|
|
|
|
|
|
|
On 1 January 2008
the Property Law Act 2007 came into force, replacing the 1952
Property Law Act and several other related Acts, including a
number of old English ones going back as far as 1257.
It has been
described as the largest single change to property law in the
past 55 years and is the culmination of a project that took
over 16 years.
When the Act was
passed last year, the Associate Justice Minister, Clayton
Cosgrove, noted that the aim of the Act is to create modern,
more user-friendly legislation for people buying or selling
property, mortgaging their property to raise finance, or
entering into commercial leases of land.
Not everything in
the Act is new; some parts of it repeat or codify the existing
law. The following highlights some of the changes that have
been introduced.
Landlord’s Consent
If a tenant asks a
landlord for permission to transfer or sublease premises to a
third party, or to change the permitted use of the premises,
the landlord must not unreasonably withhold consent. The
landlord must respond in writing within a reasonable time. If
consent is given subject to conditions or is withheld, the
landlord must give written reasons for their decision, if
asked to do so by the tenant.
A range of parties
affected by the decision may claim damages from a landlord if
they suffer loss as a result of the landlord unreasonably
delaying or withholding the landlord’s consent.
Insurance
Protection for Tenants
If the premises
are damaged by an insured risk (e.g. fire, flood, explosion)
the landlord and their insurers may not require the tenant to
pay for the repairs. This is so even if the damage was caused
by the tenant’s negligence.
Distraint
The Distress and
Replevin Act 1908 enabled a landlord to enter the premises and
seize certain chattels of the tenant, if the rent was in
arrears. This self-help remedy has been abolished.
Sale and Purchase
– Return of Deposit
A purchaser of
land now has a statutory right to apply to a court for the
return of the purchaser’s deposit. The surrounding
circumstances must be such that a court would not order the
purchaser to perform the contract and also that the purchaser
has no right to cancel the contract.
An example could
be where there is a defect in the property that the purchaser
was not aware of until after signing the contract and paying
the deposit.
The court is also
given the power to cancel the contract and declare that the
purchaser has a lien on the land to secure payment of the
refund.
Conclusion
The new Act
affects many facets of the law relating to property. It
includes leases, sales and purchases, mortgages, access to
land and special powers of the court.
Chances are, if
you are dealing with land in any way, the new Act will affect
what you are doing. With such a major law change, it is more
important than ever to obtain proper advice at the outset of
any transaction.
|
|
|
|
|
|
|
|
| |
Last
year Edith, an elderly widow, paid a local
painting contractor $7,000 to paint part of her
house. After only 12 months the house looks
terrible and needs to be painted again. The
painting contractor has refused to fix the work
and Edith has found another more reputable painter
who will redo the work for a further $7,000.
Edith’s lawyer has advised her that she can sue
the first painter in the District Court but that
the cost of doing so may make it uneconomical for
her. Fortunately for Edith, she can bring a claim
in the Disputes Tribunal.
What
types of claims are covered?
The
tribunal is very versatile and can hear claims
about almost anything, from car repairs to grazing
stock, from
a
faulty new computer to hair dressing for a wedding
gone terribly wrong.
There
are some limitations. There must be a dispute -
you can’t file a claim if someone simply refuses
to pay a bill, when there is no argument about
whether they owe the money. The Tribunal is also
limited in terms of disputes concerning
employment, land sales, wills, rates, taxes, and
other statutory amounts.
For
most disputes the tribunal is an informal,
inexpensive, quick and private way to resolve the
disagreement.
If the
dispute relates to something worth up to $7,500, a
claim can be filed as a matter of right. If the
value is between $7,500 and $12,000, both sides
must consent for the matter to be heard by the
tribunal. The tribunal has no jurisdiction to
hear a claim over $12,000.
Procedure
The
tribunal is much more flexible than a District
Court. No one is allowed to be represented by a
lawyer and the rules provide that the tribunal
shall determine disputes “according to the
substantial merits and justice of the case”. In
doing so it is not bound to give effect to strict
legal rights or obligations. This emphasis on
what is fair and just, rather than the letter of
the law, allows a referee to take matters into
account that a judge in a District Court may be
prevented from considering.
In
Edith’s case, she may have signed a contract with
a clause prohibiting her from claiming
compensation more than 6 months after the work was
completed. The referee is not bound by that
provision and may award her $7,000, if that seems
to be fair and just. The referees are also not
bound by the evidential rules of a court.
Preparation is the Key
Probably the single most important aspect of
bringing (or defending) a claim in the tribunal is
preparation. Make sure that you have copies of
any important documents, such as bills, receipts,
photographs or reports. Ensure that any important
witnesses can attend. If they cannot do so in
person they may be able to attend by telephone and
support a written summary of what they saw or
know. Review each step of your claim (or defence)
thoroughly before the hearing so that you can
anticipate any challenge that the other party
might make and anticipate any concerns that the
referee may have.
Conclusion
Long
memories of the problems associated with the
Disputes Tribunal’s predecessor, the Small Claims
Tribunal, mean people sometimes assume the
tribunal is only suitable for the most basic
disputes. In fact, if you prepare your claim
carefully and thoroughly, it can be an excellent
forum to resolve a dispute of up to $12,000.
 Introduction
Imagine
this, after considering the various housing options you
decide you want an apartment in the heart of Auckland
City. You want to be close to the action. It’s central,
a perfect base, a long term investment! The city has
many beautiful views so you want to be elevated to take
advantage of the opportunity for that. You spy a
brochure which covers the key aspects of your search.
The apartments are not built yet but the glossy
publication promises classy central city living, and
that view. Once you have signed up and the building has
been constructed, you walk in and discover that a roof
is obstructing your priceless view!
A
Misrepresentation
The key
question for the court in the case that followed this
disappointing discovery by the purchaser was whether the
misrepresentation made in the brochure meant that the
agreement to purchase could be cancelled.
Alternatively, would the Court require the purchaser to
pay over the purchase price and buy an asset that did
not live up to the initial expectations? The Court in
this case said settlement must proceed.
The
Agreement and Plans/Specifications
After the
“tease” in the original brochure, came the actual
agreement for sale and purchase with detailed plans and
specifications. These, when taken as a whole, showed the
existence of the roof in front, and fully disclosed the
exact situation. The agreement included the standard
provision that once signed, the agreement was the
binding and complete legal arrangement between the
vendor and purchaser.
In other
words, the brochure was not to be taken into account
when finally deciding what the terms of the contract
were. As the purchaser had the opportunity to take any
legal or other advice available prior to signing, there
was no reason, in the Court’s view, why the contract
should not stand. The Court ruled that the settlement
must proceed.
Conclusion
and Warning
In the
excitement of the purchase, who would have given a
thought to the roof next door, particularly as nothing
was constructed at the date of signing. In hindsight,
the warning is clear and the principle applies to every
signed sale and purchase agreement. Before you sign,
obtain all the advice you can, because prior
representations will usually not be a relevant factor.
In this instance, not only legal advice was required,
but specific architectural advice regarding the plans
and specifications was also needed.
 Climate
change is a hot topic as the mercury rises ever higher
around the world. Legislatures are increasingly
looking to new mechanisms to combat climate change and
the New Zealand Government is now no exception.
In
December 2007, the Government introduced the Climate
Change (Emissions Trading and Renewal Preference) Bill
which will give rise to New Zealand’s first domestic
emissions trading scheme.
Purpose
The Bill
has two primary purposes. Firstly, to establish the
New Zealand Emissions Trading Scheme (NZ ETS) and
secondly, to create a preference for renewable
electricity generation by implementing a 10 year
moratorium on new fossil-fuelled thermal electricity
generation.
Staged
Entry
The
government has provided for staged entry into the
scheme as follows:
Stage 1 -
Forestry sector, retrospectively from 1 January 2008.
However, the obligation to comply with the standards
does not take effect until 31 December 2009;
Stage 2 -
Liquid fossil fuel sectors, from 1 January 2009. As
with forestry, the obligation to comply takes effect
from 31 December 2009;
Stage 3 -
Stationary energy sector and industrial process
(non-energy) emissions, 1 January 2010;
Stage 4 -
Agriculture, including farming and horticulture, and
waste, 1 January 2013.
Participants
The NZ ETS
affects three types of participants.
1.
Businesses
that are labelled as “points of obligation”. These
businesses (yet to be identified) will have specific
obligations and must surrender New Zealand Units (NZUs)
to cover direct emissions or emissions associated with
their products. These businesses will generally be at
the top end of the sector. For example, fuel
companies, rather than motorists.
2.
Businesses
that receive freely allocated emission units for
eligible afforestation.
3.
Businesses
that trade NZUs to take advantage of market
opportunities that could arise.
Allocation
of Units
The
Government is yet to show exactly how it will allocate
NZUs. It will do so depending on how different
sectors and participants will be affected and whether
they can pass costs on to consumers. Businesses such
as fossil fuel providers and electricity generators,
who can pass on cost increases to consumers, will need
to purchase credits to meet their obligations.
However, businesses, such as forest and farm owners,
that cannot pass on costs will have units allocated to
them.
Societal
Impact
Expect an
increase in transport and energy costs and the cost of
products arising from various industrial processes.
Essentially the cost of business will be directly
related to the extent to which a business is able to
reduce or offset omissions, thereby reducing the cost
of NZUs. Consumers are inevitably going to resist
these costs being passed on.
Eventually
everyone will be affected in some way by climate
change legislation. It is necessary for the business
world to turn its mind to mitigating those cost
consequences now. If you are an emitter, you can plan
to reduce emissions, purchase NZUs, or reduce
emissions below the sector level and sell spare units
to another emitter.
Whichever
way you look at it, humankind is going to inevitably
pay for emitting carbon and, as some might say about
politics: left or right is dead; it’s all about the
environment.
The
controversial Electoral Finance Act 2007 (The Act)
came into force on 1 January 2008. It is designed
to reform campaign finance and has been heavily
criticised by many to be an unjust limit on
freedom of speech. Its critics say that it is an
assertion by the government of a new audacious
right; the right to determine the amount of
assistance that political parties can receive from
supporters. On the other hand, the Act’s
supporters say that it is a just limit on the
freedom of speech, as other principles such as
preventing undue influence due to wealth, override
the freedom of speech argument and in fact tends
to level the playing field regarding the amount of
money each party receives.
Purpose
The
Act’s purpose is to strengthen the law governing
electoral financing and broadcasting in order to
maintain confidence in our electoral system, while
at the same time promoting public participation,
preventing any undue influence on the outcome due
to wealth. It is also seen as providing greater
transparency and accountability on the part of
candidates, parties and other persons engaging in
election activities, and to ensure there are
controls on the conduct of election campaigns.
The
Act monitors spending by political parties and
campaign groups from 1 January to polling day if
the election is held in the third year of the
election cycle; previously it was 3 months before
polling day.
Changes to Donation Regime
Under
the Act, anonymous donations can be made of up to
$1,000 and must be sent to the Electoral
Commission which then makes payment to the
intended party. Donations over $1,000 cannot be
made anonymously. Disclosure of identity is made
to the Electoral Commission which in turn pays the
donation to the party. However, it cannot disclose
the identity of the donors.
If
more than $12,000 is spent, registration as a
non-political third party is necessary. However
the Act has placed a limit on the amount of
spending by such “third parties” of $120,000.
Election Advertisements
Advertising must carry a statement recording who
is behind it and, if it has cost more than $12,000
to set up, then the person who is behind the
advertising must also be registered with the
commission as a third party. Care must be taken
because advertisements do not need to mention the
name of a candidate or party to qualify as an
“election advertisement”. The definition of
“publishing” covers almost all means of sending a
message to the public.
It has
recently been reported that Tim Shadbolt is
planning to breach the Act by advertising without
the necessary written authority. He is also not
going to state his full name and address or
include any authorising statement. The police are
intending to prosecute.
Offences
It is
an offence to contravene the Act and the penalties
have been increased for anyone convicted of a
corrupt or illegal practice. The period in which
a prosecution can be brought has also been
increased. However, the Electoral Commission and
the Chief Electoral Office have discretion in
referring matters to the Police. Matters are not
to be referred if considered “so inconsequential
that there is no public interest in reporting
those facts to the New Zealand Police”.
Conclusion
The
legislation is in its infancy and therefore it is
not yet known what effect it will have. However,
if money is to be spent on supporting your
preferred political party, never mind how much
bang you can expect for your buck, just remember
to make sure you spend that buck in accordance
with the new Act.
Education Update
– Violent Students
 A
school principal has successfully defended a judicial review
of her decision to stand down a 7 year old student with ADHD
for five days after a violent incident in the classroom.
The Education
Act 1989 provides that a principal may stand down a student
if there has been gross misconduct that is a harmful or
dangerous example to others, or, the behaviour is likely to
cause serious harm to the student or other students. Upon
standing down a student, the principal must immediately
notify the Ministry of Education and the parents, and give
reasons for the decision.
The High Court
reviewed the circumstances surrounding the decision and
found that the principal acted within the law.
Consumer
Guarantees Update
A recent High
Court decision has finally answered a long-standing question
arising from the Consumer Guarantees Act 1993: can a
consumer take it upon themselves to arrange for the repair
of a defective good and then claim the full cost back from
the supplier; or, must the consumer first give the supplier
the opportunity to provide a remedy?
The decision is
unequivocally clear - the consumer must first afford the
supplier the opportunity to remedy the defect. This is in
line with the general policy of the Act that the suppliers
of goods are liable to provide remedies as they, and not the
consumers, should bear the risk of defective goods.
If you have any
questions about the newsletter items, please contact me, I’m
here to help
|
|
| |
|
|
|
