When things are flush, businesses can tend to take the laid back approach to setting and maintaining proper systems.Whatever the economic climate, I take a pretty deep, deep breath-on-behalf-of when I come across any venture operating without the basics in place.Take precautions. Practise safe businessFail to draw up and use proper Terms of Trade and risk contracting a nasty case of "mismatched expectations” or, worse still, a rampant bout of "bad debtor disease”.Terms of Trade are essentially the contractual arrangement between the customer and the supplier. This document generally covers what work product or service will be provided, in what timeframe (if applicable), and the expectations around costs and payment.Don’t take someone else’s Terms of Trade, give them a quick tweak and call them your own. Firstly, we’re not talking one-size-fits-all here and, secondly, if you want this document to have teeth, it’s imperative it has the right clauses and that they’re worded properly.For example, for those who supply goods, it’s vital you include a clause giving you ownership of the materials until they’ve been paid for. Fail to shore up your claim to your goods and you could find yourself playing unwitting philanthropist to an unworthy cause.Quote v estimateFor many industries – especially trades – it’s not uncommon to provide either an indication of cost (an estimate) or a set price (a quote) at the outset.Unless the work varies from that outlined in the original contract and a new price is negotiated, the quoted figure stands. Providing an estimate, though, does not give you carte blanche to charge whatever you like come invoicing time.Estimates do have some flexibility - usually around 15 per cent. For example, if you estimated a job would cost $100, charge any more than $115 and the law’s likely to frown at you.Getting your duesThere is often this staring-at-the-ground, flicking-dirt-with-the-toe-of-the-shoe kind of embarrassment around querying non-payment, which is, in reality, one of the most significant dangers Kiwi businesses face.For starters, confronting tardy payers is much easier if you have clear-cut Terms of Trade spelling out exactly what the errant customer agreed to at the outset. Secondly, you must be doing mighty well if you don’t mind your business being used as a credit facility.If payment’s overdue by about a week, a polite phone call’s in order. In many cases it’s an oversight, but ensure you have an agreed deadline for payment by the time you hang up.Payment overdue by two weeks? This sorts out the "oversighters” from the "consciously-don’t-payers”. Reissue the invoice and make another phone call.The squeaky wheel gets the grease.I know a lot of businesses shy away from debt collection, fearing they’ll lose a great customer. I don’t tend to put recidivist bad payers in the "great customer” category. For customers who are genuinely struggling, the sooner you find out, the sooner you can put alternative payment options in place – which will likely come as a relief to both parties.Hit ‘em where it hurtsBetween one and two months’ overdue: Up the ante. Reissue the invoice – and this time whack on interest and deliver your bill in person. Note: you can only add interest if you’ve made provision for it in your Terms of Trade and it must be "reasonable” (commonly around credit card rates).Between two and three months’ overdue: Start formal debt recovery proceedings. Make sure your terms include passing the cost of debt recovery to the customer, otherwise – guess what? You have to foot the bill for collecting your money.Many a fine Kiwi business has gone bust – not because they didn’t have a great product, not because they didn’t provide top service, but simply because they didn’t get paid.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 a common question on Wanaka App readers’ minds, it seems – and, it doesn’t come as a surprise, given the amount of development in and around the Upper Clutha.We’ve received several requests to provide a heads up on what happens when one property owner damages another party’s land. Where do responsibilities and obligations begin and end, we’ve been asked. And, not surprisingly, the big question: who pays?While there are general common law rules, I have to say at the outset, there is no one-size-fits-all answer to all situations. There are exceptions, as well as ifs, buts and unexpected fishhooks. So, if you have had your property damaged, or, conversely, have caused damage to someone else’s land, and you don’t read any further, my overarching advice is: Get legal advice, specific to your particular circumstances, and get it urgently.To give you a general guide, though, let’s take a look at some of the fundamental common law rules that govern such situations. Perhaps at the heart, is the overarching legal expectation that any landowner has the right to enjoy their property, and that your neighbours should not do anything to their land that affects yours.Duty of careEvery landowner has a duty of care not to use his or her land in a way that causes a neighbour’s land to collapse. Major headaches can occur around the likes of earthworks, including excavation. First off, as a landowner you have "the right of support for the land in its natural state”. In plain English, that means no-one adjacent or subjacent to you should do anything to their land that affects the stability of yours. That can include the likes of excavation, and drawing off underground water or silt. For example, go and whip out that retaining wall at your peril. However, it’s important to note that, where land is unstable, an adjoining landowner usually does not have a duty to stabilise it, only a duty not to remove any support already present. Also, if a landowner replaces a natural support with an artificial support, they don’t incur liability. There is no particular liability, either, when a support, such as a retaining wall, has been removed by natural causes, like a flood.An owner of higher land is likely to be liable to an adjoining owner of lower land if soil he or she has placed on the land escapes to the lower land, for example by the collapse of a retaining wall.So, what’s the legal remedy for damage caused by the withdrawal of land support? Damages, usually – and that can, in some instances, include claims for damage to affected buildings.If you’re the one doing the excavating, it’s really important you understand you typically remain liable, even after the property’s sold – liability does not automatically pass down to new owners. Contractors, particularly the likes of excavators, also need to take heed – when you work on a property, you carry a duty to exercise reasonable care. A landowner who suffers damage due to your actions can take a claim against you, and that includes not only your client, but also any affected neighbours.A territorial authority also owes a duty of care to a landowner in relation to the inspection of buildings during construction, and consequently it might be liable, not only to the owner of the building it inspected, but to adjoining owners if damage is caused to their land.Again, every case is different, and there can be legal exceptions, depending on the circumstances.Do your homeworkLike most things legal, prevention is way better than the cure. If you are doing anything on your property that poses potential risk to another, make sure you have done your homework, scoped the work thoroughly, and called in the experts where needed.If you’re unfortunate enough to incur damage to your land through the actions of others, as hard as it might be, first step is to keep your cool. This can be a complex area, so it’s best to see your lawyer, explain the situation, and get their initial advice, so you can be informed, and fully understand your options.Sometimes, depending on the circumstances and urgency, from there, it can be more neighbourly and conducive to long-term relations, to try and resolve the situation one-to-one with your neighbour. In other cases, it will be preferable for the lawyer to represent your interests, especially where there is risk of further damage.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.

If I had to put my finger on just one relationship killer for those who get hitched – in business that is – it would be presumption.Conversely, the common denominator those who are successful share is that they have proactively discussed, defined and agreed on common goals at the outset, and have then clarified their respective expectations on how those aims will be achieved. And, they keep repeating the processing.It doesn’t matter if your new business partners are your closest work colleagues, your lifelong best friend or your parents; without aligned goals and expectations, I can tell you now: it ain’t gonna work.One of the greatest investments you can make in your business at the start-up stage is to bring in your lawyer and accountant at the outset to help you draw up a shareholders’ agreement (if it’s a company), or a partnership agreement (commonly used by partners and spouses).Your advisers will work with you on a thorough, point-by-point checklist covering everything from the entity’s structure, share allocation and who gets what by way of returns, to who’s contributing how many hours to working in the business and a planned process for addressing any relationship meltdown.I’ve had would-be business partners – some of whom are related or share close friendships – absolutely certain they are a money-making match made in heaven … only to realise that, actually, they’re not very compatible at all when we get down to the nitty gritty realities. Wisely, they bow out at that stage – personal relationships and bank balances still intact.Laying the foundationsAdvisers help keep the parties grounded long enough to get all the goals and expectations set and appropriate safety nets in place so, when the business soars, you and your partners don’t later crash and burn simply because you hadn’t contemplated the "what ifs” and have co-ordinated flight plans accordingly.The agreement flows from your discussions, and can be tailored to a myriad of scenarios, documenting how the parties have jointly decided to run the company, as well as the expectations and rights of each signatory.A common downfall in joint ventures comes around what to do with the profits. It’s quite staggering to see just how far people can go into a business together before discovering one wants to reinvest most of the gains to fund a quicker rise to global domination, while the other doesn’t really want to grow the company much at all and is, instead, eyeing the profits to bankroll a better lifestyle. By going through the process a shareholders’ or partnership agreement involves, the parties’ ensure their respective profit plans do, in fact, gel, with the agreement spells it all out in black and white.With new ventures, it’s commonplace for one party to commit all or the lion’s share of the funding. When it’s a family affair, that’s often the parents. If it’s not clearly decided and documented who’s funding what and what returns there will be from it, things really can get murky and messy – Mum, Dad and Johnny Junior can end up at painful loggerheads.All’s fair …It’s also vital when people come together to run a business that they have really honest, realistic discussions around who will be committing what time to the venture. There’s nothing surer to sour a business relationship than one putting in 110 percent grunt, while the other’s skiving off every other day, if that isn’t what both parties expected, and agreed, from the start.Your advisers will encourage you to tailor and document a fair arrangement – likely one where time spent working in the business is remunerated at a market rate.Remember, too, whatever’s covered, these agreements are contracts – breach one, and you could be held liable for losses, or face a court order to toe the line.They are, though, well worth the paper they’re written on – and then some. Interestingly, when I look at the business bust ups I’ve been called in to help sort out, the ventures have two things in common – the breakdown traces back to skew-whiff goals or expectations, and it’s very, very rare for the warring parties to have a comprehensive shareholders’ or partnership agreement in place.It often makes me wonder, with a bit more thought and effort at the beginning, what could have been.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 like to think of it as the "season of goodwill”. For many families, though, the holiday season can be extremely testing and feel anything but merry following a separation.  by GILLIAN STUART, ASPIRING LAW FAMILY LAW SPECIALISTWith school holidays and the traditional Christmas and summer break fast looming, it’s a good time for separated families to start discussing options and planning.Having worked at the coalface for many, many years with both adults and youngsters navigating the festive season, here are a few tips based on what I’ve seen, time and again, make the difference between cheer and despair.Talk. Talk. Talk. Healthy communication is the key to reducing stress – and, most importantly, giving your kids the best shot at a happy Christmas. Children love certainty, so the sooner you can agree, and give your sons and daughters that reassurance, the better.After a separation, Christmas can be a time of particularly heightened emotion, where little disputes snowball into massive problems. Make sure detailed care arrangements have been agreed in advance. Committing them to writing, with both parents confirming, means much less room for miscommunication and misunderstanding.The devil’s in the detailFailing to nail down the particulars is fraught – it’s not uncommon to have both parties swearing that completely conflicting arrangements were agreed. Double check you’re both on the same page with all of the details, and are crystal clear of specific dates, times and transport responsibilities.In cases where direct communication is problematic, consider turning to a neutral third party to help facilitate a workable agreement.It might seem obvious, but watch the alcohol consumption. It can be tempting to "drown your sorrows” in the wake of a separation; however, all too often alcohol can be the tipping point between keeping it together and not. Also, ensure there are sober drivers to transport children between households.Remember, it’s not acceptable to use the children as messengers or negotiators. They’ll be calmer and more confident if the adults pass on concrete, mutually-agreed plans to them. Divided loyalties and misplaced guilt are commonplace in children whose parents have separated – they need to know they are first and foremost with two parents, who are united in wanting what’s best for them.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.Kids want peaceCompromising 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 do your best to tailor arrangements around what’s best for them, 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 and holiday 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.

Of all the methods to buy a property, winning at auction tends to come down to a little luck and a lot of homework – but it can also bring risks for the uninitiated. by BEN KING, SENIOR SOLICITOR, ASPIRING LAWSellers have a few methods to choose from when selling their home: "auction”, "deadline sale”, "tender” and "by negotiation”. For sellers, deciding which method is best is one of the most important considerations when arranging the sale of your home, and tends to be linked to the market factors at the time. In other words, supply and demand.An auction is, simply put, a public – and typically swift – negotiation on price to buy a property. It seems buyers still outnumber homes for sale, so auctions continue to be popular with sellers keen to capitalise on the bidding wars that are typical of a buoyant market and lack of supply.As anyone who has ever attended an auction with multiple interested parties can likely attest, it’s all too easy for bidders to get carried away and pay that little bit – or, in some cases, a lot – more than they initially intended. But an expensive dose of buyer’s remorse is not the only potential pitfall when it comes to auctions.First and foremost, by simply raising your hand at an auction, you’re committed to buy at whatever the bid is at that time. Bidding at an auction without doing your due diligence is the same as signing an unconditional sale and purchase agreement without completing any checks on the property. If you win the auction, only to discover there are issues, it’s highly unlikely you will be able to back out of the deal. The price you have to payOne of the major annoyances for would-be buyers at auctions is having to stump up in advance for the likes of LIM and building reports on a home that then ends up in someone else’s hands come auction day. There’s no getting around that, unfortunately. If you are serious about bidding, then you really do need to know what is in the LIM, what interests are on the title, and whether the property is in good order.Speaking of LIM reports, it’s common for real estate agents to provide a LIM in the auction sales pack, which most purchasers rely on. What most people don’t know is that you can’t rely on a LIM report that’s not addressed to you. So, if it transpires Council has been negligent in preparing the LIM report, unless it has your name on it, you can’t recover any losses from Council.Another really important consideration that can be easily overlooked in the heat of the moment is around finance, particularly if you’re relying on your KiwiSaver or arranging a HomeStart grant. Many buyers discover all too late that getting their hands on these desperately-needed funds isn’t exactly the speedy process they assumed.Ensure you have enough time from auction day to settlement to arrange the necessary documentation to free up your money – or else, risk hefty penalties. You’ll need to confirm the timeline with your provider, but as a rule of thumb, at least three weeks is needed to process a release of KiwiSaver funds.While the pace at auctions can be intense and quickly price some bidders out of the action, sometimes this method of sale serves to whittle down the competition. Some would-be buyers simply don’t want to pay for the reports needed for pre-auction due diligence. So, you might just find yourself the only bidder and score your dream home at a dream price. It does happen.But wait ...On the other hand, it’s not exactly all "buyer beware” when it comes to auctions. While sellers do face fewer risks using this process because buyers have no opportunity to include conditions, sellers still carry obligations and risk.The auction contract includes a raft of warranties. For example, all systems – including the likes of lawn sprinklers, heat pumps and appliances – must be in good working order on settlement, excepting fair wear and tear. Warranties can, and do, come back to bite sellers, both pre-settlement and post. Be sure to run through these with your legal adviser, so you enter the process fully informed, as these warranties can be amended or deleted.If you’re house hunting and don’t have experience in auctions, it’s wise to school yourself before a property that catches your eye goes under the hammer.Bidding at its bestIt is generally wise not to bid too early and add fuel to fire; see where it’s heading. You might find it gets out of reach quickly. Remember, auctions can be absolutely frenetic and stressful. It’s a good idea to take a support person as a soundboard, and who can help keep you on the straight and narrow.If a property is "passed in”, it simply means the price wasn’t high enough to reach "reserve” – the lowest price that the seller is willing to accept. Typically, the highest bidder will have the opportunity to negotiate with the seller once the property has been formally passed in.Sometimes, a temporary stop will be put on the auction while the auctioneer takes a few minutes to get instructions from the seller. In some cases, the reserve is lowered and the auction resumes, but not always.If a property is passed in, and you hold the highest bid, you can then enter into a standard agreement for sale and purchase, but now with the ability to include conditions for your benefit. Hopefully you won’t need to do any due diligence, because you will have already completed the requisite protective checks ahead of the auction.Feedback, comments and questions are always welcomed – please feel free to e-mail me on [email protected]: 03 443 0900W: www.aspiringlaw.co.nzBen King is a Senior Solicitor at Aspiring Law. Please remember, this information is designed as a general guide, and should not replace specific legal advice on a particular issue.

Recent surveys show the skilled worker shortage is one the biggest concerns for employers in the Central Otago-Lakes area, with the farming, hospitality and tourism sectors particularly reliant on migrants to meet their staffing needs. by GILLIAN STUART, SENIOR SOLICITOR, ASPIRING LAWWith an election just around the corner, immigration has become an increasing political football, and we know from our clients this is causing some confusion.Just by way of a bit of background to start with: some political parties have called for stricter controls, and, feeling the heat, in April the Government proposed more restrictive criteria around working visas for skilled migrants, but then quickly backed down when employers raised objections, issuing a watered down version last month.The decision to lower the threshold for medium-skilled workers will mean approximately 6000-7000 more will meet the criteria than would have under the original proposal, and will not have to leave after three years.However, employers have criticised the new rules, saying low-skilled workers will be forced out after three years, despite the time and money spent on training, and their integration into both the workplace and local community.Employers would then likely face having to train another migrant from new.This new policy around temporary work visas has just come into effect (August 28, 2017), and will see the skill levels of migrant workers assessed based on the salary they earn:Lower-skilled visa holders earning less than $41,538 a year can get visas for a maximum of three years, and will then have to leave New Zealand for a stand-down period of 12 months before they can apply for a new visa in another low-skilled role.Migrants who earn between $41,538 and $73,299 a year, and have jobs classified as high-to- medium skilled, will be considered mid-skilled.Those who earn more than $73,299 will be considered high-skilled, regardless of what job they have.Mid-skilled and higher-skilled workers will be able to stay up to five years.An employer will still need to try and recruit a suitable New Zealander who is available to do the work before offering the work to an overseas person.A visa holder can work in New Zealand for an employer who has offered that person a job.A visa holder can only work in a specific occupation, for the employer and in the location, specified in that person’s visa. If a visa holder wants to change their job, employer or work location, they will have to apply for a variation of conditions, or else apply for, and be granted, a new work visa.A visa holder can study for up to three months in any 12 month period, or do any study required as part of that person’s employment.Most skilled migrants’ partners and children will have to qualify for visas in their own right to live in New Zealand (they will still have access to short-term visitor visas).The Government has said further changes are likely after it has looked at particular sectors and regions, including seasonal work visas. If we see a new government next month, no doubt we can expect different policies, again. Either way, yet further change is in the wind.Employers will need to keep up to date with developments so as not to be caught out.If you’re needing support or guidance, please feel free to give Aspiring Law Senior Solicitor Gillian Stuart a call on 03 443 0900, or email her on [email protected]: www.aspiringlaw.co.nzPlease remember, this information is designed as a general guide, and should not replace specific legal advice on a particular issue.

For anyone contemplating a business move, I’d love to tell you it’s a cinch: sign a lease, call in the removers, and ta-da – relocation signed, sealed and delivered. If only.  by JANICE HUGHES, DIRECTOR, ASPIRING LAW WANAKALeasing commercial premises has always brought complexities and considerations well above residential tenancy. Commercial leasing has changed quite markedly over the years, especially in the aftermath of the Christchurch quakes, with a lot more i’s to dot, t’s to cross and "what if” scenarios to ponder.Come sign up time for your new business digs, you’ll be presented with a commercial lease. The usual form is a pretty standardised contract made available by the Auckland District Law Society. Generally, the template’s reviewed and updated every year or so, and that is where the first issue can arise.With all the various versions over the years, be very clear from the outset which one you’re actually signing up for – the clauses in each can vary hugely.Essentially, the standardised contract is a framework where there is plenty of scope to tailor it more specifically to the parties, by adding more clarity and definition through negotiation. At the hub of the deal are the fundamentals: you’ll be getting "X square metres” at "X price”, plus "outgoings” and "usual terms”. The space and price are relatively cut and dried, but when it comes to "usual terms”, one person’s "usual” can be quite "unusual” to another.Drill down to what your landlord considers "usual terms” and make sure they are clearly documented. Remember, too, unlike residential agreements, commercial tenants are generally responsible for covering the outgoings – the likes of rates, insurance, and building Warrant of Fitness, for starters. If it’s an established building, your landlord should be able to give you a ballpark figure of your likely share of the building’s annual outgoings; with a new building, though, you’re probably going to have to wing it a bit more in terms of budgeting.Whose is whose?Be sure, too, you find out specifically what’s yours and what belongs to the landlord.I had an interesting case a while back where a high-energy-using tenant upgraded the switchboard, which, after a few years, kept overloading. That tenant then sells their business and leaves, new business purchaser/tenant moves in, strikes problems with the switchboard and assumes the landlord will be stumping up. Not so … the new tenant had unwittingly assumed ownership of the switchboard.So much has changed on the insurance-scape over the past few years, largely around the risks exposed by the quakes. Generally, the landlord takes care of the building insurance, and the tenant covers the likes of their fit-out and chattels, but it’s vital you’re crystal clear of the parameters and cost around that before signing, so you know what would happen should disaster strike.When moving into a new building, be super, super careful around compliance issues, too. At first blush, you might think ensuring everything’s tickety-boo before the big move rests squarely with your landlord. Ah, no, if you are putting in your own fit-out that may require consent, and if that involves a change of use in an older buildingthat might trigger some earthquake strengthening too.Every new commercial building must have a code compliance certificate signed off before the premises can be occupied or made available to any member of the public. If the code compliance isn’t signed off by move in, the only other option is to get a certificate of public use, which basically confirms the building is safe for occupation.Compliance conniptionsBelieve me, I have seen this one cause major conniptions at the 11th hour ... everyone ready to move in and, what d’ya know, they can’t, as there’s no certificate in place. This is not one you should be running the gauntlet on, either.Under the Building Act, both the landlord and tenant - yes, that’s right, the tenant, too – face a whopping fine of up to $200,000, plus $20,000 for every day in breach.It might seem strange also to have to consider what happens at the end of the lease, but a common term requires the tenant to "make good” before moving on. Rather simply, the tenant must remove everything they have put into the place and restore it to the state that the landlord handed it over in. How much does that cost? Quite a lot, could be the reply.I have seen blunders, blissful ignorance and misunderstandings cost tenants thousands upon thousands of dollars, all of which could have been happily avoided with some good old fashioned due diligence. If you find yourself ready to sign a commercial lease, and you haven’t run it by your lawyer, step away from the dottedline, and don’t commit until your adviser’s critiqued it.Feedback, comments and questions are always welcomed – please feel free to e-mail me on [email protected]. T: 03 443 0900 W: 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 something quite special about farming families, particularly those whose relationship with the land is first and foremost a love, rather than business, affair. by JANICE HUGHES, DIRECTOR ASPIRING LAWOf the hundreds of rural folk I’ve worked with over the years, many speak of guardianship, rather than ownership, of the land, together with an unwavering generational duty to pass on their acreage in an even better state than they received it in.That’s not to say farmers aren’t astute and savvy – quite the contrary. It’s just that farming is often a different business beast all together: for many farmers, the land is their lifeblood, their lifestyle, their life’s work and livelihood. There’s no turning off the lights, locking the door and heading home at 5pm. When it comes to family-run farms, passions can run very, very deep, bringing an ongoing juggle of priorities – and personalities.Keeping it in the familyAny family business brings its unique set of pros and cons. With farming, though, even further filial factors come into play, both on a day-to-day operational basis, and with longer-term succession planning. In short, trying to keep to the old "emotions and business don’t mix” adage in a family-operated farm is a pretty rough, perhaps nigh on impossible, row to hoe.With a practical mix of good planning, sound, honest communication and regular reality checks, farming families stand the best chance of channelling their emotions into constructive, rather than destructive, outcomes for the everyday operations and longer-term succession. And, even if farming and family matters have gone, or are threatening to go, decidedly woolly, it’s never too early or too late to rein in difficulties.I’ve seen absolute powder keg situations that looked certain to blow big time, not only diffused, but used as a springboard to better understanding and, ultimately, greater collective satisfaction and success.Great expectationsClear, well-articulated expectations. Good. Nebulous, non-verbalised expectations. Bad. Sounds so obvious, right? A large portion of the familial flare-ups I help farming clients work through are founded in quite conflicting aspirations, some of which only come to light when push comes to shove. Divergent goals can be tricky to manage at the best of times, but when they come unexpectedly to light amidst a pressure-cooker decision-making situation or when cashflow’s tight, both farm and family can rapidly come under significant stress.There are way too many variables for a one-size-fits-all template for business or succession planning for farmers, especially when it’s a family affair. Just as no two farms or families are the same, neither can the plans and legal frameworks that underpin them be. The key is to, first, assess individual needs, then address financial security, control, and fairness, and, finally build that into a plan that reflects everyone’s reality. Make sure, then, there is a commitment to regularly and realistically reappraise and adjust it in line with changing circumstances and life stages.Today, many farms are run under a company structure. Often that entity doesn’t exist in isolation, and operates alongside a myriad of further legal frameworks. By the time you throw in the likes of a family trust, wills for every family member, and relationship property protections, without proper management, it can become a pretty tangled tapestry that’s both complex and somewhat expensive to administer. Naturally, robust legal mechanisms need to be in place for everyone’s sake, but diligent administrative housekeeping can also help ensure everything stays streamlined, efficient and effective.Money changes everythingA common issue is, not surprisingly, income. Over time, often the pie must cater for a few more segments to provide for grown children who are working the farm, together with their spouses and families.This tends to coincide with parents starting to hand over the reins to the next generation. Particular care needs to be taken in planning for, and managing, this stage, including agreeing on, and setting, fair and realistic income levels for all parties – not least of all ensuring Mum and Dad aren’t relegated to a baked beans-and-toast existence in retirement.It’s super important, in aligning farming and personal affairs, that each family member takes independent advice before committing to anything.Exploring legal and financial issues from the different vantage points serves not only to protect everyone’s individual interests, but can also bring up innovative ideas and solutions that benefit all. It might just mean the difference between a cheery case of "a family that plays together stays together”, or a less-than-rosy "you can pick your friends, but you can’t pick your relations” quagmire.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.

Few acts in our lifetime require more trust than giving another person the right to legally act on our behalf. And, there can be few more onerous responsibilities than taking on that significant duty.  by GILLIAN STUART, FAMILY LAW SPECIALIST, ASPIRING LAWThe reasons we can be left unable to do something for ourselves are myriad. We might be out of the country and require someone else to finalise a deal in our name, or it could be a case of being completely incapacitated by illness and needing someone to make significant medical or financial decisions for us.There are various types of "powers of attorney” tailored to the particular need at hand. With an ordinary power of attorney, authority is given by one person (the donor) to one or more others (the attorney/s) – it might be to act on one specific issues, or all matters, on the donor’s behalf.An ordinary power of attorney is valid until it expires if it’s for a fixed term, or from when it is cancelled. It’s really important to understand, the arrangement can only stand as long as the donor has the mental capacity to make decisions. The law, under this particular framework, prohibits the attorney having more power than the donor.Enduring powers of attorney (EPA), however, have a different set-up all together. There are two types of EPA: personal care and welfare, and property. Your personal care and welfare EPA can only come into effect when a medical professional has confirmed you have lost the mental capacity to manage your own affairs, at which point your attorney – and there can be only one – will take over, but only in relation to matters relating to your personal care and welfare.A property EPA is different again – it centres solely on property, and can be designed to come into effectimmediately, or, alternatively, only if the donor loses mental capacity. A property EPA can, and often does, include more than one attorney.Following a recent review, important changes have just been implemented to better protect donors, ensure EPAs are as accessible as possible to everyone and also make the role of the attorney clearer for all to understand.New forms, more guidanceThe reforms include the implementation of new, prescribed standardised EPA forms, which are an improvement. In years gone by, EPAs often appeared light on detail, and attorneys sometimes didn’t really understand what they were meant to be doing, and how they were meant to do it. These new forms provide a huge amount more information in clear and, the hope is, user-friendly language.Among other amendments, solicitors are now required to confirm they are satisfied the donor fully understands the implications of granting an EPA, as well as highlighting the attorneys’ obligations to consult, which are both good safeguards.If you’re approached to be someone’s attorney, it’s vital you completely understand what you’re signing up for. It is a very serious, onerous and a potentially stressful, undertaking, which brings with it stringent duties and obligations.Whichever power of attorney is in play, your role must always centre on acting in the donor’s best interests. Be aware, too, if the courts become involved, you will be required to follow its orders, which can override the EPA.Your duties as attorneyOther important factors to note as an attorney for a personal care and welfare EPA include that you can’t:Act as a trustee on a trust in place of the donor.Make an oath or declaration on the donor’s behalf.Act outside any restrictions in the EPA.Decide the donor will get married or divorced.Make a decision about the adoption of any children.Refuse consent to any medical treatment that might save the donor’s life or prevent serious damage to health.Consent to the donor having electroconvulsive therapy or any brain surgery which is meant to change the donor’s brain/ behaviour.Consent to the donor being part of any medical experiment, unless it is to save the donor’s life.Act for your own benefit, or for anyone other than the donor’s benefit.If you become an attorney, the overarching advice is: be crystal clear on all of your obligations and duties; stick to the rules; maintain good financial records for any periods when you are acting for the donor, understand your obligations to consult both the donor and any other attorneys and respect their views. And, if in doubt, take immediate legal advice.As an attorney, your greatest protections are acting in good faith, taking reasonable care at all times, and seeking help if the way seems unclear.Choose ‘your voice’ wiselyPutting the shoe on the other foot, if you are choosing an attorney, do so carefully and judiciously. While there are few restrictions on who can be appointed – essentially, they must be at least 20 years old, not be bankrupt and have the mental capacity – you must have total faith in their honesty and their complete willingness to take on the role.I was involved in a case some years ago where a son had been appointed attorney. It transpired he had been dipping into his dad’s bank account. Thankfully, in that particular EPA, the donor had stated that his daughter had a right to get information from her brother regarding his handling of his dad’s financial affairs. That safeguard did its job, and her investigations uncovered her brother’s fraud.If you’ve never looked into an enduring power of attorney, it’s really important you do. Many people incorrectly assume they’re just for senior citizens who might need someone to make the call whether they need to go into care. Sadly, we see it all the time – people can be incapacitated in the blink of an eye at any age and need someone authorised to speak up, and act, for them.Nowadays, no hospital, bank or any other institution will allow you to assist anyone, even if they’re a close family member, unless you have been formally appointed attorney. Make no mistake, if you fail to proactively sort an EPA, should something happen to you, chances are your loved ones will be hamstrung, left forced to face the unnecessary cost and stress of applying to the courts to have an appointment made.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, and works extensively in the asset protection field. Please remember, this information is designed as a general guide, and should not replace specific legal advice on a particular issue.

Recently, I wrote a piece on one of the biggest neighbourly niggles around – fences. by JANICE HUGHES, DIRECTOR, ASPIRING LAWThere was a lot of feedback; yep, every second person’s got a story about what can be the most divisive of those dividing lines.Off the back of that fences article (see Blogs), I also received a reader request to look at another gnarly catalyst of boundary barneys: trees and bushes.Disputes over trees can be as complex as the root systems beneath the soil. There’s a plethora of dos and don’ts.It’s always wise to check out the rules first, whether you’re planning to plant or fell a tree, or in cases where you and your neighbour aren’t seeing eye to eye."Any tree or hedgerow planting within 2m of the boundary cannot exceed 1.9m in height".In a nutshell, though, an owner or occupier who allows a tree growing on his or her property to encroach on adjoining land might find themselves accused of causing a nuisance and defending a court action if they don’t sort it out.Some of the answers to common tiffs over the size and positioning of trees and hedges lie, in black and white, in the district plan. For example, in Wanaka there is a rule that, notwithstanding protected species, any tree or hedgerow planting within 2m of the boundary cannot exceed 1.9m in height.Routinely, the most sensible course to address grumbles about trees shading and encroaching on an adjacent property is to agree with your neighbour how and when trees are to be pruned, and by whom. If that’s not settled, your neighbour is quite entitled to take matters into their own hands if your tree has branches hanging over their land. Too bad if the pruning’s not done with the bonsai-like finesse you’d have brought to the job.As well as dealing with disputes where trees pose a potential or actual risk to health or property, under the Property Law Act 2008, the District Court can, in some circumstances, order a land owner or occupier to remove or trim trees if they cause "undue interference” to: views; the ability to grow trees or crops, or, the general enjoyment of land, including, specifically, due to shading or falling leaves, flowers, fruit or branches.The court must, however, be satisfied that any hardship the applicant is facing is greater than that caused to the defendant by the making of the order. It also can’t make an order relating to any trees protected under the Resource Management Act 1991 – unless, that is, it is necessary to protect life, health or property.The Electricity (Hazards from Trees) Regulation 2003 deals specifically with obligations in respect of trees to protect the electricity supply and safety of the public. It includes provisions prescribing the distance from electrical conductors within which trees must not encroach, rules relating to the cutting or trimming of trees that encroach on electrical conductors, and liability for any breaches.Don’t forget, neighbourly tree problems can run deep. Should the roots of a tree on your property span to your neighbour’s and collect a pipe or two along the way, guess who’s likely up for the repair bill? That would be you.Feedback, comments and questions are always welcomed – please feel free to e-mail me [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.