Legal Published Article by Ian Mellett of Quay Law – Process of Buying a Home

Buying or selling a home is one of the biggest financial commitments you will ever make.

There are several relatively complicated stages to negotiate and there are a number of things to look out for.

The law article by Ian Mellett covers the following

  • preparing an offer
  • The Sale and Purchase Agreement
  • Can I cancel the agreement?
  • Satisfying Conditions as set out in the Sale and Purchase Agreement
  • Post Confirmation and preparation for Property Transfer
  • Loan and Mortgage Documentation
  • Insurance Cover
  • Pre Settlement Property inspection
  • Possession / Settlement

 Click on Link for full article or for additional information please feel free to contact Auckland lawyer Ian Mellett on (09) 5232408.

Our property focused website – http://www.propertylawnz.co.nz/

What is a trust?

A question our Auckland lawyers and trust specialists are often asked  is “What is a  trust ?”

By way of a simple explanation, a trust is a form of transport, much like a container truck.  The driver and co-driver are the Trustees, who are charged with ensuring the safe transportation of the container contents, being the Trusts Assets, for the benefits of the recipient, being the Beneficiaries of the Trust.

Could a trust benefit me and my family and when should I use a trust ?

It is advisable to meet with a trust specialist as soon as you have any assets. Ask yourself, do I want to lose my assets to creditors or the Government?  If the answer is “No” to those questions, then speak to a Trust specialist regarding a  Trust.  Trusts are an invaluable asset protection tool and mechanism for preserving one’s wealth.

If you have an existing trust,  it is advisable that this trust and gifting is reviewed with your trust specialist in order for your trust to be brought into line with the Gift Duty changes that have occurred during 2011.  This law change has a  practical impact and effect on people with existing family trusts, and also for those contemplating the establishment of a new family trust.

To contact a lawyer at Quay Law and to further the discussion around “what is a trust and can it benefit my family and circumstances?”  contact Quay Law on (09) 523 2408 or visit our legal website.

Quay Law Barrister and Solicitor – unlocking your legal solutions   

Social Media Law

International Social Media law as it unfolds.

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Trading trusts reform in spotlight

Trusts reform in spotlight
Source stuff : 07/01/2012

ROB STOCK

The Law Commission is seeking views on whether the veil of secrecy surrounding trading trusts needs to be lifted to protect both creditors and the integrity of the Companies Register.

Trading trusts are structures where the trustee of the entity is a limited liability company, instead of a person.

The assets of the company are held by the trust for the benefit of the trustee. One result of this is that if the business fails, creditors can face significant legal hurdles in trying to get paid.

In its latest discussion paper on trust law, the Law Commission says there are concerns that creditors are unaware that they are dealing with a trust when extending credit.

“They may wrongly assume that assets are held both legally and beneficially by the company, when in fact they are held on trust and the company itself has very limited assets, which may affect the creditor’s prospect of recovering their debt,” the commission said.

In particular, creditors need to be very sure that the debts are not being incurred outside the terms of the trading trust’s deed or they could prove unenforceable, leading to the equivalent of a windfall to beneficiaries.

There have been concerns raised in New Zealand over trading trust secrecy, including by Justice Richard Blanchard who commented on the lack of transparency in trusts and queried whether trustees ought to be required to reveal the existence of the trust.

The Insolvency and Trustee Service has also told the commission that it has encountered at least one case where creditors have thought they were dealing with a company but the assets were in fact held on trust.

The commission said: “Without disclosure of the fact that the company is acting as trustee, the creditor is not aware of the need to take greater precautions to protect its position, such as requiring security, guarantees, or making enquiries about the nature of the trust arrangement, the authority of the trustee to incur liabilities, the status of the trustee’s right to indemnity, and the value of the company’s assets owned outright.

“There is also an argument to be made that if there continues to be no disclosure requirement, widespread use of the trading trust structure could impact on the integrity of the Companies Register as it would only show an incomplete picture of the company.”

The commission is seeking submissions on proposals including requiring trading trusts to reveal their existence, which could be done through a new register of trusts.

However that could prove costly.

An alternative would be to require disclosure of a company’s status as a trustee through the Companies Register, though the commission commented: “This may be a bit of a waste of time, as in practice, creditors may not use the Companies Register to check the status of the company.”

Another option would be to place a positive obligation on the directors of the company to inform creditors and prospective creditors that the company was acting as a trustee, the commission said.

There could also be the requirement to reveal the fact in all contracts and company documents, which would have to state something along the lines of “(name here) Trust trading through (name here) Limited”.

A similar suggestion was made in Australia in the mid-1980s but did not go ahead, something that some commentators have later rued.

But the commission is by no means certain that bringing in greater disclosure for trading trusts – and there is uncertainty about how many there actually are – would have much impact on its own.

“Disclosure about trustee status and potentially other relevant information is still likely to be insufficient in and of itself in protecting creditors, especially unsophisticated ones who do not appreciate the implications of dealing with a trustee. Disclosure would probably need to be considered in conjunction with other possible reform options,” it said.

These could include changing the law to strengthen the protections and channels for creditors seeking to be repaid by trading trusts.

WHAT IS A TRADING TRUST?

The term “trading trust” is often used to describe a structure in which the trustee of a trust is a limited liability company, instead of a person.

The assets of the company are owned by the beneficiaries of the trust, so that if the company fails, creditors can face great difficulty in getting paid.

Often they are operated by professionals like lawyers and accountants for clients. Creditors need to tread with great care when lending or extending goods or services to a company acting as a trustee.

- Canterbury

What do you want to read about in our law firm blog?

As most people head back to work this week, I thought I’d take this opportunity to thank each and every one of you for following my blog or connecting with our Quay Law team via a social media profile.

As 2012 kick starts, I thought I would take the liberty of asking you what you would like me to cover in our Auckland law firm blog over the course of this year? Do you have any legal questions that you would like answered? Do you have a specific topic you’d like more information on?

I look forward to your feedback.

Kind regards
Ian Mellett
Solicitor and Principal at Quay Law (Remuera)

Happy New Year from your Auckland Law Firm

The team and lawyers at Quay Law wish you and your nearest and dearest a New Year full of success and good tidings. Happy 2012!

Law Firm, Remuera, Auckland
09 5232408

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Our thoughts are with the people of Chrustchurch

Our thoughts go out to the people of Christchurch as another large earthquake hits your beautiful city. Take care !!!

Our team and lawyers wish you Merry Christmas and a Happy New Year – Quay Law

The legal team at Auckland law firm Quay Law would like to wish our clients, friends and families a very Merry Christmas and a Happy New Year.

Should you require urgent legal support over this festive break you can contact Ian Mellett on Mobile 021 043 2373.

With best wishes

The team at Quay Law

427 Remuera Road, Remuera, Auckland, New Zealand

Ph: (09) 5232408

 

Property Law – Due Diligence Clause in your Sale and Purchase Agreement (Conveyancing).

Property Law – Due Diligence Clause in your Sale and Purchase Agreement.

In a recent High Court case, the decision clarified when a property purchaser may lawfully exercise the right of cancellation in a conditional sale and purchase agreement pursuant to a due diligence clause.

The Court held that an agreement can be worded so as to make the satisfaction of a condition entirely a matter for subjective determination of a property purchaser.

This case is based on what the parties had done using a similar phrase to those below in their property agreement:

“.. the Purchaser being satisfied that…”

“In the event that the Purchaser is not satisfied with any aspect…”

“… the Purchaser shall not be obliged to give reasons …”

 The Court stressed that it is a matter of wording in respect of the individual agreement.  If a clause provides for a subjective determination without any obligation to disclose reasons, it is difficult to see how it can restrict the matters that the property purchaser can take into account.

This case highlights the importance of fully understanding and being aware of the implications of any legal contract and reinforces the importance of taking legal advice before signing a legally binding contract.

For further conveyancing information on your Agreements or Contracts contact Auckland law firm, Quay Law in Remuera.

Ph: (09) 5232408

Protection of your business domain name!

New .xxx suffix too tempting to ignore
Last updated 05:00 11/12/2011

IAN STEWARD

An adults-only, racy Trade Me?

New Zealand companies are scrambling to buy up the new .xxx pornography version of their internet addresses, but not to create X-rated versions of their sites.

The new .xxx suffix for websites officially went on sale on Tuesday, aiming to create a home for the internet’s vast store of pornography, which is currently available on .com and .net websites.

New Zealand companies have been quick to act, with such brands as trademe.xxx and allblacks.xxx already taken.

The rationale is not to use the new addresses, but to prevent others from using them and besmirching their good names.

New Zealand Rugby Union public affairs general manager Nick Brown confirmed the union had purchased the allblacks.xxx name. “We think that purchasing this domain is a sensible way to protect the integrity of our brand.”

Air New Zealand said it bought its .xxx domain as “standard practice” to protect the company brand.

Trade Me spokesman Paul Ford said they had used a “protection mechanism” to block trademe.xxx from being registered.

He said there was a “general desire” not to have Trade Me associated with the xxx domain, but they also wanted to protect people from fraud. “We don’t want scammers and other nefarious types using the Trade Me name to host a dodgy site in Nigeria or Romania.”

Mystery surrounds the address bnz.xxx.

Someone has reserved the domain but a spokeswoman from the bank said it wasn’t the BNZ.

For those with the desire to set up their own adult site, all is not lost – among those still available for registration are tvnz.xxx, radionz.xxx, and nzpolice.xxx.

- Sunday Star Times

A Christmas funny from our legal team

An early Christmas funny from the team at Quay Law.

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Auckland Council Valuation – Owners have until December 16 to object to their valuation

Source:  Weekend Herald – November 2011

Auckland Council’s revised property valuations are supposed to represent probable market value.

The Weekend Herald put them to the test at a busy auction day. Phil Taylor reports

It seems owners held off selling until after the Rugby World Cup. That, and the springtime bump, have Barfoot and Thompson’s auction rooms buzzing.

It is Wednesday, and five auctioneers take turns chomping through 74 properties. Sixty-four per cent sell. It takes most of the day so February must be a frenzy.

As many as 100 can go under the hammer in a day in real estate’s busiest month, auction manager Tim Carter tells the throng that ebbs and flows through the day from 20 to 100 people.

Carter is friendly, his patter smooth, his dress immaculate. Presentation is the first rule of sales and that doesn’t just apply to the merchandise.

Buyers wear what they like, it’s their money that talks. Today some wear business attire, others dress casual. An older man is in shorts.

The fun begins almost immediately and during what should be the sombre part, the mortgagee auctions. Agents take instructions from vendor-bankers on the phone who make cool decisions on the numbers, unencumbered by emotion.

But come Lot 5 and a discernible giddiness leaks through the room. Three bidders battle for a one-bedroom apartment with covered balcony, near Myers Park in the city. At $52,000 the bank says it’s on the market and at $60,000 the pretty Asian woman in the “Julius the Monkey” T-shirt is the new owner. Nerves give way to relief, exhilaration maybe. The man in the hoodie hugs her. It will turn out to be the low price of the auction.

The buyer later introduces herself as “Tina”. She is effervescent. It’s her and her partner’s first auction and first investment property. They own their home in Henderson Heights and she is on maternity leave from her accounts job.

In contrast a once-high-flying-but-now-bankrupt developer sits at the front raising his hand to up the ante during another mortgagee lot two partly built Parnell townhouses. David Henderson knows the ropes. He goes about the task perfunctorily, reaches the point his party won’t go beyond and the hammer falls in favour of another bidder at $2.45 million.

There are several small offices at the rear of the room where agents take instructions from vendors as bidding progresses.

A wallchart depicts the property clock: 12 o’clock, boom; 3 o’clock, corporate failures and falling commodity prices; 6 o’clock, falling real estate values.

In the foyer is a framed quote from Maurice Thompson, a company founder. “The longer I live the more certain I am that enthusiasm is the little recognised secret of success.” It recharges mind and body and, says Thompson, “is the enemy of pessimism for which there is no room in a real estate agency”.

Some properties are passed in, a handful don’t attract a bid but mostly sales are buoyant. Many people do their own bidding, often chasing a home of their dreams.

Eager contests pump prices and the fall of the hammer produces winner and loser, elation and deflation.

A character three-bedroom Grey Lynn villa comes down to a battle between two determined bidders. The winner is a pregnant women with a baby in tow. Tears, embraces, then off to complete the paperwork.

At $1.038 million, the villa fetched 25 per cent more than the council’s new valuation of $830,000 (itself way up from $680,000 previously).

One agent thinks the claim that the new valuations are “probable market value” absurd. “It’s all over the place,” she tells the Weekend Herald. Another estimates a third are about right and a third each are above and below, sometimes significantly.

The valuations are a distraction, that agent says, and may cause the internet-savvy (who check valuations online and decide not to bid) to miss out.

But optimism is the flavour of this day. The Grey Lynn villa reflects the trend the average (disregarding mortgagee sales) is 24 per cent above the council’s valuation.

It could have been higher. Some auctions leave you scratching your head, such as the Sandringham three-bedroom brick and tile cross-lease where the vendors turned down an offer 41 per cent above the council’s valuation of $325,000. Or the three-bedroom with the modern kitchen and double garage in Blockhouse Bay, passed in despite an offer 45 per cent above the valuation of $330,000. Do the owners know something the council doesn’t?

The biggest “over” among the day’s sales is a picture-perfect four-bedroom Croydon Rd, Mt Eden villa that fetched $1.285 million 34 per cent above the new valuation of $960,000 (up from $880,000).

Something’s happening. A luxury apartment sold for 45 per cent above valuation at a Bayleys auction this month, fetching $1.42 million, and a Remuera house topped that, selling at 51 per cent above valuation for $2.85 million.

At the beginning of the month Quotable Value reported Auckland was back nudging record boom-time prices.

Overheated? One agent risks contravening the Code of Enthusiasm with a word of caution. Are buyers not watching what is happening in Europe? Property is flat in Australia and our interest rates are hardly likely to drop further. A mini-boom that may bust, she wonders.

Could it be that it is 35 minutes past the hour on the property clock “Hesitant uneven recovery”?

Auckland Council’s valuation team leader Peter McKay isn’t surprised by the trend of prices outstripping valuations. The valuations aimed to reflect the market on July 1 and it has continued to rise steadily, particularly in inner-city suburbs.

With 40 valuers assessing Auckland’s 516,000 properties it is impossible to visit them. Instead relevant sales are scanned to pick trends and consent files examined for improvements.

So far 4000 objections have been lodged and come from both those whose valuations have risen and fallen. Big increases mean higher rates but could help those planning to sell, the opposite applies for decreases.

Some whose valuation dropped markedly have run into money problems as banks demand more collateral, such as Hein Erasmus, owner of a leaky Gulf Harbour property. He borrowed about 80 per cent of the previous valuation of $345,000. “The problem now,” he said this month, “is the valuation has dropped 67 per cent to $121,000 because it is a leaky complex. We owe the bank 247 per cent of the value.”

McKay says it is unusual for properties to decrease. Most common reason are weathertightness issues, land changes (such as subsidence) and the impact of the global financial crisis.

In the auction room there is an outburst of enthusiasm. C’mon, the auctioneer cajoles a hesitating bidder, “it’s only money”. “Is that your Mother? Don’t listen to her, mothers always say ‘no’.”

Back at the office a check of the council valuation for Tina’s apartment reveals it is $160,000.

She has bought at 62 per cent below valuation the biggest discount of the day.

Tina could just be laughing all the way to the bank.

- Additional reporting: Anne Gibson

Revaluing the Super City
* Biggest revaluation with 516,000 properties assessed by 40 valuers from Auckland Council and Quotable Value.
* Aimed to bring valuations by the former councils under one umbrella and timeframe and to set rates.
* Aimed to reflect “probable market value” as at July 1 but not intended for marketing or mortgages.
* Properties assessed by examining relevant sales and registered improvements.
* Normally properties increase in value but this time some fell, the main reasons being weathertightness (those with a history of leaks and those built of materials associated with leaks), land changes (such as subsidence) and the impact of the global financial crisis.
* Owners have until December 16 to object to their valuation.

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