Love ‘em or loathe ‘em, the Government recently confirmed 90-day employment trials are here to stay, albeit now only for businesses with fewer than 20 employees – which accounts for the vast majority of ventures in our area.While the provisions of the 90-day trial have ebbed and flowed over the years with the changing Governments, it remains a significant employment tool for businesses. Used ethically, lawfully, and underpinned by genuine good faith, a 90-day trial can serve its purpose extremely well, giving employers the opportunity to “road test” a new hire, check their suitability for the role, and, importantly, their fit within the company culture. Proponents say 90-day trials offer a “win-win”, giving employees the chance to score a job, a chance they mightn’t have otherwise been offered had an employer had to take them on untried, with the threat of a personal grievance if things didn’t work out. Used poorly, however, 90-day trials can be an absolute disaster – for both parties. It concerns me some employers aren’t bringing themselves up to speed with the requirements around conducting a trial properly. Some owners and managers hear that a 90-day trial allows them to hire an employee and terminate their employment within that period without having to justify it, and assume it’s as simple as that. It’s not. A 90-day trial is not some loose, casual arrangement. It must still be properly documented, and the prescriptive rules followed. Fail to do so, and, as an employer, you can find yourself deep in legal hot water, and very much out of pocket.The fundamentalsA 90-day trial is allowed under the Employment Relations Act 2000, but, remember, comes with strict provisos, including: The employer must be a small-to-medium sized employer – meaning an employer who employs fewer than 20 employees at the time which the agreement is entered into.The provision must be stated in the agreement.It must be for a specified period of no more than 90 days, starting at the beginning of the employee’s employment.The agreement must be signed by the parties.There are several other very important aspects of the trial period that are covered by the fundamentals of the employee relationship and that have been interpreted by the Courts, including:For the trial period to be valid, it must be agreed upon prior to the employee starting work.A previous employee who is re-employed cannot be subject to another trial period. The trial period must be agreed in good faith.Like most employment agreement terms, the trial period is negotiable. An employee doesn’t have to agree, or the parties may negotiate a shorter duration. Despite how critical it is to include the trial period’s terms in the agreement and ensure that it’s signed before the employee starts work, employers commonly overlook these vital steps … and walk right into personal grievance territory.  Take this common scenario. If an employee receives an offer or an agreement on Friday, starts work on Monday and then signs the agreement on Wednesday, even if the trial period is in the agreement, it’s not valid. In this situation, the employment relationship has commenced, and the employer can only dismiss the employee, like any other worker, on the grounds of performance, redundancy or misconduct – and not without following a fair and reasonable process, ensuring, of course, that they are acting in good faith.Trial time up?In practice, what does a valid, mutually-agreed 90-day trial period actually provide for?The employer may terminate the employee’s employment during the trial period without giving a reason.The employee cannot raise a personal grievance against the employer for being unfairly dismissed.However, the employee is still entitled to the same other minimum rights as all other employees. If the employer decides to terminate the employee during the trial period, they still must provide the notice agreed upon in the employment agreement. This applies even if it’s the last day of the trial. So, the employee must be allowed to work out the notice period or be paid out by the employer not to work.Other minimum entitlementsAn employee on a trial period is still entitled to all other minimum requirements in relation to health and safety, minimum wages, holiday pay, annual, as well as other forms of, leave. Again, remember, the employee must also be treated in good faith, and in the same way as other employees who are not on trial periods. Other personal grievancesEven though an employee cannot raise a personal grievance for being dismissed under the 90-day trial, the employee remains entitled to lay a claim against, among other things, being treated unfairly, harassment, discrimination and unjustifiable disadvantage; starting working before an agreement is signed; and, the lack of a trial period in the agreement.NoticeIf an employer decides to dismiss the employee during the trial, they must provide notice, as stipulated in the employment agreement, before the agreed period is up. So, say if there’s a 90-day trial period and a two-week notice period, an employer may give notice to the employee on the 89th day, but the employee’s last day will not be for another two weeks (unless the employer opts to pay out the worker instead).If the employer doesn’t give notice at the end of the trial, then the employee is no longer on a trial period and continues to be an employee. Some cases in pointIt’s amazing what a difference a handful of minutes can make. A worker on a trial period was told by his prospective employer on December 23 that he had the job, was sent his employment agreement and told to show up at 8am on January 18. He duly arrived that day around 7:45am, was introduced to staff and then taken back to the office to sign the agreement. Records show that he then clocked into work at 8:02am. The Employment Relations Authority determined that the employer had complied with the Act and that the worker had a trial period. However, if the man had started working prior to signing the agreement, the outcome would likely have been very different.Another situation involved a bakery worker. After a power cut, the employee was told to go home. When the power came back on the employer requested the employee return to work. The employee replied they were unable to return, to which the boss responded: “Bring your uniform back tomorrow; today is your last day, thanks”. The employer claimed to dismiss the baker under the 90-day trial clause. However, despite four weeks on the job, the baker still hadn’t actually signed an employment agreement. Therefore, the trial clause didn’t apply, and the employee was awarded $5000. In a nutshell …The 90-day trial period is available only to small-to-medium sized businesses with fewer than 20 employees. If an employer intends to rely on the provision, it must be included in the employment agreement, and that agreement must be signed by both parties prior to the worker starting. While, the 90-day trial does allow employers the added comfort of knowing that, if the employee doesn’t live up to their glowing references, that they may dismissed, employers still need to act with care – both legally and morally.In any event, every employment relationship is unique, and, if you’re planning to “swipe right” at any time, it pays to take legal advice first.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 law at Aspiring Law.Please remember, this information is designed as a general guide, and should not replace specific legal advice on a particular issue.

The Queenstown Lakes District Council announced changes to short-term visitor accommodation rules, covering the likes of Airbnb, for certain zones earlier this year – but that didn’t cover all properties.Further areas are due to be looked at later this year, as part of “Stage 3” of the District Plan review.In our last article, we looked at the outcome of the Council’s “Stage 2” review of its District Plan in relation to short-term visitor accommodation rules, which included: residential zones (low and medium density), high-density residential and business mixed-use zones and rural zones.The “Stage 3” review will encompass:Township zonesGorge Road high-density residential zone Business mixed-use zones Industrial zonesRural visitor zonesBallantyne Road mixed-use zoneThree ParksA common question I’m fielding from property owners who rent out their properties on platforms like Airbnb and Bookabach in the zones that are yet to be reviewed is: “What rules should I be following?” The answer: The “old” short-term visitor accommodation rules will apply until the new ones are formally approved under the Council’s “Stage 3” District Plan review.From what I’m seeing, the staggered reviews have added an extra layer of confusion for property owners trying to navigate what, if any, consent they need to be compliant.If you own a property in one of the “Stage 3” zones, it’s really worth seeking advice as to whether it could be to your advantage to obtain a resource consent under the “old” rules, while you still can – especially if you think it’s likely the new regime is going to be less flexible than the current one. (Remember: as long as the scale and nature of your short-term visitor accommodation operation stays the same, and notwithstanding any other developments, a resource consent granted before any rule changes will endure.)Silver liningsWhat started for many as a way to earn a few extra bucks every now and then letting out a spare room, is now big business. Recent research estimates Kiwis pocketed more than $500m from the likes of Airbnb last year. Part of the reality of that has been councils dealing with the regulatory side and the pressures such sudden growth brings. Owners are also having to familiarise themselves with the compliance and business aspects, including the potential ramifications of a “bed tax”, which looks likely to be introduced in the not-too-distant future. While that takes effort and money, savvy operators know it’s worth committing the time to research and seek timely advice. Sorting out and shoring up resource consent might seem like an expensive pain in the proverbial, but for many it will be an investment. Many short-term visitor accommodation operators don’t realise that the resource consents run with the land, meaning that, if you obtain one for your property, come sale time, that benefit will pass on to the buyers. So, bear in mind, if you’re selling your property, and you’ve secured a resource consent, that likely has value and should probably be reflected in the sale price. From a prospective buyer’s perspective, it’s worth querying whether a property is consented as part of pre-sale due diligence. It might even pay, where there isn’t a consent, requesting the vendor secures one before the sale’s finalised.A final reminder, especially as we see more and more people adding to their property portfolio specifically targeting the short-term visitor market: not all areas have the same rules. For example, if you already have a property in the Central Otago District Council area, and then go and buy another in the Queenstown Lakes District Council patch, they might not be treated the same under the respective District Plan rules. If you’re already involved in providing accommodation on Airbnb or similar platforms, or are considering it, and you’re not sure of the implications of District Plan rules (or the other must-know regulations and considerations, for that matter), a little bit of legal advice will likely go a long way.Given the amount of change at play, the variables and also the fact that there are pretty drastic consequences for getting it wrong, I recommend you book a time with a property lawyer, who specialises in short-term visitor accommodation, bank, insurer and accountant to work through your specific situation and ensure you’re taking the correct steps and precautions at the right time.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. 

One of the most rewarding aspects of what we do is giving back and paying it forward through our Community Relations Programme, which includes our pro bono work with numerous organisations.It’s an important focus for us – out team gets so much from engaging in this work: incredible satisfaction and sense of purpose, together with new learning, broader perspectives and meeting amazing, forward-thinking people from all walks of life.One of our longest associations is with the Festival of Colour, a biennial cultural extravaganza that sees our community treated to an eclectic array of performers and thought leaders.Currently, our Director, Mike Toepfer, is Deputy Chair of the Festival’s Trustees, and Aspiring Law provides pro bono legal support for the event. This year, we also had the pleasure of supporting Kiwi singer-songwriter Estѐre, who performed at Gin and Raspberry.We’ve just received a lovely letter from Festival Director Philip Tremewan, not only thanking Mike and the firm for the support, but also providing some great info about the success of the Festival, including audience feedback – which we know will interest many of our readers.“We have had huge feedback from our audiences telling us about their enjoyment of a festival that ranked as world-class,” Philip says. “Our first performer Jord Savall came to us from a concert at the Carnegie Hall in New York and was then heading to the Philharmonie in Paris!“We were delighted to bring our leading national arts companies – the Royal New Zealand Ballet, the New Zealand Symphony Orchestra and The New Zealand Dance company – to Wanaka. And people loved the range of music from Icelandic singer JFRDR to Canadian backwoods band the Tequila Mockingbird Orchestra to Wellington-based singer-songwriter Estère, who you sponsored. It was a great session at Gin and Raspberry and brought in such a different audience.”We were delighted at Philip’s news that the Festival exceeded box office targets – 9882 tickets were sold, with 31 of the 49 shows sell-outs – and that the audience is not only growing, but diversifying.“We successfully welcomed new audiences – a growing number of visitors are attending, and, through fresh programming and new marketing initiatives, we are reaching a younger demographic. Close on one-third of our audiences are new to the Festival,” Philip says.“Our street programme was the biggest ever, and people came out in droves on a sunny festival Saturday to enjoy everything from a “living library” of local experts to young local dancers in amongst Bullock Creek to an audio-walk to the lake.“The schools programme gave our young people – 1690 in all – opportunities to engage with the arts. This included the Royal NZ Ballet Dance Educator working with young dancers all week, circus performances from 3 Speed Crunch Box, sessions with story-teller Tanya Batt and an invitation from the NZ Symphony Orchestra for students to attend their rehearsal.”It was such a great letter to receive. Thanks, Philip – not just for your kind words and interesting update, but for everything you and your team do, so we can be treated every two years to what is one of the most interesting, colourful and enriching events on the region’s events calendar.

Our Directors, Janice Hughes and Mike Toepfer, are both a bit shy about highlighting their ages … but their number of years specialising in property law work is a bit of a giveaway.Each year, experienced property lawyers have the opportunity to sign up via their professional body – the Property Law Section – for Accredited Specialist status. This status reflects recipients’ experience, ongoing upskilling and contribution to the profession. Janice and Mike both have significantly more experience and expertise in the property law field than is required to qualify, so easily “made the grade”.Property has been one of Janice’s specialties since the beginning of her career in Invercargill. Today, she continues to work with clients from around the globe in all aspects of property law, including residential, rural and commercial. She has for many years advised on large, complex transactions, a specialty she particularly enjoys.Mike moved to Wanaka nine years ago from Auckland, where he had led the commercial property team of a major law firm. During his career, he’s been involved in high-end projects, including inner-city office blocks, multi-storied apartments, and large-scale subdivisions. He also works with families and landlords, providing legal support around residential buying and selling.

A 2018 Court of Appeal decision[1] has made a director liable for almost $500,000 of company debt due to the company’s failure to keep adequate accounting records. The decision highlights the importance for directors to understand their duties under the Companies Act 1993. The Act requires directors to ensure that the company keeps proper financial records.If you are a director and fail to keep adequate accounting records, and the company is unable to pay its debts in liquidation, then the court can make you personally liable if the failure has resulted in:Uncertainty of the company’s assets and liabilitiesThe liquidator being impeded in the company’s liquidation, and/orThe company’s insolvency has been caused by the failure.The duty to keep proper accounting records is one of a number of duties that all directors have under the Act.If you have any questions about what your duties might be, or what you need to do to fulfil those duties, please get in touch with us on 03 443 0900.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.2 Bishop Warden Property Holdings Ltd v Autumn Tree Ltd [2018] NZCA 285

When a marriage, civil union or de facto relationship breaks down, the couple will usually divide their property according to the Property (Relationships) Act 1976 (the PRA). However, these two people often hold property in a trust rather than personally.The PRA has limited remedies to access property which has been put in a trust, and this can result in unfairness when a couple separates if there are no assets that they own personally.The Law Commission has undertaken a review of the PRA and proposed that the legislation be changed to make it easier to access trust property when a couple separates.The situation nowIn its current form, the PRA gives very limited access to trust property. As a result, New Zealand courts have found a number of other methods to dismantle a trust when a relationship breaks down. For example, the courts have developed ways to help partners who make valuable contributions to trust property in the expectation that their relationship would continue and they would continue to receive benefits as a result of their work or contribution.Going to court is, however, very expensive. It is already time-consuming to pursue a division of relationship property under the PRA. It can be unrealistic for many people to try and bring a separate claim to try to attack a trust. Attacking a trust can sometimes mean bringing claims in two different courts at the same time, or it can mean more expensive High Court proceedings, rather than less expensive Family Court hearings. This means some people cannot pursue what might be their ‘fair share’ of relationship property if there was no trust involved.Law Commission proposalLate last year, the Law Commission released its Preferred Approach Paper which sets out a proposal on accessing the assets of a trust. The commission proposes that the PRA contains a single, comprehensive remedy that will allow a court to make orders when a trust holds property that was produced, preserved, or enhanced by a marriage, civil union or de facto relationship. The amended section of the PRA is expected to apply in three different situations:Where property is put in trust during a relationship or in contemplation of the relationship, and putting the property in trust has had the effect of defeating either of the partner’s rightsWhere trust property has been sustained by relationship property (i.e. income) or by the actions of either partner, orWhere any increase in the value of trust property, or any income from the trust property, is due to either partner’s actions or to the use of their relationship property (i.e. income).Family Court will have significant powerThis proposed provision will give the Family Court significant power. It is expected to apply when one partner uses their income during a relationship to improve or maintain a trust-owned property, rather than spending their income on assets which are jointly owned or benefit both parties.The section is also expected to apply when, in the early stages of dating, one party thinks that the relationship might last long-term, and puts their home in trust to protect against the possibility of a future claim from the other. If that home later becomes the family home, and would otherwise have been divisible under the PRA, the court may be able to access it despite the home having been put in trust.Early days yetOne unknown is the definition of what is ‘reasonable contemplation’ of a relationship. If the relationship has not begun and the couple is only casually dating, can they still put their assets in trust and expect protection? What if one party ‘reasonably contemplates’ the relationship but the other does not? It is not at all clear when it will be safe to put property in trust.If the Law Commission’s proposal becomes law, the best option is likely to be to formally contract out of the PRA. If both parties have independent legal advice and agree not to claim against trust property, the court is much more likely to respect that.If you are contemplating a long-term relationship and are unsure how to safeguard your assets, please don’t hesitate to contact us.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.

Employers now have a thousand new reasons to ensure all employment agreements are in writing.Properly documenting all employment agreements has been mandatory since the inception of the Employment Relations Act 2000. However, generally, any business found to have flouted the law had to be taken through the Employment Relations Authority process to be penalised, which is typically time-consuming and involved.Under a recent law change, which came into force on May 6, failure to provide written employment contracts will bring a $1000 infringement fee. We’re picking this will see more employers stung, because breaches will be dealt with more swiftly and informally through the Labour Inspectorate, rather than the ERA.It’s worth noting, too, that the $1000 infringement fee is per missing contract – so 10 contracts that aren’t in writing will mean $10,000, up to an aggregate amount of $20,000 in any three-month period.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 law 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 you’re in business and employ staff, there is a raft of newly-implemented and incoming employment changes – and, you need to be not only across them, but actively prepared.A significant change that’s likely to have an impact in our parts is just around the corner: the reinstatement of prescribed rest and meal breaks.This comes via the Employment Relations Amendment Act 2018, which was passed just before Christmas, part of which comes into effect on May 6. As well as reinstatement of breaks, the Act also heralds added protections for vulnerable workers, and the end of 90-day trial periods for businesses with 20 or more employees.Are you sorted?With the number of smaller businesses – particularly in the likes of retail and hospitality – in our area, the reinstatement of prescriptive breaks is significant, and it’s critical, with the law change all but upon us, that owners and managers turn their minds to this now, if they haven’t already.The rules vary depending on the hours employees work each day. As a guide, under the new laws, an employee will be entitled to: a paid 10-minute break after the first two hours worked; a 30-minute meal break after four hours; and, a further 10-minute break after six hours. If the employee works longer than eight hours, the breaks, duration and frequency repeat. While it’s possible for both parties to negotiate when the breaks happen, they can’t be of shorter duration.The foreseeable concern for local businesses is rostering. The incoming laws could mean, at the extreme, some businesses have to close for periods during the day to accommodate the mandatory breaks, unless they can find a lawful workaround.While the changes to the 90-day trial period won’t affect many employers in our community, it’s timely to remind businesses there are rules around how they’re conducted. Remember, a trial period can only be relied upon if it’s agreed to in an employment agreement that was signed prior to the employee starting work – and that includes any pre-employment staff orientation and training.May will also bring greater protections for particular workers and contractors who are deemed vulnerable: those working in catering, care taking, cleaning and laundry service roles. Under the incoming laws, when a business is restructured or sold, they’ll be entitled to continue on the same terms and conditions as their existing agreement.Paid leave for family harm victimsAnother important law change for workplaces came into force at the start of April: paid leave for those affected by domestic violence.In essence, the new Domestic Violence – Victims’ Protection Act 2018 enables any employee affected by domestic violence to take up to 10 days’ paid leave per year. The entitlement extends also to those who live with a child who’s been subjected to domestic violence, and, in all instances, is irrespective of when the harm occurred. While, as is the case with the likes of sick leave, employees must have worked for a business for a certain period before being eligible, in all other cases the employer is obliged to provide paid leave.Employees can request a short-term variation (two months or less) to their employment agreement – including hours of work, duties or location; in short, changes that, in the employee’s view, will enable them to deal with the effects of domestic violence. An employer, who is entitled to seek proof from an employee that they are affected by domestic violence, must respond urgently, and notify the employee within 10 working days whether their request for a variation is approved. There are some grounds for refusal, but any request mustn’t be turned down unreasonably.Among further obligations, employers are duty-bound to provide the affected employee information about appropriate specialist support services. It is also unlawful for an employer to treat adversely an employee on the grounds they are, or are suspected of being, affected by domestic violence.The clock’s tickingRemember, it’s critical that all of the new laws are accurately reflected in employment agreements, and that existing clauses don’t contradict them. In regards the new DVVP Act, employers should have the correct procedures in place by now, together with support information for anyone in their workplace who’s affected by domestic violence.Don’t forget, either, as of April 1, the minimum wage increased from $16.50 per hour to $17.70. The starting-out and training minimum wage rose, too, from $13.20 to $14.16 per hour. The Government has also set indicative minimum wage increases in 2020 to $18.90 and $20 in 2021, which is expected to benefit more than 220,000 people, particularly those in the seasonal and hospitality industries.All of these changes look set to alter the employment landscape quite significantly, not just for 2019, but well beyond. If you haven’t already, don’t leave it any longer to haul out your employment contracts for a thorough check, and careful amendment. And, if you’re in any doubt, be sure to take timely advice.Aspiring Law will be running BizClub® workshops to discuss the changes, and how to best prepare your business from a legal perspective.To register your interest, or, if you’re keen to take advice now, please email me on [email protected], or give me a call on 03 443 0900.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 law at Aspiring Law.

Helping your children – with care Contributions by family members to the purchase of a property and how this is recorded can affect property ownership. We discuss how you can help your children and, at the same time, lessen the risks to you as parents.New Zealand houses have never been more unaffordable: in the 1950s to 1980s a house cost two to three times the average household income. In the 1990s it was four times the average, and by the 2000s it was up to six times the average household income. When you add in the fact that households are now far more likely to have two incomes (compared with the single income norm of the 1950s), housing looks even less affordable.Parents are increasingly helping outUnaffordability has led Kiwi families to get creative when it comes to purchasing and financing the purchase of real estate. Many parents have undertaken to:Gift money to childrenLend their children moneyLend the children money but then sign a gifting certificate to their child’s lenderBuy a property with children (with or without the expectation they would live there), orBuy the property but the children pay all the outgoings, sometimes in lieu of rent, but often in the expectation that the property is ‘theirs’Put it in writingAll of these options add a layer of complexity to property ownership that, if not clearly agreed and recorded in writing, can cause problems later on.One example is parents who jointly contribute to a multi-unit property with their child and that child’s partner. Both couples live in the property, but the parents do not have any interest recorded on the title to the property, nor any underlying documentation recording the arrangement. If the child’s relationship breaks down years later and the lender’s records from the joint purchase are long gone, the parents are very vulnerable to a claim by their child’s partner that the contribution was a gift – that the partner is entitled under relationship property law to an interest in one half of the property.Another common example is where parents lend a young couple a capital sum to assist with the deposit on their first home on the understanding that it is a loan. However, nothing is recorded because the purchase can be more complicated if the lender knows the purchasers are borrowing money from more than one source. If the child’s relationship breaks down, the law assumes (in the absence of evidence to the contrary) that the money is a gift and the child’s partner may take the benefit of half of that gift.Yes, it can seem unfairThe reason for these seemingly unfair outcomes is that the law creates a presumption that where a parent transfers money or property to a child then, in the absence of evidence to the contrary, the transfer will be presumed to be a gift.This is of course directly opposite to the presumption in non-family circumstances, where a similar advance is presumed to be a loan.Questions to ask yourselvesYou need to be extremely careful when helping your children to purchase a home. If you’re thinking of helping your children to buy property, ask yourselves the following:Is the money a gift or a loan?Is interest payable?If it is a loan, when it is repayable? On death? On the sale of the home?Do you expect a share in the value of the home?What will happen if you want your money back?What will happen if the recipients are in a relationship or marriage and they separate?It is critical that you, your child and their partner discuss and agree the basis for the advance, and that agreement is recorded in writing. If you don’t go through the process above, you all could be facing completely unexpected and distressing consequences.© 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.

Your business is growing and heading in the right direction – but at the same time you have new responsibilities and risks.Unfortunately, too often we see a lack of understanding and/or haste see employers get off on the wrong footing in hiring a new employee – inadvertently sowing the seeds for major problems sometimes even years down the track.It’s important, as an employer, to fully appreciate, too, that your legal obligations start before the employee’s first day at work.Taking on employees is more involved than many anticipate. However, documenting a robust process can help ensure you take an efficient, consistent and methodical approach each time, and that you’ve covered everything you need to legally.Here are some considerations to get your checklist started:Prior to offering any applicant a role within your business, have you checked their references?Is the employee entitled to work in New Zealand? What is their immigration status?It’s a breach of the Employment Relations Act 2000 to take on any worker without a written employment agreement. Does the agreement include the minimum legal requirements of: name, description of work, place of work; agreed hours; salary or wages; dispute resolution process; public holiday entitlements; employment protection provisions; any other agreed matters, and the nature of the employment?Has the prospective employee received their employment agreement and had sufficient time to review the details? If there have been additional negotiations, are these reflected in the agreement?Is it the correct type of employment agreement? There are different aspects to consider for casual, fixed, permanent part-time and permanent full-time.Does the agreement include the clauses relevant to your business? For example, an appropriate non-solicitation clause or a legally-valid restraint of trade?For businesses in safety-sensitive industries, is there an appropriate drug and alcohol testing clause? For businesses under 20 employees, have you decided to include a 90-day trial period?Does the agreement include a clause integrating your company’s policies?Has the new employee signed their agreement prior to starting work? This is a must, and, if overlooked, can prove a costly oversight.Have they completed the tax, IRD and KiwiSaver documents?Does your payroll system correctly calculate and store the required details based on the employee’s particular type of employment? Are you able to provide the employee with a payslip for each pay period?Have you securely stored their signed agreement and other documents in both digital and hard copy?There is a raft of employment law changes that have either been recently introduced, or are on their way – including reinstatement of rest and meal breaks and prescribed support for employees who are victims of domestic violence. Are you across them, and are they properly reflected in all employment agreements?This is by no means an exhaustive checklist – but a starting point, so you can draw up your own, tailored to your business’ particular circumstances.If your employment agreements have been gathering dust and haven’t been recently updated, with all of the recent law changes, now is a good time to meet up with your business lawyer and update them. Your legal advisor can also help you put together a standard checklist to help make sure you can be confident all the legal boxes are ticked each time you take on a new team member.Given the increasingly stiff penalties for breaches coming out of the Employment Relations Authority and the Employment Court, committing some time and energy to this, as well asseeking advice, really is a very small investment. It should also serve to save your business time around hiring, and provide that all-important peace of mind. The stark reality inemployment law is that some mistakes, once made, cannot be undone.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 law at Aspiring Law.

When it comes to the evolution of intimate relationships, there is no textbook timeline – some people tightly entwine their lives within mere weeks; others keep it casual for years.And, we’ve all seen those romantic couplings where one partner believes with all their heart this is “true love”, while the other is just as convinced they’re hooking up with a fun friend … with benefits.Mismatched ideals and aspirations in love can be really painful when the differences in commitment bubble to the surface, and a relationship breaks down. Things tend to reach a whole new level of messy – and expensive – when the relationship has been enduring, and the former couple has completely different takes on the level of commitment and togetherness thatunderpinned it.Unfortunately, many people have a rather simplistic idea around the laws governing de facto relationships. Education and awareness have increased during the past few years, and most now understand that, after three years together, relationship property is typically divided 50-50, as per the Property (Relationships) Act 1976.What’s not so well understood is that there are exceptions – the incredibly important ifs, buts and maybes – or, even, what actually constitutes a de facto relationship. Having seen countless people during my career left shattered, not just by the separation but ensuing debates and conflict on when their relationship began, when it ended, and when it could be categorised as “de facto”, I cannot stress enough how vital it is to be really mindful of this, even in the beginning stages. A tad unromantic, I know.It’s complicatedIt’s really worth seeing a lawyer early on in any relationship, so you can take advice that’s personalised to your situation. When it comes to this area of the law, there are grey areas, and variables aplenty. For starters, to be classified as de facto you have to be living under the same roof – right? Actually, no, not necessarily. A couple may live apart in a shared residence or, alternatively, remain a couple while residing separately.In assessing whether or not a relationship is de facto, the following factors are considered:The duration of the relationship: It must be for over three years – but there are exceptions, one being that the parties have a child together.The nature and extent of common residence: What was the quality, extent, nature and quantity of shared living? As mentioned, the fact there was no common residence mightn’t be fatal to a claim. Conversely, however, the keeping of separate homes might indicate a period of courtship, rather than a de facto relationship; but, then again, the amount of time “staying over” is likely to also be considered. The “nature” refers to the type of shared living arrangements.Whether or not a sexual relationship exists: A de facto relationship may exist without a sexual element; and, where the relationship is sexual, it does not need to be an exclusive one.The degree of financial dependence or interdependence, and any arrangements for financial support, between the parties: Dependence, interdependence and support will point to the existence of a de facto relationship, but, again, a lack of these doesn’t necessarily prove the opposite, either.The ownership, use and acquisition of property: If all property acquired by one party after the start of a de facto relationship is acquired as separate property, this could count against the existence of a de facto relationship.The degree of mutual commitment to a shared life: Domestic arrangements will speak to other relationship indicators, suggesting interdependence and shared living arrangements in some cases, and a degree of separateness in others. Evidence of a “mutual” and ongoing commitment can be very important to see if parties are actually in a de facto relationship. The degree of commitment to a shared life has been considered a factor that threads through all of the other aspects, because it refers to the quality of all the other factors.The care and support of children: The term “children” is not, legally, defined, so isn’t limited to a child of the relationship, nor to a child necessarily residing with the partners, although that would not be a common occurrence. Nor is the term limited to dependent minor children, meaning, support of young adult children undertaking tertiary studies, for instance, could be relevant.The performance of household duties: Domestic arrangements may suggest interdependence and shared living arrangements in some cases, and a degree of separateness in others.The reputation and public aspects of the relationship: How did the couple appear to others? The outward appearance of the relationship may sometimes be given a certain weight and, especially if it and other factors are weak, this may bring a finding that no de facto relationship existed at all.Remember, though, these factors are not hard and fast, either individually or collectively, and what weight the court attaches to each will depend on the particular case. Judges take a “common sense” approach to deciding – and are typically guided by an often-used phrase: “mutual commitment to a shared life”. However, each case, ultimately, turns on its own facts.When was it official?When a de facto relationship ends, and there is debate over the division of relationship property, dates can become incredibly important and have a profound effect on who gets what. In some cases, when the relationship moved from “going out” to “living together as a couple” might be clear and easily denoted by the day they moved in with one another. But, often co-habitation is a gradual process, and a precise date is hard to pinpoint. That’s when it really can get down to the nitty-gritty: how often did the couple stay together … when were separate residences given up?While, as happens in relationship property cases, there are those who will “try it on” and develop selective amnesia as to facts and detail, others genuinely don’t remember the specifics, or have really, really different – albeit genuinely held – perceptions of the relationship status over time.I’m familiar with a case where one party believed he was in a de facto relationship, while the other considered him a lodger. Housemates often become romantically involved – but when does that relationship start ticking the de facto boxes? In that particular case, I think they both believed they were telling the truth. It can be very difficult to ascertain if and when a de facto relationship has begun, especially if parties keep separate bank accounts and separate finances, which is not uncommon nowadays.Off-and-on-again relationshipsAnother common area of confusion centres around on-and-off-again relationships, and how breaks and reconciliation periods are legally accounted for.So, say a de facto couple breaks up but decides to give the relationship another shot and moves back in together. As long as the reconciliation period is less than three months, it’s not added to the total length of the relationship.What’s really important to know, too, is that, to classify as de facto, an intermittent relationship, generally, must last continuously for three years of more – in other words, periods of co-habitation can’t usually be added together to reach the three-year threshold.While law changes over time have, indeed, aligned more closely the rights of de facto couples with those who are married or in a civil union, people assume that’s absolute. It’s not. Case in point: there is a vital distinction between intermittent marriages and civil unions and similar de facto relationships. Marriages and civil unions end, legally, only on death or dissolution, whereas a de facto relationship might be deemed to have legally ceased by separation alone. Even in cases where a de facto couple reconciles and moves back in together that can be seen as a completely new relationship. Again, though, the law around this is far from black and white, and volatile relationships have previously been found to have endured, despite repeated separations.Don’t bank on three yearsWhile three years is the typical threshold for a de facto relationship for the purposes of the Property (Relationships) Act 1976, people can be stunned to learn that that’s not a given.Provision is made for relationships of short duration that meet two key criteria, and that the court considers a serious injustice would be caused if it didn’t issue an order:There is a child of the de facto relationshipOne party made a substantial contribution to the de facto relationshipRemember, though, a child is not just considered one born into the relationship – it’s much broader than that.A child of the relationship may be the child of one or both of the partners. Alternatively, family members not biologically related to either partner might also come within the definition. For example, a stepchild from a previous marriage could be considered a child of the de facto relationship if living as a family member at the time the partners separate. However, some level of dependence by the child – for physical, material, emotional and/or social support – must be proven.In the last edition of Off the Record, I outlined the importance of contracting out agreements – the modern-day pre-nup. Such an agreement is something everyone in a relationship should at least explore, even if they decide not to sign one.This process will also help those in de facto relationships understand how the law would likely view their relationship should they separate This might feel highly irrelevant now but, take my word, you’re likely to be thankful you did if the relationship ends and there is any disagreement around divvying up the assets.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.

The Queenstown Lakes District Council’s much-anticipated District Plan changes to short-term visitor accommodation – including the likes of Airbnb and Bookabach – have been confirmed, with the new rules already in effect.After publicising its original intentions last year, submissions were called for, which, in turn, were considered by an Independent Hearings Panel. That panel’s recommendations were adopted in full by the council at its March meeting – even though, in some cases, they are a departure from what was originally proposed.While the panel supported some aspects of the council’s approach, it didn’t share the QLDC’s level of concerns on the impact short-term accommodation is having on the affordability and supply of residential and rental housing. It was suggested short-term accommodation is, in fact, helping by providing additional accommodation options, in cases where rooms or houses would otherwise have remained empty.Just before we get into the detail, though, it’s worth noting from the get-go that it’s not quite done and dusted yet – those who made submissions to the process have until May 7 to lodge an appeal against the council’s plans with the Environment Court.It’s important to understand, too, that there are some instances where it’s not black and white, and rules and conditions will likely come down to, among other factors, the location and nature of the accommodation, and how often a property’s let.Essentially though, here are what the changes look like …Under the new rules, visitor accommodation is broken into three types (with “holiday homes” no longer having its own category):Homestays: where the owners reside on the property during stays by paying guests. This would include a scenario where a room in a home is let out, or a granny flat on the property is being let.Residential Visitor Accommodation: residentialproperties where fee-paying guests rent the whole house.Visitor Accommodation: this definition is generally for commercial situations, and includes hotels, motels, backpackers, staff accommodation and camping grounds.The rules around homestays look set to remain largely the same, with no consent being required if you remain under the five-guest-per-night limit, provide adequate carparking, prohibit heavy vehicles and ensure specific traffic movements are not exceeded. The key change is that you can no longer let both a dwelling and a granny flat at the same time. If you wish to deviate from these rules, consent will be required, and that will be determined by the zone the property is located in.The panel also recommended – and the council accepted – changes to key Residential Visitor Accommodation thresholds:Residential zones (low and medium density): The proposed 28-night permitted standard was not adopted and has instead become:0 - 90 nights per year will be deemed a controlled activity, requiring consent.[1]91 – 180 nights per year would be considered a restricted discretionary activity, requiring consent.[2]181+ nights per year will count as a non-complying activity, requiring consent.[3]High-density residential and business mixed-use zones:0 - 90 nights per year will be deemed a permitted activity, meaning consent is not required.In the business mixed-use zones, 91+ nights will be considered a controlled activity, requiring consent. [1]In high-density residential zones, 91+ nights will constitute a restricted discretionary activity, requiring consent. [2]Rural zones: In the rural zones, the rules will largely depend on the location of the property. In some locations 0 - 90 nights will be deemed a permitted activity (consent is not required), with 91+ nights being a controlled activity.[1] In other areas, however, 91+ nights will be treated as a discretionary activity.There are also some location-specific rules proposed for Jacks Point, Waterfall Park and Millbrook.When weighing up whether or not to grant short-term visitor accommodation, the council will consider:The nature of the surrounding residential contextResidential amenity, character and cohesion within the neighbourhoodThe cumulative effect of the activity, and other surrounding activities, on the neighbourhoodThe number of guests on site per nightThe number of guest nights per yearThe availability of recordsMonitoring requirements and the ability to impose a monitoring chargeThe council has been at pains to emphasise it is not anti-Airbnb, or any other online provider, acknowledging that this sector plays a key role in the district’s accommodation market. However, it says, the changes are founded in trying to manage the phenomenal growth in the sector – it estimates 14 percent of the local housing stock is registered with one of the online providers, and the majority is whole houses.So, if you’re already operating some sort of short-term visitor accommodation, what do you need to do? If you were already complying with the rules before the changes came into effect in March, you can continue as normal – so long as the nature and scale of the activity remain the same. If that changes, however, it’s important you check you are compliant with the new rules.You can apply for a Certificate of Code of Compliance from the council – that’s a document which proves you are complying with existing rules. It’s entirely optional, but the benefits of having one include peace of mind that you’re on the right side of the law, and, where required, you have the relevant consent in place.If you’re considering entering the short-term accommodation market, it’s well worth taking some legal advice now so you can carefully consider how the new rules might impact your decision-making.Don’t forget, there are many other considerations when you're involved in providing short-term visitor accommodation, insurance and bank requirements for starters. Check out this article for a handy overview of some of those key factors.[1] Controlled activities require resource consent, but as long as the District Plan standards are complied with, consent must be granted. Conditions can be imposed.[2] Restricted discretionary activities require resource consent, and such consent can be granted or denied. Conditions can be imposed.[3] Non-complying activities are those that contravene the District Plan rules. Resource consent is required and can be granted or denied. Conditions can be imposed.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.

A few weeks ago, we began exploring what can be a highly contentious issue: challenging a Will.As I outlined in Challenging a Will: Part 1, there are two main legal grounds on which someone can question a Will. The first, which we explored in Part 1, is that the Will’s legal validity is disputed.This time, we explore the second basis for taking legal action: where a beneficiary believes that they haven’t been adequately acknowledged, and the three pieces of legislation that set out the grounds for such a challenge.Under the Property (Relationships) Act 1976, a spouse, civil union partner, or de facto partner (usually of more than three years) can generally lay claim to up to 50 percent of the combined relationship property. To mount a successful challenge to a Will, they must prove the relationship qualifies under the Act. If it does, they have a choice between two options:Option A – apply to the court for a division of relationship property, orOption B – do nothing, and accept the terms of the WillAn application must be made to the court within six months of the date probate was granted. If no application is made, Option B is the default.There are a couple of factors to bear in mind. Firstly, it’s quite possible a spouse will be better off taking what is left to them in the Will, depending on the individual circumstances. The deceased can leave 100 percent of their estate to their spouse, after the administration costs and debts are paid. Also, if Option A is chosen, all gifts given by the deceased under the Will are forfeited (although the court can be asked to reinstate them as part of the division).Let’s take our fictional married couple, Colin and Diane. Colin dies. If he has left most, or all, of his estate to Diane, she doesn’t have to do anything in terms of electing Option A or B. In this situation Diane is better off taking what she receives under Colin’s Will (Option B). If she doesn’t choose one of the options, then six months after probate is granted, she will be deemed to have chosen Option B anyway.However, if Colin’s Will gives 50 percent or more of his estate to his children from his first marriage, then Diane may very well be better off to take advice around the merits of selecting Option A.Relationship property, especially where blended families are involved, can add another layer of complexity. Again, taking timely legal advice and keeping your Will up to date are essential – discussing your intentions with your partner or spouse can also help cut any potential problems off at the pass.A breach of moral dutyThe second piece of legislation that can potentially cover those who feel they have not been adequately provided for is the Family Protection Act 1955.Under this Act, claimants must prove that the deceased had a moral duty to provide for them, and that they have breached that duty by not doing so adequately – or at all – in their Will. Typically, claimants are a spouse or partner, children, stepchildren or grandchildren who were in some way reliant on, or maintained by, the deceased.A successful challenge can result in a claimant being awarded a remedy, the size and nature of which can vary substantially. Given how involved these proceedings tend to be, you will usually need to seek legal representation to pursue a court case.A key factor to be aware of is time. A claim must be filed in the court within 12 months of the grant of administration/probate. The court can sometimes extend this, but not if the estate has already been distributed.Interestingly, Family Protection Act claims are often made not for financial gain, but because the claimant feels inadequately acknowledged or recognised by the deceased. Making the reasons for your decisions and/or unequal gifts clear in a memorandum of wishes (or, ideally, in a conversation with your beneficiaries prior to your death) can sometimes be enough to ward off unhappiness, misunderstandings and claims.Let’s take our fictional family, Alex and his three children – Eddie, Frank and Georgina. Alex leaves all of his estate to Georgina in his Will. Eddie and Frank each challenge the Will, as they do not believe they have been adequately provided for.The court finds Alex transferred the family farm to Eddie prior to his death, and paid for Frank to attend the Clown Academy in the United States, while Georgina received no assistance. The court makes provision for Frank, as his education and travel costs were not comparable to what Eddie and Georgina received.Preventing future challengesHow might you prevent challenges under the Family Protection Act?Making gifts of property before death – In this way, the property is no longer part of the estate.Trusts – Putting property into a Trust during your lifetime (but, be aware, any outstanding debt that the Trust owes you as a result remains in the estate).Making a contract to leave property by Will –This can then be enforced like any other contract.Written explanation – Leaving a written explanation of why property has been left to certain people. This will not necessarily prevent a claim, but it will help the court to make a decision.The final legislation people can seek a remedy under is the Law Reform (Testamentary Promises) Act 1949. Under this Act, spouses, partners, ex-partners, children, stepchildren, other family members and non-family members can claim if they believe they were promised something that did not eventuate in the deceased’s Will in return for care or other services provided during the Will-maker’s lifetime.Depending on what was promised, the circumstances of that promise, and the amount of the deceased’s estate, remedies can include either:The amount of remuneration specified by the deceased; orThe real or personal property specified by the deceasedSo, to be successful, what would a claimant need to prove?That they provided services or care to the deceased while they were aliveThat a promise was made – either expressly or impliedly – to reward the claimantThat there was a link between the services/care and the promiseThat the deceased failed to include reference to that promise in their Will, or otherwise reward the claimantThe claim must have been filed with the court within 12 months of the grant of probate. This timeframe can be extended by the court, but only if the estate has not been distributed – so the earlier you claim, the better chance you have of success.But what constitutes “work” or “services”? Examples include personal care, housework, financial help, assistance with properties or businesses, support and companionship. Note, though, family members will only meet the threshold if they go beyond what is reasonably expected within the relationship they had with the deceased.Our fictional character, Indigo, suffers a debilitating stroke at 87. Her nephew, Jake, and his girlfriend, Katie, take her in, and she lives with them for five years, until her death. During that time, Katie cares for Indigo extensively, including helping her bathe and dress, feeding her, doing her laundry and dishes, and ensuring she gets to all her medical appointments and Bingo nights. Indigo is very grateful for this and promises she will take care of Katie in her Will. Having Indigo living with them put a lot of strain on Katie and Jake’s relationship, and they separate after Indigo passes. Katie brings a claim under the Testamentary Promises Act, and wins a lump sum for her care of Indigo.Get it sorted while you canTo help ensure your Will is not challenged on these grounds, there are steps you can take in life, including:Make any specific gifts while you are still aliveDon’t make promises you have no intention to honourAmend your Will to include any such promisesEven if you do not change your Will, make a written note of the intended gift and provide a copy to your lawyer or executorAs you can see, simply being unhappy with the provisions of a Will is not enough – there must be some legal ground for the challenge, and different, prescribed steps will need to be taken, depending on the nature of the grievance.Remember, too, challenging a Will can be a big step when family and other close relationships are on the line. It’s generally advisable – before even mentioning mounting a challenge – to meet with your lawyer to discuss your concerns. They can advise you on whether there are legal grounds for a challenge, the merits of your case, as well as give you a steer on the emotional and financial costs you would potentially be signing up for.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.

The upside (and downside) of downsizingNew Zealand’s ageing population has created a boom for retirement villages, with record numbers being developed. For many looking to retire or slow down, retirement village living is attractive – and it’s not hard to see why. A new apartment or cottage in a secure, well-maintained environment, offering a lock-up-and-leave lifestyle, and providing resort-like facilities such as cafes, gyms, pools, bowling greens, libraries and men’s sheds can be very appealing.Many clients tell us how happy they are to have made the move, some even say they wish they had done it sooner, but retirement village living is not for everyone. It’s important to think carefully about what this move means for you – both financially, and in terms of your current and future needs.Consider carefullyDo your homework and consider your options. Why do you want to live in a retirement village? Will this move meet your needs in the future? What happens if your health or financial circumstances change? Have you considered the alternatives? Do your family and friends support a move?We recommend you visit as many villages as you can, including those close to where you live now (you may want to keep up connections to clubs and your social circles), and talk with family and friends about their villages and about your intentions. You’ll want their support to make sure the move is right for you.You should also look at other options such as staying in your current home (or downsizing to a smaller one) and bringing in help for gardening and maintenance, having home carers visit, using driving services and so on. If you are ‘house rich but cash poor’, you could consider taking out a reverse mortgage although this should be investigated fully beforehand.Retirement village essentialsA ‘licence to occupy’ is the most common structure used for retirement villages. This licence gives you the right to live in a unit for your lifetime. If a couple owns a licence it continues until the survivor has died. It is usually called an Occupation Rights Agreement (ORA).As residents, you won’t actually own the unit and are unable to sell or lease it (including renting it out as an Airbnb property). When you purchase a license to occupy you will sign an application and pay a deposit. You must be provided with a package of the documents (including the ORA and a disclosure statement) setting out your rights and obligations. It explains the financial implications of the purchase, provides details of development plans, village rules, policies, shared facilities and much more.You should read all this material, and then bring it in to us. The legislation requires us to complete a formal certificate to confirm that we have explained the nature and effect of these documents to you and that you understand them before you sign.It’s worthwhile remembering that you do not own any part of the village land or the buildings so you don’t usually benefit from any capital gain or carry any capital loss (although some ORA documents do have different provisions).The cost of retirementIt is standard practice for the village to deduct a ‘deferred management fee’ which covers the cost of operating and maintaining the village. It usually ranges from 20%–30% of the ORA purchase price. It is accumulated over the first two to five years that you occupy your unit, but will not be deducted until your unit has been sold to a new resident. At that time the village will pay you a repayment sum, less any fees you owe to the village, any costs of repair or reinstatement and the deferred maintenance fee. This means that when you leave the retirement village, you will receive a sum significantly less than the price you paid for the right to occupy your unit.Residents collectively contribute to the village outgoings (such as insurance and rates) through a regular outgoings fee. This fee is usually fixed for the duration of the ORA. However, increases may be linked to annual CPI increases or New Zealand Superannuation, or may be increased on notice from the village.You will also pay for telephone, power, internet or SKY tv. You will need to consider whether you will be in a position to pay any increasing utilities costs. It may be fine when there are two of you, but may be harder if one of you dies. If you are unable to pay your fees, some villages will let the fees accumulate in their books until you sell – meaning there will be less cash on terminating the ORA, but you can continue living in your unit.However, there is now some relief in relation to the costs of living in a village. Recent law changes mean that a resident who meets the financial eligibility criteria can request a partial refund of their contribution to their village’s rates payment. It’s a similar situation as if you owned your home.What happens when I move out?On termination, the deferred management fee and any other outgoings you owe the village will be deducted from your repayment sum. Your monthly or weekly fees are likely to continue until a new resident is found.Some ORA documents allow the village to charge a percentage of your original purchase price as an ‘administration fee’ when you terminate. You may also be charged for the village’s legal fees for arranging the end of your ORA.If you move from one unit to another in the same village (or to a new unit in a village owned by the same operator) your ORA may allow the village to charge you a transfer fee.If your unit is modified to meet your needs, you will usually pay the extra costs. On termination, the alterations may need to be removed, also at your cost.When you vacate your unit it will be inspected to assess what work needs to be done before it can be offered to a new resident. Although you are not liable for fair wear and tear, you are liable for repairs.When you terminate, most ORAs record that you cannot receive the repayment sum until an incoming resident pays for the new ORA. This means you or your family may wait months for the cash. Some villages, however, now offer an advance part-repayment so that you can pay a deposit on a new home or to assist your family with costs if you have died.Lifestyle village or full-care village?Is a lifestyle village or a full-care village right for you? The former offers independence but within a secure community – sometimes with access to shared recreational facilities. The latter offers independent living units as well as a rest home and private hospital facilities.If you are in a lifestyle village and your or your partner’s health fails, you may need to move to another village offering more care or to a rest home. It may be that if one partner is moved to a rest home, the other must remain in the unit until it is sold, which will make life more difficult and costly.Moving from one village to another can be expensive – the deferred management fee is deducted for your unit on termination, so you will have less to spend on a new unit. In addition, a new ORA will start the clock again on another deferred management fee. However, if you move between villages owned by the same operator you can often arrange for a credit of the deferred management fee from your old unit to the new one (so you only pay this once).Retirement villages are here to stay and are increasingly popular. They can be a great option for many people. However, our advice is to look around and do your homework, make sure your family is aware of your choice and speak to us for advice. We are always happy to help.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.

Once largely the domain of the well-heeled, personalised agreements about what will happen to assets in a relationship should a couple separate, or one partner die, are becomingly increasingly mainstream.However, many every day Kiwis still assume pre-nups – or “contracting out agreements” as they’re legally referred to – are only relevant when princely sums are at play, and, therefore, not worth exploring for themselves. Many times over, I have seen that misconception end up as a very expensive, stressful mess, one that could have so easily been avoided.The reality is anyone new to a serious relationship needs to ensure they are fully informed on what the ramifications are around relationship property – not just in the present day, but into the future as their partnership evolves.There are various milestones that see new entitlements kick in – for example, most people know that, generally, the 50-50 equal split applies to assets after three years. What many people don’t realise, though, is that law comes with quite a few “buts”.Laypeople often wrongly assume the laws that affect them are pretty cut-and-dried, but they can often be complicated and confusing. Up against a tidal wave of love hormones, taking a hypothetical scalpel to your relationship and your respective assets will probably feel really odd and extremely counter-intuitive.Don’t delayWhat I can say is: the sooner you have the conversation, the better – emotionally and legally. The longer you leave it, the more one’s life and assets have already become intertwined – and the more likely a partner might question why all of a sudden a contracting out agreement is on the table, even though you’re simply trying to be practical and responsible.So, let’s go back a step, and look at the foundations of relationship property law in New Zealand. The Property (Relationships) Act 1976 is a code, a set of rules setting out what happens in the event of separation or death. However, while the Act encases the default rules, couples can, under section 21, agree to “contract out” of the legislation – in other words, formally agree to rules personalised to their particular situation.Whether you go ahead with a contracting out agreement or not, the crucial step that you should never sidestep is getting independent legal advice to find out if an agreement is required or not – before you even get to the content of it. It should be an informed choice either way. Remember, too, society, lifestyles and relationships have all changed markedly since the Act’s inception in the mid-70s, an era when, typically, couples came together with negligible assets and went on to accumulate the majority of their wealth and property within the relationship.So, it’s not, perhaps surprising that increasing numbers are eschewing the Act, in favour of a contracting out agreement that more accurately reflects their own personal circumstances, commonly:Second marriages, civil unions or de facto relationshipsRelationships to which one, or both, partners bring substantial wealth – or the likelihood of substantial gifts or inheritances from a third partyRelationships where one, or both, of the parties have finances inextricably linked with thirds parties in the likes of trusts, partnerships and/or companiesModern-day realitiesSecond marriages and relationships – including blended families – are more commonplace today, which can often add another layer of complexity and require careful forethought both around assets and commitments to any children involved. Often what people don’t grasp, until it’s too late, is that, unlike some matrimonial property regimes overseas, New Zealand’s Property (Relationships) Act 1976, gives limited protection to pre-relationship assets which, for example, are subsequently used to purchase the family home, or to assets which may subsequently have become intermingled. In time, what’s mine – with some exceptions – may become yours, and vice versa.It is very important that when people contemplate entering into an agreement they are very clear which sections of the Act they are agreeing to “contract out” of. For example, section 15 looks at economic disparity. What if one party steps back from their career to look after the children and, thereby, allows their partner to throw themselves into their professional life? Should they not be compensated?While raising the spectre of a contracting out agreement tends to more typically spark awkwardness in most people, there are those who see an opportunity to clarify what will happen in the event of separation, rather than it being left to lawyers to argue about – especially given the complexities and uncertainties of the current legislation. I often see agreements that attempt to contract out more than is needed and more than is fair. An ambitious businessperson, for example, might see it as a way to ringfence for themselves future high earnings and gains.Bear in mind, though, the legal riders on a contracting out agreement include that it must be fair to both parties. The law also puts an emphasis on the interests of any children, and stipulates both parties must obtain independent legal advice before signing.You can help avoid an unwanted legal challenge to the contract by working it through with your lawyer, who will be able to guide you on making it as robust as possible. Much like a Will, it’s vital you regularly review your contracting out agreement – we recommend at least once every five years, but certainly earlier in the event of a major life change.Remember, too, contracting out agreements are not just for “marriages” – they are for all intimate relationships. And, the sooner into that relationship you tackle “the contracting out talk” the more informed options you will both have – and, in a healthy, mutually-respectful relationship, that can only be a good thing.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.

Death can bring more than mourning for those left behind. Too often it leads to animosity and arguing around the departed loved one’s Will – especially when its provisions come as a surprise.Many people assume testamentary freedom beats all else, and that they have the right to do with their assets whatever they wish, with those wishes being honoured after they die. However, this is not always the case.There are myriad misconceptions around if, why and how Wills can be challenged.There are two main reasons a Will may be challenged: firstly, its legal validity is disputed; and, secondly, a beneficiary believes they have not been adequately acknowledged.In this, the first of our two-part series on challenging Wills, we’ll explore objecting to a Will on the grounds it’s invalid, how those proceedings usually develop, and what you can do in life to ensure your possessions go where you want them to.What can cause a Will to be invalidated?The grounds on which the validity of a Will can be challenged include:The Will was not properly executed and witnessedThe Will-maker did not have the required mental capacity at the time they signed the WillThe Will-maker did not know what was in the Will, or the effects of the Will, when they signed itThat the Will-maker was unduly influenced by another party when they made their WillIf you plan to object on any of the above grounds, your first step should be seeking independent legal advice. Protesting a Will can be expensive and complex, and, potentially, have a life-long impact on important relationships. You need to be making well-informed, measured decisions from the outset. How much will it cost financially? Is there even enough in the estate to warrant a legal fight? And, what is the emotional cost? These types of proceedings can cause lifelong estrangement within families, so it pays to balance the potential benefit with the almost certain detriment before you begin.If you decide to proceed, the administrator of the estate (normally the lawyer who holds the Will) must be advised you are challenging the Will. A caveat will also need to be filed with the Court before probate is granted. The administration process will be put on hold, and no money will be distributed (apart from necessary bills).In terms of timelines, it is possible for the Court to declare a Will invalid even after grant of probate (probate is usually obtained within a couple of months of death). Once the estate has been distributed, however, the chances of any relief are slim.To have a valid case, one or more of the grounds outlined above must be proven. Discuss with your lawyer the type of evidence you’ll need – keeping in mind, this is a difficult task, and rather subjective.You will need to use – and pay for – your own lawyer to file your application in Court and represent you in proceedings. Sometimes, these cases are settled by the parties before they reach Court. If not, it will be a Judge who determines the validity of the Will in question. They may find the Will legally sound; agree that the Will-Maker had no valid Will and, therefore, died “intestate”; or revert to an earlier Will. Sometimes part of the Will is upheld, and part is amended.Preventing problemsSo, how might you prevent a challenge of this kind – either in regards your own Will, or in helping someone you care about ensure theirs is drafted correctly and in line with their wishes, while balancing the legal realities?The best way is to make sure you (or your loved one) have an up-to-date, professionally-drafted Will. It’s imperative that anyone whose capacity might be questioned is provided legal support, preferably after a doctor has assessed the Will-maker’s mental state.Get all Wills properly executed and explained – most Wills executed without legal assistance are done incorrectly, and it can also be harder to prove you had mental capacity at the time of execution, that you understood the contents, and that there was no undue pressure from another party if you are relying on lay-people as witnesses.Keep an eye out in the next few weeks, when we’ll look at the second path to challenging a Will – cases where people believe they have not been adequately provided for.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.

If you receive a notice from your landlord notifying you of a rent increase on commercial premises, and you don’t agree with the new figure, what can you do?The first step is to look at your lease, and read the clause dealing with rent reviews to find out:Whether your rent is, in fact, due to be reviewed. There is usually a schedule in the lease setting out the rent review dates.In the case of a review, if the rent is to be increased to the market rate, in line with increases in the Consumer Price Index, or is to increase by a fixed percentage.The process by which the landlord is to initiate a rent increase. There are a few things to look for here. Most leases say that, if a landlord initiates a rent review after the due rent review date, the landlord can still go ahead. But, if the rent review is initiated more than three months after the due date, the new rent will only be payable from the date of the landlord’s notice. There will also be time limits for you to dispute the proposed new rent. The lease will usually state that the notice must be served in a particular manner. If the landlord has not followed the process set out in the lease, the notice may be invalid.If you do object to the landlord’s proposed rent, the lease may also require you to provide a valuer’s report to support your objection.Most leases contain a “ratchet” clause, too. This typically states either that the rent following a rent review cannot drop below the rent payable immediately before the review, or else that the rent can increase or decrease, but cannot drop below the rent payable at the commencement date of the lease.If the rent can increase or decrease on a rent review, then most leases also allow the tenant to initiate a rent review (it would clearly not be in the landlord’s interest to initiate a rent review if the rent was going to go down).If you do dispute the rent and give the appropriate notice under the lease, then the lease will set out a mechanism by which the disagreement over the new rent is to be resolved. Normally, this is done either by arbitration, or by registered valuers for each side acting as experts, with a third independent expert appointed to make a final decision if the other two valuers cannot agree.If you are a commercial tenant, the most important takeaway is that if you receive a notice from the landlord initiating a rent review, you need to act promptly, as you might be deemed to have accepted the new rent if you don’t dispute it within the time period, and in the manner, set out in the lease.If in doubt check it out. We are happy to help guide you through the rent review process under your particular lease, so you don’t lose your right to object and have the opportunity to put the best possible case forward.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.

Aspiring Law Associate Sarah Ogilvie has been appointed to the leadership team of Wanaka Young Professionals, a network of more than 100 people looking to grow together in their careers.Sarah joins James Kingscote, of Mike Pero Mortgages, Tom Jarrold, of Colliers International and Alex Cull, of Crowe Horwath, to lead the network, which has been running for just over a year.“We’ve banded together to help each other host network events and professional development, and also generally keep everyone within the group abreast of issues that affect them, local businesses, and the wider Upper Clutha community,” Sarah says.“It’s also a great way for professionals to meet others who are at a similar stage in their career, share their experiences and, generally, engage more widely.”And, the welcome mat is pretty large.“The group started off targeted at professionals under 35, but, in reality, it really is a case of ‘the more the merrier’, and the focus has fallen more on people who are in the first 15-or-so years of their career. Now we have 110 in the network … and growing,” she says.One regular event that is becoming increasingly popular among Upper Clutha businesses is the chance to host the Wanaka Young Professionals, and explain more about their business.“These get-togethers are fantastic – local businesses host the event, which generally attracts more than 30 professionals from our network. The business explains to us what they do, how they do it.“It’s great all round – we get to learn more about the businesses operating in our community, and they have the opportunity to promote all they do in front of a group of active referrers, many of whom are themselves working at the hub of key businesses and industries.”Sarah, who moved to the Upper Clutha from Queenstown to take up her role with Aspiring Law last year, says joining Wanaka Young Professionals is fast-tracking her integration into the local business community.“This is a really rewarding way for me to get to know the local community better at the grass roots level and become actively involved in the Upper Clutha’s dynamic and unique business environment.”If you’re interested in joining the Wanaka Young Professionals, or you’re involved in a business that would like to host the network at an event, Sarah would love to hear from you: [email protected].

It’s an exciting time watching your business really take off and hit its straps – although, that excitement is usually balanced by the reality of the new challenges and responsibilities that invariably come with growth.For most businesses, more work generally means a need for more staff, and for many a key choice: hire employees or engage independent contractors. While the choice between the two may seem reasonably simple, there are important factors to consider when deciding and implementing which option is suitable for your business.A person engaged under a ‘contract for service’ is commonly known as an independent contractor. Whereas a person hired under a ‘contract of service’ is an employee under an individual employment agreement. While a contract for service and a contract of service sound similar, the relationship with your business is very different.Independent contractorsAn independent contractor under a contract for service is generally considered self-employed or representing their own business as a sole operator. The contractor is responsible for providing the services negotiated in their contract with your business. Depending on the contract, they may have greater flexibility around when and how their services are provided and, in some instances, where from.Independent contractors are also responsible for managing their own tax responsibilities, annual leave, expenses, insurance and other aspects commonly involved in running a business. In some instances, independent contractors may decide to form a company to operate under. This extra layer may be for a number of reasons, including tax, asset protection or even the intention to sell the business further down the track.Additionally, an independent contractor may have specific experience and skills that can benefit your business. A contractor’s varied experience may introduce new solutions to problems you have been unable to solve. Depending on the availability of contractors, they can enable quick adaption to changing market needs.The benefits of engaging an independent contractor can include: greater flexibility, fulfilment of specific needs in your business, cost savings and simplified payments and no PAYE. And as employment laws do not cover contractors, they are not entitled to annual or sick leave and are unable to raise personal grievances. You can also terminate the arrangement by giving the acceptable notice agreed in the contract.Hiring an employeeAlternatively, you may determine that hiring an employee is more suited to your business’ needs. Reasons could include that you want a specific commitment from them, such as you require them to work at a specific place for a specific time. If decided in their employment agreement, they may have to follow particular company policies, dress a particular way or wear uniforms.An employee will also give you continuity within your business. This may be important not only from a team-building and company culture perspective, but, also, consistency for your customers and clients. Other important attributes are trust, dedication and loyalty. Employees usually fully commit to your business allowing you to foster their strengths and abilities, and they become an asset for your business.But, hiring an employee has greater responsibilities than taking on an independent contractor. An employee is entitled to the protections of a variety of legislation: Employment Relations Act 2000, Minimum Wage Act 1986 and Holidays Act 2003 and the Immigration Act 2009. These Acts provide minimum rights to the employee, such as the right to have a written employment agreement, to act in good faith and reasonably towards one another.Employers must also ensure their employee has the right to work in New Zealand and are paid the minimum wage (that rate is set to change in April 2019). The employer must maintain accurate records and provide particular information to the employee.There are also various requirements relating to breaks, annual leave, public holidays, sick leave, bereavement leave and parental leave. In addition, there are several other minimum rights which need to be included in an employment agreement and provided to the employee.Finding the right mixContractors and employees don’t need to be used exclusively. Your business may require a full-time staff member and contractors through the busier periods. In many instances you will already have a good idea of what works for your business. If not, speaking with your trusted business advisor will assist in determining which choice is appropriate.Once a choice has been made, it is critical to correctly document and implement the relationship. Many companies get this wrong, and it's not always as simple as it sounds. Take, for instance, an employee. They can be permanent part-time or full-time, casual or on a fixed-term contract. From a legal perspective, there can also be situations where a casual or fixed-term employee evolves into being a permanent staff member. If this is the case, there can be serious implications when it comes to determining a number of the minimum rights.Be aware that it can sometimes be easy to blur the lines between an employee and contractor, a sort of “picking the benefits from both options”. This temptation can be very costly. For example, a business may want to engage a contractor, as there is more flexibility and less responsibility in relation to the statutory requirements and exposure to personal grievances. At the same time, they want to control their hours, performance of particular tasks, or further integrate them into the business. These elements are often considered by the Employment Court and the Employment Relations Authority as transitioning a person from being a contractor to an employee. As a result of this, many companies do not recognise the person is entitled to the minimum requirements afforded to an employee. There may also be situations where an employee is completely unaware that their actions may be muddling the distinction between an employee and a contractor.As you can see, there are numerous pros and cons to engaging an independent contractors or employees. There can be serious ramifications for employers in getting this wrong. Taking advice before signing either a contract for service or contract of service, and setting up the right relationship from the outset, is a small sacrifice when compared to a costly, stressful personal grievance.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 law at Aspiring Law.Please remember, this information is designed as a general guide, and should not replace specific legal advice on a particular issue.