New Zealand's Property Foreign Buyer Ban
Statistics NZ reveal that in the year ending June 2018, a mere 0.6% of houses sold in the Napier /Hastings area were sold to non NZ residents (27 houses in total). Our observation is that foreign investors tend to operate in the top end of our market where the numbers of sales are constrained (in July and August this year, only one house sold in Napier for more than $1 million).
The amendment to the Overseas Investment Act 2005 that will prevent non-NZ residents buying residential property comes into force on 22 October 2018. How exactly the Act will affect the market remains to be seen. Whereas its impact on first home buyers may be minimal, those trying to sell a top end property may face some headwinds as the ban takes effect, both directly and from the trickle-down as the Auckland market (in which 6% of sales are to non-residents) cools.
Here is some of the detail behind the Act, courtesy of fellow Law link firm Anderson Lloyd.
Avoiding The Property Law Email Scam
As we were browsing through the news the other day an article caught our eye. The story was about an Australian Masterchef finalist getting caught in a conveyancing property law scam. Australia is moving towards an electronic system nationally at the moment, so this sort of story is definitely a concern on that side of the Tasman, but there are a few differences between Australia and New Zealand that should give kiwis a bit of comfort in their next property transaction. Here is a quick overview on why New Zealand has a far more robust system than Australia, and how Langley Twigg Law operate to keep the transaction scam free:
In this digital age it seems like there will always be scammers trying to find situations to take advantage of. It pays to be cautious when it comes to your email account and as we outlined in an earlier blog, there are definitely a few things you can do at your end to avoid being caught in email scam.
Steps to Avoid Email Fraud
To: [email protected] <[email protected]>;
Please could you pay your deposit on 33 Acacia Avenue to us. I’ve included our bank details at the end of this email.
Then we can get the ball rolling.
Name: JJ Law
John Johnson LLB |Partner
JJ Law | 123 High Street Arcadia | www.jjl.com
A decade ago, less than half of the payments made were by electronic funds transfer; cheques were still the most common method. Today, more than 90% are made electronically.
Whilst sending out a cheque is by comparison slow, expensive and subject to the risk of being lost in the post, it does have the advantage that once the cheque is in the hand of the recipient, the ball is in their court to bank it into their correct bank account.
In contrast, the responsibility of ensuring that an electronic payment ends up in the bank account of the intended recipient rests with the sender. New Zealand bank account numbers employ a checksum to reduce the risk of transcribing a bank account number incorrectly. However, what if the number is a valid bank account, but not the account number of the intended recipient?
For as long as we have been making payments electronically, we have required written evidence of the payee’s bank account in the form of a deposit slip or bank statement to minimise the risk that a payment is made to the wrong account. But as technology has increasingly taken over our lives, this documentary evidence has itself begun to be supplied electronically – mainly as emails or attachments to emails, but sometimes as text messages or by reference to a web page. It’s so much faster and easier to flick the payer your details by computer or smartphone than it ever was back in the day when you either had to meet in person, or find a postage stamp and rely on the post.
Email systems and what we now know as the internet were invented originally for easy and open communication between computers around the world, without any priority given to the security of that communication. For that reason, email is in general unencrypted and the computer servers from which they are sent are not subject to any commonly adopted system of authentication; and still we all use them, and have to do so to serve the needs of our clients and our businesses.
The near ubiquity of the system and its lack of security has naturally not escaped the attention of ‘hackers’, ‘spammers’ or ‘phishers’ as they are euphemistically termed in the world of technology; thieves by any other name. One of the newer and more sophisticated approaches taken by the thief is to impersonate a person or entity to whom the recipient of the spoof email would expect to pay money. This is a step above the type of emails that tell you that ‘You need to change your AppleID’ or ‘You have received money into your Paypal account’, both inviting you to log in and thereby give away your credentials to the thief.
By finding and exploiting a weakness in, or lapse of, security, the thief gains access to an email account and starts to read emails. One simple way is to steal a user name and password. An email is easy to fake and attachments are easy to change, but it is often the timing of the email that leads to success for the thief; it arrives at a time when the recipient is expecting to pay money to that person. By infiltrating an email account and monitoring the traffic, the thief can send a realistic email at a plausible time.
Once sitting on the line of communications, the thief can choose to impersonate either party. If the breach has been into an organisation, they might try an intra-firm email appearing to come from the Managing Director to the Accountant giving payment instructions. On the other hand, if it is into a private email account that the thief has hacked, any email trails to and from suppliers or customers would provide a foundation for an attack. The email will usually have bank account details contained in the body of the email or in an authentic-looking attachment. A bank deposit slip, for example, is very susceptible to convincing forgery.
Many firms, including law firms, have taken measures to guard against the risk of acting solely on instructions received in an email. To be safe, there has to be an independent verification such as a conversation, face-to-face or by phone, including recitation of the account number, or receipt of an original signed payment authority. Thieves, knowing that it is likely that security measures taken by firms are likely to be stronger than those taken by individuals, are turning towards the latter. In a recent instance, a client who was expecting to pay a deposit to their lawyer received a fake email including bank details. Luckily the hack was discovered a few hours later and swift action by the banks concerned resulted in the funds being frozen, and the police notified.
So what steps can you reasonably take to prevent this type of fraud?
Increases to the Kiwisaver Homestart Grant
Good news for all those first home buyers (and some selected previous home buyers) out there. As of 1 August 2016 both the income and house price caps have all increased.
A individual with an income under $85,000.00 or a couple with a joint income under $130,000.00 is now eligible for the HomeStart Grant.
The House caps throughout the country have all increased by $50,000.00 for existing homes and $100,000.00 for New Builds.
Remember, if you have existing pre-approval for the HomeStart Grant but want to take advantage of these changes you will need to re-apply.
For further details be sure to chat to our property law and conveyancing team about how we can help out.
The New Health & Safety Legislation
The New Legislation
The Health and Safety at Work Act 2015 (HSWA) is in force from 4 April 2016. The HSWA replaces the duties owed by employers with a broader duty owed by “persons conducting a business or undertaking”. This comes with a new duty to take “reasonably practical steps” to secure workers’ health and safety.
Guidelines have yet to be promulgated for commercial landlords, therefore the general regulations will apply.
What is a PCBU?
The HSWA defines a PCBU as any person or organisation conducting a business or undertaking, whether alone or with others, and whether or not for profit or gain. The HSWA has also defined a ‘workplace’, being a place where work is being carried out, or is customarily carried out.
In the context of a commercial rental, the landlord is conducting a business by renting a building and therefore is a PCBU
The tenant conducting a business in the building would also be a PCBU, so both tenant and landlord have responsibilities under the Act
What duties does a PCBU have?
A PCBU has a responsibility to take ‘reasonably practicable steps’ to ensure the safety of workers and other persons.
This includes taking reasonably practicable steps to ensure:
Practical Steps for Landlords
As a PCBU a landlord should:
We have started to amend our leases to reflect these changes.
We recommend that you obtain professional assistance from a recognised provider to assist with these goals.
+64 6 835 8939
Maori Land Law Sales - A Summary
As the recent case of Steedman v Apatu in the Maori Land Court (http://tinyurl.com/qe83jtm) illustrates, the sale of Maori land is often not straightforward and can sometimes be contentious.
Maori land is defined and governed by the Te Ture Whenua Maori (Maori Land) Act 1993. Under its terms, an owner of a block of freehold Maori land can alienate (sell or otherwise dispose of the title of) that land. Whilst it is not as simple as selling general land, it can be done.
Before a sale can proceed, it is necessary to obtain a certificate of confirmation from the Maori Land Court. For the Court to issue this certificate, a number of legal requirements need to be met, some of which are mechanical issues that may be easily addressed if advice is sought at the outset.
However one aspect that is not straightforward is the role of the preferred class of alienees (PCA), members of which have a right of first refusal to acquire Maori land.
Typical examples of this class are children and whanaunga of the owner. An offer from a member of the PCA will trump one from outside the PCA, provided that the price is matched; PCA do not get to buy at a discounted price. The owner has the right to choose between offers of two or more interested PCA.
The terms of the Maori Land Act are subject to the interpretation of the courts and the case referred to above further refined the definition of whom the PCA comprises.
The Maori Land Court may require that the land be advertised or formally offered to PCA before it will confirm the sale. We can assist you to work through this process.
Cara Bennett, Senior Associate
Find out more about our Maori Land Law practice.
Must Do's In Commercial Leasing
With the general acceptance of the Auckland District Law Society commercial lease throughout the country landlords, tenants and commercial land agents can become a little complacent at the time they enter into a new lease.
When entering into an agreement to lease, the parties are agreeing to be locked into the terms and conditions of the standard form. Without reviewing its appropriateness for their circumstances, this can lead to unintended consequences.
The post-global financial crisis era has seen good landlords and tenants working together in their mutual best interests to ensure from the landlord’s perspective that their building is well let to a solid tenant, and from the tenant’s perspective that they have a building fit for purpose that they are able to profitably occupy.
The Christchurch earthquakes highlighted deficiencies in the standard form and led to it being reworked. Issues such as seismic ratings, no-access periods and remedial works were scarcely thought of in the past.
Sustainability and the move towards energy efficiency and green star design ratings can add to a property’s desirability. The new Health and Safety Legislation will add another layer of onerous responsibility onto landlords.
Potential tax implications, overseas investment issues being inadvertently triggered, and the complexities of leasing a building “off the plan” all require additional care and thought. Simple things such as who is responsible for keeping the building weather tight, maintaining the insurance for plate glass windows and payment of outgoings can lead to some confusion and may require that the standard form be amended.
For both landlord and tenant we recommend that you talk to a member of our team prior to signing an agreement to lease.
Peter Twigg, Partner
Changes To Financial Reporting for SMEs
Currently all companies are required to prepare annual financial reports which can be both expensive and time consuming. For the majority of Small and Medium Enterprises (“SMEs”) the cost involved in preparing such reports often outweigh any benefit obtained from the information gathered as that information is often known to the directors and shareholders (who are often one and the same).
A number of changes have been proposed by the Ministry of Economic Development in an attempt to find a balance between the cost of reporting and the benefits that are obtained from financial reports which can assist both the directors and shareholders to make economic decisions, to promote accountability and transparency or both. It is proposed that from around mid 2013 small and medium sized companies will no longer be required to prepare General Purpose Financial Reports (“GPFRs). Instead they will be able to prepare special purpose financial reports (“SPFRs”) which may be required to comply with the tax obligations. The New Zealand Institute of Chartered Accountants are currently developing revised requirements in regards to those special purpose financial reports.
These changes will affect SMEs and will result in a reduced reporting burden for those companies. While the default position for small or medium sized companies with 10 or more shareholders will be to prepare general purpose financial reports, those companies will be able to opt out of those reporting obligations if 95% of voting shares support the motion. Companies of less than 10 shareholders will only have to prepare GPFRs if shareholders representing the 5% or more of voting shares require it. The reduced reporting obligations will reduce compliance costs for both small and medium sized companies as 1) there will be a reduction in the number of disclosures they all need to make and 2) there will be a move from reasonably complex reporting requirements to a simple type of reporting which is specifically for tax purposes.
While it is hard to quantify exactly what the cost and benefits of the amended reporting requirements will be, it has been estimated that savings of at least $100.00 per year for small companies to $5,000.00 for a medium sized company could be made.
While indications are that these changes are going to be accepted and into force in mid 2013, there remains an ongoing obligation of directors to keep accurate records and to provide those reports to shareholders.
Graham Healey, Langley Twigg
New Zealand Employment Law Update
In May the National Government followed up on its pre-election manifesto by passing the following changes to employment law through Cabinet.
Removing the requirement to conclude a collective agreement unless there are genuine reasons not to, while retaining the requirement to bargain in good faith.
Allowing employers to opt out of multi-employer collective bargaining before negotiations for a multi-employer collective agreement begins.
Allowing for partial pay reductions in cases of partial strike action, and
Removing the 30 day rule where workers are covered by their applicable collective agreement before deciding whether to join the union.
Three new changes were also announced by Cabinet.
The first enables employers to initiate collective bargaining at the same time as Unions. Currently Unions are entitled to a 20 day “head start” when initiating collective bargaining under the Employment Relations Act 2000. Unions could initiate bargaining no earlier than 60 days before a collective employment agreement expired while the employer only had 40 days. Unions saw this as a fundamental right as it allowed them to define the scope of the bargaining. The Government was concerned that this head start created an imbalance in the bargaining position of both parties. This change however could create timing issues if both parties initiate that collective bargaining at the same time. It is yet to be determined what the period will now be for both employers and Unions.
Secondly, Cabinet has approved the changes whereby Unions and employers will be required to provide notice of a strike or lockout. Currently notice of a strike or lockout is only required where “essential services” are involved. This will be extended to all industries. The length of the notice is yet to be determined but is likely to result in Unions being unable to conduct some industrial action, such as “lightening strikes”.
Finally, the Cabinet has approved an extension of the rights of employees to request flexible working arrangements. Currently only certain employees are able to request a variation of their working arrangement. To be eligible to make that request, an employee must have the care of a person, and must have been employed by their employer for at least six months. The amendments proposed will extend the right to request flexible working hours to all employees from day one of employment and without any requirement for caring responsibilities. The right will remain a right to request, and not a substantive right to flexible working arrangements. It is unclear whether the statutory grounds available to employers for refusing a request will remain however. These changes are expected to come into effect later this year.
For all your employment law enquiries please contact us.
Langley Twigg's team of Hawke's Bay lawyers keeps you up to date on all the latest legal news.
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