling the property. Be sure to consult your lawyer and accountant for advice before signing a sale contract so they can make sure the GST component of the purchase price has been recorded correctly. Otherwise you could end up with a hefty GST bill to pay, without having first recovered this in the sale price.You are also required to pay income tax on any rental generated from the property. You can, however, claim as a deduction any direct costs incurred in producing that income, including commission fees and cleaning costs, as well as a portion of rates, power and insurance premiums. However, this can become quite a complicated process so you should run your plans by your accountant to ensure you fully understand your tax obligations and that you are setting aside enough to cover payments.Warning for landlordsAs an aside, if you’re a landlord and are letting a property on a long-term basis, you should take formal steps to prevent the tenants from sub-letting the property for Airbnb purposes. Our strong advice is to include a specific clause in the rental agreement preventing the tenants from using the property for short-term accommodation purposes (including Airbnb). Of the many risks involved here, your tenants using the property for Airbnb without your knowledge or consent could land you in breach of your obligations to your insurer, the bank and the local council.Bodies corporateIf you’re keen to let under Airbnb, is your property a unit that forms part of a body corporate? If so, you’ll need to check the body corporate rules to ensure short-term accommodation use is permitted and, if so, whether there are any rules regarding parking or noise.Be up front with your bankIf you have bank finance in place – or plan to take out a loan to purchase a property to be used for Airbnb – the bank should know that you intend to use (or are using) the property for peer-to-peer accommodation. Why is this so important? Lenders often treat short-term accommodation use differently to long-term use (tenants who rent the property for more than three months at a time). Also, when making the numbers stack up to get finance in the first place, the bank may not consider the future Airbnb revenue as part of your income when calculating whether you can service the loan, unless there is a proven history that the revenue can be achieved.And, don’t forget, the fine print of your loan documents may record that you agree to comply with all legislation and the local council’s District Plan rules. If you haven’t registered as a homestay, holiday home or obtained resource consent (where required), this could leave you in breach of your obligations to the bank, and, if you do not rectify this when asked to do so, you could be required to repay the loan in full. District Plan rulesIn the Queenstown Lakes District, the Council regulates the use of short-term accommodation (also known as visitor accommodation) to make sure that public health and safety standards are achieved. In order to do this, the Council needs to know how properties in the district are being used, so it can manage the affects of that use. Under the Council’s District Plan rules, a homeowner can rent their house on a short-term basis (three months or less) for up to 90 days per year. If the 90 days is exceeded, owners may need to register their home with the Council or obtain resource consent, in which case the rates payable in respect of that property are likely to increase by around 25 percent. To find out whether you need to register as a holiday home, homestay or obtain resource consent, click here.For resource consent to be granted, the Council will consider the effects on neighbours, including noise, traffic and carparking. It is likely to be easier to obtain consent in town areas or zones identified for visitor accommodation use, and more difficult in purely residential areas.If you register with the Council, or are granted resource consent but no longer use the property for short-term accommodation, you can apply for this to be removed (and have the rates reduced). Once you are registered, you will need to:Maintain records of all lettingEnsure compliance with all relevant laws and regulationsInstall and maintain smoke alarms, and make sure these are tested and cleaned regularly Ensure wood burners or fireplaces comply with Building Act requirementsAllow no more than two adults (16+ years) per bedroomProvide at least one on-site carpark for use by guests at all times (unless the District Plan requires more)Benefits of complianceBy complying with the Council’s requirements, it will help ensure you are not in breach of your obligations to your bank and insurer, will give you access to free advice from the Council regarding the management of your Airbnb use, and will also provide access to free advertising on Destination Queenstown’s accommodation website and Lake Wanaka Tourism’s website. Upcoming changesChanges to the Council’s rules are on their way, and it is likely the changes will increase the costs of using a property for short-term accommodation. The growth in tourism (resulting in higher demand for accommodation) coupled with the pressures on permanent rental supply has meant there is a need for the Council to balance the management of both temporary and permanent accommodation. The number of days a property can be used without the need for registration or resource consent will also be reduced to 28 days per year, for a maximum number of three lets during a 12-month period. If this period is exceeded, resource consent will be required.To obtain resource consent under the new rules, an applicant will need to satisfy the Council that short-term accommodation use will not be contrary to the Council’s objective to maintain long-term accommodation. This may be difficult to do. The Council will also consider a wider range of factors (for example, health and safety requirements) before granting consent. It is therefore likely that consent for visitor accommodation use in residential areas will be harder to obtain (if at all). The new rules are due to be publicly notified in early 2019, after which public submissions will be received, before a final decision is made.If you do not already have resource consent in place, we suggest you do this now. If you do already have consent, you will not be affected by the new rules, provided that the consent has been activated (i.e. short-term accommodation use has commenced), and you continue the use in the same intensity. To avoid uncertainty, you can obtain a certificate from the Council confirming you can lawfully continue operating after the new rules come into place. Another thing to keep in mind is that Mayor Jim Boult has proposed introducing a bed tax, which would result in an additional payment per person per night. Although this concept is already used widely throughout the world, it has been met with some discontent, as business owners and homeowners are concerned their livelihoods will be negatively affected. Others say that, without the tax, the economy will face an economic decline and the international reputation of the area will be negatively impacted. But with it being estimated that there are 34 tourists for every one resident in the district, the alternative is local residents footing the bill to cover the impact visitors will have on our environment. (Auckland reportedly has a 1:1 ratio by comparison!) If a bed tax is introduced, this will need to be included in the cost calculations for Airbnb use. AT-A-GLANCE CHECKLISTHave you:Checked with your insurer that you have the right insurance policy in place?Spoken to your accountant about your intended use?Considered income tax or GST payments, and other fees incurred by Airbnb?Checked the body corporate rules if the property is a unit?Advised your bank that you will be using the property for Airbnb purposes?Found out from the Council whether you need to register as a holiday home, homestay or obtain resource consent?Applied for resource consent, if required?Considered the additional costs involved including increased insurance premium, increased rates, resource consent application fees, the cost of cleaning products and any other furniture or bedding required?Kept up with the play on how any changes to the Council’s rules will affect your ability to use Airbnb, or the associated costs in the future?As so many have found, Airbnb can be incredibly lucrative, but, if you’re considering entering the market, remember, to avoid major problems, you must take timely advice, fully understand the rules and regulations and what you must do to comply with them. And, don’t forget, change is in the wind, so remain mindful you may be building a business on shifting sands. Feedback, comments and questions are always welcomed – please feel free to e-mail me on [email protected]: 03 443 0900W: www.aspiringlaw.co.nzSarah Ogilvie is an Associate and Property Law specialist at Aspiring Law. Please remember, this information is designed as a general guide, and should not replace specific legal advice on a particular issue.

How is access granted?Our ability to access the ‘great outdoors’ in New Zealand is seen as something of a citizen’s right. At times, however, It does conflict with the rights of private landowners when, in order to access the great outdoors, there is a need to cross their private land first.The question of public access over private land has recently been becoming more of an issue. In particular, groups who are advocating for that access see the acquisition of private land by overseas people as an opportunity to gain more formal access over private land. Historically, New Zealanders have enjoyed a reasonably significant amount of access over private land – often based around relatively informal arrangements.Public access over private land is a complex topic. This article gives you some background to the law relating to the rights of private landowners.There have been several high profile situations where high country stations have passed into the ownership of overseas people and the issues of public access have been raised.Recent example at Lake HaweaThe most recent situation related to the Hunter Valley Station at Lake Hawea. The property borders the Hawea Conservation Park; the best access to that conservation land is along a 40km private road that runs through Hunter Valley Station. The road is only suitable for properly equipped 4WD vehicles, does not have full mobile phone coverage, has multiple river crossings and would not be regarded as particularly safe for the general public to have unrestricted access.What can the Overseas Investment Office (OIO) do to secure better access for the public when it receives an application by an overseas person to purchase land such as the Hunter Valley Station?One of the factors that the OIO must take into account when assessing the benefit of overseas investment in land (s17(2)(e) of the Overseas Investment Act 2005) is;Whether there are or will be adequate mechanisms in place for providing protecting or providing walking access [our emphasis] over the relevant land or a relevant part of the land by the public or any section of the public.Therefore, under the legislation, in terms of improving public access, the only ‘public benefit’ factor that is taken into account is walking access, presumably by way of an agreement reached under the Walking Access Act 2008. That Act established the Walking Access Commission. The purpose of that Act is ‘to provide the New Zealand public with free, certain, enduring and practical walking [our emphasis] access to the outdoors ...’This means that the OIO’s ability to impose conditions or seek agreement from the applicant in relation to public vehicular access may well be limited.Crown-owned land?In the case of the South Island high country stations, the Crown is often the owner of the freehold. The farmer occupies the station under a pastoral lease. It is the pastoral lease that is the interest being acquired by the overseas investor, not the land itself.As the owner of the freehold, surely the Crown has the ability to control or grant access easements? One of the fundamental concepts of a lease is that the lessee has ‘exclusive possession’. This means that the lessee has control over who can and who cannot access the leased land. If an easement was in place before the granting of the lease and the lease was expressly subject to that easement, then the lessee would have to accept the rights that the easement granted and public access would be granted.However, if access isn’t granted, the lessee is quite entitled to resist any attempts by the Crown as landowner to provide access. If forced to do so, and there are mechanisms the Crown could use and the lessee could seek compensation for that.Even if access is negotiated or a lessee is compelled to provide access, significant problems can still arise. Who will care for and maintain the access? Who is responsible for the people using the access? Who makes the rules as to what these people can and can’t do? If the Crown requires access, will the Crown be responsible for the health and safety of the people using the access?Given that some of these access routes, such as that in the Hunter Valley, were not designed for public use, forcing access or requiring access possibly only creates different problems.In the Hunter Valley Station situation, it was reported in September 2018 that the landowner had signed an agreement with the Department of Conservation granting more public access.© NZ LAW Limited, 2018. Aspiring Law is proud to be a member of NZ LAW Limited, an association of 55 law practices working together to proactively share ideas and expertise for the benefit of our clients.

Gillian brings more than 30 years’ legal experience, both in Scotland and New Zealand, to the role, and has a particular passion for protecting children, as much as is possible, from the conflict that often surrounds relationship breakdowns. “The whole point of doing this type of work is that you really want to help the children. It’s also about supporting parents in keeping the focus on their youngsters and giving them certainty and stability, while firmly setting any of their own adult discord and grievances aside,” she says.“There is so much research out there that shows handling post-separation care arrangements for children well, and in their very best interests, really can make such a positive difference to the youngsters. “Sadly, studies also show a greater chance of poor outcomes where arrangements don’t go so well, and, sadly, it’s common for these negative impacts to follow youngsters into adulthood and throughout their whole lifetime.”  Feedback, comments and questions are always welcomed – please feel free to e-mail me on [email protected]: 03 443 0900W: www.aspiringlaw.co.nzGillian Stuart is Aspiring Law’s Family Law specialist.

Taking a point scoring approach to presents doesn’t do anyone any favours. One parent lavishing the children and deliberately “out-spoiling” the other isn’t helpful – or healthy. Decide if you’re buying joint presents, and, if not, perhaps negotiate a spending limit or who’s buying what, and, failing that, keep expenditure sensible. Also, if you’re planning to take the children away during your time, it’s a good idea to let the other parent know.Compromising in negotiations is another key factor. A Mexican stand-off is not what kids want – they want two parents who love them, want to spend time with them and keep them well-shielded from any animosity. From the dozens of children I’ve worked with over the years, their feedback is consistent: they do not want to be pawns. They just want to see parents working together and showing them what matters most: their happiness and wellbeing.Adults have a duty to protect their children and act in their best interests. I fully appreciate how difficult it can be to traverse holiday care arrangements, especially when there is, often justified, anger and frustration.All you can do is your best to set those feelings aside, and keep your focus on your children’s welfare. If you think about everything from their point of view and tailor arrangements around their needs, you can’t go far wrong. As hard as it might be, try and put yourself in the other parent’s shoes, too, and don’t expect them to agree to arrangements you wouldn’t want to sign up for if the roles were reversed.A final reminder: children grow up – and they will remember the feelings around Christmas times. Give them the greatest gift you can: happy, loving times with sensible, fair arrangements that put them first and foremost.Feedback, comments and questions are always welcomed – please feel free to e-mail me on [email protected]: 03 443 0900W: www.aspiringlaw.co.nzGillian Stuart is Aspiring Law’s Family Law specialist.Please remember, this information is designed as a general guide, and should not replace specific legal advice on a particular issue.

Most laws tend to have initial bedding-in challenges. In the case of the new foreign buyer legislation, it’s the failure by would-be buyers to complete a crucial new form – an oversight so significant, it’s already derailing sales and causing financial grief.Under the Overseas Investment Amendment Act 2018, which came into force in October, all buyers of residential land must now sign a “Residential Land Statement”, certifying they are not an offshore person and can, therefore, legally buy land in New Zealand, without having to obtain Overseas Investment Office consent. This form is available from your lawyer or real estate agent, and can also be downloaded here.Although the legislation only requires the purchaser’s lawyer to have the signed form on file before registering the transaction with the land registry, the New Zealand Law Society recommends that the Residential Land Statement be completed before a sale and purchase agreement is even signed. We strongly endorse this approach to ensure parties do not inadvertently enter into illegal contracts. It is imperative that all parties understand there are real risks to both the vendor and the purchaser if it later transpires that the purchaser is an offshore person. This is particularly important where settlement is due to occur months (or years) after the sale and purchase agreement has been signed. Unless the vendor agrees to the contract being terminated, the buyer could forfeit some, or all, of the deposit and face other costs or penalties. The vendor too may face additional costs, including lost sale opportunities. Real estate agents could also find themselves in a difficult position if they are required to refund the commission due to non-sale. The above situation can be easily avoided by ensuring a Residential Land Statement is signed before the sale and purchase agreement is entered into. A copy of the Residential Land Statement can then be attached to the sale and purchase agreement so that all legal representatives can be assured that the contract will not fall over at a later date.So, whether you’re a vendor or a buyer, it is in your best interests to check in with the real estate agent who’s leading the sale to make sure the Residential Land Statement is not only signed, as per the new law, but that it is signed before anyone goes anywhere near the dotted line on the sale and purchase agreement. Whichever side of the sale fence you sit on, if you have any doubt whatsoever over the Residential Land Statement, seek urgent legal advice, and certainly do so before you sign anything (including a conditional sale and purchase agreement).Feedback, comments and questions are always welcomed – please feel free to e-mail me on [email protected]: 03 443 0900W: www.aspiringlaw.co.nzPlease remember, this information is designed as a general guide, and should not replace specific legal advice on a particular issue.

There’s a range of legal solutions that accommodate most eventualities – from the random “what ifs” to the inevitable “when” situations. So, here goes … my three top – but by no means exhaustive – legal considerations for families. Your voiceWho’ll speak for you, if you can’t? Enduring Powers of Attorney are, by no means, the sole domain of the aged. Every day, vibrant, healthy people are struck down, leaving them – temporarily or permanently – unable to act for themselves.As with all the legal measures outlined, this is not just something you do for yourself, it’s also about making the going easier for those you care about.Whatever your age or situation, without this piece of legal paperwork, everything can grind to a halt making everyday basics like paying your bills to decisions around medical treatment difficult, to say the least.With an Enduring Power of Attorney, though, you can nominate the attorney of your choice in advance, a trusted person (or people) to act in your best interests, if you can’t. You can also specify any wishes you have around your personal welfare and assets.A warning for all those married people out there: contrary to popular opinion, your spouse does not, by rights, become your voice if you’re incapacitated – unless, of course, you’ve legally appointed them attorney.The ultimate protectionThe applications and relevance of Family Trusts are wide-reaching and, while they’re becoming more common, there’s still confusion around exactly what purposes they serve and the protection they can provide.A trust isn’t just for rich folk. Wealth is relative – most clear-minded people are particularly partial to having their assets around. Trusts are a particularly important consideration for many, including businesspeople and anyone in a relationship.In business, no matter what structure you’re operating under, you can still find yourself open to personal liability. If your assets aren’t protected by a trust, you guessed it, they’re fair game for creditors.Have you, will you?Now, there’s really no arguing on this one – if you’re over 18, and you haven’t got a Will, get one.Without this vital legal document, your loved ones will be subjected to far more stress, mucking around and cost after you’ve gone. Worse still, it’ll be the legal system that calls the shots on what happens to any dependents and assets, and the outcome might be far from what you would have wanted.Homemade Wills can be legally binding, but unless you’re completely up with all that’s required, it really is best left to the professionals. There are, for instance, legalities that can override your wishes, and it only takes one little procedural flaw to render your homemade will null and void.If your conscience has been pricked and you’re squirming slightly, maybe it’s time to make an early New Year’s resolution. Book an appointment with your lawyer, who’ll work through your circumstances and what needs to be put in place to give you and your loved ones peace of mind and certainty now and into the future. Feedback, comments and questions are always welcomed – please feel free to e-mail me on [email protected]: 03 443 0900W: www.aspiringlaw.co.nzJanice Hughes is a Director of, and senior legal adviser at, Aspiring Law. Please remember, this information is designed as a general guide, and should not replace specific legal advice on a particular issue.

We’re delighted to welcome on board Sarah, John and Anna, who have joined us during the past few months.Sarah specialises in residential and commercial property law, as well as peer-to-peer accommodation, like Airbnb. An avid outdoorswoman with a self-confessed love/hate relationship with long-distance running, Sarah is a keen mountain biker, skier and hiker. She’s passionate about her pro bono work, too, which she will continue with us. She has previously volunteered at the Citizens Advice Bureau and, among her other community work, Sarah was instrumental in establishing the Kelly McGarry Foundation, which honours the late freeride mountain biker’s memory.John brings impressive insight to his role with us. As well as his legal background, he’s developed, owned and operated his own businesses, including Snow Park NZ. Multi-lingual in Japanese and Spanish, he previously worked with MTV Networks, and in marketing, events and sponsorship. It’s a track record that will be put to great use, as he’s specialising in business, employment and immigration. His community work has included developing a cycling series, which raised funds for the Breast Cancer Foundation, and volunteering in the Red Cross national call centre in the aftermath of the 2004 Boxing Day tsunami. Away from the office, John’s a proud Dad, and is also an accomplished athlete.Anna comes to us from managing the gym at Millbrook Resort – so, not surprisingly, she brings considerable skills in client care and administration, and rates health, fitness and wellness among her key interests. Anna’s your warm welcome any time you’re dropping in during the morning, while our long-time Administrator, Carol Stevens, is here to greet you at reception in the afternoon. Meanwhile, Julia Hunt is putting her studies to great use, and is now working full-time as our Trainee Legal Executive.

While we would love to completely eradicate inappropriate behaviour at staff Christmas parties, unfortunately there is no fool-proof course of action that employers and managers can take to guarantee everything stays above board. By New Year, we typically see the court news filled with cases that began at the workplace bash – drink driving and other crimes, injuries and, tragically, sometimes, fatalities. Many a personal grievance has also emanated from what should have been a fun time for all celebrating the end of another working year.Don’t forget, either, as an employer, you can carry liability if problems stem from your work do, and health and safety rules and responsibilities still apply. Many bosses today have even elected not to hold Christmas parties, due to the risks. However, there are several preventative steps that can be taken to lessen and manage the risks associated with putting on a shindig for your team.So, if you’re planning to treat your staff, here are some of my top tips for mitigating the risk:Clearly brief staff about workplace policy As the office Christmas party is still a workplace event, an employer should not be remiss in reminding their staff of workplace policy ahead of the event. This can be a brief email outlining company policy on workplace health and safety, staff members’ responsibilities, sexual harassment, drug policies, etc … and that failure to adhere to them could lead to disciplinary action.Choose a daytime function To minimise or prevent issues that may arise from the consumption of alcohol during a work Christmas party, an alternative option to an evening function is to arrange a variety of alcohol-free activities that can be enjoyed during the daytime. For example, an adventure outing or an ‘Amazing Race’-type activity.Check the venue for any hazards or risks Nominate a team member to conduct a risk assessment to ensure the venue is free of any hazards or risks that could cause injuries, even to those who haven’t been drinking.No unlimited bar tabIf alcohol is in the celebratory mix, remember “host responsibility”. Avoid an unlimited bar tab, as people tend to drink more than their fill of alcohol, especially during the festive season and when it’s free. To reduce the possibility of alcohol-related problems, set a fixed bar tab and ensure the waitstaff have been fully briefed about it. Additionally, limit the type of alcohol being served to beer and wine, and provide a variety of food and non-alcoholic beverage options.Have a set start and finish timeBe firm and clear your workplace function is not an all-nighter. Help keep your staff safe – and limit your liability – by clearly specifying a beginning and end time for the function, and ensure alcohol is not served after the nominated finish. If some workers want to continue drinking, that’s their choice, but it will be without the endorsement of the company. That means the employer will not be liable for anything that might happen to them if they continue partying after the designated finish time.Make travel arrangements for staffTo make sure all your workers get home safely after the Christmas party, make travel arrangements for them. This could be providing taxis, Ubers or shuttles. Even a car pool with a designated, sober driver can be a great idea.Be a role modelAs the boss or a manager, either don’t drink, or have a quiet couple. That’s one of the best ways to ensure you, yourself, are not left facing accusations of impropriety, but it also means you’re leading by example, and are also in a fit state to spot, front foot and manage any tricky situations that might arise.While you cannot completely eliminate the risk of misconduct, or any other unfortunate happenings, at your Christmas party, by properly understanding your responsibilities from the outset, and taking a proactive, sensible approach along the lines of the above, hopefully you’ll at least lessen the risk … without killing all the revelry.Have a safe and fun-filled Christmas, and if you have any questions, please don’t hesitate to give me a call.Feedback, comments and questions are always welcomed – please feel free to e-mail me on [email protected]: 03 443 0900W: www.aspiringlaw.co.nzJohn Mezger specialises in business, employment and immigration at Aspiring Law. Please remember, this information is designed as a general guide, and should not replace specific legal advice on a particular issue.

Many commentators have stated we’re entering into one of the biggest shake-ups in employment law for decades – and, from where I’m sitting, they’re looking to be on the money.The nature of the economy in the Upper Clutha and wider Queenstown Lakes District means many of our businesses fall outside the typical 9-5 workforce – and, therefore, rely heavily on interpreting the Holidays Act in assessing correct entitlements around leave.In May, the Government announced a full review of the Act, amid revelations potentially millions of workers had been short-changed due to incorrect pay entitlement calculations.I must emphasis first-up, this review does not mean businesses that have underpaid staff, even accidentally, are off the hook for now. It is imperative, if, as an employer, you so much as suspect you might have miscalculated payments that you take urgent legal advice. All employers are expected to pay workers correctly, and to put right any historical underpayments of holiday and leave pay. If there is a problem, the time to scope and tackle it is right now. The Holidays Act has been an ongoing bugbear for many businesses, and in a move that’s been supported by both employers and unions, the Government has appointed the Holidays Act Working Group to not only conduct the review, but also, ultimately, recommend a new system that provides more clarity and certainty. Comprising business, worker and government representatives, the group is chaired by Gordon Anderson, a law professor at Victoria University, who brings extensive experience in employment law. While the key focus is the provision of, and payment for, holidays and other leave, this working group also has the power to consider other issues that arise in the course of its work. Professor Anderson and his team are due to report back within a year, bringing recommendations for clear and transparent rules around leave and payments that can be readily implemented, and that are applicable for an increasingly diverse range of work and pay arrangements.However, any new regime is tipped to be two-to-three years away. The review won’t consider remediation of historical underpayments of holiday and leave pay, so – again – any employers who have, even inadvertently, fallen foul of current law remain very much at risk and should seek legal guidance as soon as possible.  Paid parental leave changes We’ve seen major employment changes implemented already after the Parental Leave and Employment Protection Amendment Bill was passed.Paid parental leave was extended to 22 weeks, as of the beginning of July. In 2020, that will increase further to 26 weeks.The changes aim to support working families with newborns and young children, and help reduce financial stress. It allows parents, who are not in a position to take additional unpaid leave, more time for bonding with their children. It’s also designed to enable more babies to be breastfed for the first six months, in line with World Health Organisation recommendations.One area of the law that doesn’t typically attract as much publicity is “Keeping in Touch” days. These allow parents to do limited work while on paid parental leave, if they choose. This provision is designed to help support employers and employees stay in touch, and for employees on paid parental leave to continue the likes of professional development, or to stay in touch through team building events.As at the start of July, the Keeping in Touch days increased from 40 to 52 hours, and from next July, will rise again to 64 hours.It’s really important to note that there are special rules around working during paid parental leave, so it’s vital both employers and employees are up with the play and take advice.  More change pendingThe Employment Relations Act Amendment Bill, which is at Select Committee stage, provides another window into the new Government’s priorities during this term. It includes proposals to:Restore statutory rest and meal breaksLimit 90-day trials to businesses with fewer than 20 employeesRestore reinstatement as the primary remedy to unfair dismissalIncrease protections for vulnerable workers, such as clearers and caterers, when a business is transferred or restructuredStrengthen collective bargaining and union rights in the workplaceEmployers must also continue budgeting for increases to the minimum wage. In April, it rose from $15.75 per hour to $16.50, and will rise, incrementally, to $20 over the next four years. Stay up-to-date There has been a lot of commentary around businesses feeling concerned about the number and breadth of changes, together with the resultant direct and indirect costs. For many businesses, the incremental rises in the minimum wage are beginning to bite to the extent some are worrying about basic survival.With a raft of further changes in the pipeline, the pressure on businesses – both time-wise and financially – doesn’t look like letting up any time soon.My overarching advice to employers is don’t take your hand off the wheel: stay right across all of the changes, and ensure all new laws are properly understood and reflected in workplace employment agreements and policies. If you’re unclear on anything, don’t muck around: run it past your legal adviser. The headlines surrounding employers now having to dig very deep to repay years of underpayments are a warning bell to businesses large and small that contractual oversights do come back to bite, often very deeply and even years down the track.Feedback, comments and questions are always welcomed – please feel free to e-mail me on [email protected]: 03 443 0900W: www.aspiringlaw.co.nzJohn Mezger specialises in business, employment and immigration at Aspiring Law. Please remember, this information is designed as a general guide, and should not replace specific legal advice on a particular issue.

Anyone looking to buy land in New Zealand who is classified as an “overseas person” will need to sign on the dotted line before next Monday (October 22) or, otherwise, be subject to the new foreign buyer rules. If you’re classed as a foreign buyer, and are currently interested in a piece of property, the restrictions you face after October 22 might be quite different to those under the current regime.One common question we’re being asked is if a sale and purchase agreement, signed before October 22, can be subject to conditions, even if those conditions are to be confirmed after the new law comes into force. The answer is yes. (As always, though, please make sure you take proper, timely legal advice before signing anything.)To avoid disappointment or confusion, our advice to anyone who will be affected by this law change is to take immediate legal advice to confirm your buyer status, and to explore your options. It could be that your best pathway is to fast-track your purchase – but your time is running out.The backgroundA political hot potato, opinion remains sharply divided on whether the new foreign buyer legislation will achieve the Government’s objectives: reducing homelessness, cooling the property market, enabling more Kiwis to buy their own home, and ensuring investments by foreigners bring genuine benefits for the country. Statistics around foreign ownership are about as polarised as the views. It has been said, anecdotally, that around 30 percent of the property market is made up of foreign buyers, but since statistics have been kept, they so far show it’s more like 3 percent. What is not clear is, of the 11 percent of properties that went to corporates, how many were under foreign ownership. That data is not recorded.Of the submitters to the Bill, 90 percent contended the proposed legislation would have the opposite impact to that intended, and, as a result, some of the initial provisions went by the wayside or were amended.What we’re finding, not surprisingly, is that many people have been left confused about what the final upshot of this new legislation is, particularly given that what was initially proposed changed throughout the parliamentary process.The law as it standsSo, let’s look at the current legislation governing investment by overseas buyers in New Zealand: The Overseas Investment Act 2005. As it stands – until the new law comes into force on October 22 – foreigners must obtain consent from the Overseas Investment Office (the OIO), before they buy, or take an interest in, “sensitive land”.What’s sensitive land? The most common form of sensitive land is non-urban land over five hectares, or land that adjoins a foreshore, lake bed, a reserve or Department of Conservation land. Leases of, or other interests in, sensitive land lasting three or more years also require OIO approval (this has now been extended to five years under the new Bill). Overseas buyers must further satisfy the OIO that they:Are ordinarily resident in New Zealand, or intend to live here indefinitely (known as the Commitment Test); orThat the investment would result in a benefit to New Zealand (the Benefit Test) – and, in some cases, that benefit needs to be substantial and identifiable.If the land isn’t deemed to be sensitive, OIO consent isn’t needed and a person from overseas can buy the property, as normal. But …… that’s all about to change, of course, as of Monday, October 22.What’s important to note first is that the new laws will not apply to contracts entered into before the new law comes into force. Nor will it stop those “ordinarily resident in New Zealand” from buying residential property, provided that they can show they call New Zealand home, which means the person:Holds a resident class visa Has resided in New Zealand for the last 12 monthsHas been physically present in New Zealand for 183 days of that 12-month period; andIs a tax resident of New ZealandAustralians and Singaporeans have slightly different rules due to fair-trade agreements, and this means consent is not required for Australian or Singaporean citizens who are buying residential land. Those with Australian or Singaporean permanent resident visas do not require consent either, provided that they call New Zealand home and comply with the above four bullet points.Companies registered outside of New Zealand, and any that are at least 25% foreign owned, will still be treated as "overseas persons" and need OIO approval to buy residential land, if an individual would. The biggest change to be aware of under the incoming rules is that the definition of “sensitive land” is extended to include “residential land”. The Council's rating category will be used to determine whether the land is "residential".In order to obtain that consent, an overseas person will need to satisfy one of the following tests (which are less onerous than the Benefit Test under the current Act):Increased housing test: If the overseas buyer would be developing land and adding to New Zealand’s housing supply. This will require large multi-storey units or apartments being built.Non-residential use test: If the overseas buyer intends to use the land for non-residential purposes.Incidental residential use test: If the overseas buyer intends to use the land for a residential purpose in the course of business (for example, retirement village, rest home, student hostel or similar – but not a hospital, hotel, motel, campground, etc). One home to live in test: If the overseas buyer holds an appropriate visa and can show they have committed to reside in New Zealand.Greater powers for OIOThe powers of the OIO have also been expanded and, most significantly, the OIO will have the power to force a land owner to dispose of land where there has been a contravention of the Act, an offence or failure to comply with an exemption or condition. All purchasers will now need to sign a certificate recording that they either do not require consent or have obtained consent. A purchaser can be fined up to $300,000 for making a false application, and penalties will apply if an unconditional contract is signed where consent is required (in addition to a requirement that the land is sold).If you are an overseas person (or unsure of your status) and are actively considering buying New Zealand property, we suggest you seek urgent legal advice before the new rules come into force on October 22. Feedback, comments and questions are always welcomed – please feel free to e-mail me on [email protected]: 03 443 0900W: www.aspiringlaw.co.nzSarah Ogilvie is an Associate and Property Law specialist at Aspiring Law. Please remember, this information is designed as a general guide, and should not replace specific legal advice on a particular issue.

Spring has sprung, the grass has riz … and, to all you employers out there, I wonder what the state of your employment contracts is.I’d hazard a guess and say, for many businesses, these vital pieces of documentation could do with a little spring-clean. If you haven’t already done so, now’s the time to dust them off and check that all’s in order or, deep breath, that they exist at all.Employment law is, to say the least, dynamic and we are, arguably, in amidst the most change we’ve seen in many a year … with more to come. Keeping up is, typically, not quite so challenging for those businesses with dedicated in-house lawyers and human resources staff to monitor and implement the changes, but I know leaner operations often struggle to keep up with the ever-changing legislative times.I’ve said it before … and I’ll say it again: unfortunately, ignorance and “busyness” are no defence. No matter how lengthy your “to-do” list, understanding and managing your employment relationships – contracts and all – should be a “must do” for all employers.Spruce-up timeIf wielding the feather duster’s still looking too much of a chore, New Zealand case law and the ever-increasing fines and penalties coming out of the Employment Relations Authority and Employment Court provide a plethora of incentives. In short, the effort required in giving your contracts a spruce-up and updating yourself on the latest requirements is nothing compared to the time, money, effort and stress involved in getting it wrong.  In my experience, employers have wildly varying approaches to employment agreements. There are those who keep up with the play, take the appropriate advice, ensure contracts are updated accordingly and have a sound knowledge of the procedural steps needed if a workplace relationship starts to wobble. Somewhere in the middle are the employers who “give it a crack”, cobbling together contracts, using their own interpretation of the law, or – gasp – a hodgepodge of clauses they’ve found online. By all means, have a go at writing up an agreement, but always, always, always have a lawyer check it. There’s no standard cover-all employment contract: each workplace has issues peculiar to it that may need to be reflected; clauses must be carefully worded, and legislative amendments included … and that’s just for starters.Employing on a wing and a prayerAnd then, deep breath again, we have the employers who have zilch – bar, perhaps, a handshake.A handshake on the back of some informal arrangement will be next to worthless if things turn to custard. What’s more, you’re breaking the law. Since the inception of the Employment Relations Act in 2000, it is mandatory for all employer-employee relationships to be bound by a formal, written agreement.If things do get litigious, the law frowns on employers who don’t have agreements in place – chances are, no matter how strong your case, you’ll be starting very much on the back foot.Not only is a sound agreement – and adherence to it – your greatest defence if a dispute makes it to the Employment Relations Authority or the Employment Court, but it’s also probably your best shot to avoid escalation in the first place.Maintaining a constant eye on employment changes and taking the right advice will ensure your agreements are in order, you’re up to speed with the latest changes and should also alert you to any potential pitfalls. You’ll also come away with a better understanding of how to prevent and address problems. A quality contract puts everyone on the same page, providing an agreed framework for both the employer and the employee. Obligations, responsibilities and entitlements are spelled out clearly so both parties know from the outset what’s expected, thus lessening the chances of misunderstandings and breaches, intentional or not.Contractual complacencyComplacency can creep in when employers believe their workplace is solid as, and that they’ll never have problems. Big warning: I’ve seen plenty of close-knit, happy working relationships disintegrate quickly and, especially where there’s no up-to-date contract in place, the toll it can take.Taking stock of your employment contracts is not an optional extra; it really is one of those “stitch in time” necessities in business. If a dispute arises, it’ll be the difference between desperately wishing you had and being so glad you did.Feedback, comments and questions are always welcomed – please feel free to e-mail me on [email protected]: 03 443 0900W: www.aspiringlaw.co.nzJanice Hughes is a Director of, and senior legal adviser at, Aspiring Law. Please remember, this information is designed as a general guide, and should not replace specific legal advice on a particular issue.  

There’s the old saying that "possession is nine-tenths of the law”.But, if there’s one piece of legislation that sets that concept on its ear, it’s the Personal Property Security Act (PPSA) – unfortunately, though, many businesses that supply and lease goods on hock still aren’t using this helpful credit control tool.What suppliers and lessors must understand is that their ownership rights over goods, for which they’re still owed money, are by no means cut and dried. Under the law, it’s possible to repossess goods and have them safely tucked back at your premises – but then have to watch another creditor legally walk away with what you thought was your reclaimed property.Granted, there are a few procedures and systems businesses must get their heads around to secure their interests, but countless businesses have found it’s time and effort very well spent.Essentially, the PPSA gave us the PPSR – the Personal Property Security Register, an online database, which holds information on who owes who money for goods, and who can lay claim to what property should the debtor default. As of October 1, the register will have a brand new website which makes it even easier to search.To safeguard ownership of goods bought on credit until the debt is cleared, businesses must formally register their security interest over the property on this database. It costs only $16.10, but it’s an investment that, for many, has already returned thousands upon thousands of dollars that would otherwise have been lost to another creditor.It’s not just about registering, though; it’s about registering properly, because a "pecking order” situation can arise. Banks, for example, can place a security interest over everything a debtor "owns” – including the goods you have leased or sold on credit.There is scope to nudge ahead in the queue, though, by registering a purchase money security interest (PMSI) – which is afforded "super priority” – within 10 days of supply.The all-important glue to ensure you not only have the right protective measures in place, but can actually use them, are well drawn-up terms of trade.For your registration to stick legally, your terms of trade must be in order and include a clear notification to the buyer or lessor that you intend lodging your interest on the PPSR.If you’re in the business of selling on credit or leasing goods and you’re either not using the PPSR, have concerns you mightn’t be using it to its full effect, or your terms of trade aren’t quite as watertight as they could be, please feel free to get in touch.Feedback, comments and questions are always welcomed – please feel free to e-mail me on [email protected]: 03 443 0900W: www.aspiringlaw.co.nzJanice Hughes is a Director of, and senior legal adviser at, Aspiring Law. Please remember, this information is designed as a general guide, and should not replace specific legal advice on a particular issue.

We hear a lot nowadays about the astronomical rate of change our planet’s confronting, together with often mind-bending predictions on what the world will evolve to look like in our lifetime, and beyond.If I was ever in any doubt about the nature and scope of advancement heading our way, I certainly wasn’t after the recent New Zealand Chambers of Commerce National Conference, which I attended in my capacity as Wanaka Chamber Vice-Chair.The stand-out speaker for me was Tane Hunter, a futurist and co-founder of Future Crunch (you can check out the website here).Talk takeawaysSo, what are A glimpse into the future we in for? Here’s a little of what Tane had to share …Growth in the global economy will largely be driven by data. The current technological advances will dramatically increase productivity and change the economy significantly. That doesn’t mean that jobs will disappear; but, the types of jobs will change.If you have youngsters and they want to be at the forefront of the new economy, studying computer science is where it’s at.The coal industry is in terminal decline, as coal-fired power stations are simply uneconomic compared to the alternatives.Three different technologies – the smart phone, the electric vehicle and artificial intelligence – are converging to create a revolution in the transport industry. It is predicted that, within a few years, electric cars will be cheaper, more durable and more reliable than petrol-powered cars, and autonomy will be advanced enough that we won’t need human drivers. No one will even need to own their own car – you’ll be able to dial up a vehicle on your phone. What’s more, the cost of taking a car trip will be cheaper than getting a coffee. No more parking hassles, fewer traffic jams, less pollution and a dramatic decline in road deaths.New-look work ethicWithin a few years, 50 percent of the worldwide workforce will be under 30. Millennials and Generation Z have a different view on life. They will prefer taking on short-term employment assignments or working as consultants, rather than being a full-time, long-term employee. They will demand work-life balance, and will likely have a dozen or more careers in their lifetime. They will also expect the companies that they work for, and buy goods from, to be involved with socially and environmentally-beneficial projects, rather than just focusing on making a profit.But some things never go out of fashion, it seems. The most important attributes of employees in the future will be those core skills that have endured across the ages: the ability to communicate and co-operate in a team environment.Feedback, comments and questions are always welcomed – please feel free to e-mail me on [email protected]: 03 443 0900W: www.aspiringlaw.co.nzMike Toepfer is a Director of, and Senior Legal Adviser at, Aspiring Law. Please remember, this information is designed as a general guide, and should not replace specific legal advice on a particular issue.