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Jonathon Amtmann Promoted to Associate

Thu, 17 Aug 2023 00:48:42 GMT

The partners are delighted to announce that Jonathon Amtmann has been promoted to Associate of the firm.

Jono has been practicing law with us since 2019. He is a general practitioner and assists our clients with their various legal needs including in the areas of employment, civil disputes, relationship property, property sale and purchases, estate advice, wills, trusts and enduring power of attorneys. Jono also has court experience. He has developed excellent legal skills and is dedicated to achieving positive results for his clients.

You can contact Jono at jono@wardadams.nz or on 03 218 2833

The Fencing Act

Wed, 16 Aug 2023 00:42:03 GMT

The Fencing Act 1978 (“the Act”) deals with boundary fences between neighbours.

Generally speaking, the Act specifies that neighbours of adjoining land are jointly responsible to meet the costs of erecting an adequate boundary fence. A person wanting their neighbour to be responsible under the Act for half the costs of erecting a boundary fence, they need to follow the process set out in the Act and must serve a “fencing notice” on their neighbour. The Act requires a set fencing notice form be used, and the fencing notice needs to include specific details about the new boundary fence such as:

where the work relating to the proposed fence is to be done;
the nature of the work to be done;
the materials to be used;
an estimate of the costs of the work; and
the consequences of failing to comply with the fencing notice.

The neighbour served with a fencing notice has 21 days to serve a “cross-notice” if they do not agree with the proposed boundary fence. If the neighbour does not serve a cross-notice within the 21 day period, the proposals set out in the fencing notice are deemed to have been accepted.

If neighbours still cant agree on a boundary fence after served fencing and cross-notices, the Disputes Tribunal (or District Court if the proposed fence exceeds a value of $30,000.00) has the power to make a decision.

Decisions the Disputes Tribunal and District Court can make about boundary fences includes:

whether an existing fence is an adequate fence;
the work to be done on a fence;
the persons by whom work on a fence is to be done by;
the reasonable and proper cost of work on a fence;
the person or persons by whom the cost of any work on a fence is to be borne; and, if the cost is to be borne by 2 or more persons, the proportion of the cost which each of them shall bear;
the line of fence to be adopted, and the amount of compensation (if any) to be paid for loss of occupation of land and the manner of payment thereof;
the date on or before which, and the manner in which, any work is to be done;
the removal of a fence that is not erected on the proper boundary;
whether immediate work is or was required to a fence;
the entry on adjoining land for the purpose of carrying out the work; and
and any other question or dispute arising out of the Fencing Act.

The Act also deals with situations where a boundary fence becomes damaged and immediate repair work is required. Neighbours have the ability to repair the fence and recover half the costs from the other neighbour. Neighbours should however first try to agree on any work to be done on a boundary fence to minimise conflict.

The Act provides that a neighbour who damages a boundary fence is liable for the damage caused and is responsible for the repairs to the fence at their own cost.

It is important to ensure you are following correct processes when dealing with a boundary fence. Ward Adams Bryan-Lamb is able to provide you with advice if you are dealing with a fencing issue.

Please note: The information contained in this article is of a general nature and it should be used as a guide only and not as a substitute for obtaining legal advice. Specific legal advice should be sought where required.

Online Harm - What Can You Do to Keep Yourself Safe?

Wed, 23 Nov 2022 02:16:05 GMT

With the use of social media and online platforms becoming more and more prevalent in our daily lives, it is also becoming easier for people to use these platforms as a way to inflict psychological and verbal abuse or harm on other people. Individuals are now able to use online platforms to create fake profiles, post, threaten, and stalk people as a form of psychological harm. It is even becoming increasingly common for people to send messages by entering text into the reference box in a bank transfer. Individuals are becoming more creative, so it is important that we are aware of the risks of harm, and take the necessary steps to avoid such behaviour from continuing.

Under the Family Violence Act 2018, such online behaviour may constitute “family violence” and an application to the Family Court for a Protection Order may be necessary. In order to make an application under this Act, you and the person exerting this harmful behaviour (the Respondent) must have been in a “family relationship”. The Respondent may be a current or previous spouse or partner, or a family member. You may wish to seek special conditions to be included in the Protection Order should the Court grant one. This may include that the Respondent must take all reasonable steps to remove harmful material about you from social media.

If you are not in a “family relationship”, an application can be made in the District Court under the Harmful Digital Communications Act 2015. In contrast to an application under the Family Violence Act 2018, for an order to be granted under this Act, it must be satisfied that the other party had intention to cause you harm, and such communication would cause harm to a reasonable person and did cause you harm. If successful, the Court may make orders against the other party including taking down or disabling the material, ceasing or refraining from the conduct concerned, or publishing an apology. This Act is narrow and more targeted, and is not likely to result in quick or efficient redress compared to the Family Violence Act 2018.

In any event, it is important that you put necessary measures in place to stop this behaviour from continuing including not sharing your passwords, disabling GPS tracking on online platforms, blocking others on social media, and making a complaint to the relevant agencies.

The Bank of Mum and Dad

Wed, 12 Oct 2022 01:13:19 GMT

Looking to buy your first home but having to rely on Mum and Dad to cough up some money? How would that work and what risks do you need to be aware of?

First question … is it a gift or a loan? If it’s a gift, is it to you only or is it a gift to you and your partner? If it’s a loan, is it a loan to you only, or is it a loan to you and your partner? Simple … yet so important to be discussed and resolved.

If it’s a loan, then it will form part of the terms of your lending and require bank approval during your pre-approval discussions. To prevent the risk of any dispute arising in the future and to address what will happen with this debt/loan, your parents loan needs to be clearly documented thereby protecting their interests (as well as yourselves), should your personal circumstances change (ie separation from your partner or an unexpected death).

In some instances, your parents may also seek to own a share in the property, to secure their loan to you. If so, entering into a Property Sharing Agreement is required to record everyone’s expectations as well as what would happen should separation or a death occur. Such an agreement will also identify who will pay for what outgoings, as well as maintenance and repairs and also what will happen when the property is sold.

Alternatively, if such funds are to be classified as a gift from your parents, that too needs to be recorded in writing, which the bank will also require confirmation of this gift, importantly that it will not be called upon by your parents for repayment, at some stage in the future.

As the “Bank of Mum and Dad” is often being called upon these days as a viable option to assist children and their respective partner in purchasing their first home, getting sound advice from the outset with such arrangements being properly documented, is providing a cost effective and affordable option for first home buyers keen to break into the housing market. Our experienced Ward Adams Bryan-Lamb property team can advise and guide you through this exciting process.

So What Are Life's Essential Documents?

Tue, 27 Sep 2022 01:12:33 GMT

Four important legal documents essential in most people’s lives include having a:

· Will;

· Enduring Powers of Attorney (Property and Personal Care and Welfare);

· Family Trust; and

· Relationship Property Agreement.

Will

To ensure your hard earned assets are protected and your loved ones are provided for, having a Will gives you peace of mind that such assets will end up where you wanted them to. As your life and circumstances change, you should update your Will to reflect your position (i.e. getting married, divorced, having children, adopting, spouse/partner dying). If you don’t have a will when you die, then the law deals with your property in a predetermined way (called “intestate”), which in all probability will likely differ from what you intended to have happen with your assets. Dying intestate will also incur significantly greater legal fees on your estate,

Enduring Power of Attorneys

While you are alive and have mental capacity everyone should have an Enduring Power of Attorney confirming who you seek to make decisions for you pertaining to your personal care and welfare and property matters. Whilst people grow older, with greater risk of no longer being able to look after their own affairs, it’s even more important to ensure you have Enduring Powers of Attorney in place. Should you lose mental capacity by having a stroke or developing an illness (i.e. dementia) and you didn’t already have Enduring Powers of Attorney documentation in place, then your nearest and dearest would need to make Applications in the Family Court on your behalf, under the Personal Property Rights Act 1988 at greater legal expense.

Family Trust

Prior to entering into a relationship, for the purpose of protecting your assets from a potential claim being made against you (by a future partner under Property (Relationships) Act 1976,) setting up a family trust and transferring your assets into a family trust has much merit. When done so, in conjunction with entering into a section 21 Agreement with your new partner, would provide greater protection in identifying each of your respective separate property assets/liabilities, whilst identifying what constitutes “relationship property” during your relationship and how each of your respective assets/liabilities would be divided should your relationship end via separation or death.

Property Relationships Agreement

Whether you are contemplating a new relationship, already in an existing relationship or intending to separate, you need to seek legal advice about having a Property (Relationships) Agreement to accommodate your respective circumstances. Having such an agreement prepared for you by an experienced relationship property lawyer, will not only protect your assets/liabilities but will save thousands of dollars by avoiding lengthy and costly litigation expenses (not to mention stress), if you don’t make the time and effort to enter into such an Agreement.

Do I Need A Pre-Nuptial (Contracting Out) Agreement?

Wed, 07 Sep 2022 21:23:05 GMT

Question – do you want to have peace of mind about what will happen to your property if you die or separate from your partner? If you answered “yes” then yes you definitely need a pre-nup agreement.

Clients often tell me “but my partner and I have talked it all through and we’ve sorted everything ourselves … we trust each other!” That may be so, but if it’s not recorded in writing and signed off by two independent lawyers (in compliance with section 21F Property (Relationships) Act 1976 requirements, making it legally binding and enforceable then you could find whatever agreements you may (or may not) have reached during your pillow talk discussions, may not result in your intentions actually coming to fruition.

If you’re in a blended family situation (i.e. 2nd or 3rd time around relationship), with step children involved too, then that’s even more reason for you to have a chat with your solicitor to ensure each of your respective assets/liabilities will be dealt with, as you intended.

There’s no time limit to enter into a contracting out agreement, ideally, however, it should be prepared and signed as soon as possible, preferably prior to your relationship qualifying under the provision of the Property (Relationships) Act 1976.

Once negotiations are underway and concluded the cost of having a formal agreement drawn up, will likely pale in comparison to the potential loss of asset pool needing to be protected, not to mention loss of sleep and anxiety along the way if you don’t have such an Agreement in place, thereby giving you peace of mind.

Friends With Benefits … Can Have Its Disadvantages

Wed, 03 Aug 2022 22:30:30 GMT

If you are already living together as a couple or you are planning on moving in together, you need to get sound advice from an experienced lawyer specializing in relationship property matters. Right from the outset you need to understand the implications “living together” may have for your separate property rights.

Section 2D Property (Relationships) Act 1976 is a great starting place to begin with, as it defines what the meaning of a “de facto relationship” is.

A recent Court of Appeal case Sutton v Bell [2021] NZCA 645 confirmed that even if a couple are “in contemplation” of a de facto relationship, the Court has the ability to set aside a disposition of property (eg to a trust) when the person knew it would defeat a partner’s claim or rights. In this case about 8 months after the partner moved in as a flatmate, a property was transferred into a family trust for the purpose of asset protection. Even though the couple’s relationship didn’t yet qualify as a “de facto relationship”, nevertheless the Court set aside the transfer of property to the trust because they were “in contemplation” of a de facto relationship.

If you mutually contemplate living together “as a couple” then you are presumed to be “in contemplation” of a de facto relationship. Whilst moving in together is one of the many indicators referred to in s2D PRA, the Court will consider many other factors as occurred in Sutton v Bell. In contrast, flatmates who are in a sexual relationship (“friends with benefits”) may not be living together “as a couple.” In this case the Court of Appeal found the couple were not “in a de facto relationship” until later on in their relationship, when there were other indicators of a mutual commitment to a shared future (ie when they holidayed together and conceived their first child).

If these circumstances have similarity to your situation or create any concerns for you, rather than getting caught out by not obtaining legal advice, contact our experienced Ward Adams Bryan-Lamb team as you may well require a friendly Property (Relationships) Agreement or “pre nuptial” agreement.

Is your Will valid?

Wed, 27 Jul 2022 03:51:00 GMT

IS YOUR WILL VALID?

The Wills Act 2007 sets out specific requirements Will documents must follow in order to be valid. The key requirements for validity of Wills include the following:

· A Will needs to be in writing;

· A will-maker must sign the Will (or direct another person to sign the Will on their behalf in the will-maker’s presence);

· at least 2 witnesses must be together in the will-maker’s presence when the will-maker signs the will; and

· the witnesses must each sign the Will in the will-maker’s presence.

An invalid Will creates unnecessary extra legal hurdles and costs in administering the deceased’s estate. An extra court application is required to obtain an order from a Judge that the Will is valid despite non-compliance with legal requirements. This is not a straightforward task and a Judge may not grant such an order if the Will does not properly express the will-maker’s testamentary intentions. A situation could arise where the rules of intestacy apply to the estate because there is no valid Will or a previous Will would be followed if one exists. The result of this is that the will-maker’s wishes are not ultimately followed.

Having a valid Will in place which meets the requirements of the Wills Act 2007 and clearly expresses the wishes regarding distribution of property and management of affairs will help to avoid additional time, expense and emotional energy in trying to settle the will-maker’s affairs.

Please get in touch with our Ward Adams Bryan-Lamb team and we can advise you on whether your current Will is valid and we can also assist you to prepare a new Will.

What happens when your Partner Dies?

Thu, 10 Mar 2022 23:46:57 GMT

When a partner or spouse acquires property from a third party by way of survivorship (or death), that property will be separate property.

When a partner or spouse acquires property from a third party by way of survivorship (or death), that property will be separate property. However, this is not the case where a partner or spouse acquires property as a result of the death of his/her partner or spouse. In this scenario, depending on whether the property is classified as “separate” or “relationship” property, the property will be divided accordingly. If elected by the survivor, whatever is ultimately classed as “separate property” of a partner, will remain their property which they will be entitled to keep. Whatever is ultimately classed as “relationship property”, as a general rule such property will be divided equally between partners. However, the survivor may elect to follow what he/she is entitled to under a Will or rules of intestacy.

If you require legal advice or assistance about these important issues, our experienced Ward Adams Bryan-Lamb team are happy to help.

What If My Partner Gives Me A Gift?

Thu, 17 Feb 2022 23:44:47 GMT

As a general rule, gifts between partners or spouses (known as “interspousal gifts”) are not classified as relationship property - unless such gifts are used for the benefit of both parties or that is the intention. For example, if your partner gives you a bracelet, then that’s your separate property -provided the bracelet isn’t used by your partner too.

In contrast, if your partner purchases a car for you, but your car is then used by your partner for family purposes (i.e. driving to work, picking up the children and attending family events), if your vehicle is then used for the family’s mutual benefit and enjoyment, the gifted vehicle may become so intermingled as to lose its separate property status, making it then become relationship property.

Employment - Work Trial Period

Mon, 24 Jan 2022 02:10:39 GMT

Currently, employers who employ fewer than 20 employees (as at the beginning of the day the employment agreement is entered into) are able to have a new employee go through a trial period of 90 days or less. During the trial period, the employer may legally dismiss the employee and the employee will not entitled to bring a personal grievance (legal claim) or other legal proceedings against the employer regarding the dismissal.

For a trial period to be valid:

· The employer must have fewer than 20 employees at the beginning of the day the employment agreement is entered into.

· the employee cannot have been an employee for the employer previously.

· the trial period must be agreed to in the employment agreement before the employee starts work.

· there must be a valid notice period in the employment agreement. A trial period provision, if relied on, may incorporate a notice period of a different duration to that of the usual notice period, e.g. 1 week compared to the ordinary notice period of 4 weeks.

· The trial period provision must state that the trial period starts from the first day of employment.

· The trial period cannot be for more than 90 days but can be for less.

· The employee needs to be given notice of termination before the end of the trial period. Depending on the wording of the trial period clause in the employment agreement, the dismissal may still be valid even if the employee’s last day of work occurs after the trial period ends.

Other than the dismissal under the trial period, the employee concerned may still be able to bring a personal grievance for other employment related issues.

An employee who is subjected to a trial period is still required to be treated in good faith and no differently from other employees whose employment agreements may not have a trial period, or a trial period that no longer is in effect.

If an employer relies on a trial period to dismiss the employee, the employer does not need to provide the employee with its reasoning for doing so.

Given the significant consequences of a trial period, i.e. that an employee may be legally dismissed, the rules regarding trial periods need to be strictly followed for the trial period to be valid. An employer who relies on an “invalid” trial period may end up having to pay monetary compensation to the affected employee due to dismissal being unjustified.

Whether you are an employer or employee looking to get some legal advice about a trial period, our experienced Ward Adams Bryan-Lamb team are here to help.

Parenting Agreements

Wed, 01 Dec 2021 00:00:04 GMT

What is a Parenting Agreement?

A Parenting Agreement is a written document, usually entered into between separated parents, which records the arrangements for looking after a child/children of the relationship.

Parenting Agreements are useful documents to have as it works as a record of what has been agreed on between the parents should there be any dispute or misunderstanding about the arrangements in the future.

Parenting Agreements usually include the following:

· Arrangements for usual day-to-day care and contact of the child/children

· Changeover and travel arrangements including which parent will transport the child/children to the changeover location or who is responsible to collect the child/children from school.

· Arrangements during the school holidays and special occasions such as birthday’s, Mother’s and Father’s Day.

Parenting Agreements can also include other matters agreed to such as where the child/children are to go to school, transportation arrangements, the parent’s preferred mode of communication (particularly in the event of an emergency arising relating to the child/children and important guardianship matters which both parents are obliged to consult about regarding education, health, religion or any other matters of importance regarding the child/children.

What is the difference between a Parenting Agreement and a Parenting Order?

The main difference is that a Parenting Order is a Court Order whereas a Parenting Agreement is an agreement recording the parties arrangements. A Parenting Order is legally binding and the terms can be enforced with the Court’s assistance if a term of the Order is breached. A person looking to enforce the terms of any Parenting Agreement would first need to apply to the Family Court to be granted a Parenting Order before any enforcement can take place.

Parents who have a Parenting Agreement, whether oral or in writing can jointly ask the Family Court to make a Parenting Order reflecting the terms of their agreement. A Family Court Judge will look at the Parenting Agreement to confirm the terms are in the best interests and welfare of the child/children before making any Parenting Order.

Although a Parenting Agreement does not have the same legal status as a Parenting Order, it is still a good idea for any Agreement as to care arrangements to be recorded in writing to avoid any later confusion. A Parenting Agreement may also be used in any later Court proceedings as verification of what arrangements were occurring for the child/children.

Please feel free to contact our Ward Adams Bryan-Lamb team should you require any legal advice in getting a Parenting Agreement in place with your ex-partner, or if you seek assistance in applying to the Family Court for a Parenting Order.

IMMIGRATION UPDATE

Fri, 01 Oct 2021 02:02:32 GMT

New Government Resident Visa Pathway

You may by now have heard the Government announcement on the new Resident Visa Pathway for some temporary work visa holders and critical purpose visa holders currently in New Zealand. This is great news for migrants looking to make New Zealand their permanent home especially at the moment when the world is on hold due to Covid 19. This is also great news for Employers who can now retain settled, skilled and scarce migrant workers.

Applications will open in two phases from 1 December 2021 and from 1 March 2022 and all applications must be submitted before 31 July 2022.

If you have an eligible visa or have applied for an eligible visa on or before September 29 2021 (and later granted), you maybe able to apply. The Criteria for Residence is either one of the following:

· You have lived in NZ for three or more years; or

· Earn at or above the median wage (currently $27.00 per hour); or

· Work in a role on a scarce list.

Give me a call to discuss your eligibility.

The first phase is open for the following:

1. Migrants who have applied before 29 September 2021 for residence under the Skilled Migrant and Residence from Work categories; and

2. Migrants who have submitted a Skilled Migrant Category Expression of Interest and have included dependent children aged 17 years or older on 29 September 2021.

The second phase will be open to all other eligible applicants.

Feel free to Sandy a call on 03 218 2 833 to discuss further

What If I Use My Inheritance Money To Purchase A Property Or If I Inherit A Property?

Wed, 01 Sep 2021 08:52:15 GMT

To keep your inheritance money separate, the key is to ensure your money has not been “intermingled”.

To keep your inheritance money separate, the key is to ensure your money has not been “intermingled”. Recent case law provides, where inherited funds are used to purchase a property, provided there is no actual “intermingling” of that property with relationship property, such inheritances will remain separate property - but there needs to be more than just an intention or plan to do so. This applies, even if the property is purchased in both partners’ names and regardless of whether inheritance money was used to fund the purchase.

The same principle applies, where a person inherits a property. Provided it has not been “intermingled” with relationship property, it will remain that partner’s separate property. Note - if there has been any increase in the value of separate property, attributable to the application of relationship property, then that increase will be considered relationship property. This situation is subject to whether or not a previous contracting out or pre-nuptial agreement has been entered into between the parties, stating otherwise.

What If I Put My Inheritance Money Into A Joint Bank Account With My Partner?

Thu, 12 Aug 2021 08:12:12 GMT

It’s certainly not uncommon to have joint bank accounts with your partner or spouse. If you put your inheritance money into a jointly held bank account with your partner, then the status of your inheritance money remaining in a joint account is often a concern. From case law it’s become clear that inheritance money will not automatically lose its separate property status, merely because it’s been placed into a joint bank account. Questions as to its separate property status will only arise where money has been “intermingled” with other relationship property that it may be “unreasonable or impracticable” to now regard such inheritance funds as separate property.

One example of when inheritance money held in a joint bank account will remain separate property, is when such funds remain untouched in an account and therefore separately identifiable and traceable. An example of when such funds may become relationship property, is when such funds are withdrawn and used for general living expenses (i.e. food and household bills) to a point where such funds are unable to be identified, having been used for such general living purposes.

INHERITANCE AND SEPARATION

Thu, 15 Jul 2021 22:13:10 GMT

So … What Happens To Your Inherited Property Should You And Your Partner/Spouse Separate?

Good question! Rules around inherited property and separation are governed by the Property (Relationships) Act 1976 (“the Act”). As a starting point, Section 10 of the Act provides all property inherited by a person remains his/her separate property. This applies to inherited property obtained before and during a relationship. This provision includes any property a person acquires by way of survivorship, succession, gift, or as a beneficiary of a third party trust. But … this is subject to exceptions which if apply, would then class an inheritance as “relationship” property.

Where property is deemed “separate” property at the end of a relationship, then the person who owns that property is entitled to keep that property. But … where property is deemed “relationship” property at the end of a relationship, it may be subject to equal division between the partners.

TRUSTS ACT 2019

Wed, 28 Apr 2021 03:42:33 GMT

The New Act which came into effect from 30 January 2021 is intended to update the old 1956 Act and is aimed both at making trust law more accessible to both lawyers and the public, and ensuring that beneficiaries have enough information so that the terms of the Trust are being carried out properly with the beneficiaries being able to hold the Trustees to account for what they do.

What are some of the major changes?

Trustees

Duties of Trustees have now been added into the legislation. Most of these duties existed before the new Trusts Act, they had developed over the years through texts and case law but the new Act brings them all together.

The new Act separates Trustees’ duties into two types.

Mandatory duties are compulsory and cannot be changed or modified in a Trust Deed.
Default duties may be varied or excluded in the Trust Deed to the extent each is permitted under the legislation.

Mandatory Trustee Duties (ss23-27)

Know the terms of the Trust
Duty to act in accordance with the terms of the Trust
Duty to act honestly and in good faith
Duty to act for the benefit of Beneficiaries of the further permitted purpose of the Trust
Duty to exercise power for a proper purpose

Default Trustee Duties (ss29-38)

General duty of care
Duty to invest prudently
Duty not to exercise power for own benefit
Duty to consider exercise of power
Duty not to bind or commit Trustees to future exercise of discretion
Duty to avoid conflict of interest
Duty to act impartially
Duty not to profit
Duty to act for no reward
Duty to act unanimously

When contracting out of default duties Lawyers have a statutory duty to take reasonable steps to ensure that the Settlor understands the meaning and effect of the changes made to the default duties, as well as any limitation or indemnity clause that is included in the Trust Deed.

In addition to duties, all Trustees are also required to retain core Trust documents, including documents setting out the terms of the Trust or varying those Terms. At least one Trustee should also have records of the Trust property appropriate to the value and complexity of that property, records of Trustee decisions, contracts, accounting and financial statements, appointment, removal and discharge documents, memorandum of wishes by the Settlor, and other documents necessary for the administration of the Trust.

Beneficiaries

Trustees are required to provide Beneficiaries with basic Trust information, as early as possible, after the Trust has been set up (or for existing Trusts prior to 30 January 2021).

Basic Trust Information means:

the fact that the person is a Beneficiary under a Trust;
the names and contact details of the Trustees and each time there is a change to who the Trustees are they should also be notified of this change as it occurs; and
the right of the Beneficiary to request a copy of the terms of the Trust and Trust information

Trust Information is defined in the Act as meaning any information:

regarding the terms of the Trust, the administration of the Trust, or the Trust property; and
that is reasonably necessary for the Beneficiary to have to enable the Trust to be enforced.

Note: Trust Information does not include reasons for Trustee’s decisions.

There are also a range of factors provided for in the Act whereby if the Trustees reasonably consider the information should not be disclosed, the Trustees may withhold the information. These reasons can include if the Settlor expressed this as a preference at the time the Trust was set up.

Trustees also have an active duty to consider at reasonable intervals whether they should be making basic trust information available to Beneficiaries so this is likely to form part of the agenda for an Annual Trustees’ Meeting.

Other Significant Changes

The current age of majority is 20 and this will change to 18 under the new Act. This will become the new default age that a person can inherit (unless a specific age is stated) or become a Trustee.

The new Act also extends the length of time that a trust can last for from 80 years (formerly called the perpetuity period) to 125 years (now called maximum duration). This will be the maximum default lifetime of a trust, unless a specific period is stated in the Trust Deed.

There are also change to the grounds on which the court may review Trustees’ decisions .

The process for appointment and removal of Trustees has been modernised and broadened to minimise the need to have to apply to the Court. The Act also confirms that a person with a power of appointment or removal must exercise it honestly, and in good faith, and for proper purpose.

INITIAL QUESTIONS TO CONSIDER

1. What is the current status of the Trust? Is it active? Is it currently being administered properly?

2. What were your reasons for establishing your Trust? Does that reason still exist?

3. What assets and liabilities does the Trust have?

4. Are you happy to have Trust Information shared with Beneficiaries?

5. If you’re a Trustee do you know what is expected of you and are you willing and able to carry out increased obligations?

6. Will your Trust still be cost effective with the extra Trust compliance requirements?

7. What are your possible options for the future of your Trust?

- Option One – review Trust, make sure everything is compliant

- Option Two – wind up Trust if it is no longer required

- Option Three – if you have valid reasons to have a Trust but your Trust Deed doesn’t suit under the new Act then, if you can, vary your Trust Deed to reduce or change Beneficiaries (if you can) or if you can’t vary your Trust Deed to suit, consider a resettlement on to a new Trust.

Personal Grievances

Mon, 07 Dec 2020 01:43:09 GMT

Have you been treated unfairly or unreasonably at work?

In an ideal world, employer and employee working relationships would be fantastic. Unfortunately, this isn’t always so. Employment relationships can break down and employees can be prone to being treated unfairly at work. If you have ever found yourself as an employee in a position where you wish to make a formal complaint against your current or former employer, you may have a personal grievance.

What is a personal grievance?

A personal grievance is one of the main ways for workers to take a legal claim against their employer if they believe their employer has acted unfairly or unreasonably towards them.

You can use the personal grievance process if your employer has fired (“dismissed”) you unfairly or done something else you think is unjustified, such as unfairly or unreasonably putting you off work (“suspension”), giving you a written warning, or giving you a lesser job (“demotion”). A personal grievance is also available on certain other grounds, like discrimination and sexual harassment.

An employee can raise a personal grievance if they feel that they were:

· Unjustifiably dismissed

· Unjustifiably disadvantaged

· Discriminated against

· Sexually or racially harassed

· Bullied

· Subject to duress due to membership or non-membership of a union or employees’ organisation.

More about the situations in which an employee can raise a personal grievance , or if you would like to discuss this further with a Ward Adams Bryan-Lamb lawyer, please contact us now.

Unjustified Dismissal

An employee may claim their dismissal was unjustified if they can show they were dismissed, and they believe that the employer did not have good reason or the process used by the employer to dismiss was unfair.

In order for the process to be considered fair, relevant workplace policies and processes must be followed. The employer does not have to be perfect, minor errors may not make the whole process unfair. Examples of these processes may be:

· Disciplinary processes

· Managing employee performance

· Workplace change processes

· Bullying, harassment and discrimination.

How do I raise a personal grievance?

You can make your employer aware of your personal grievance either directly or in writing. It is better to do this in writing so that you have a record of all the details. If you do this verbally, you should take notes. Be aware that your claims need to be clear, and in enough detail for the employer to be able to respond to, or your ability to take legal action may be affected.

How much time do I have?

A personal grievance must be raised with the employer within 90 days of when the personal grievance arose or first came to the employee's attention (whichever is the later). In exceptional circumstances it may be possible to raise a personal grievance after the 90-day period but this carries significant risk.

For more information about raising a personal grievance after the 90-day period, give us a call at Ward Adams Bryan-Lamb.

Resolving a personal grievance

You may be able to resolve your personal grievance directly with your employer. If you are unable to achieve this directly with your employer, you may also request mediation from an independent mediator. The mediator can help you and your employer to reach agreement on how to resolve your personal grievance. Mediation is confidential.

You can also make a claim directly to the Employment Relations Authority (ERA). Ordinarily, before the ERA hears the matter, the ERA requires the parties to have first attempted mediation.

More about the process for raising a personal grievance here , or to talk to a Ward Adams Bryan-Lamb lawyer now.

When does the Employment Court get involved?

There are various circumstances in which the Employment Court could become involved. One of the Employment Court’s functions is to hear challenges to decisions made in the ERA. This usually occurs when one of the parties involved is dissatisfied with the ERA decision.

More information about going to Employment Court , or speak to a Ward Adams Bryan-Lamb lawyer .

How can we help

At Ward Adams Bryan-Lamb we are experts in personal grievances. If you would like future advice and help on how to raise a personal grievance and the process around personal grievances, give us a call now .

Enduring Power of Attorney

Thu, 12 Nov 2020 22:46:48 GMT

We all understand the importance of having a Will but how many of us know about the importance of having an Enduring Power of Attorney. What would happen if you lose mental capacity and not able to take control of your finances and/ or make decisions about your personal care and welfare? This is when you require an Enduring Power of Attorney (“EPOA”).

What is an Enduring Power of Attorney?

An Enduring Power of Attorney is a legal document where a person (the donor) gives authority to someone (the attorney) to act on their behalf when they are unable to do it themselves.

An EPOA operates when you are still alive but have lost physical and/or mental capacity.

Please be aware that an ordinary Power of Attorney is not the same as an EPOA. A Power of Attorney is used when a donor appoints an Attorney to act for them when they are overseas and uncontactable.

Why do we need an Enduring Power of Attorney?

It is often hard to think about a time when you would not be able to make the decisions you need to, or sign documents that relate to your assets or personal health.

We think that our partner or next of Kin will be able to make decisions for us when we are unable to however, this is not correct. Whether you are 18 years old or have been married for 50 years, if you are injured and or lose mental capacity, your family will not be able to access your bank accounts (held in your sole name) or sell your property to pay for your care. If under this situation you do not have an EPOA, your family will need to apply through the Family Court to access your assets, or to make decisions about your personal care. This can take months and cost thousands of dollars.

Ensuring you have an Enduring Power of Attorney will give you peace of mind that someone you trust will look after your assets and personal wellbeing if you are unable to do so, whether this is temporary or permanent.

How does an Enduring Power of Attorney work?

There are two types of Enduring Power of Attorney:

Property : This relates to all your assets and financial affairs either tangible or intangible. This can come into effect if you become mentally incapable or still mentally capable but perhaps physically incapable.

Personal Care and Welfare : This relates to decisions around what happens to your health care requirements while you are incapacitated; for example: whether you require rest home care or further assistance with you care. It is to ensure that a person you trust can make a decision about your care when you can’t.

It is important to understand the differences between these two types, the decisions that would be made under each type and how they work together. For instance, the person you appoint as your attorney for your personal care and welfare may well need to consult with the person you appoint for your property if, for instance, financial support is needed to pay for a care home.

Who can be my Attorney?

1. EPOA for Property:

· You can appoint one or more Attorney’s to act together or separately.

· Your Attorney should be someone you Trust.

· Your Attorney must be 20 years old and of sound-mind and not a bankrupt.

2. EPOA for Welfare:

· You can only appoint one person at a time to be your Welfare Attorney.

· Your Attorney must be someone you Trust and who knows you well enough so that they can make decisions for you as if you had made those yourself.

· Your Attorney must be 20 years old and of sound-mind and not a bankrupt.

Once you have decided who will be your attorney(s) you should let your family members know. This helps to avoid confusion should the worst happen.

What is my Attorney’s role?

Fundamentally; the role of your attorney is to promote and protect your best interests, in the event of physical or mental incapacity. The role of a property attorney can include for example paying bills, rolling over term deposits or even selling your house.

How do I set up an Enduring Power of Attorney?

You should set up an EPOA through a lawyer who will discuss exactly how your EPOA will work best for you. The biggest decision you will make is who will be your attorney(s). Remember that there are often cases where the attorney for your personal care and welfare will need to make decisions with the attorney, or attorneys, for your property.

Some things to consider:

· For your Property Attorney appoint two people to act jointly and severally. In this way both Attorneys can consult each other when making decisions which is in your best interest. This will also mean that if one Attorney loses capacity, the other Attorney can continue to act for you.

· Require consultation with others. You can appoint one overall attorney who is the final decision maker, but require them to consult with others for the decisions they make.

When can your EPOA attorney start making decisions for you?

1. EPOA for Property

An attorney’s power under an EPOA for Property can come into effect when you become mentally incapable or before you are considered mentally incapable. This would be useful if you are mentally capable however physically incapable for example; not able to go to the bank.

2. EPOA for Personal Care and Welfare

An attorney’s power under an EPOA for Personal Care and Welfare comes into effect ONLY when you are considered ‘mentally incapable’. You are considered mentally incapable if you are unable to make decisions about your care and welfare, unable to communicate decisions you have made about your care and welfare or unable to see the consequences of those decisions. For minor decisions the attorney can make this assessment themselves, but for significant decisions, for example residential care or a major operation, your attorney must have a medical certificate from a doctor or health professional, stating you have lost capacity.

What happens if you become mentally capable again?

If you lost your mental capacity, perhaps through illness, but you are now well again you can revoke your attorney’s power by giving them notice in writing. This doesn’t cancel the EPOA but your attorney will be unable to make decisions for you without an assessment from a health professional or a ruling from the family court that you are once again mentally incapable. You can also cancel (revoke), vary or suspend an EPOA, but you must be mentally capable to do this.

What next?

If you would like to discuss any of the information above and or set up an Enduring Power of Attorney, please contact Sandy Gilmete at Ward Adams Bryan-Lamb.

Protection Orders and Family Violence

Tue, 25 Aug 2020 02:45:47 GMT

Introduction

Family violence is a widespread issue within our society. An individual who is subjected to family violence usually faces detrimental and long-lasting effects. Close family members or children are usually also negatively affected. It can be very difficult for a victim of family violence to “break the cycle” and take the necessary steps to protect themselves and their loved ones from future family violence reoccurring.

Protection from family violence

Family violence occurs between individuals who are in a family relationship. A family relationship includes two people who are partners or spouses, family members, sharing a household (more than just living in the same building), or are otherwise in a close personal relationship.

Family violence can occur in different ways including:

· Physical - Such as punching, kicking or throwing things;

· Sexual – Such as saying sexual things, forcing you to look at pornography or any other kind of unwanted sexual contact;

· Psychological (mental) – Such as intimidating, threatening or harassing behaviour, hurting household pets or limiting your financial resources.

Protection Order

A protection order is a formal court order granted by the Family Court which is designed to protect a victim of family violence from the occurrence of future family violence. A protection order names the person who has been violent or abusive (respondent) and provides conditions for that person not to be violent or abusive towards the person who applied for the order (applicant).

There are various other conditions that an order could include such as non-contact conditions and restrictions around the use and possession of firearms. A respondent who breaches any such conditions of a protection order may face criminal charges.

In cases of urgency the Family Court may make a temporary protection order immediately on the application of the victim of family violence if the Court is satisfied that there is a risk of harm or undue hardship to the applicant or any child of the applicant’s family. If a temporary protection order is granted, it will automatically become a final order 3 months after the date on which the temporary order was issued by the Court. In such cases the respondent will have an opportunity prior to the order being made final to apply for a discharge. The dispute will then proceed to a court hearing to determine whether the order should be final or discharged.

What to do in cases of family violence

Applying to the Family Court for a protection order or responding to an application made against you for a protection order can be an extremely daunting process. If you are being subjected to family violence we recommend you seek help as soon as possible.

If you would like to know more about the process or are seeking assistance, our team at Ward Adams Bryan-Lamb would be happy to assist.

How do I Challenge a Will?

Tue, 12 May 2020 00:20:04 GMT

As Ward Adams Bryan-Lamb specialise in the administration of estates and Wills we understand how devastating and unfair it can be to be left out of a loved one’s Will.

When making a Will every person doing so has a moral duty to properly provide for those left behind. If a person fails to properly provide for you as their spouse, partner, child or grandchildren then in some circumstances, the Court may make provision for you from a deceased person’s estate. If you were promised something in return for work done or services provided, you may also be able to make a claim under the Law Reform (Testamentary Promises) Act.

So much to consider ... but you will need to know what the grounds are for challenging a Will or contesting an estate. Consideration will also need to be given as to what the value of the estate is and how you go about actually lodging a claim to challenge an estate.

The first step we need to take is to formally notify the estate that there will be a claim and obtain details regarding the value of an estate. Doing so will assist you to decide whether it is worthwhile pursuing such a claim in the first place. The second step we need to take is to negotiate a settlement on your behalf to prevent the need for formal proceedings having to be filed in Court. Such claims, if not resolved via Counsel negotiations, can often also be settled with mediation assistance.

If the Court’s assistance is required, our experienced Ward Adams Bryan-Lamb litigation team will prepare your case and guide you through the process. Our team also act for estates dealing with claims against them and also for beneficiaries of estates whose entitlements may be challenged.

If you consider you have grounds to challenge a deceased person’s Will, our experienced team would welcome an opportunity to have an initial fixed fee consultation with you to suit most people’s needs, during which time facts pertaining to your particular circumstances will be discussed with you, so you can quickly learn what options are then available to you from there.

Relationships Later in Life

Tue, 28 Apr 2020 02:15:09 GMT

Given New Zealand’s ever increasing divorce rates how can you protect your property against a Property (Relationships) Act claim, when entering into 2nd, 3rd or subsequent relationships later in life? Whilst younger people entering into a first time relationship, usually have less and lower valued assets (and sometimes greater debt), people entering into subsequent relationships later in life, represent a special demographic with unique legal needs. Such parties often hold higher value assets/debts and may also have children from a previous relationship(s).

So What Are The Property (Relationships) Act Rules?

If you are a couple (i.e. de facto, married or living in a civil union relationship) for at least a three year period (known as a “qualifying” relationship”), the Property (Relationships) Act will apply. Should your relationship later come to an end, due to either separation or the death of one or both parties, the property acquired during the relationship will be divided equally. In contrast, property acquired prior to the commencement of the relationship will typically remain the separate property of the party who owns it – except for the family home which will automatically be treated as “relationship property” regardless of when it was acquired, which will be subject to division under the Act.

Unless a pre-nuptial Agreement or Contracting Out Agreement is entered into between the parties to identify what assets/liabilities the parties agree will remain their respective separate or relationship property, the equal sharing provisions of the Property (Relationships) Act can have very serious and often unintended financial implications. Such implications later in life, can involve the risk of having to find sufficient funds (and/or having to sell off hard earned assets) to pay out a half share of such assets to an ex partner, or to the representatives of your ex partner’s estate.

Take The Following Example:

Jack and Jill meet and fall in love. They marry and have 3 children. They separate 12 years later. Jill pays Jack out for his half share of their relationship property assets, with Jill retaining their family home as part of their settlement. Some 4 years later, Jill enters into a new relationship with James. No pre-nuptial or Contracting Out Agreement is entered into by the parties before or after James moves into Jill’s home, to live with her and the children from Jill’s previous relationship, despite Jill having always intended to leave the family home as a legacy to her 3 children. A further 5 years goes by, then sadly Jill unexpectedly passes away.

Can James make a claim against Jill’s estate, for a half share of the family home where they resided together? Yes James could make a claim against Jill’s estate. If his claim succeeded, James would likely be awarded a 50% share of the value of the family home, leaving Jill’s surviving children to receive the remaining 50% share of the family home between them. This could happen regardless of whether or not, Jill leaves provision for James in her Will because after Jill passes away, under section 61 of the Property (Relationships) Act, James is able to elect either option A or B. Such provisions allow James to elect to inherit whatver Jill may have made provision for him in her Will, or James could elect to make an application for division of property under the Act – whichever way it’s up to James to decide. Alternatively, if James passed away then the same options would apply to Jill in relation to James’ estate.

Should Jill and James both pass away, or if James passed away shortly after Jill, then each of their representatives could still pursue a claim on behalf of their respective estates, with such proceedings usually costing significant legal fees and delays before their estates would be finalised and assets distributed.

Lessons To Learn?

Had Jill and James entered into a pre nuptial (or Contracting Out Agreement) such an agreement would specifically record what each of them wished to retain as their separate property and what property would be divided as relationship property (usually equally) under the Property (Relationships) Act. To be valid, such an agreement needs to comply with the requirements as set out in the Act including:

a) The Agreement must be in writing;

b) Both parties must sign the Agreement;

c) Each of the parties’ signatures must be witnessed by a lawyer; and

d) Each of the parties must receive independent legal advice.

Note – such an Agreement can be put in place at any time before, during or after the relationship becomes subject to the qualifying provisions of the Property (Relationships) Act. Once signed and certified by two independent lawyers, such an Agreement takes effect immediately. Prior to living with a new partner for a 3 year period (and just in case one partner who may own lower valued assets then refuses to enter into a Contracting Out Agreement), it’s very wise to take sound legal advice and enter into a formal Agreement well before your relationship becomes subject to the Act. If you need assistance please contact one of the team at Ward Adams Bryan-Lamb. Solicitors on (03) 218 2833.

Been Promised Something By A Loved One

Tue, 21 Apr 2020 23:13:36 GMT

Have you been promised something by a loved one only to discover following their death that your relative or friend did not formalise that promise to you in their Will? Let’s look at what options are available to you to challenge a person’s Will where such a promise has been made, but not allowed for or followed through.

If you are a child, grandchild, spouse, partner or relative of the deceased person, you can challenge a Will under the Family Protection Act.

If you are not a child, grandchild, spouse, partner or relative of the deceased person and the deceased person made a promise, which was not recorded in their Will, under the Law Reform (Testamentary Promises) Act you may be able to challenge their Will. Such a claim must be filed in the High Court within 12 months of a Grant of Probate or Administration of the Will. Providing the deceased’s estate has not already been distributed to the beneficiaries under the Will, the Court does have a discretion to extend this time frame. The criteria required to make a claim based on a promise, can be difficult with such evidence preferably needing to be in writing (ie such as notes from the deceased person or their previous Wills) showing the deceased person’s intentions. In the absence of such written evidence, making such a claim can be difficult to succeed (not to mention costly), given the likelihood of such evidence needing to be validated to the Court by other witnesses, which in itself could pose a problem if there are no other witnesses.

If the deceased person made a promise to provide for a person in return for services or work provided during the deceased person’s lifetime (ie whilst the deceased person was unwell, or they provided some form of help to them personally, or looked after their property) such circumstances can create provision for a person to make a claim against the deceased person’s Will.

Whilst deciding whether or not to make a claim against a deceased person’s Will and before the Court makes an award in favour of a person making a claim, relevant factors considered by the Court include:

The surrounding circumstances existing when the promise was made including the level of services provided or work performed;
The value of the services provided or work performed as well as the frequency of such services provided or work performed;
The value of what was promised in relation to work performed;
The total amount of the estate (if it is a small value estate then a Testamentary Promises Act claim is more likely to be unsuccessful); and
The nature and amounts of the claim made against the estate by other people (ie if other people were to make a stronger claim against the deceased person’s estate, particularly if a child had not been provided for in his/her late parent’s Will, then a “promise-based” claim may be weakened).

Generally speaking, the larger the estate the more likely a Testamentary Promises Act claim could be successful, providing sufficient evidence is provided to the Court about the nature of the promise, the services and whatever work was performed in exchange for that promise. Most importantly, you need to not only succeed in proving a promise existed in the first place, but that the promise was for reward in exchange for provision of services and that the deceased person failed to follow through with their promise.

If you consider you have grounds for challenging a deceased person’s Will, our experienced Ward Adams Bryan-Lamb team would welcome an opportunity to have an initial fixed fee consultation with you to suit most people’s needs, during which time facts pertaining to your particular circumstances will be discussed with you, so you can quickly learn what options are then available to you from there.

Debbie Bryan-Lamb

(03) 218-2833

Visa Holders during Covid-19

Sat, 18 Apr 2020 03:33:10 GMT

NEW ZEALAND VISA HOLDERS DURING COVID – 19

If you were in New Zealand on 2 April 2020 and are a holder of a Work, Student, Visitor, Limited or Interim Visa with an expiry date of 2 April to 9 July 2020 (inclusive), you visa will be automatically extended to 25 September 2020 . Immigration NZ will be emailing all visa holders under this category with the confirmation of the extensions. If you fall under this category and have not received your confirmation email, please use the Visa Verification Service on the New Zealand Immigration Website.

VISA HOLDERS WORKING IN ESSENTIAL SERVICES

Due to the Covid-19 Level 4 lockdown, New Zealand Government from 16 April 2020 has relaxed some visa conditions for both migrant workers and international students.

If you are a holder of an employer-specific work visa and currently employed in essential services, you may be able to vary your hours and or be redeployed to do other roles within your current workplace. The Government has also allowed visa holders to perform their current role in a different workplace to help essential businesses keep operating while New Zealand remains at Alert Level 3 or 4 and for 6 weeks after that.

Similarly, international students employed in an essential service role can know work longer hours (more than 20 hours) for their current employer while we remain at Alert 3 or 4 and for 6 weeks after that. However, if you are looking at working longer hours, you will still need to meet your study requirements. We suggest that you discuss your plans with your education provider.

In summary, if you work in essential services and fall under any of the following scenarios:

1. A work visa holder changing occupation however remains working for the same employer; or

2. A work visa holder changing employer but remains in the same occupation; or

3. A student visa holder working more than 20 hours and remains working for the same employer

you should request your Employer to complete and submit the form on the Immigration Website prior to you changing your current visa conditions:

https://www.immigration.govt.nz/

If you require any assistance with changing your visa conditions, please contact me via my email: sandy@wardadams.nz

BUYING AND SELLING PROPERTY DURING THE COVID-19 LOCKDOWN

Wed, 15 Apr 2020 21:52:55 GMT

If you are in the middle of buying or selling a property, it is likely your transaction has been affected by the Covid-19 lockdown. The Real Estate Authority (REA) recommends that, where possible, parties look at delaying settlements until level 4 alert is reduced to level 2. This is because during level 4 sellers will not be able to move out of their properties and similarly buyers will not be able to move into their new properties.

If you are a BUYER and have entered into a conditional offer (either prior to or during level 4 lockdown), we recommend you talk to your lawyer and arrange a suitable extension of the conditions until the alert level is lowered. You may be able to confirm your Finance and Kiwisaver conditions as both these organisations are working during the lockdown. However, during the lockdown you will not be able to access some services to fulfil the conditions i.e.; have your builder inspect the property or possibly have the LIM Report of the property prior to the due date. The SELLER may also not be able to attend to conditions stipulated under the Agreement e.g.; fixing the spouting or the roof. The buyer and the seller should work together and take a compassionate approach during this time.

If you have entered into an unconditional offer (prior to or during lockdown), we recommend that both parties agree to delay settlement until the level 4 alert is lowered. You should discuss this with your lawyer as to the best approach for your particular transaction. The New Zealand Law Society has recommended that settlements should be deferred to at least 10 working days after the alert level 4 is reduced. Discuss this with your lawyer and defer settlement to a date which will work for both parties. However, if you are selling a bare land or a tenanted property where the tenant is staying, we suggest you talk to your lawyer as these settlements may be able to take place during the lockdown period.

If you have any questions, please discuss these with your lawyer or contact one of our team at Ward Adams Bryan-Lamb.

SHARED CARE ARRANGEMENTS DURING COVID-19

Tue, 14 Apr 2020 06:04:13 GMT

Level 4 Lock Down Restrictions ...

In most cases shared care arrangements between parents are able to continue, providing parents are in a shared care “bubble” arrangement. The Ministry of Health has issued guidelines to identify what is required by people during Level 4 restrictions to help caregivers minimise the risk of spreading the virus.

So What Is A “Shared Bubble”?

A shared bubble is:

Two households only – with no other movement;
All adults in each household need to consent to the shared care arrangement to take place;
The households must be in the same or adjacent Health Board Districts;
The shared care arrangement can be a visit only, or stay for all or part of the level 4 lock down period.

In What Circumstances Will Some Shared Care Arrangements Not Be Able to Continue During Lockdown?

The Principal Family Court Judge released a statement reminding parties that in all cases the overriding concern should be the best interests of the children . As it is important for children to know that they and their loved ones are safe and well, their parents and caregivers must work collectively together to ensure that occurs.

Judge Moran explained “where there is a shared care arrangement and the families are in different towns or communities, the safety of the children and others in their family units should not be compromised by movement between those homes, particularly if there are more than two homes involved.” She confirmed parents and caregivers are to discuss shared care arrangements to try and reach an agreement between them, advising “this may mean the child may stay with one parent/caregiver for the initial 4 week period ... but where children can not move between homes, the Court would expect indirect contact (via phone or social media messaging to be generous ... parents must put aside their conflict at this time and make decisions that are in the best interests of the child and their families and the wider community. This global pandemic should not be seen as an opportunity for parents to unilaterally change established care arrangements without cause, or otherwise behave in a manner inconsistent with the child’s best interests or the Court ordered care arrangements.”

Travel Advice

For children travelling between homes and to minimise the risk of spreading the virus the following measurements have been recommended:

Children should be accompanied by an adult when moving between homes;
Private vehicles should be used where possible;
Public transport can be used where there are no alternatives;
Personal hygiene measures should be observed (ie whilst staying at least 2 metres away from other travellers, wearing masks and gloves, using hand sanitiser and frequent handwashing).

It has also been recommended parties should keep a copy of their Parenting Order or Parenting Agreement with them to explain why they are travelling.

Special Measures For Illness or Suspected Illness:

In situations where illness or suspected illness occurs further restrictions may need to be put in place. As such parents are advised children should not travel between homes in the following circumstances:

Children are unwell;
Someone in either home is unwell;
Someone in either home has been overseas in the last 14 days;
Someone in either home is currently being tested, or has tested positive for COVID-19; or
Someone in either home has been in close contact with someone who has, or is, currently being tested for COVID-19.

THE FAMILY COURT AND COVID-19 RESTRICTIONS

Sun, 12 Apr 2020 07:29:48 GMT

During the COVID-19 lock down period the Family Court will continue to operate for priority proceedings only - including Protection Orders and urgent changes sought in relation to Parenting Orders. Most priority matters can be dealt with by your lawyer and the Judge electronically, or over the telephone. During lock down period unless the Court or your lawyer asks you to go to Court, you will not need to attend the Family Court.

For those who are required to attend Family Court, to minimise the risk of spreading COVID-19 virus the following precautions should be taken:

Masks and gloves must be worn;
A 2 metre distance must be kept between other attendees;
Wash your hands frequently or use hand sanitiser;
Stay home if you are ill or you have been in contact with someone who is ill;
Stay home if you have been, or have been in contact with someone who has been overseas in the preceding 14 days.

Matters Likely To Proceed

Include those with:

Statutory time frames such as applications for Compulsory Treatment Orders and Orders Under the Intellectual Disability (Compulsory Care and Rehabilitation) Act;
Protection Orders or Interim Custody/Care and Protection Orders;
Proceedings involving vulnerable parties such as Welfare Guardianship or Property Orders;
Proceedings arising out of social dysfunction and family harm.

Alternative Dispute Resolution

If conflict between parents and caregivers are unable to be resolved via mutual agreement, mediation assistance can be requested via Family Disputes Resolution (FDR) available by remote access. Fairway Resolution Ltd provide mediation assistance and can be contacted on 0800 77 4420 or email fdr@fairwayresolution.com .

First Home Buyers

Mon, 06 Apr 2020 08:43:17 GMT

Covid-19 Impact on First Home Buyers

The share market around the world is taking a battering due to Covid-19 and there is a lot of uncertainty about how much funds will be available under your KiwiSaver to use towards your first home purchase.

If you are a first home buyer, and planning to use your KiwiSaver funds, you should now be discussing with your provider to switch your investment into a cash fund. Switching to a cash fund would lock the investment into a low risk fund which is largely unaffected by the share market.

We recommend when entering into a Sale and Purchase Agreement, you add a finance clause which includes your borrowing from the Bank and your withdrawal from your KiwiSaver. Remember to discuss this with your Bank, KiwiSaver provider and your Lawyer. This way when you make your offer you will have a clear idea of what funds you have at your disposal.

The question you should ask is how soon you need the funds. If the answer is sooner rather than later, you should talk to their provider about whether you should switch to a cash fund.

If you have already signed up to purchase your first-home and not sure whether you will have sufficient funds on settlement, please talk to your Lawyer and your Bank. Your Lawyer and Bank can help you during this time and provide you with some options.

Due Diligence - Find out Before you Buy

Mon, 13 Jan 2020 01:55:17 GMT

Due diligence is an investigative process that you may want to carry out if you are interested in buying a major asset, such as a business, land and buildings or a section intending to build a house or building on it.

The due diligence process lets you gather as much information as you can, from as many sources as you can, about an asset to help you make an informed decision about whether to proceed with your purchase. Usually your lawyer and accountant would be involved in your due diligence enquiries to help you understand and assess the information that is available.

The purpose of the enquiries depend upon the transaction but generally these include:

· making sure you are actually getting what you think you are buying

· assessing that the purchase price is fair and reasonable

· evaluating the commercial potential of what you are buying

· making sure there is nothing hidden behind the scenes particularly in relation to potential liabilities and financial matters

Every transaction is different but some of the types of information that are commonly reviewed include Records of Title, leases, LIM reports, financial accounts, employment arrangements, plant and stock, health and safety matters, distribution and supply agreements with main suppliers and customers, insurance, personal property securities register results and building contracts.

It is important that the due diligence condition in your agreement is worded correctly so that all options are open to you depending upon what you learn during the due diligence process.

At Ward Adams Bryan-Lamb we work with you to determine what information you may and help you to review the information as you receive it.

Contact us through our website or on (03) 218 2833 to discuss whether due diligence is something you should be considering before your next purchase.

Trusts Act 2019 – What might it mean for you?

Mon, 09 Dec 2019 02:34:15 GMT

If you’re involved in a trust – perhaps you have one yourself or are a trustee for someone else’s trust

If you’re involved in a trust – perhaps you have one yourself or are a trustee for someone else’s trust - you need to be aware of the changes that are coming as a result of the new Trusts Act.

The Trusts Act 2019 was passed in July 2019 and comes into effect from 30 January 2021. Among other things, the Act sets out the duties of trustees and provides rights to beneficiaries that they may have never had before.

If you’re a trustee or a settlor of a trust it is important that you are ready to start administering your trust in accordance with the new Act when it comes into force.

At Ward Adams Bryan-Lamb we can help you review your personal circumstances and your trust. We will assist you through the process of determining whether the trust structure remains right for you, and if it is, whether any changes need to be made either to your trust deed or to the way you administer your trust to make sure you comply with the new legislation.

Keep an eye on our website throughout 2020 as we post a series of articles to give you more detailed information about the Trusts Act 2019 and contact any of our team on 03 218 2833 or through our website to consider what the changes may mean for you.

Love and Money .... and Your Partner's Debt

Mon, 25 Nov 2019 01:43:11 GMT

LOVE AND MONEY... AND YOUR PARTNER’S DEBT

Taking on someone else’s financial burdens can cause a lot of strain in a relationship and also to you personally. If you’re looking at stepping into this “slippery slope”, feeling that you’re the only “saviour” to your partner’s situation, you need to be aware of the “ins” and “outs” of doing so.

If you are in a new relationship and your partner persuades you to act as a “guarantor” for their business or other loans, it’s very important you understand exactly what debt(s) your new partner has and that you have a very clear understanding at each stage, if you are being made liable for any borrowing being proposed.

A guarantor (also known as a surety) is a person who becomes responsible for someone else's debt (known as the principle debtor) when that person is unable to make payment of a debt. A guarantor may agree for a debt in its entirety, or only a portion of the debt.

If there’s no transparency and/or you simply don’t understand what obligations and risks there are ... then don’t do it. Our friendly team at Ward Adams Bryan-Lamb, Solicitors, Invercargill can help you understand your obligations.

What's Love Got to do with It?

Mon, 11 Nov 2019 23:56:45 GMT

“Love” and “Money” ... two intriguing topics often fraught with emotion during relationship property disputes! When a new relationship begins often it is not always easy keeping emotion out of our decisions. When the new love of your life tells you “I’ve just found this amazing car, for a fantastic price ... only I don’t have the best credit rating [due to big sad story]” you may find yourself reaching for a pen to sign up loan and/or guarantor documentation ... in your own name.

STOP! Should your relationship later end by separation, if the asset is registered in your partner’s name (and not your name) and whatever lending obtained is in your SOLE name, you could well find yourself – poorer. Without retaining the asset in YOUR possession (for which the debt relates to), you will still be legally liable for paying off the debt.

Our experienced Ward Adams Bryan-Lamb family law team are often asked about this important issue, after both your ex-partner (and the asset in question) may have long disappeared. So please ... BEWARE! Getting sound legal advice at the right time is so important.

What is the difference between Relationship and Separate Property

Mon, 27 May 2019 03:57:39 GMT

Under the Property (Relationships) Act 1976 the general rule is that if a couple have been living together for three or more years, all of their relationship property will be divided equally (with some exceptions). Relationship property can include:
• The home where you live in as a couple;
• Family chattels;
• Motor vehicles used during the relationship;
• Bank accounts and any money saved which exists as at date of separation;
• The value of any KiwiSaver Superannuation policy;
• Income earned during the relationship;
• A business/company shares;
• Any debts existing as at date of separation.

If during the relationship either partner’s income was used to invest in such assets, any increase in the value of such assets could become relationship property depending upon what occurred with such funds.

Separate property can include:
• All property acquired by either party prior to the relationship which is not relationship property (ie gifts and inheritances).

Such separate property assets would therefore not be available for division between a couple, but can become relationship property depending on what you do with such assets. For example, if during the relationship either partner’s income is used to invest in either party’s separate property assets (ie a business if acquired before the relationship), or intermingling occurs between separate and relationship property assets, then any increase in the value of an asset (ie business or superannuation fund) would become relationship property to be divided equally upon separation. Contributions made by a non-owning party (whether financial or non-financial as well as domestic contributions), can also create an interest in separate property assets (ie a wife assisting in the completion of Company financial accounts/administration, caring for children thereby allowing husband to focus on business).

Protecting Your Business in a Separation

Fri, 01 Mar 2019 01:08:02 GMT

Even when a business is established prior to a relationship, businesses can still be subject to a spousal claim under the Property (Relationships) Act 1976. If after three or more years spouses/partners decide to separate “relationship property” can include the family home, income and/or property acquired during the relationship – divided equally with limited exceptions. In contrast “separate property” can include property acquired prior to the relationship, gifts and inheritances (which are not generally divided) but may be the subject of compensatory awards.

A business (whether established during or prior a relationship) may be vulnerable to spousal claims with key questions to be asked including:

Has the business been intermingled with relationship property or has relationship property been used to support the business?
Was the business established for the common benefit of the spouses or used to benefit the family during the relationship?
Has the non-owner spouse made financial or non-financial contributions to the business?

Useful tips to help you achieve greater protection for your business include:

Entering into a comprehensive and fair Contracting Out Agreement with your spouse/partner either before or during your relationship confirming how property will be divided on separation or death, which specifies that your business will remain separate property and will not be divided.

Ensure your business property and relationship property are kept separate. If you own a business prior to a relationship which then becomes mixed with relationship property, it could subsequently be considered relationship property. Paying yourself a competitive wage could prevent a successful argument that you contributed a portion of your income (ie relationship property) to the business.

If your spouse/partner works in the business ensure you pay him/her a competitive wage thereby avoiding a successful claim that he/she made financial or non-financial contributions to the business which could allow them to later claim a relationship property interest in the business.

If you have business partner a Shareholder’s Agreement will increase certainty over what will happen to one of the owners in the situation of a relationship breakdown. Such an Agreement would specify each owner is to have a satisfactory contracting out agreement with their spouse/partner.

Separation can be an emotional and financially challenging experience with so much to think about - even more-so for business owners with other stakeholders to consider. Whether you are “in between” relationships, in the early stages of a relationship, or contemplating separation, obtaining sound legal advice, with the right preparation, will help you work through the process more quickly thereby obtaining a settlement which allows your business to continue to prosper.

Do You Need a Pre-Nuptial Agreement?

Thu, 22 Nov 2018 00:07:04 GMT

Do You Need a Pre-Nuptial Agreement?

If you are living in a de facto relationship with your partner before the date of marriage and regardless of how long you live together, then the period of your de facto relationship is also taken into account (and treated as part of your marriage) - for the purposes of dividing up property pursuant to the provisions of the Property (Relationships) Act.

So the moral of the story is ... if you contemplate the need to protect your "separate property" assets, by entering into a pre-nuptial Agreement with your “dearly beloved”, it's very wise to have this particular discussion BEFORE you start living together. Even more-so- should either of you have a child or children from a prior relationship as is often the case.

Wanting To Know How To Get A Divorce?

Thu, 08 Nov 2018 22:49:34 GMT

Wanting To Know How To Get A Divorce?

If you are wanting to end your marriage or civil union relationship you will need to apply to the Family Court for a “dissolution” (also known as a “divorce). Regardless of the reason why your relationship ended, under NZ Law the only requirement needing to be met is that you have been living apart for no less than you two years. Proof of your separation can be provided to the Court via a Separation and Property (Relationships) Agreement signed by each party and certified by two independent lawyers, or in an affidavit sworn by either (or both of you) confirming you have lived apart for 2 years.

If you have children aged under 16 years old, the Judge will also need to be satisfied that you have made arrangements for their day to day care and financial a support.

You can both apply for a dissolution order together, or one of you (alone) can apply for a dissolution order. Forms can be obtained from the Family Court or alternatively, you can download them from www.justice.govt.nz/family/sepration/apply-for-a-divorce/ .

Applying for a dissolution is a relatively simple process but it required, a lawyer will be happy to advise and assist you through the process. A joint application will usually be dealt to by the Family Court Registrar without the need for a hearing and without having to attend Court. You will need to pay a filing fee (currently $211.50) and the Court Registrar will need to sight your original Marriage Certificate or a certified copy of the Marriage Certificate.

What Does the Property (Relationships) Act Cover

Fri, 12 Oct 2018 01:00:44 GMT

When a relationship ends the Property (Relationships) Act 1976 ("PRA") deals with how property owned by married couples, civil union partners and de facto couples will be divided. The PRA also deals with situations involving property where a spouse or partner has died.

The purpose of the PRA is to recognise equal contributions of both partners to their relationship and to provide a just division of property when their relationship ends, taking into account the interest of your children. Whilst there is a general presumption that a couple's property will be divided equally between them, there are exceptions to this rule, with different rules also applying in situations where a relationship has lasted for less than a three year period.

Whether the PRA applies to you and your ex-partner will depend on the type of relationship it was and how long you were living together.

New Anti-money Laundering Requirements

Mon, 25 Jun 2018 10:11:59 GMT

Why should I care about money laundering?

Money laundering is estimated to be an issue in New Zealand with a value of more than $1billion per year – that’s a lot of money coming from illegal sources that is in circulation and potentially being used for transactions throughout the country.

From 1 July 2018 we will be asking for more information about you, any entities you are connected with and the transactions we are assisting you with. The gathering of this information is not optional for us as it forms part of the requirements imposed on us by the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (AML/CFT).

Please check our Client Identity and Identity Verification information form in advance of your next appointment with us to ensure you bring the correct identity documents with you.

The purpose of AML/CFT is to prevent money laundering and the financing of terrorism. Money laundering is the method people use to hide illegal origins of the proceeds of crime so they can grow, protect and enjoy their assets. Some people in New Zealand may also be financing the activities of terrorists and known terrorist organisations.

The AML/CFT Act requires us to know who our clients are (as well as who any beneficial owners of our clients are, and any person acting on behalf of our clients) by conducting customer due diligence (CDD) to the level required before we can conduct certain kinds of activities or establish a new business relationship.

Customer due diligence is similar to the information we get from clients who are buying or selling a property and is the same type of information you have most likely already had to give to your bank. We may also ask questions about the source of the funds you are using and the reason for the proposed work you are asking us to complete.

Please be aware that AML/CFT requires us to carry out Customer Due Diligence before we can carry out any work for you. If you cannot provide the information we need then we will be unable to act for you.

If you have any questions about these changes feel free to contact one of the team at Ward Adams Bryan-Lamb.

Borrowing Money for the First Time?

Thu, 21 Jun 2018 03:33:37 GMT

Borrowing Money for the First Time? Here’s a simple explanation of the process…

No matter how good you have been at saving there often comes a point in your life where you may need to borrow some money. There are many different reasons why you might need to borrow money but for your first time this might be to buy an asset like a fridge, a car or a house.

To start with the entity you are looking at borrowing money from, usually a main trading bank or a finance company (often called the lender) will need some personal information about you, firstly to confirm you are who you say you are and then for the lender to feel comfortable that you will be able to meet the terms of the loan that they give you, the most important thing to them being that you can pay the money back as and when you agree to.

The terms of the loan can vary but these include things such as how long you can borrow the money for, what the interest rate will be, how often you have to make repayments and how much each repayment is, and what will happen if you miss any payments (missing a payment is commonly known as default).

When you borrow money the lender often wants to take some form of protection over an asset that you own, or often the asset you are buying. This is commonly called taking security. The purpose of this security is so that the lender can take back the asset they have taken security against and use that to get the money they have loaned you back if you don’t meet the terms of the loan agreement, usually if you miss too many loan repayments.

As long as you are borrowing from an entity that is in the business of loaning people money, they are subject to some strict requirements under the Credit Contracts and Consumer Finance Act 2003, including an obligation to give you information about your loan on a regular basis (disclosure).

The two main types of security are a mortgage over land or a security over some kind of other asset that you own. Mortgage over land securities require your lawyer to be involved to complete registration of the mortgage against the Certificate of Title for the property you own on behalf of you and the bank.

Securities over any other kind of asset located in New Zealand, such as a fridge, car, or money in a bank account, are all registered on the Personal Property Security Register (PPSR) which is an internet based record maintained by the New Zealand Companies Office. Your lender can just register a security themselves without you needing to get legal advice and they usually include terms in the loan agreement that mean they don’t have to give you a copy of the security that they register or any other information about the security. This is particularly common for hire purchase type loans, such as a fridge or carpet.

Ward Adams Bryan-Lamb can assist you through all aspects of borrowing and the different types of security that your lender may require and for more detailed information in relation to any issue related to borrowing money please contact us through www.wardadams.nz or on facebook.

GOING INTO BUSINESS - WHAT STRUCTURE IS RIGHT FOR YOU?

Mon, 28 May 2018 01:41:45 GMT

Partnership, Trust, Company or Just Me?

The following information is intended to give you a brief overview of different trading options that are available to you in business. For more detailed legal advice that is specific to your circumstances contact one of the team at Ward Adams Bryan-Lamb.

A sole trader operates their business on their own and is responsible for all aspects of the business from managing staff to looking for new work and meeting all regulatory requirements, such as GST and tax returns. It is one of the easiest forms of business to set up, but if your personal assets are also in your own name then the lack of separation between your business and personal assets can create an unnecessary risk and may not be the best option for your business operation. There are also tax related issues to consider before deciding what structure would be best for your business and we can advise you in relation to these.

Partnerships involve two or more people owning a business - sharing resources, expenses and responsibilities. Each partner shares the losses and profits of the business. A business partnership operates in accordance with a partnership agreement. It is particularly important to get legal advice at the right stage, preferably before entering into a partnership and at Ward Adams Bryan-Lamb we can assist through every stage of the process.

A company is an entirely separate legal entity and is a useful way to separate your business affairs from your personal ones. Company incorporation is a straightforward process provided that you have taken the right advice, ensuring that you consider all of the issues that may be relevant to your business before incorporation of your company is very important. Questions such as who should be a director, how many shares should the company have and whether your company should have a constitution are best thought about in advance and we can assist you throughout the process, including completing incorporation of the company for you.

Trusts are set up when you transfer something you own to trustees to look after for the benefit of someone else and in a business context are commonly used to protect your personal assets from having to be used to deal with or business related debts. It is also possible to create a trust to operate your business, commonly known as a trading trust however we recommend you contact us for legal advice if you are considering doing this as there are a lot of issues to think about before doing so.

Just Met the Latest Love of Your Life only to discover he or she owes a significant level of debt?

Wed, 09 May 2018 02:15:12 GMT

If the debt was incurred prior to the commencement of your relationship, the debt will be classified as your partner's "separate property" debt. Three things I often tell clients to be mindful about include:

1. In the same way a pre-nuptial section 21 Agreement can identify both "separate" and "relationship property" assets, so too should "separate property" debts be identified and recorded in a signed Agreement.

2. If income earned during a relationship is then used to pay off your partner's "separate property" debt, should your relationship come to an end, then a Court Order can be obtained seeking compensation in your favour, for payment of your ex-spouses "separate property" debt.

3. Keeping a written record (somewhere safe) recording as much detail as possible of your partner's "separate property" debts, at the commencement of your relationship would be a wise thing to do.

Company Constitution & Shareholders’ Agreement

Mon, 19 Mar 2018 22:30:17 GMT

WHAT ARE THEY & WHAT DO THEY COVER …
It is not compulsory to have either a constitution or a shareholders’ agreement but these are important documents that can help to regulate how the company (and business) you’ve created will operate in all kinds of different situations, including day to day operations and decisions, dealing with the departure of one or more shareholders, as well as in more difficult times such as the death of one of the shareholders or disputes.

Constitution
A constitution is a document that sets out the rights, powers and duties of the company, the board, each director and each shareholder. In New Zealand you can incorporate a company either with or without a constitution. If a company has a constitution it needs to be adopted and registered through the Companies Register, thereby making it a public document.

Companies that do not have a constitution are governed by the Companies Act 1993 so having a constitution can allow a company to operate in ways that wouldn’t otherwise be possible under the Act, i.e. binding the company through 1 directors signature witnessed.

Shareholders Agreement
A shareholders agreement is a private contract between the shareholders of a company regarding their dealings with one another and the company. It does not get registered through the Companies Register. This privacy element is one of the main advantages of a shareholders agreement.
A shareholders agreement can include outlining responsibilities for the day to day running of the company and also the rules, processes and framework for dealing with contentious matters that may arise. A shareholders agreement can include as few or as many matters as the shareholders determine and they frequently range in size, covering only as many details as the shareholders agree that it should.

What do they Cover
Any number or combination of issues can be addressed, depending on what matters to you and your fellow shareholders:

Directors – who? How many? How are they appointed & removed? Do they have differing responsibilities? What are their obligations?
Who can bind the company and how?
Operations of Company – how will the company be run on a day to day basis? Are there financial reporting requirements you want to include? How can make decisions – operational & strategic decisions.
Remuneration – will shareholders/directors be paid? Are there other benefits included, e.g. car, phone, computer, use of credit cards?
Meetings – how often? Quorum?
Exiting the company – Can a shareholder be forced to be bought out? Can a shareholder require the others to buy them out? What is the process if all shareholders want out?
Pre-emptive rights of shareholders – do shares have to be offered to the other shareholders first before they can be offered to others? Exemption for associated person transfers?
Information about shares and shareholders – who can be a shareholder? How many shares? Do the shares need different rights attaching to them?
Shareholder decisions – are there some that require unanimous approval? Do all shareholder have the same rights?
New shareholders – how are new shareholders introduced?
Valuation of shares – how will shares be valued? Will this be the same method in all circumstances?
Drag Along / Tag Along - applicable if you have a majority or minority shareholders – can force sale of minority shares.
Deadlocks – what is the process to resolve disputes? Fundamental dispute – what does this mean & what happens if there is one? Mediation?
Restraint of trade – are departing shareholders subject to a restraint of trade? If so, on what terms?
Non-competition – are shareholders prevented from carrying on business in competition with the company?
Distributions – how and when will they be paid? Will profit stay in the company?
Funding – how will capital be raised? How else will the company be funded?
Shareholders funds – will the shareholders be required to introduce capital to the company? Will there be interest paid back to the shareholders for any such loans? Do all shareholders have to be able to put in the same amount?
Insurance – what needs will the company have, consider death or serious injury of another shareholder?

These are just a summary of the kinds of issues that may be relevant to you and your fellow shareholders.

To complete a comprehensive constitution and shareholders’ agreement that cover the issues you need it too contact Karen Poff for further advice.

Short Duration Relationships v Long Duration Relationships

Tue, 27 Feb 2018 22:38:19 GMT

What's the Difference?

Short Duration Relationships:

Does it make any difference how your property is divided, if your relationship ends within a 3 year period? It sure does. If you're in what's referred to as a "short duration" relationship and dependant on all the circumstances, chances are - when your relationship ends, you could well come away with just the assets you brought into the relationship.

Long Duration Relationships:

If you're living in a relationship of 3 or more years and your relationship comes to an end, it's likely your assets will be divided on an equal sharing basis in accordance with the equal sharing provisions of the Property (Relationships) Act - subject to whether or not a Section 21 Pre-nuptial Agreement was previously entered into, and/or the existence of any "extraordinary circumstances" would make equal sharing repugnant to justice and/or any further relevant circumstances need to be taken into account.

Building Inspection Reports

partners@wardadams.co.nz (Ward Adams Bryan-Lamb ) — Sun, 08 Oct 2017 08:32:17 GMT

The Inspector

An inspector should have practical experience in the building industry, be a member of a relevant professional or trade organisation, or hold relevant building trade qualifications. Members of the NZ Institute of Builder Surveyors meet these criteria.

There are no specific entry requirements to become a building inspector. However, experience in the industry and qualifications in areas such as construction, building science, architectural technology, carpentry or plumbing are essential for any role that involves site inspection.

Institution of Professional Engineers NZ
NZ Institute of Architects
NZ Institute of Building Inspectors
NZ Institute of Quantity Surveyors

Standards NZ has developed a standard for the inspection of residential property (NZS4306:2005 Residential Property Inspection) which lists in detail the areas to be covered in a property inspection, and identified the types of defects found in houses and apartments.

This document must be used by the building inspector.

Property Report

The property report is not a guarantee that all possible defects have been identified. It provides information about those defects visible at the time of the inspection. You have to decide if the defects are significant enough to put you off purchasing. Neither is the property report a guarantee that the house meets all the requirements under the Building Act. It does not look into compliance with the Building Code, for example, to see if alterations were done with building consent. You can ask for a special report on this or do your own investigations by looking at the Land Information Memorandum (LIM) and council files.

“The property report is not a guarantee that all possible defects have been identified”

The Written Report

In the written report provided by the inspector you should expect to see the following information:

Address of the property inspected.
Name of the person requesting the report.
Inspector’s name and the name of anyone else present.
Inspector’s qualifications and experience.
Weather at time of inspection.
Date of the inspection.
Scope of the inspection.
What the inspection did not cover and the reasons why.
The conclusion as to the overall condition of the property, taking into account its age, type and general expectations of similar properties. This is an important point. If you are buying a 50-year old house, expect it to have the odd defect.
A list of significant faults or defects.
Recommendations for any further inspections, for example, by an electrical, plumbing or drainage inspector, or an engineer or surveyor.

What a Property Report Does not Cover

Generally, a basic property inspection does not cover (unless specially requested in a special-purpose report):

Title search.
Planning and resource consent issues.
Building consent and code compliance.
Special heritage property obligations.
Compliance with body corporate rules, the terms of a memorandum of cross lease or a company title, occupation agreement, and body corporate costs for apartments.
Costs of fixing defects.

Invercargill Building Inspectors

Southland Residential Property Advice
Building Inspection in Invercargill
Category: Building Inspection

Joe MacDonald - Property Advice Inspection Services
Building Inspection in Invercargill
Property Advice was formed in 2000 with the aim of providing Southlanders
with the highest standard of report information. The company’s
owner/operator, Joe MacDonald, is a trade certified Master Builder
with over 25 years of self-employed experience in the construction
industry.
Category: Building Inspection

Southland Residential Property Advice
Building Inspection in Invercargill
Category: Building Inspection

House Call Ltd
Building Inspection in Invercargill
Category: Building Inspection
Lynn and John Mouat
Phone 0800 339 124

Property Advice Inspection Services Ltd
Building Inspection in Invercargill (Gore based)
Category: Building Inspection
Phone 027 201 0388

SGS New Zealand Ltd
Building Inspection in Invercargill
Category: Building Inspection
Phone 03 214 1140 or 027 598 7185

Inspecta
Building Inspection in Invercargill
Category: Building Inspection
Phone 021 999 593

Buying a car subject to a security?

partners@wardadams.co.nz (Ward Adams Bryan-Lamb ) — Thu, 05 Oct 2017 11:27:28 GMT

The purchase of a new car is a very common and necessary purchase but it can also be a potentially risky and extremely costly exercise, especially if you buy your car privately.

An example of such a risk is in relation to the Personal Property Securities Act (“PPSA”). It is increasingly common for buyers to hunt out bargains on sites such as Trade Me or Auto Trader only to have someone turn up at their door at some point in the future to repossess their new car claiming a security interest. Such a security interest may exist as a result of a credit contract between the lender and the seller of which the buyer is completely unaware.

Under the PPSA a lender who has a valid security agreement with the principal debtor (in this case the seller) may enforce that interest against third parties (this includes the buyer), assuming the lender has a valid security agreement that has attached to the vehicle. Attachment generally occurs when value is given by the lender and the debtor acquires rights in the collateral. A good example of acquiring rights in the collateral is the taking of possession.

Limitations

There are some limited exceptions to this rule that might allow the buyer some protection:

An adequate description of the vehicle is required in the security agreement. In the case of a vehicle used for personal use it must be described as consumer goods and include a description that will enable the vehicle to be identified. The includes the VIN number, chassis number and where appropriate the car’s registration number. The security will not be enforceable against third parties if the vehicle is not adequately described.
If the vehicle was worth less than $2,000.00 at the time the security interest attaches and the third party (buyer) had no knowledge of the prior security interest at the time the vehicle was purchased the third party takes the vehicle free of any security interests.

When does a security interest exist?

So how do you determine whether a security interest exists in the car you are buying? One important concept under the PPSA is the registration of the security interest on the Personal Property Securities Register. The Register is important to lenders and creditors as generally the firstin-time to register their security interest will have priority against other secured creditors in enforcement of their interest in that particular vehicle. Any buyer can search the Register prior to completing the purchase for as little as $3.00. The Register can be found at www.ppsr.govt.nz .

Searches

Searches for vehicles may be conducted by their VIN number, chassis number and registration number. If, following the purchase of the car, a search reveals an error in the registration (i.e. numbers are missing or wrong) the lender may not be able to enforce their security against the third party.

One concerning aspect of the PPSA regime is that a lender will still have the ability to enforce their security against third parties even if they have not registered their security interest on the Register. Although it is very unlikely a lender will not register their security for priority reasons, in the absence of registration the innocent buyer of the car will have no way of knowing whether the vehicle is subject to a security interest.

Protection from Repossession

The buyer has one saving grace where a security interest exists but has not been registered. Where the goods are consumer goods (that is acquired for use primarily for personal, domestic or household purposes) as opposed to inventory or equipment (for example a company car), the enforcement of security interests must be carried out in accordance with the procedure in the Credit (Repossession) Act 1997. One of the key functions of this Act is that if the Security Agreement between lender and seller does not give the seller a right to enter property and repossess in case of default, the lender will have no right to enter the innocent buyer’s property to repossess the goods.

Despite this protection the third party will still be in possession of a vehicle subject to a security interest. This would prevent the buyer from using that vehicle as a charge for any future lending, as it is unlikely any lender will accept as security for a loan, goods that are already subject to a security interest. This may create a problem for the buyer trying to sell their car in the future.

If you have any questions regarding this matter the team at Ward Adams Bryan-Lamb are happy to assist. Phone: 03 218 2833

Your Will

Thu, 05 Oct 2017 00:00:00 GMT

A Will is an important document that sets out how you want your property (that is all your possessions) disposed of when you die. Once you die, everything you own is called your estate. The Wills Act 2007 which came into force on 1 November 2007 covers this area of the Law and anyone 18 years or above and of sound mind can and should make a Will. It is important to make a Will to express how you want your assets distributed when you die. If you die without a Will, your assets would still be distributed however, the beneficiaries of your estate would be determined by the Administration Act 1969. This may not be the way you wished your assets distributed.

What if I already have a Will

It is very important that your Will is up to date and reflects your current wishes. We recommend that you revise your Will at least every 5 years or as your circumstances change (eg. Your relationship status changes, deceased family members, sale or other disposal of properties, family loans, inheritance). Since 2007 there are new powers in the Wills Act and some of these provisions do not apply to Wills made before 1st November 2007. This may mean that your current Will needs to be renewed.

Your Will should provide for payment of debts and liabilities; this will include your funeral expenses and legal fees incurred in administering your estate.

What my Will Includes

Executors: We recommend having a least 2 executors – people who will be responsible in carrying out your wishes as per your Will and to administer your estate until it is distributed. We at Ward Adams Bryan-Lamb will assist your executors in their duties which include proving your Will through the High Court (Probate), receiving cash assets, paying debts, selling property and distributing your estate.

Beneficiaries: Any person, organisation or charity can benefit from your Will; however you should always make provisions for your dependents as they may be able to make a claim under the Family Protection Act.

Legacies: You may wish to leave specific items of sentimental value or sums of money to certain people, organisations or charities. These may be included in your Will or you may make a provision in your Will asking the executor to observe any list you have left. We will discuss this with you.

Debts: Your Will should provide for payment of debts and liabilities; this will include your funeral expenses and legal fees incurred in administering your estate.

Residue: Once your legacies and debts are paid the rest of your estate (residuary estate) will be distributed between your chosen beneficiaries. Your will can cover a wide range of matters and we will discuss all of these matters with you when we help prepare your Will. At Ward Adams Bryan-Lamb we are experienced at making Wills and administering estates. As with other legal services, we make a charge for preparing Wills and while people may not want to spend money by making their own Wills, we speak from experience in saying that spending a little now to ensure your Will is prepared correctly can ultimately save your estate and family members a lot in terms of time, money and perhaps most importantly grief.

If you do not currently have a Will, or your Will is more than 5 years old, do not wait, talk to us today. Phone: 03 218 2833

First Home Buyers Guide

partners@wardadams.co.nz (Ward Adams Bryan-Lamb ) — Sun, 11 Dec 2016 16:31:41 GMT

Congratulations! You have decided to buy your first home. Purchasing a home for the first time can be overwhelming and the process sometimes hard to comprehend. We, at Ward Adams Bryan-Lamb have created a simple guide to help you with your big purchase.

1. Before entering into an Agreement to purchase your home

Lending Approval

You should always approach your bank or mortgage broker to find out about their lending requirements and if possible obtain pre-approval for your lending. This will give you an idea of how much you can borrow before you start looking for your dream home.

KiwiSaver

Give the team at Ward Adams Bryan-Lamb a call if you are planning to use 'KiwiSaver first-home deposit subsidy' and KiwiSaver first-home withdrawal. The 'first-home deposit subsidy is administrated by Housing NZ. These funds do not get paid until your settlement date (the day you pay for your home) so while they make up part of your total finance available to you to buy your first home, they should not be included in the cash you have available to pay as a deposit under the Agreement. We can discuss this with you prior to you signing the Agreement. The KiwiSaver first-home withdrawal is administered by your Scheme provider.

We can help you with your KiwiSaver application

The Offer Process

When you have found your dream home, contact Ward Adams Bryan-Lamb before signing the Sale and Purchase Agreement. Often, the Sale and Purchase Agreement goes back and forth between you and the seller several times before an agreement is reached. It really helps at this stage to have professional advice —we at Ward Adams Bryan-Lamb will advise you on your rights and obligations under the Contract and discuss various aspects of the property and conditions you way include in the Agreement to protect your interests. Some conditions you may want to include in the Agreement are;

Finance
LIM Report - Land Information Memorandum contains information about what building consents have been applied for, geographical and planning information regarding the property.
Builder's report
Registered valuations (this may be required by your bank)
Insurance - especially if you are purchasing an older home

See the team at Ward Adams Bryan-Lamb before you sign on the dotted line.

If you are buying an older home (built prior to 1960's), check with your chosen Insurance Company as soon as possible if they will insure the property. Home insurance must be in place before your bank releases any loan monies and so it is a good idea to have 'approval of insurance' as one of your conditions. Your lawyer will discuss with you these and other conditions.

You can also negotiate how much deposit to pay (this will be payable when your agreement becomes unconditional). Usually people pay between 5 — 10% of the purchase price or you may prefer not to pay a deposit and pay the whole purchase price on Settlement day.

If the seller accepts your offer, they will also sign the agreement and it becomes a contract.

Your offer should always be conditional on finance acceptable to you

2. After you have signed your Agreement to Purchase your home

Where the contract has conditions (such as finance or LIM report) it is known as a conditional contract. When all conditions are satisfied, the contract becomes unconditional and you have now committed to purchasing your first home. Your lawyer will help you in satisfying the conditions in the Agreement, and if the conditions are not able to be satisfied, the contract may come to an end.

Once all conditions are satisfied, the deposit (if any) would be payable to the real estate agent (or to the sellers lawyers if it's a private sale) and this will be released to the seller's lawyer after 10 working days or sooner if agreed by the seller and you. The balance of the purchase price is payable on settlement date (the day you pay for the property and the title is transferred into your name).

At this stage your lawyer may also talk to you about establishing a Trust, other ownership options and making your Wills.

Loan

Talk to your Bank or mortgage broker and finalise your loan arrangements. Your lawyer will forward a copy of your Sale and Purchase Agreement to your Bank and advise them that the Agreement is unconditional and confirm the settlement date. The bank will send your loan documents to your lawyer for signing. Your lawyer will arrange a meeting with you to sign all bank documents and transfer documents (so the property can be transferred into your name on settlement date).

Insurance

As mentioned above, home insurance must be in place before your bank releases any loan monies on settlement day. Banks require full replacement cover (your home will be rebuilt to its original specifications in the event of a total loss) so it is a good idea to arrange this prior to signing your loan documents. Most Banks offer house and content insurance and they will be able to give you a price for this. You can compare this with other insurance companies before deciding which Company you prefer.

Home Inspection

Always do a home inspection on the house before settlement day

After you have fulfilled all your conditions and before settlement day, go and inspect the house you are purchasing. If there is any damage and anything that requires fixing, let the real estate agent, your lawyer or the seller know.

Settlement Day

We are nearly there. There is no set time when you can move into your new home as it depends on when the bank transfers funds to your solicitor and when the seller's lawyer is ready to settle. Your lawyer will contact you as soon as your property has been paid for and for you to collect the keys from either their office or the real estate agents office.

We hope the information provided will help you to understand the purchase process. Give Sandy Gilmete a call on (03) 2182833 if you have any questions or you need someone to look through your Agreement before you sign it.