glaister-keegan

Glaister Keegan welcomes new team members to the Private Client Team

Wed, 08 Apr 2026 02:49:35 GMT

Monique Mackie is a Special Counsel in the Private Client, Trusts, Estate Planning & Asset Protection team at Glaister Keegan. She has over twenty years’ experience practising in the area of Trusts and Personal Asset Planning. Prior to specialising in this area of practice, she also worked in the tax team of a large New Zealand law firm. This experience allows Monique to bring an understanding of structuring and commercial considerations when advising clients. Monique prides herself on being approachable, caring and professional while providing expert legal advice on such an important area of law for individuals and families.

Frank Chan is a Senior Associate in the Private Client, Trusts, Estate Planning & Asset Protection team at Glaister Keegan. Frank has built a diverse legal career spanning residential and commercial property, trusts, wills, estates, and banking and finance law. Over the years, Frank has had the privilege of advising families, small‑to‑medium businesses, family trusts, estates, property developers, and financial institutions. He takes pride in offering practical, effective legal advice that empowers clients to achieve their goals, whatever they may be.

Employment Law Updates

Wed, 08 Apr 2026 02:49:32 GMT

Several changes impacting on employer/employee relationships have been introduced under the Employment Relations Amendment Act 2026 with effect from 21 February 2026.

New Remuneration Threshhold for Unjustified Dismissal Claims:

A new provision has been implemented whereby employees earning more than $200,000 per year will no longer be able to raise a personal grievance for unjustified dismissal, or unjustified disadvantage relating to the dismissal. It is necessary to be aware that the $200,000 annual income threshold is based on total remuneration - this includes not only salary but also bonuses, commissions, share-related benefits and other allowances actually paid in the year before dismissal.

Employers are no longer required to comply with the usual unfair dismissal procedures, such as providing reasons or following good faith obligations, when dismissing high earner employees. Those employees do still retain rights to bring grievances on other grounds (eg discrimination, harassment, etc).

On a practical level, there is a transition period of 12 months for current employees, before the change takes effect, and even after that initial period the threshold does not automatically override existing terms and policies in employment agreements. The Act does allow parties to opt out of the new provisions.

Action: Employers and employees affected by the changes should look to renegotiate the terms of their employment agreements before the end of the transition period if appropriate. Unless there are specific provisions imposing obligations on the employer to follow a fair and reasonable process and have justifiable reason for termination, the employee will be subject to termination at will. It is however still possible for parties to opt out of the new sections under the Act and to allow an employee to retain the right to claim unjustifiable dismissal. Another option is to look at an extended notice period so an employee will have a reasonable time in which to look for a new job.

Changes to Justification for Dismissals and Reduction in Remedies:

The new law introduces stronger consequences where an employee’s conduct has contributed to a personal grievance. The amendments provide that contributory conduct can significantly reduce or eliminate remedies that were commonly previously awarded. Minor procedural defects will no longer automatically result in a dismissal being unjustified, unless the defects result in unfair treatment.

If an employee’s own behaviour contributed to the situation, for example misconduct, dishonesty, or refusal to obey reasonable instructions, the compensation which might be awarded may be reduced by up to 100%.

Where the actions of the employee amounted to serious misconduct then the Employment Relations Authority or Employment Court will not award any remedy at all.

Contractor v Employee – New “Gateway” Test:

The amendment aims to provide more upfront certainty for employers and workers to determine whether they are a contractor or an employee. The historical position has been that Courts (or the Employment Relations Authority) looked at the real nature of the working relationship between the parties to determine the worker’s status. The Employment Relations Act now sets out prescribed criteria that, if met, will recognise a worker as a specified contractor and exclude them from the definition of an employee.

The key criteria are:

There is a written agreement specifying that the worker is an Independent Contractor (or not an employee);
The worker is not restricted from performing work for others;
The worker is not under control as to how and when the work is done, or is allowed to sub-contract the work;
The business/employer cannot terminate the arrangement if the worker turns down additional work;
The worker had a reasonable opportunity to seek independent advice before entering into the agreement.

If any of the gateway test criteria are not met, the existing common law test of employment status will still be used.

Conclusion – Action:

In light of the changes which have been introduced it will be important to review and amend terms of existing employment agreements, particularly for employees on or approaching the high threshhold remuneration level, within the next 12 months.

When entering into a new arrangement to engage a worker or to undertake work, consider whether the criteria are met to be defined as an independent contractor rather than employer.

When actions or conduct of an employee bring disciplinary action into consideration, take into account whether the employee’s behaviour is of such a level that it may impact on the justification for dismissal.

If a neighbour’s structure doesn’t actually block you from using a right of way, is it really a breach?

Wed, 08 Apr 2026 02:49:30 GMT

The Circumstances

Wimax New Zealand Limited (“Wimax”) and the Fuge family (“the Fuges”) own properties that share a common driveway on land owned by Wimax, which is subject to a right of way in favour of the Fuges.

The right of way area is about 6.2 metres wide. A sealed driveway was formed on the right of way in the early 1960s, which does not take up the right of way’s entire width. An easement instrument was registered in 1964 and was updated in 2017 without making any changes to the right of way area itself.

A number of historical structures owned by Wimax encroached on the right of way area, but not on the sealed driveway. In 2018, the Fuges discovered this fact and requested that Wimax remove them. Wimax declined to do so, and the dispute was referred to arbitration.

The Dispute

It was agreed that for the Fuges to have a cause of action for nuisance, Wimax’s structures needed to substantially interfere with the Fuges’ use the right of way for its intended purpose. It was also agreed that neither the Fuges nor the previous owners of their land had any difficulties in using the sealed driveway to access their property, despite the encroachment of the structures on the right of way area.

The arbitrator found in favour of Wimax, but on appeal the High Court found in favour of the Fuges. Both parties took the matter to the Court of Appeal.

At the Court of Appeal the judge noted that the arguments between the parties had evolved into a question of whether the Fuges were entitled to succeed in a claim for nuisance in circumstances where Wimax’s structures did not interfere with the current use of the right of way, but might impact the Fuges’ possible future plans to develop their property (the Fuges argued that the presence of Wimax’s structures would prevent a widening of the sealed driveway).

The Court of Appeal reversed the High Court’s decision, finding that the Fuges would only have a cause of action in nuisance if Wimax’s structures:

(a) substantially interfered with the Fuges’ use of the right of way, and

(b) interfered with the Fuges’s use of the right of way at the time of the offending action .

Since neither of the above applied, the Court of Appeal reversed the High Court’s decision and found in favour of Wimax.

The Fuges have appealed to the Supreme Court, who will address the question of whether it is necessary to decide the issue by reference to the Fuges’ present requirements, and not the “reasonable possibility of future development.”

The Supreme Court heard the appeal on 17 February 2026, but as at the time of writing has yet to issue its judgment.

Takeaways

The mere presence of the structures on the easement area, even though they were found not to interfere with the neighbours’ easement rights, has led to lengthy and costly litigation and has no doubt degraded the relationship between the neighbours.
The Court of Appeal emphasised that its analysis of whether there was substantial interference with the Fuges’ use and enjoyment of the right of way was one of “fact and degree” – in other words, something not necessarily cut-and-dried or immediately obvious to everyone involved.
Although Wimax was successful at the Court of Appeal and may still prevail at the Supreme Court, it would be prudent for landowners to avoid encroachments on easement areas, where possible.
If you have land that is either burdened by, or has the benefit of, a right of way or any other type of easement, it is vital that you understand its terms, your rights, and your obligations. Talk to the Property Team at Glaister Keegan if you have any questions or concerns about your own property.

How fixed is your fixed term tenancy?

Wed, 08 Apr 2026 02:49:28 GMT

A recent Tenancy Tribunal decision gives us an opportunity to consider the strengths and limitations of fixed term tenancies.

Background

Shadrock was a tenant under a fixed-term residential tenancy. She attempted to terminate her tenancy, citing that the rent was too expensive. The landlord reminded her that she had a fixed-term tenancy and could not end it by notice. Shortly thereafter, she tried to terminate the tenancy under s 56B of the Residential Tenancies Act, which allows tenants to urgently withdraw from residential tenancies if they have been victims of family violence. She could not, however, provide the evidence required by the Act.

Shadrock eventually vacated the premises and the landlord re-took possession. The landlord sought an order from the Tenancy Tribunal seeking payment of the bond to them, payment for rent up to the date they had re-taken possession, and other costs (including the costs to repair water damage that had occurred to the premises).

The Tribunal found that the tenant had no grounds to terminate the lease under s 56B, ordered that the entirety of the bond be released to the landlord, and that the tenant pay an amount to the landlord for cleaning and carrying out repairs to the premises.

S 56B Residential Tenancies Act 1986

This section permits a tenant to withdraw from a residential tenancy (whether periodic or fixed term) with 2 days’ notice, provided qualifying evidence is provided showing that either the tenant or a dependent of the tenant has been the victim of family violence while a tenant of the premises.

The qualifying evidence must be given by one of a broad number of prescribed people, such as a medical professional, police employee, social worker, school principal, or lawyer, and can be:

a written statement that they reasonably believe that the tenant or their dependent has been a victim of family violence;
the first page of a family protection order;
a Police safety order; or
a charging document under s 14 of the Criminal Procedure Act 2011 relating to family violence against the tenant.

All of the above must show or state that the violence occurred while the tenant was a tenant of the premises.

If the tenant is the sole tenant under the lease, the lease immediately terminates. If there are remaining tenants, the rent is temporarily reduced for two weeks and a special procedure determines how the bond is to be treated.

Termination of a Fixed-Term Residential Tenancy

Landlords and tenants are obviously limited in their ability to terminate a fixed-term tenancy prior to its expiry. Aside from the provisions of s 56B, a tenant may terminate a fixed-term tenancy:

where the premises is destroyed or otherwise rendered uninhabitable; or
where the premises has been contaminated above the prescribed maximum safe level.

A landlord may also terminate a fixed-term tenancy with 14 days’ notice where a tenant has assaulted the landlord, a member of the landlord’s family, or the landlord’s agent.

The Tenancy Tribunal may also order a residential tenancy to be terminated where the tenant is chronically arrears in rent, has seriously breached the tenancy agreement, or has committed incidents of anti-social behaviour.

Tenant’s Liability for Damage to the Premises

In Shadrock’s case, the tenant was found to have carelessly, but not intentionally, caused water damage to the premises from a series of accidental floods in the kitchen and bathroom.

Section 49B(3)(a) of the Residential Tenancies Act sets out a tenant’s liability for damage to premises:

When caused carelessly and covered by the landlord’s insurance, the tenant’s liability is limited to either the landlord’s excess, or four weeks’ rent (whichever is lesser).
When caused carelessly and not covered by the landlord’s insurance, the tenant’s liability is limited to four weeks’ rent.
When caused intentionally, the tenants will be liable for the costs of repair, and an insurer will be entitled to pursue the tenant for the full costs of repair.

A Trap For Unwary Players

A fixed term tenancy of longer than 90 days does not automatically end on the scheduled end date – it will instead automatically become a periodic tenancy unless either the landlord or the tenant give written notice to the other between 21 and 90 days before the end of the term, confirming that the tenancy will end on the end date.

Conclusion

Even if a fixed term tenancy is brought to an end correctly, there can be unanticipated costs for the tenant. Both parties – landlord and tenant - need to be aware of their rights and obligations when a tenancy ends, whether it is a fixed-term or periodic tenancy.

Changes to the Earthquake Prone Building System: A Risk Based Approach to Safety

Wed, 08 Apr 2026 02:49:25 GMT

The Government has announced proposed changes to the Earthquake-Prone Building (EPB) system aiming at making the system more proportionate and risk-based and targeting higher seismic risk areas and buildings that pose greater safety risks.

The proposed changes include:

Removal of NBS system – The New Building Standard (NBS) system currently used to assess the seismic performance of a building will be removed. The NBS ratings will not be used to identify EPB’s.

Low-risk areas removed and reclassification of Coastal Otago – Auckland, Northland and the Chatham Islands will be removed from the EPB system due to their low seismic risks. Coastal Otago will be reclassified as a medium seismic hazard area and will continue to fall within the EPB system.

Targeted building types – Buildings of three or more storeys with heavy construction (e.g. concrete) and unreinforced masonry buildings that are not in Auckland, Northland and the Chatham Islands will remain under the EPB system.

Tiered risk mitigation requirements – The new risk mitigation requirements include:

a requirement to remain on the national EPB register
façade securing
targeted retrofit
full retrofit,

and these requirements will apply according to the location of the building and the building type.

No automatic fire and accessibility upgrades – The requirement for concurrent fire and accessibility upgrades will be removed so that seismic work will not automatically trigger these upgrades.

Deadline extension – Building owners will be able to apply for seismic work deadline extensions subject to conditions. Councils can grant up to 15-year extension to the seismic work deadline.

Priority building status – Priority building status will no longer automatically apply to government agencies (such as hospitals, fire stations or schools). Only unreinforced masonry that risks pedestrians or vehicles and buildings that could block emergency routes will qualify as priority buildings.

It is expected by the Government that the proposed changes will remove around 55% of EPBs (approximately 2,900 buildings) from the EPB system and save building owners around $8.2 billion.

The proposed changes will be implemented through the Building (Earthquake-prone Building System Reform) Amendment Bill, which is expected to be passed into law in 2026.

If you would like to discuss any of these proposed changes or how they may affect your building(s), feel free to get in touch with our property team.

Housing Intensification and Resilience

Wed, 26 Nov 2025 01:53:35 GMT

Proposed Plan Change 120: What You Need to Know

What is PC120 and why does it matter?

Auckland Council has proposed a change to the Auckland Unitary Plan called Plan Change 120 (PC120) . This change is about two main things:

Rezoning areas of residential land to allow more housing intensification in and around urban centres and transport hubs.
Making communities safer from natural hazards like flooding and landslides.

Why is this happening?

By way of background, PC78 (Auckland’s former intensification plan change, as required by the National Policy Statement on Urban Development 2020) incorporated the Medium Density Residential Standards that were required at the time. Generally, this allowed three dwellings of up to three storeys to be built on most residential sites without the need for resource consent. In August 2025, the Government amended the Resource Management Act 1991 to allow for greater intensification in town centres and around existing and planned transit routes. As a result, PC78 was withdrawn in part by Auckland Council and PC120 was notified.

What will PC120 do?

Increase housing density within and around town centres and transport hubs.
Allow taller buildings:
At least 6 storeys within walkable catchments of the city/town centre zone and around existing and planned train and bus routes.
At least 10–15 storeys around certain train stations listed in the Resource Management Act 1991.

These heights and densities must be enabled unless a ‘qualifying matter’ applies to a site which makes that level of development inappropriate.

Natural hazard rules

PC120 also introduces stricter rules to manage natural hazards such as flooding, landslides, and coastal erosion. This is a response to recent severe weather events like the 2023 Auckland floods caused by Cyclone Gabrielle. The updated rules and hazard mapping re-classify hazard areas and their risk level and require mitigation measures to be implemented that avoid creating or worsening natural hazard risks.

What does this mean for property owners and developers?

Expect more multi-storey and apartment-style housing near town centres and transport hubs, and an increase in shared spaces and communal assets.
Intensification may lead to issues concerning:
Boundary and airspace rights.
View and sunlight obstruction.
An increase in easements and restrictive covenants in already built-up areas.
New subdivision and land uses may only be allowed where the natural hazard risk is considered tolerable or acceptable.
Coastal development will become more difficult.
The impact of a proposed development on existing floodplains and overland flow paths will be scrutinized. Maintenance or upgrade works may be required to ensure stormwater runoff and flood waters are adequately conveyed.

Why should you care?

These changes could affect your property rights, development plans, and legal obligations. If you’re buying, selling, or developing land, it’s important to understand how PC120 impacts you. Please get in touch with our property team if you’d like to discuss how these proposed changes could affect your property or future plans.

https://www.glaisterkeegan.co.nz/our-expertise/property#CommercialProperty

Disclosure and Due Diligence

Wed, 26 Nov 2025 01:53:34 GMT

Sole v Hutton – disclosure obligations for apartment sales and the importance of thorough due diligence when purchasing

In Sole v Hutton [2025] NZHC 430, the High Court dealt with a dispute over undisclosed weathertightness issues in an apartment complex and delivered a strong reminder about vendors’ disclosure obligations.

In 2019, the Purchasers (the Soles) purchased an apartment in Mount Maunganui for $1,495,000. Less than a year after settlement, they discovered major weathertightness issues affecting the entire building. The Body Corporate embarked on an extensive remediation project, and the Purchasers were hit with more than $1,300,000 in special levies for their share of the work.

The Court found that the Vendors (the Huttons) had attended Body Corporate meetings in 2014 where multiple expert reports highlighted significant leaks and recommended re-roofing and re-cladding of the building. Despite this, the Vendors told their agent that there were no known weathertightness issues and this information was passed onto the Soles.

The Court held that:-

· The Vendors breached the warranty in clause 11.2(7) of the Agreement for Sale and Purchase of Real Estate, which requires disclosure of any facts that may give rise to liabilities under the Unit Titles Act 2010;

· The failure to disclose the reports and the assurance that there were “no issues” amounted to misrepresentation.

The Soles were awarded $926,806.48 plus interest in damages, including their share of remedial costs (after a 30% betterment reduction, as the remedial works increased the value of the property), alternative accommodation and general damages for stress and inconvenience.

Key takeaways:-

· Vendors : Always disclose all known issues including historic reports and AGM minutes, even if you believe the matter has been dealt with or is no longer significant.

· Purchasers : Buying a unit title property comes with shared risk. Ensure you complete thorough due diligence including reviewing all Body Corporate records, reports and minutes to understand potential liabilities and future levies.

· Risk management : Non-disclosure can lead to expensive litigation, while thorough due diligence can prevent nasty surprises.

Thinking of buying a unit title property? Our property team can guide you through a thorough due diligence process so you have a clear picture of any potential liabilities before you buy. This can save you from unexpected costs and disputes down the track.

Selling a unit title property? Full and accurate disclosure is not just a legal requirement, it’s the best protection against expensive claims after settlement. If you’re unsure what must be disclosed or how the warranties in the Agreement for Sale and Purchase apply to your situation, get in touch with our property team. We can help you prepare clear, compliant disclosure statements and minimise the risk of future disputes.

https://www.glaisterkeegan.co.nz/our-expertise/property#ResidentialConveyancing

Granny Flats Exempt from Building Consent from Early 2026

Wed, 26 Nov 2025 01:53:33 GMT

In a significant move to ease housing pressures, the New Zealand Government has passed legislation allowing homeowners to build granny flats—up to 70 square metres—without needing building consent. This change, part of the Building and Construction (Small Standalone Dwellings) Bill, is expected to take effect in early 2026, following the removal of resource consent requirements by the end of 2025.

The exemption applies to standalone dwellings that are simple in design, comply with the Building Code, and are constructed by authorised building professionals. While formal building consent is no longer required, homeowners must still notify their local council before starting and after completing the build.

This reform aims to increase housing supply, reduce costs, and boost productivity in the construction sector. It offers practical benefits for multigenerational families, rural communities, and those seeking affordable housing options.

For clients considering adding a granny flat to their property, now is the time to begin planning. Engaging qualified designers and builders early will ensure compliance with the exemption criteria and avoid delays once the regulations come into force.

https://www.glaisterkeegan.co.nz/our-expertise/property#ResidentialConveyancing

Buying Your First Home? Here’s What You Need to Know

Wed, 26 Nov 2025 01:53:30 GMT

Are you or one of your family members planning to buy a first home? Share our guide to help them navigate the process with confidence.

Purchasing your first home is exciting - but it can feel overwhelming. At Glaister Keegan Lawyers, we help first-time buyers navigate the legal side of property transactions with confidence. Here are key steps and tips to get started:

Build Your Support Team Early

Before you start attending open homes, assemble a small team of trusted professionals:

Lawyer: Engage a trusted lawyer (like us) before you start house hunting. We’ll guide you through agreements and complete mandatory Anti-Money Laundering checks upfront so you’re ready when you find the right property.
Mortgage Broker: A broker can help you secure finance on favourable terms and explain lending conditions.
Building Inspector: A qualified inspector can provide an independent assessment of the home’s condition, whether it’s a new build or an older property.

Secure Pre-Approval and Understand Your Finances

Get pre-approval from your bank or mortgage broker before you start making offers. Ask whether your finance is conditional on a valuation, and make sure you’re comfortable with repayments if interest rates rise. If you’re using KiwiSaver, confirm your eligibility and timeframes well in advance, especially if the funds will be used to pay your deposit.

Keep in mind that the agreement deposit (usually 10%) is different from the bank’s deposit requirement (often 20%, unless you qualify for a low-deposit loan).

Making an Offer – Know What You’re Signing

Most property sales use the standard REINZ/Law Society Agreement for Sale and Purchase. Always have us review it before you sign, as once the agreement becomes unconditional, you’re legally required to settle. It’s always cheaper and safer to involve a lawyer before signing than to fix problems later.

Common conditions to consider including are:

Finance condition – gives you time to confirm your loan approval.
Building inspection – ensures the property is structurally sound.
LIM report – provides council information such as consents and hazard risks.
Lawyer’s approval allows us to review and confirm the agreement’s suitability.
Due diligence clause for broader protection as to assessing the suitability of the property.

If you’re buying at auction , your offer is unconditional, so complete all due diligence before auction day. Using KiwiSaver for an auction deposit can be complex, contact us well before auction day.

Complete Proper Due Diligence

We will check the record of title to confirm ownership type (fee simple, cross lease, or unit title) and identify restrictions such as easements, covenants, or consent notices.

Other things to consider:

· You should also obtain your own LIM report, which includes building consent records and hazard information. Combine this with a professional building inspection, especially important for homes built between 1980 and 2010, when weather-tightness issues were more common.

· If the property is on a cross lease, make sure the dwelling matches the flats plan on the title. Any unapproved alterations could create legal or financing issues.

· For unit titles, review the pre-contract disclosure statement, body corporate minutes, and the long-term maintenance plan to identify potential defects, levies, or disputes.

Avoid Common Mistakes such as:

Signing before getting legal advice
Skipping building or LIM reports
Assuming KiwiSaver funds or insurance will be available at short notice

We’re Here to Help

A first home is a major investment. Early legal advice can prevent costly surprises and ensure the process runs smoothly. If you’re thinking about buying, our team can guide you through every step from reviewing agreements to settlement day so you can buy with confidence. Visit our website for our comprehensive guide to first home buying or get in contact with us today.

https://www.glaisterkeegan.co.nz/our-expertise/property#ResidentialConveyancing

Meet the team!

Tue, 26 Aug 2025 20:45:39 GMT

Glaister Keegan had its biennial firm photo this month, it was great to get the team together for this shot to celebrate the people behind the work!

Short-Term Rentals and Land Covenants: What Does "Commercial Use" Really Mean?

Tue, 26 Aug 2025 02:21:39 GMT

A recent High Court decision has clarified whether owners can rent out their homes via Airbnb in subdivisions that restrict “commercial activity”. The outcome may surprise some.

In Cameron Drive Management Company Ltd v Jo-Ann Real Estate Ltd [2025] NZHC 721 , a homeowner occasionally rented their holiday home on Airbnb. Other owners in the 14-lot subdivision believed this breached a land covenant, which stated no commercial activity could be carried out on or from a property except for “private homestays”. This exception applied so long as the homestays didn’t affect the neighbourhood’s character or others’ privacy.

The Court was asked to decide whether short-term Airbnb rentals, where the owner is not present, counted as prohibited commercial activity.

Interestingly, the Court found that, while Airbnb hosting is in fact a commercial activity, it did not breach this particular covenant.

The key reason being that the business side of the transaction happened online; that is, off-site. The booking and payment were made via the Airbnb platform, not on the property itself. Once guests arrived, they simply stayed at the house like any other occupant. In contrast, a “private homestay” (which the covenant allowed) typically involves the owner being present and actively hosting.

The Court explained that “private homestays” were known in 1999 (when the covenant was drafted) as situations where the owner stays in the house with guests. Airbnb-style renting, where the owner is absent, didn’t fit that model. But because the owner wasn’t actively running a business from the property during the rental period, there was no breach.

This decision serves as a reminder that land covenants must be interpreted in light of their wording, intent, and context at the time they were created. If you're buying in a subdivision with covenants, it’s important to seek legal advice early on so you understand exactly what they mean and how they could limit what you can do with the property.

Neighbour Disputes Series (Part 2): Getting to the Root of the (Tree) Problem

Tue, 26 Aug 2025 02:21:29 GMT

Trees offer a wide range of benefits. They improve air quality, offer cooling and shade, reduce soil erosion, beautify the land, and can increase the value of your property. Unfortunately, not everyone sees trees the same way.What is a peaceful garden feature to one neighbour, can be a nuisance (or even a threat) to another. Overhanging branches, invading roots, blocked sunlight, or leaf-clogged gutters can all spark tension, and lead to potentially bitter and costly legal disputes between otherwise friendly neighbours.

At Glaister Keegan, we have seen first-hand when something as natural as a tree can become the “root” of a bitter, costly legal dispute. Here's what you need to know before taking action, and how we can assist you in protecting your rights.

Your Rights as a Property Owner

Every property owner has the right to enjoy and use their land, and that includes planting trees. But that right has limits. When a tree on your neighbour’s property starts affecting your land, the law steps in. Common problems include:

overhanging branches crossing the boundary line
roots damaging driveways, foundations, or pipes
trees blocking access to sunlight or scenic views; and
fallen leaves or branches clogging gutters and drains.

Can You Just Cut It Back? Yes—But Carefully

You are generally allowed to trim back any branches or roots that cross onto your property, but only up to the boundary line. This is known as “abatement.” However, there are a few important rules:

you must not trespass onto your neighbour’s land
you must not cause unnecessary harm to the tree or surrounding property; and
because the cuttings still belong to your neighbour, you may be required to return the cuttings.

Importantly, some trees are protected by local council regulations, resource consent conditions, or covenants on the title. Cutting or damaging a protected tree without permission could result in significant penalties. We strongly recommend getting legal advice before doing any trimming (even if the branches are clearly on your side).

When Trees Cause Damage or Safety Hazards

If a tree is damaging your property, you may be able to:

remove the offending roots or branches (within legal limits); and
recover the cost of repairs and removal through the Disputes Tribunal (for claims under $30,000) or District Court (for larger claims).

If the tree poses a safety risk, or unreasonably interferes with your view, sunlight, or enjoyment of your land, you can apply to the Court for an order under the Property Law Act 2007. The Court can order your neighbour to trim or remove the tree if it is deemed fair and reasonable to do so. The Court will consider:

what the risk to people, property, or health is
whether your view or sunlight is being unduly obstructed
whether the tree is interfering with crops, drains, or everyday enjoyment of your land
what the tree’s public, historical, or cultural value is; and
whether the tree existed before you bought your property.

To succeed, you will need to show you will suffer more hardship if the tree stays than your neighbour would if it were removed.

Timing and Costs

If the Court orders the tree to be trimmed or removed, your neighbour usually has 20 working days to comply. While the Court can order them to contribute to the cost, the expense usually falls to the person making the application.

Need Legal Advice? We are Here to Help

If a tree is causing conflict between you and your neighbour or you are unsure of your legal position, talk to us first. We can guide you through your options, help you protect your rights, and, where needed, represent you in the Disputes Tribunal or Court.

Contact our litigation team for practical, reliable advice before a small dispute takes root and grows into something much bigger.

Paul Kim, Alex Wang, Brett Vautier

Neighbour Disputes Series (Part 1): Boundary Fences – Know Your Rights and Responsibilities

Tue, 26 Aug 2025 02:20:07 GMT

Few things can sour a neighbourly relationship like a dispute over a fence. What begins as a simple question of who pays, who builds, and where exactly does the boundary lie, can quickly escalate into a frustrating, and often expensive, legal conflict.

Generally, an owner is not required to fence off his or her land from the adjoining land of a neighbour. If intending to do so, however, consent of the neighbour or a court order is a prerequisite.

At first glance, fences may seem straightforward. Most are built with mutual agreement and shared cost because both neighbours benefit from a well-constructed, properly placed fence. But when opinions differ or communication breaks down, disagreements can arise —sometimes over the smallest details.

Common Fence Disputes Between Neighbours

Fence disputes typically occur when:

one neighbour erects, repairs, or replaces a fence without the other’s consent
there is disagreement about who should pay; and
the fence does not align with the actual legal boundary.

What the Law Says

Under New Zealand’s Fencing Act 1978, neighbours share equal responsibility for the cost of building or maintaining a boundary fence, provided the proper legal process is followed. Here’s how it works:

Fencing Notice : To start the process, you must issue a fencing notice to your neighbour. This formal document outlines:

where the fence will be built
the type of work and materials proposed
the estimated costs and how they will be shared; and
what happens if the neighbour does not respond.

Objections and Time Limits : Your neighbour has 21 days to issue a cross-notice if they disagree with any aspect of your proposal.

Legal Requirements : Strict compliance with the required process is important. That means, a flawed fencing notice means your neighbour is not legally obliged to contribute. Conversely, if your neighbour doesn’t respond in time, the proposed work is considered agreed upon.

Unresolved Disputes : If agreement cannot be reached, you can apply to the Disputes Tribunal or District Court to determine:

where the fence should go
what kind of fence is appropriate
who pays for what; and
who carries out the work.

Unapproved Fences : If you build or alter a fence without consent or if your fence crosses into your neighbour’s land, they can apply to the Tribu n al or Court to have it removed or altered; even if, you were not seeking financial contribution.

What should you do if a dispute arises?

Should you have a disagreement with your neighbour concerning a fence, we recommend you discuss the problem with your neighbour in the first instance and attempt to reach agreement directly. Often, misunderstandings can be resolved through clear and respectful communication.

However, where a neighbourly relationship has broken down and the parties cannot agree, resort to the courts may be the only way forward. Whether you are planning to build a new fence, facing an unexpected fencing notice, or already caught in a dispute with your neighbour, we can help you understand your rights and options.

Contact our litigation team for clear, practical legal advice tailored to your situation. We are here to protect your interests and help you resolve the issue, quickly and cost-effectively.

Glaister Keegan promotes four to Associate

Mon, 07 Jul 2025 02:04:40 GMT

1 July 2025

We are delighted to announce the promotion of four high-performing staff to Associate; Jessica Perrett, Hope Horrocks and William van Roosmalen, and Danielle Moore to Associate - Registered Conveyancing Practitioner. All four are highly experienced legal practitioners who provide thoughtful, tailored advice and outstanding client service. The appointment is effective from 1 July 2025.

Jessica Perrett

Jessica is a solicitor in our Trusts, Estate Planning and Asset Protection team. With over 15 years of legal experience, as firstly a legal executive, then as a solicitor, she has an invaluable understanding of client needs. She delivers excellent outcomes for her clients and has a proactive and efficient approach.

Hope Horrocks

Hope is a solicitor in our Commercial Property team. She has several years of commercial experience prior to working in the law. She prides herself on undertaking the highest-quality work for her clients in a supportive, efficient and commercially minded-manner.

William van Roosmalen

William is an experienced litigator with a proven track record in resolving disputes of all shapes and sizes. He has worked in criminal prosecution, specialised in insolvency litigation, and more recently worked with a broad range of civil and commercial litigation. Clients appreciate William’s advocacy, highly responsive, relatable, and pragmatic approach.

Danielle Moore

Danielle is a Registered Conveyancing Practitioner in our Property team. She has extensive experience with residential conveyancing and a passion for property law. Her clients value her highly responsive, friendly and professional manner.

Asset Planning

Mon, 05 May 2025 04:29:17 GMT

Planning for the future means ensuring your assets are protected and your wishes are clearly set out. At Glaister Keegan, we provide tailored Trusts, Estate Planning & Asset Protection solutions to help you safeguard what matters most.

Comprehensive and Personalised Estate Planning
Protecting yourself and your assets from unforeseen events is an important consideration for many New Zealanders. At Glaister Keegan, we offer comprehensive estate planning services, including wills and enduring powers of attorney. As asset values increase and creditors become more aggressive, trust structures can also play a crucial role in asset protection.

Tailored Solutions for Peace of Mind
Our clients benefit from our extensive experience and the time we take to understand their circumstances and future goals. This personalised approach allows us to provide solutions that align with each client’s specific needs. Our in-depth knowledge of trusts and estates ensures your affairs are managed effectively, giving you confidence in the future.

Flexible, Strategic Advice
There is no one-size-fits-all approach to estate planning. We take the time to sit down with you, clarify your objectives, and develop the right structure to meet your needs. Our approach is strategic, adaptable, and designed to provide the best outcome for you and your family.

Seamless, Comprehensive Support
Estate planning often intersects with property and business matters. Glaister Keegan’s team works across these areas to provide seamless, well-rounded advice. We are large enough to offer a full range of services yet small enough to ensure a personalised experience.

The beginning of the year is a great time to review your estate planning documents and ensure they reflect your current wishes and circumstances. If you haven’t updated your will, enduring powers of attorney, or trust structure recently, now is the perfect time to do so.

If you need guidance or assistance, our team is here to help you navigate the next steps and ensure your plans are in place for the future.

Navigating Employee Rights When a Business is Sold

Mon, 05 May 2025 04:29:14 GMT

When a business is sold, employers must balance their legal duty to employees with the practical realities of making a sale. The Employment Relations Act 2000 (ERA) requires employers to keep employees informed about any changes that could impact their jobs and to give them an opportunity to share their thoughts and provide feedback before decisions are finalised. However, this requirement can be challenging when a business sale is involved.

Why This Matters

Selling a business is a complex process and almost always affects employees, because their jobs with the current employer typically end when the sale is completed. The law requires employers to discuss these potential changes with employees before making final decisions. However, sharing sale details too early can be risky for business owners, because it involves sensitive commercial information.

Common Approaches

After-Sale Consultation: Many businesses wait until a sale agreement is signed before discussing the impact with employees. This allows employers to protect confidential business details but does not fully meet the legal requirement for early consultation.
Conditional Sale Agreements: Some businesses use conditional sale agreements, meaning the sale only goes through once certain conditions are met. This allows time to consult employees before the sale is finalised; although, it may not fully satisfy the ERA’s requirements.

Protecting Confidential Information

Employers are allowed to withhold certain confidential details from employees if sharing them would harm the business. However, they must have a valid reason for keeping information private. Confidential information, in this case, refers to details shared under an expectation of secrecy.

Finding the Right Balance

Balancing transparency with business interests is challenging. While employers must act in good faith by informing and consulting employees, they also need to protect the business. Exploring different approaches, such as conditional sale agreements, can help businesses navigate this tricky situation while staying as compliant as possible with employment laws.

Recent Case Law

The above issues have been addressed by the Employment Court in 2024 in Birthing Centre Limited v Matas . The Court of Appeal subsequently declined the appeal against the findings brought by the Birthing Centre Limited. The case involved the acquisition of a private birthing centre by the MidCentral District Health Board (“MDHB”). The transaction resulted in the vendor closing its centre, terminating the employment of all midwives, with the MDHB offering them new employment. The MDHB requested that the employees not be informed of the negotiations due to confidentiality reasons and the terms of the agreement were only announced after the transaction was finalised. Although the affected employees were consulted about some terms and conditions of employment with MDHB, the termination and transfer of their employment was effectively concluded by the time they were notified.

Several employees raised personal grievances for unjustified dismissal and breaches of good faith alleging they were not adequately consulted. The key focus of the arguments before the Employment Court were whether the threshold had been met allowing the vendor to withhold details of the sale until completion on the grounds that it was commercially sensitive. The Employment Court held that the vendor had failed to meet its obligations and concluded “a fair and reasonable employer could in the circumstances have considered options for exploring whether it could maintain the integrity of [its] commercial position as well as the DHB’s commercial position, while informing its employees of the proposal in a confidential way”.

The Employment Court further held that the vendor had failed to:

consider whether providing information to the union was viable on an embargoed basis;
direct employees not to share information during the consultation process;
include as a condition of sale that staff be consulted on a confidential basis and their view sought before the sale agreement became unconditional.

Conclusion

It is necessary to take into account basic employee rights when selling a business. Although it may be important to protect commercially sensitive information, employers need to look at ways to ensure that employees are kept informed about potential decisions which will affect their employment. A business will need objective evidence to justify maintaining confidentiality of information, including evidence of unreasonable prejudice to their commercial position which would occur if they did share information with employees prior to finalising a sale.

If you have any questions or seek advice or assistance, please do not hesitate to contact Brett Vautier or Stephanie Harris.

Understanding Cross-Leases

Mon, 05 May 2025 04:29:13 GMT

Understanding Cross-Leases

Introduction

Cross-lease properties were created as an innovative workaround to avoid strict subdivisions laws of the past. While once a practical solution, as land development and subdivision opportunities have progressed this form of ownership has led to complications not contemplated at that time for property owners; particularly when, it comes to modifications, consent requirements, and shared responsibilities.

Prevalent in Auckland, cross-lease properties can be complex and restrictive, often leading to disputes between co-owners. Given the legal intricacies involved, it is essential to seek legal advice before purchasing or making changes to a cross-lease property to avoid unexpected complications.

Key Features of a Cross-Lease

A cross-lease property will usually have two or more dwellings (flats) situated on one piece of freehold land. Accordingly, ownership of a cross-lease title grants both a freehold interest in the underlying land which a flat is built on and a leasehold interest in the flat.

The cross-lease title holders collectively become the lessor and lease each of the flats to the title holder as individual lessees. The details of this arrangement are recorded in a lease instrument (cross-lease) registered on each of the cross-lease titles.

The cross-lease will contain rules, rights, and obligations affecting both the lessor and lessee. Amongst the terms of the cross-lease, there will often be a requirement for the lessee to seek the consent of the lessor prior to any additions, alterations, or renovations to their flat.

The cross-lease can also record the grant of an exclusive right of enjoyment over certain areas of the freehold land to a lessee (to the exclusion of the other lessee’s) and set aside areas, typically driveways, as common use areas subject to joint maintenance.

Accordingly, careful review and understanding of how the property’s cross-lease operates is critical if you are thinking of purchasing a cross-lease property or commencing any alteration or renovation works to your cross-lease property.

The Court of Appeal’s decision in Turner v Goldsbury last year serves as a reminder of the importance in the need to understand the fundamental features of a cross-lease title and, by extension, the rights and obligations acquired with this form of land ownership.

The Facts of Turner v Goldsbury

The Turners are the owners of a coastal cross-lease property. The property was in a state of disrepair, exacerbated by flooding caused by the 2018 storm surges. Accordingly, the Turners sought to demolish and replace their existing flat to mitigate the property's coastal inundation risk.

They relied on a provision in their cross-lease that allowed for structural alterations to their flat, provided each flat owner’s consent was obtained, with consent not to be unreasonably withheld. This is a common condition in most cross-leases. The Turners managed to obtain the consent of the majority of the other flat owners but failed to secure the consent of the Goldsburys. This, ultimately, led to over half a decade of arbitration and ongoing litigation.

The court decision highlights that there is no concrete answer as to what will be considered acting “unreasonably” or whether a clause granting a right to “alter” a flat inherently grants a right to demolish and build a replacement flat. What is certain is that each case will be determined on a case-by-case basis and will require an analysis of the facts.

Furthermore, despite substantial evidence showing that the Goldsbury’s were deliberately being difficult and unneighbourly, the court found that their decision to withhold consent was not considered unreasonable as there were legitimate concerns and legal considerations behind their decision. A key consideration was the fact that there were substantial differences between the existing flat and the proposed new structure.

Lessons to Take

This decision reiterates the importance of obtaining legal advice to understand the rules, obligations, and limits of a cross-lease. These matters can be addressed early on by completing thorough due diligence before acquiring a cross-lease property. If you are thinking of purchasing a cross-lease property, it is vital to consider your future intentions for the property and whether the cross-lease will hinder these plans. A detailed review of the cross-lease and title by an experienced lawyer is essential to ensure alignment with your objectives.

The decision also underscores that any ambiguity in the lease can be leveraged as a roadblock to development. An often-overlooked aspect is that a key attraction of cross-lease properties is their ability to maintain the integrity of an existing development, preventing immediate neighbours from undertaking substantial high-density redevelopments.

If you are considering acquiring or selling a cross-lease property, planning to make renovations to your cross-lease property, or looking to convert your cross-lease title to a freehold title, our team is ready to assist you.

Keeping Your Payments Secure – What You Need to Know

Mon, 05 May 2025 04:29:08 GMT

At Glaister Keegan, protecting your financial security is a top priority. While we use a secure email server, unauthorized access to personal email accounts can still pose a risk. That’s why we have measures in place to safeguard your transactions.

How We Protect Your Payments

First-Time Payments to You – When we make a payment to you for the first time, we’ll always call you using the phone number we have on file. This ensures we verbally confirm both your account name and number before processing any transfer.
When You’re Paying Us – To verify our payment details, we strongly encourage you to call us directly on our publicly listed number before making a payment, to confirm our account name and number, especially for first-time transactions.

Bank Security Enhancements

New Zealand trading banks have introduced a ‘confirmation of payee’ system. This means when you enter our account details, the bank will let you know if the account name matches the account number. If they don’t match, do not proceed with the payment.

What’s Next?

To enhance security further, we are in the process of becoming a registered payee with major trading banks. This will provide extra reassurance that you’re sending payments to the right place.

Your security matters to us, and we’re committed to keeping your payments safe. If you ever have any concerns, don’t hesitate to reach out.

Do You Need a LIM?

Tue, 17 Dec 2024 02:31:21 GMT

If you’re buying property, whether it be a residential house, a commercial property, or bare land, do you need a LIM?

A LIM, or, to use its full name, a Land Information Memorandum, is a report prepared by a territorial authority or a district council (council) under the Local Government Official Information and Meetings Act 1987 about a property. A LIM can contain useful information held by council about the subject property and is commonly reviewed as part of any due diligence investigation on a prospective purchase, along with a review of the agreement for sale and purchase, record of title and other investigations.

Section 44A of the Local Government Official Information and Meetings Act 1987 lists the types of information that must be included in a LIM such as:

information identifying special features or characteristics of the land (such as, potential erosion, subsidence or instability, or contamination) that are known to the council;
information about private and public stormwater and wastewater drains shown in the council’s records;
information about water supply;
information about rates;
whether the land is located in a levy area under the Infrastructure Funding and Financing Act 2020, and, if so, the levy period and amount;
whether the land is subject to a targeted rate order under the Urban Development Act 2020, and, if so, the rating period and amount;
information relating to building consents and code compliance certificates issued by the council;
information relating to resource consents and other licences or permits issued by the council;
information notified to the council under the Weathertight Homes Resolution Services Act 2006;
information relating to the use to which the land may be put and conditions attached to that use; that is, the district plan; and
information notified to the council by a network utility operator.

The council may include other information at its discretion. It is important to note that a LIM does not include information held about a property by a local authority or regional council. Nor does it contain information about adjoining or adjacent land.

Key information for a purchaser in a LIM can include:-

whether the land is prone to instability, liquefaction, or flooding (including overland flows);
whether there is public water supply, stormwater, or wastewater infrastructure (or other public infrastructure) under the property;
• whether code compliance certificates have been issued for all consented building work; and
• whether there are any plan changes that may affect the current zoning of the property.
Given the breadth of information contained in a LIM, we recommend you do obtain a LIM as part of any due diligence before you buy a property or before you make your sale and purchase agreement unconditional. The information contained in the LIM may help you decide whether the property is, in fact, fit for intended use, or highlight matters that need to be brought to the attention of your lender and/or insurer.

In many cases, vendors or real estate agents will get a LIM themselves as part of their marketing process and will provide you with a copy for you to pass onto your legal advisor to review. However, as these LIMs are addressed to the vendor or agent, if there is anything contained in the LIM that is not accurate, you will have no recourse against the council – only the party to whom the LIM is addressed has any rights. We, therefore, strongly recommend you get your own LIM. Ask us to order one on your behalf.

If you are looking to buy a property and are thinking about what due diligence you should be undertaking, we would love to help you. For more information, please contact Danielle Moore.

What Can I do if my Tenant Stops Paying Rent?

Tue, 17 Dec 2024 01:58:44 GMT

A tenant’s obligation to pay the rent on time is a fundamental obligation under any commercial lease. Landlords become frustrated and contemplate cancelling the lease where the tenant persistently fails (or even refuses) to pay rent. Before the right to cancel is exercised, it is important that landlords carefully check the terms of their lease and comply with the provisions of the Property Law Act 2007. If a landlord does not follow these requirements, the landlord runs the risk of wrongfully interrupting their tenant’s business, which can have drastic unintended consequences.

Default

Non-payment of rent, which is the most common form of default under a lease, usually indicates the tenant’s business is struggling financially. It could be temporary or the beginning of a bigger problem for the tenant. Often, the situation can be turned around; so, we generally recommend the parties discuss the issue first and consider negotiating an arrangement which allows the tenant to “catch up” on the arrears before any formal steps are taken by the landlord. This is almost always the preferred, more cost effective, and timely solution.

Cancellation under the Property Law Act 2007

If it becomes apparent the tenant’s situation will only worsen or negotiations fall over, the landlord has the ability to issue the tenant a notice of intention to cancel the lease ( PLA Notice ).

A PLA Notice sends a clear message to the tenant that the landlord is serious about cancelling the lease which can put the landlord in a stronger position to elicit payment.

A PLA Notice must include adequate information about the:

nature and extent of the breach
amount that must be paid to remedy the breach
period within which the breach must be remedied
consequences if the breach is not remedied
right to apply to court for relief against cancellation; and
advisability of seeking legal advice on the exercise of that right.

If the PLA Notice is not remedied within the required period, the landlord may cancel the lease by ”peaceably” re-entering the premises (without committing forcible entry under the Crimes Act 1961) and changing the locks. If the tenant is unwilling to vacate the premises or re-entry is not possible without the use of force, the landlord may apply to the court for possession orders.

The tenant and any guarantor(s) remain liable for the unpaid rent to the date of cancellation. And, they are liable for other losses suffered by the landlord. Such losses typically include the cost of reinstating the premises, loss of rental income, and any diminution in rent paid by a new tenant. However, those losses are subject to the landlord’s obligations to mitigate their loss.

If you are a landlord with a tenant in default and wish to consider your options, we would be happy to assist you. For more information, contact Paul Kim.

Stuck With an Unpaid Invoice?

Tue, 17 Dec 2024 00:36:05 GMT

Cash flow is essential for the successful operation of any business.

In an ideal world, a business would be paid all its invoices on time and every time. Unfortunately, unpaid debts are part and parcel of running a business. Invoices may be paid late if the debtor is having financial difficulties. Occasionally, for one reason or another, some invoices are not paid at all.

If your business is dealing with a debtor that has ignored reminder letters, statements, warning notices, or has simply refused to talk, there are a range of debt recovery options available to you depending on the particular circumstances.

The starting point is usually a letter of demand. It formally sets out why the debt is owed and when the debt is to be paid by. A letter of demand is a useful first step because it demonstrates to the debtor you are prepared to take matters further. The letter often prompts the debtor to respond with a payment plan or settlement proposal, which, if agreed to, can be a cost effective and quicker way to recover the debt without having to take any more steps.

Where the debtor is a company and you have reason to believe it is unable to pay its debts, you can issue the company with a statutory demand under the Companies Act 1993. However, a statutory demand should not be used when the company is solvent or when the debt is genuinely disputed.

Once served with a statutory demand, the company has a short window within which the company must either apply to set the statutory demand aside or make the payment. If the company fails to comply, it is presumed insolvent and can be placed into liquidation. If the company is trading or has assets, a statutory demand can be an effective tool because the company will in most cases want to avoid liquidation. Besides, forcing the company into liquidation is not always in the creditor’s best interests as there is no certainty of recovery of any money; particularly if, the company has no valuable assets or has other creditors.

If issuing a statutory demand is not available, or where the debtor is an individual, you can have formal proceedings for recovery of the debt issued in the Disputes Tribunal, District Court, or High Court, depending on the sum involved. Aside from the sum involved, there are a range of considerations you should take into account at the start of the process. These include the costs and delay of court proceedings, the credibility of any dispute, and, importantly, the debtor’s ability to satisfy any judgment against it.

If you are stuck with an unpaid invoice or dealing with a difficult debtor, we are available to assist you. For more information, please contact Paul Kim.

Separation

Wed, 11 Dec 2024 22:12:34 GMT

Separation can be a tough journey, especially when children are involved, or there are issues such as domestic violence. Getting legal advice early on in the separation process (or even before separation occurs) can help you make informed decisions, significantly reduce the likelihood of legal complications and acrimony, and can ensure your rights and the best interests of any children are protected and promoted.

We can discuss and assist any person going through a separation.

1 The Basics

We will help you understand your legal rights, entitlements, and obligations during a separation including issues relating to property division, the care arrangements for any children, financial support, and family violence.

2 The Process

We will give you advice and strategies for managing conflict and disputes in a way that minimises emotional stress, legal complications, and fees.

That advice and guidance will be on the best way to resolve your matters. The process may include negotiation, mediation, collaborative practice, court proceedings, or a combination of these.

3 Other Professionals and Tools

We will help you decide when to involve other professionals; such as, counsellors, divorce coaches, psychologists, mediators, and forensic accountants, utilise tools like co-parenting apps and when to attend useful courses (like the Parenting Through Separation course).

Bringing together the right tools and professionals at the right time often results in a more cost-effective and amicable resolution.

4 Arrangements for Children

We will advise you about the legal framework for the care of any children, and help you create a parenting plan that prioritises the bests interests of any children involved.

5 Property Division

We will advise on how assets and liabilities should be divided and distributed according to the Property (Relationships) Act 1976, and we’d assist in securing a fair settlement.

6 Trusts

We will determine whether any trust-owned property should be included in a settlement.

7 Financial Support

We will advise you on financial issues including spousal maintenance, child support, and economic disparity.

8 Protection

We would obtain protection orders and urgent orders for the care of any children where there is family violence.

9 Wills and Enduring Powers of Attorney

We will put in place a new will and change your enduring powers of attorney if you no longer want your ex-partner as your attorney or to benefit from your estate if you die.

10 Dissolution

We can obtain a dissolution of your marriage after 2 years of separation.

11 Practical Matters

We can offer practical support and guidance about how best to navigate the emotional challenges of a separation.

Every separation is unique. We tailor our advice to your property, your children, and your situation; so that, you can achieve the best outcome possible in the circumstances.

Strengthening the Retentions Regime

Wed, 11 Dec 2024 22:08:32 GMT

The collapse of Ebert Construction in 2018 highlighted the lack of protection in the then current retentions regime in the Construction Contracts Act 2002 (CCA) . The Construction Contracts (Retention Money) Amendment Act 2023 (Amendment Act) , which came into force on 5 October 2023, increases protection for subcontractors working on commercial projects by ring fencing their retention payments and creating reporting obligations. In particular:

the retention is automatically held on trust as soon as an amount becomes “retention money” under the CCA
the retention money is required to be deposited in a compliant bank account, and cannot be intermingled with the holding party’s trading funds or used as working capital
the holding party must provide certain information to the subcontractor at least every three months until the retention money trust ends, thereby improving accountability; and
there are hefty fines for non-compliance.

The Amendment Act strengthens participants’ reliance in the industry. Principals need to establish proper processes and update their construction contracts to ensure compliance and to avoid penalties. And, contractors need to ensure they understand their rights in relation to retentions that are held for their benefit.

Whether you are a principal or a contractor, if you are unsure of your position under the Amendment Act, please contact Nicole Warner for advice.

Collaborative Practice in New Zealand

Wed, 11 Dec 2024 22:04:30 GMT

Collaborative Practice is an alternative dispute resolution process used in New Zealand and other countries to help individuals resolve family law issues in a cooperative and non-adversarial manner. Collaborative Practice is designed to reduce the emotional and financial toll of traditional litigation and to promote effective communication between the parties involved.

Here is how Collaborative Practice works in New Zealand:

When you embark on a Collaborative Practice process, you and the other party will be asked to commit to working together with your specifically trained professional advisors, which can include your lawyers and financial experts. One of the defining features of Collaborative Practice is that the threat of “going to court” is removed from negotiations.
The process is client centred. You and the other party will focus on what is important to each of you and your family to move forward. The process is flexible, allowing for creative and tailored solutions.
The Collaborative Practice process takes place in a series of meetings removing the exchange of lawyers’ letters and waiting weeks for a response! During the process, you will be supported to exchange information, consider issues and options, and find common ground for resolution.
Through the scheduled meetings, you have more control over the timing of the process than through the more traditional process of resolving family law disputes.
Collaborative Practice costs less than the court’s processes and is often less costly and more efficient than negotiating through lawyers’ letters or than using other more traditional processes.
Face to face meetings and the ability to address issues directly can reduce animosity and misinterpretation.
Full disclosure of facts and information occurs (just as in any other dispute resolution process). Your professionals can guide you to use that information with a problem-solving approach.
Resolutions are based around the unique interests of you and any children you may have.
The process is designed to create a respectful environment for achieving the best outcomes for you and your family.
Once agreements are reached, they are documented formally and, in the case of property, pursuant to the requirements of the Property (Relationship) Act 1976, to make the arrangements binding.
Collaborative Practice is an effective way to resolve family law issues while preserving or rebuilding relationships and to minimise the negative impact of separation or family law issues on the family members involved.

If you want to find out if Collaborative Practice is a suitable option for your situation, contact Vonja Young.

Nuisance – Unreasonable Interference with Use and Enjoyment of your Property

Wed, 11 Dec 2024 22:02:10 GMT

A legal nuisance refers to a situation where an individual or entity engages in activities or behaviours that interfere with the use and enjoyment of another person's property or their right to live in a peaceful and healthy environment. The action for private nuisance protects a person’s right to the “use or enjoyment of an interest in land, or of some right over or in connection with it”.

Some common examples of private nuisances in New Zealand might include:

excessive noise: such as loud music, machinery, or construction work that disrupts a neighbour's peace and quiet
overhanging branches or encroaching structures: trees or buildings on one person's land extending onto another person's property
pollution: contaminated runoff from one property affecting the water quality of a neighbouring stream or river; or
offensive odours: odours emanating from a nearby factory, landfill, or agricultural operation that impact neighbouring properties.

Whereas trespass to land is confined to intrusions upon land that follow directly upon the defendant’s act, the tort of private nuisance provides a remedy in respect of indirect or consequential interference with land. In addition, while trespass to land is actionable per se without proof of damage, nuisance, as an action on the case, requires proof of actual or imminent harm. Private nuisance is defined as a recurrent or persistent activity or state of affairs causing a substantial and unreasonable interference with the claimant’s land, or with their use or enjoyment of that land.

In order to constitute an actionable nuisance, the interference with the plaintiff’s use and enjoyment of land must be substantial and unreasonable. Almost all human activity involves some risk of harm, discomfort, or annoyance to others, and everyone must put up with a certain level of such interference as a normal and accepted incident of living in an organised society in close proximity to others. The function of the tort of private nuisance is to strike a fair and workable balance between the conflicting claims of neighbouring occupiers of land, “each invoking the privilege to exploit the resources and enjoy the amenities of his property without undue subordination to the reciprocal interest of the other”.

The appropriate balance is struck by reference to the standard of “unreasonableness”. Sometimes, this standard is expressed as a principle of “reasonable user”, which emphasises the right of every occupier to put land to any ordinary and reasonable use, having due regard to the fact that there is a neighbour, and asks whether the defendant has abused or exceeded that right. More often, it is expressed in terms of the neighbour’s right to be free from an unreasonable level of interference with the protected interest in the use and enjoyment of land. The court asks whether the interference suffered exceeds what a normal occupier in the plaintiff’s position could reasonably be expected to tolerate.

The right to the beneficial use and enjoyment of land is an expansive one; therefore, actionable harm takes a wide variety of forms. It may consist of encroachments from the defendant’s land, as where tree branches overhang neighbouring land or tree roots grow into a neighbour’s soil. Physical damage to the land itself, or to plants growing on the land, or to buildings and structures on the land obviously interferes with the occupier’s right to use and enjoy their land and qualifies as actionable harm. Causing an occupier to suffer personal discomfort from smells, smoke, or noise may also constitute an actionable nuisance. Private nuisance covers a wide range of harms, but the key unifying feature of the tort resides in the general kind of harm that is caused rather than any particular class of conduct.

To establish a legal nuisance claim in New Zealand, the following elements generally need to be proven:

interference: the activity or condition in question must interfere with the use and enjoyment of the affected property or affect a significant number of people
unreasonableness: the interference must be unreasonable, meaning that a reasonable person would find it objectionable or intolerable under the circumstances
causation: the defendant's actions or negligence must be the direct cause of the nuisance; and
damage or harm: there should be actual harm, loss, or damage suffered by the affected party.

Remedies for nuisances in New Zealand can include:

an injunction: court order to stop the offending activity or condition
damages: compensation for any harm or loss suffered by the affected party; and/or
abatement: the removal or elimination of the nuisance by the responsible party.

If you believe you are experiencing a legal nuisance or are accused of causing one, we advise you to consult with a lawyer who can provide guidance and assistance based on the specific circumstances of your case.

For more information, please contact Brett Vautier , Mitch Singh , Paul McKendrick , or Paul Kim.

Mainzeal – The “Perils” of Shareholder Support

Fri, 29 Nov 2024 21:58:13 GMT

Lawyers and business people have now had a month to digest the Supreme Court’s decision in Yan v Mainzeal Property and Construction Limited (In Liquidation) (Mainzeal). [1]

The Supreme Court (Court) upheld the Court of Appeal’s decision that the Mainzeal directors were liable for insolvent trading and ordered that the directors contribute $39.8 million plus interest to the assets of the company. The liability of three of the four directors was capped at $6.6 million plus interest.

The Mainzeal decision is perhaps unsurprising. It reinforces the Supreme Court’s existing position in Madsen-Ries (as liquidator of Debut Homes Limited (In Liquidation)) and Othersv Cooper and Others (Debut Homes) [2]. The decision also provides extensive guidance on the approach directors should take to their statutory duties under sections 135 and 136 of the Companies Act 1993.

In summary, the Court ruled that, at the point at which company is insolvent, or nearing insolvency, it is incumbent upon the directors to take stock of the situation and seek independent advice if necessary. At this point, there needs to be a plan for continued trading that mitigates a substantial risk of serious loss to creditors and means that obligations incurred will continue to be honoured. A lack of capital should be addressed by recapitalisation or shareholder support which could be reasonably relied upon. Liquidation, or some other form of insolvency protection, becomes the alternative if continued trading cannot be justified on this basis.

This result has been roundly criticised by lawyers and business people as providing too much focus on creditor protection, at the expense of allowing directors to exercise their business judgment. This outcome has prompted numerous calls for a review of the Companies Act.[3]

Perhaps, the most interesting aspect of the decision is shareholder support. On a balance sheet basis, Mainzeal had been trading insolvent for some time. The Richina Pacific group ostensibly provided support through letters of support and “contra” arrangements for the supply of goods. Assurances of support were also given by Richard Yan, the managing director, often in unconditional terms. Issues of legal enforceability, extracting money from China, and lack of capitalisation of some group members put question marks next to this support. Ultimately, the Court decided it was “distinctly uncertain” whether Richina Pacific would provide money to meet Mainzeal’s liabilities. As such, going forward, the directors did not have reasonable grounds for believing the company would honour its obligations.[4]

In our view, this finding places directors of foreign owned subsidiaries in an invidious position. They are being asked to test the effectiveness of shareholder support but will likely lack the means do so. In many cases, they will be employees who are ultimately responsible to the offshore business.

Questioning the legal enforceability or lack of intent behind support arrangements may be seen as a lack of good faith. Historically, letters of comfort from a parent company were given great weight; although, not legally enforceable. Often, these letters would support an auditor’s finding of solvency. Now, directors are being asked to apply a much higher degree of scrutiny to these arrangements.

We agree the law needs a serious review. The pool of directors in New Zealand is already too small. This is unsurprising given the consequences of taking too much business risk and getting it wrong.

[1] [2023] NZSC 113

[2] [2020] NZSC 100

[3] See in particular National Business Review, Companies Act ‘long overdue a rethink’: lawyers react to Mainzeal, 25 August 2023, https://www.nbr.co.nz/law/companies-act-long-overdue-a-rethink-lawyers-react-to-mainzeal/

[4] [2023] NZSC 113 at paragraph [267]

For more information contact Mark Hopkinson or Mike Roberton.

Leasehold Land

Fri, 29 Nov 2024 21:52:25 GMT

Did you know there are several different types of residential properties in New Zealand? It is, therefore, imperative you undertake your due diligence before entering into an unconditional agreement to purchase a property. Ensure the property is the right type of property for you; regardless whether it be freehold, cross lease, a unit title, or leasehold property.

Leasehold is a less common type of property in New Zealand. More often than not, you will find leasehold properties are apartments or properties nearer the waterfront, particularly in Auckland around the Viaduct and Mission Bay areas.

What do I need to know before purchasing a leasehold property?

When purchasing a leasehold property, you purchase an exclusive right to possession and occupation of the land and the buildings situated thereon for a specific period of time. You are not purchasing the land and buildings outright. These remain the property of the freehold owner (generally known as the “landowner”).

A lease document will be registered on the Record of Title for the property. It is important you understand this document as it will set out the term of the lease, the amount of rent payable by you, how and when rent reviews can be undertaken, and the obligations imposed upon you as the leasehold owner.

The term of the lease can vary from a few years, to decades, to 100+ years. Your legal advisor will review the lease document to ascertain the term of the lease and advise you on it.

Leasehold properties that have leases for a longer period of time are generally more expensive to purchase than those with a shorter lease because you are buying the right to possess and use the property for a longer period of time.

The “leaseholder”, being the purchaser and owner of the leasehold property, will be responsible for payment of regular ground rent payments to the landowner. The amount of ground rent payable will be stipulated in the lease, together with details of any rent reviews the landowner may be entitled to undertake. In addition to the ground rent, operating expenses, which include rates, are payable, and, if the property is a unit title, body corporate fees and insurance are payable. Some leases are fully prepaid to the end of the lease term with no right of renewal.

In terms of rent reviews, these could be minimal or drastic. The valuation of the property may determine the review of the ground rent, and, therefore, if, say, the rent is only reviewed every twenty years, it is likely to increase more drastically because the capital value of the property would have increased significantly over that twenty-year period as well. In some cases, rent is increased so significantly owners cannot afford to pay it, leaving them no option but to abandon the property: they lose their home as well as the money they invested in it (including the purchase price they paid for the leasehold interest as well as any maintenance and improvement costs). The rent reviews can be subject to mediation or arbitration if the leaseholder feels the rental is unfairly increased. But, this can be a costly and lengthy exercise.

The closer the rental term is to ending, the harder it will be to sell the property; especially if, there is no right of renewal of the ground lease. For example, a lease with 75 years to run may fetch a good price now, but, when there is only 17 years remaining for the lease to run, the sale price may be substantially less.

So, why do people continue to purchase leasehold properties, rather than rent? What are the pros and cons of purchasing leasehold property?

In the long run, it is possible purchasing leasehold property could be cheaper than renting. Although, you are paying an outright amount for the initial lease, the ground rent may be cheap which could be more cost effective than renting.

Leasehold properties are also generally cheaper to purchase than other types of property (such as freehold) as you are only purchasing an exclusive right to possess the land and buildings, rather than purchasing the land and buildings themselves. This makes it more affordable to purchase property in more desirable and sought-after areas, such as inner-city or waterfront locations. Properties in those locations would cost significantly more to purchase if they were freehold.

Also, if you purchase a leasehold property and later sell it for a profit, you would benefit from the gain that you have made. You would also not be subject to regular landlord inspections of the property as you would if you were a tenant.

However, it is important you understand the potential cons of purchasing a leasehold property. The rent can be increased when a rent review is due. As mentioned above, rent reviews can be substantial. It is important you discuss the terms of the lease with your legal advisor; so that, you understand what the current rental is, when it was last reviewed, when the rental is due to be reviewed next, and what the rental increase could potentially look like. In some instances, the ground rent may be minimal. And, there may be no provision for rent reviews in the lease, which would make the property more affordable and which would give you certainty to allow for long-term financial planning. Alternatively, the rental could be fully prepaid to the end of the lease term.

Owning a leasehold property could also be seen as owning a “dwindling asset”: if you have obtained mortgage finance to purchase the property, you will be required to repay the mortgage together with the ground rental and rates. At the end of the term of the lease, you won’t have anything to show for it other than any capital gain you may make on the sale of the lease. Some mortgagees will only lend a lesser percentage on leasehold properties rather than on freehold, but this is something you may need to check with your lender.

Leasehold properties can be more difficult to sell than other types of properties; particularly as, they are a less common property type. Therefore, many people are not familiar with the concept of leasehold. This should be taken into consideration if you are looking to purchase a leasehold property and do not envisage owning it for a substantial period of time.

What happens at the end of the term of the lease?

If the term of the lease is reached without it being extended, the leasehold owner would pass the keys back to the landowner, who would then be able to decide what they wish to do with the property. As the leasehold owner, you are not paid out any money when the property is returned, and the lease comes to an end.

If you are looking to purchase a property in New Zealand, whether it be leasehold or any other type of property, we would be delighted to assist you. For more information, please contact Danielle Moore .

NZS 3910 Has Had a Make Over – What Can You Expect From The Changes?

Fri, 17 May 2024 18:17:36 GMT

New Zealand’s most commonly used standard form construction contract has undergone a long awaited review and update in what is now the NZS 3910:2023 form. Since the last version was released in 2013, there have been many legislative, industry and attitude changes (particularly towards pricing and delivery risk) and the construction sector was calling out for a comprehensive review of this document.

One of the aims of the revised form was to limit the need and use of special conditions. Here are some of the most significant changes:

The introduction of a Target Price so that cost savings and cost overruns can be shared between the Contractor and Principal. This “pains” and “gains” adjustment doesn’t include a lot of detail or complexity but reflects what is often seen in the industry now and promotes a fairer risk-gain reward system.
Clarification that the Contract Price can be made up of a number of different pricing components (e.g. lump sum, cost reimbursement, target price). Recognising the complexity of some projects and that the Contract Price can be hard to determine at tender/contract entry and often includes a mix of different pricing methods.
The Engineer is replaced by a Contractor Administrator (who acts for the Principal giving directions) and an Independent Certifier (who is to be independent and impartial on matters such as valuing work and certifying scheduled amounts). However, these new roles can still be carried out by the same person so the conflict of interest issue remains.
The introduction of an Interim Final Account (setting out the proposed final Contract Price for the whole of the Contract Works up to the date of Practical Completion) and a Final Account (setting out the proposed final Contract Price for the whole of the Contract Works after issue of a Final Completion Certificate limited to the Interim Final Account and any Variations occurring after Practical Completion). This no doubt promotes early discussion and transparency on adjustments to the final Contract Price, which can often be kicked down the road until the final payment claim.
The Contractor’s indemnity is now fault based and much narrower than the previous ‘catch all’ version. There is also an option to include a cap on the Contractor’s maximum liability under the Contract (with some specified exclusions).
New dispute resolution provisions that do away with the previously prescribed ‘tiered’ approach. Time bars are also removed, meaning arbitration is available at any time.

Although some good head way has been made (for example around contractor risk and liability, fairer pricing mechanisms, earlier discussion and more certainty on proposed final price claims/adjustments), the need for special conditions remains. Matters such as Government suspensions (e.g. Covid), termination rights, the extent and type of allowable variations, time delays, site contamination and other disruption events will likely still be hotly contested.

It should also be noted that the related 3915 and 3916 contracts have not been updated in line with this revision and there is currently no timeframe for when this will occur.

In a sector that is fraught with uncertainty and challenges, let’s hope it’s not another 10 years before a more comprehensive review of our 3910 contract is achieved.

If you would like more information on the changes to the NZS 3910 contract please get in touch with Nicole Warner.

Contracting Out Agreements

Fri, 17 May 2024 18:12:32 GMT

The Property (Relationships) 1976 (“Act”) sets out the rules for the division and distribution of a couple’s property (whether they are a de facto couple, in a civil union, or married) on their separation or on the death of either of them [1].

Generally, where a couple have been in a qualifying relationship for three years or more, all relationship property will be divided equally.

A couple can make their own arrangements as to how they want their property dealt with at the end of their relationship by entering into a contracting out agreement under the Act, commonly referred to as a pre-nup.

Contracting out agreements can cover as much or as little as a couple would like, but there are strict rules that need to be followed.

Here are some key points to know about contracting out agreements in New Zealand:

1. What can contracting out agreements cover?

Contracting out agreements are typically used to specify how assets and liabilities will be divided at the end of a relationship. They can also provide for the rules of ownership during the relationship (for example, who will pay what) and rules for the division of property (for example, how property will be valued and sold).

2. Why do you need an agreement?

Contracting out agreements are common where one person enters a relationship with significantly more property than the other and wants to keep specific assets separate or in second-time around relationships. However, there are many different reasons why people may consider a contracting out agreement.

3. When do you enter an agreement?

A contracting out agreement can be entered into at any time during a relationship. However, it’s usually best to enter into a contracting out agreement at the beginning of a de facto relationship, marriage, or civil union (or immediately before it begins).The rules should be clear from the start; therefore, there is no pressure on one party to sign an agreement before any important dates, like a wedding, or, in the case of de facto couples, reaching the three-year mark in their relationship.

4. How does a contracting out agreement work?

To be binding, a contracting out agreement must be in writing and signed by both parties. Each party must also have independent legal advice (that is, from their own lawyer) before signing the agreement. The lawyers must each witness their client’s signature and certify that they have explained the implications and consequences of signing the agreement before the client signed it.

[1] In a recent decision, the Supreme Court determined that the Act can, in certain circumstances, also apply to polyamorous relationships.

Informal agreements that a couple might make between themselves (whether they’re in writing or not) are of no legal effect (although, you can, in limited circumstances, apply for them to be upheld).

5. Do you have to make a contracting out agreement fair?

The court can set contracting out agreements aside if the terms would amount to a “serious injustice” should the agreement to remain in place (which may include the agreement being unfair or if one party was under duress to sign).

6. What about trusts?

Special consideration must be given to trusts and trust owned property because the interplay between trusts and relationship property under the Act can be complex.

7. Once a contracting out agreement is signed, should you forget about it?

No, it is important that contracting out agreements are reviewed regularly to ensure the terms do not become seriously unjust because that can leave the agreements vulnerable to being set aside by the court.

How often an agreement should be reviewed will depend on the particular circumstances (including changes to property, getting married, the birth of a child, or simply the passage of time).

8. How do you raise the topic of a contracting out agreement with your partner?

For some, this is an awkward topic. However, it’s always best an agreement is discussed early on in a relationship. We can give advice and guidance as to how best to broach the topic and the issues with your partner.

9. What will creating and finalising a contracting out agreement cost?

This varies greatly. So, the cost depends on the complexity of the contracting out agreement, the extent of a couple’s property, and the time it takes to draft, negotiate, and advise on the terms.

While some people are reluctant to spend money on a contracting out agreement at all, a contracting out agreement can save people considerable amounts of money and legal fees in the long run.

A contracting out agreement can provide certainty and peace of mind for both parties for the future.

If you have questions concerning contracting out agreements (or reviews of them), our experienced Family Lawyers can offer valuable insights and recommendations on tailoring an agreement that precisely fits your relationship. For more information, please contact Vonja Young , Michaela Barnes , or Seb Recordon.