COVID-19 – Alert Level 4 – lease obligations and landlord/ tenant discussions
This is a brief note, but should be useful when discussing with your landlord, tenant and/or lawyer depending on your situation.
As with many businesses in New Zealand who are forced to shut their doors, rent and outgoings during the shutdown period must generally be paid unless there are specific provisions in the lease or agreement reached between landlord and tenant can be reached.
Your lease is specific to your premises, although there are some widely used forms of lease documents, such as the ADLS Lease. Many of those standard form leases are adapted and changes negotiated. I strongly recommend that you consult with your legal adviser to ensure you understand the terms of your lease as you progress negotiations with your landlord. I have however, put together some general information relevant to the current circumstances and common clauses in leases to ensure you are better informed and prepared for discussions with your landlord or your tenant depending on which side you fall.
The idea is fair abatement and not a blanket period for eg. 3 months etc unless the situation is such that it justifies etc. It will depend also on the situation and tenants business. The tenant may go out of business if the impact is material so the parties may need to be practical as well. You may also ask for evidence or need to provide evidence and copies of contracts or emails showing how the business is impacted (including finance statements for comparable periods) prior to any agreement between the parties.
As a tenant, you may approach your landlord to negotiate a fair rental adjustment during the lockdown period - you are not able to access your premises for business. I understand tenants are receiving rebates of up to 50% rental reduction for between 2-3 months for the months of April, May and June for now for instance. There is no blanket rule and both parties may need to be practical and sensible about these matters whilst the Alert Level 4 applies.
Further useful information and links during the Covid-19 lock down period:-
In light of recent events like the Christchurch earthquakes, and the Australian bushfires and flooding, it really does hammer home the importance of having insurance in place for your residential and commercial properties. As lawyers, we see the repercussions for clients who face the devastating reality that they were not sufficiently insured for such events.
Not many people are aware that specified insurance can be required in areas of high risk of natural disasters. In particular, in areas such as Christchurch, we see an increased requirement from lenders that the insurance provider has earthquake cover specifically noted on the policy, as natural disaster cover is not specific enough. Furthermore, provisions can be made in the sale and purchase of homes for the potential to assign any Earth Quake Commission (“EQC”) claims or ongoing works applicable to that home. Thus, providing the benefit of a claim to the purchaser.
If you own private insurance that includes fire cover, when a natural disaster strikes you can also be entitled to insurance cover under an EQC claim. As of 1 July 2019, EQC has increased its coverage from $100,000 plus GST to $150,000 plus GST in accordance with the 2019 amendments to the Earthquake Commission Act 1993 (“the Act”). As of July 2020, the Act will also seek to phase out any EQC cover for contents damage as a result of natural disaster. The Act has instead allowed for the increase in the total house cover, as noted above. For those without private insurance though, this option is not available.
As part of the 2019 changes to the Act, we have also seen an extension of the time frames for someone to make a claim, whereby as of February 2019, a claim may be lodged within two years of any incident, as opposed to the previous two-month period.
It must also be noted that an EQC claim can be limited in its scope, whereby a private insurer will need to pick up some of the other costs. Most insurers include this as an excess in your insurance policy, but it can cover damages to items such as the driveway, swimming pool and fences which an EQC claim will not cover.
As the saying goes, “you don’t know you need it, until you need it”, it is much the same for insurance. As most home owners in NZ have lending over their property, they will already have some form of insurance coverage to protect them as a requirement of their lenders. However, the vulnerable can be those who own their homes outright and are not necessarily required to hold insurance.
If we can take anything from the devastating disasters like the Christchurch earthquakes and bushfires in Australia, a natural disaster can be unpredictable and devastating in nature. Ensuring that not only do you have cover for the property in question, but you are also confirming that you will be entitled to further EQC cover, is a vital move for any home owner or business owner to minimise the impact of a disaster.
We would always suggest that insurance is a vital consideration of owning any property or home. In particular, if you live in an area that is known to be at risk of a natural disaster then the idea of insurance and potentially choosing further natural disaster add-ons to your insurance policy should be a very serious consideration.
When trustees act for a discretionary trust, they have a primary duty to act for, and in the best interest of the beneficiaries. Consequently, any benefit received under the trust is provided at the discretion of those trustees.
Trustees of a discretionary trust have a wide-ranging scope of power in terms of the decisions they make for the trust, with a limited liability for such decisions. However, beneficiaries do also have rights under law to monitor the trust/trustees.
Generally, a discretionary beneficiary has the right to:
• request from the trust or its representatives, documentation for the trust (i.e. trust deeds, appointment/removal of trustee documents, details of trust distributions, trust accounts, trustee contact details and details of trust assets and liabilities);
• receive fair treatment from trustees;
• be considered in any decision made by the trustees;
• seek the court to remove a trustee; and
• apply to the court for intervention or assistance.
The ability for a discretionary beneficiary to request and obtain trust information is an important right and can be where disputes arise. It is important for beneficiaries (especially if you have only just found out you are a beneficiary) to understand what exactly the trust assets and liabilities are, who the trustees are if you want to contact them, and potential history of the trust and trustees. Whilst the request for this information can ruffle the feathers of some trustees, and trustees have been known to deny requests (see the recent case of Erceg v Erceg), the underlining fact remains that the trustee’s role is to act for the beneficiaries benefit above all.
Discretionary beneficiaries can request, but may not be entitled to receive the reasoning behind trustee decisions. This is to protect the role of the trustee and the trust that is placed in them when the trust was established. However, the court can intervene if an explanation is considered justified.
If a trustee is thought to be acting contrary to the benefit of the discretionary beneficiaries or is refusing to provide information to the beneficiaries, then the beneficiaries can apply to the court to have such information released and potentially have the trustee removed or replaced.
Given that there is no requirement for anyone to inform you that you are a discretionary beneficiary of a trust, sometimes trusts can be wound up before you are made aware. Where this occurs, a beneficiary can request provision of information relating to the winding up and final distributions of the trust to see how the assets and liabilities were distributed.
Under section 68 of the Trustee Act 1956, a trust beneficiary can apply to the court to review a decision or act performed by the trustees if they feel that they have reasonable grounds for being aggrieved by the act or omission. Whether a discretionary beneficiary can apply under this act is not yet set in stone, however, decisions by the court point to the idea that if the number of discretionary beneficiaries is small, it may be permissible.
If you are a discretionary beneficiary and unsure of your rights, it is advisable to contact a legal professional to talk you through this.
The Residential Tenancies Amendment Act 2010 came into force on 1 July 2016.
Please see the following for a good summary:- https://www.tenancy.govt.nz/about-tenancy-services/news/law-changes-to-the-residential-tenancies-act-now-in-force/
The Act makes tenants and their guests liable for up to four weeks' rent, or the cost of the landlord's insurance excess (whichever is lower), for careless damage caused to a rental property. Please see:- https://www.msn.com/en-nz/money/finance/renters-causing-careless-damage-could-be-up-for-a-months-rent/ar-AAH0Xti?ocid=spartandhp
Insurance is absolutely crucial, and when borrowing from lenders to complete a house purchase, it is compulsory. Lenders will not allow a loan draw-down without written confirmation that appropriate and sufficient insurance cover is in place. The cover has to be in your full legal name or joint names if the property is owned jointly.
Usually there is replacement insurance relating to fire, earthquake and other damage. Cover for contents go hand in hand with the replacement cover but is not compulsory. Highly recommended though!
These days you really need a valuation of the home being purchased to set the correct and allowable amount of cover to be sought. Banks and other lenders insist on this and then check the numbers in respect of what they are lending in dollar terms against the potential insurance pay-out in the event of damage to your house.
Replacement cover gives all the answers. The lender wants to know its lending is secure, and your house has the ability to be rebuilt at best while covering the amount they have lent at worst.
While fire and willful damage are the cornerstone of insurance cover and why it is vitally important, these days earthquake risk is also on everyone’s minds and must be included when arranging such cover
The word caveat is Latin and translates to “let him or her beware”. A caveat can be lodged against someone’s property title to protect the lodging party’s right or interest in the property and it prevents the registered owner of the property from selling, mortgaging, and dealing with the property until the caveat is removed from the title.
To lodge a caveat you must have a “caveatable interest”. Under section 138(1) of the Land Transfer Act 2017, to meet the threshold of a caveatable interest, the person:
(a) claims an estate or interest in the land, whether capable of registration or not; or
(b) has a beneficial estate or interest in the land under an express, implied, resulting, or constructive trust; or
(c) is transferring the estate or interest in the land to another person to be held on trust; or
(d) is the registered owner of the estate or interest in the land and--
(i) has an interest that is distinct from that of a registered owner; or
(ii) establishes to the satisfaction of the Registrar that at the time the caveat is lodged there is a risk that the estate or interest may be lost through fraud.
Common examples of when a caveat could be registered are:
• A party has purchased a property and there is a substantial amount of time between signing the contract and the settlement date.
• A purchaser of a property registering a caveat when the vendor is seeking to cancel the contract.
• A party is a beneficiary who has an interest in land under a trust or estate.
• A party has a lease over the land.
Please note that if a caveat is registered without reasonable cause, you could be liable to pay compensation to anyone who suffers a loss as a result of the caveat being registered.
There are three ways to remove a caveat from a title which are:
1. The person who lodged it (also known as a caveator), withdraws it.
2. When the caveat lapses. The registered proprietor applies to the Land Registrar for the caveat to lapse. The caveator will then receive a notice that an application has been made for the caveat to lapse and will have 14 days to notify the Land Registrar that an application has been made to the High Court to sustain the caveat.
3. Apply to the High Court to have it removed. The High Court is required to be satisfied that there is not a valid reason for the caveat to be registered. The onus is on the caveator to prove there is/are reasonable ground(s) for the caveat to be sustained.
In conclusion, whether you would like to protect an interest you have in land, or would like to apply for the removal of a caveat from your property, Iadvise you seek legal assistance to explore the best way to move forward to resolve your matter.
As of 1 April 2019, the Domestic Violence – Victims' Protection Act 2018 (“the Act”) came into force and is applicable for employers and employees all around New Zealand.
Similar to an employee’s rights to take bereavement/sick leave in a 12-month working period, the Act allows employees who are victims of domestic violence to take up to 10 days leave a year in order to deal with and attend to the effects of domestic violence abuse that they have faced (“the Leave”).
The victims will also be entitled to request short-term changes or variations to their working situations, which may include a decrease in their working hours, change of location or the types of duties undertaken. Any request for short-term changes to their employment situation can only be requested for a maximum period of up to two months. The employer must respond to any request for short-term change(s) made by an employee within 10 working days of receipt of the request.
The Leave can be taken for prior domestic violence happenings that occurred, prior to the employee’s current employment or within a specified period of time prior to the request. On this basis, it can be used to deal with domestic violence effects, no matter how long ago the abuse had occurred. The Leave may be taken on various occasions during any 12-month period, in relation to recent or previous domestic violence incidents, and does not have to be concentrated into one use per year. This allows victims to spread the Leave out to deal with effects of one or multiple acts of domestic violence.
Should an employer deny an application for the Leave or short-term employment changes, and the employee believes this denial is on unreasonable grounds, then under the Act, the employee can make a complaint within 6 months of their request to the Ministry of Business, Innovation and Employment (MBIE) or the Human Rights Commission (if there are no internal processes).
The Act further protects domestic violence victims from suffering discrimination in the workplace on the basis that they have or are assumed to be domestic violence victims. This provision is further solidified in law by its integration into the Human Rights Act 1993, as a form of discrimination under the heading “adverse treatment in employment of people affected by domestic violence”.
It is important to note that similar to many standard employment contracts in New Zealand, the Leave can only be claimed if the employee has been employed for at least six months (unless by mutual employer/employee agreement). Furthermore, if the Leave is not taken during one year, the unused days are not able to be ‘rolled over’ into the next working year.
Proving the domestic violence in order to gain the Leave is not yet specified in the Act or in any case law. In the interim, it is likely that the Leave would be treated in a similar tact as sick/bereavement leave, but this will likely be clarified as the Act goes through its initial phases and issues arise.
Employees and employers should equally be aware of these new laws to ensure that they know their rights and obligations moving forward.
A general principle of the Companies Act 1993 (the Act) is that the board of directors is appointed to manage and control the day-to-day operations of a company without having direct interference or oversight by shareholders (the owners of a company). However, some decisions may substantially change the nature or direction of a company and accordingly, the shareholders are required to approve these decisions. These substantial decisions are known as major transactions.
Major transaction defined
A major transaction is where a company purchases or sells assets or incurs an obligation that has a value of greater than half of the company’s existing assets. For example, if a company was created to own a dairy farm and it subsequently sells the farm, this would constitute a major transaction as the farm was a significant company asset.
Requirements of major transactions
A major transaction must be approved by special resolution, which requires a majority of 75% of the shareholders of a company to approve the transaction.
A company cannot avoid the major transaction provisions set out in the Act; however, it can add requirements for passing a major transaction under its company constitution. For example, a company constitution could state that 80% of shareholder votes are required for a special resolution in relation to major transactions rather than 75% as provided for in the Act.
Breach of major transaction provision
Directors of a company may be personally liable if a major transaction is not approved by a shareholder special resolution.
Where a company has entered into a major transaction without passing a special resolution and the transaction is not yet complete, shareholders can apply for an injunction to stop the directors from completing the transaction.
If a major transaction is not approved by the required majority of shareholders, this is deemed to be unfair and damaging conduct by the directors and accordingly shareholders may seek remedies. Remedies may include:
1. Requiring the company to buy the shareholders’ shares (this is discussed further below);
2. Requiring the company or any other person to pay compensation;
3. Regulating the future conduct of the company’s affairs;
4. Altering or adding to the company’s constitution;
5. Appointing a receiver of the company; or
6. Putting the company into liquidation.
Notwithstanding the list above, it may be difficult for shareholders to seek remedies if they cannot show they incurred a financial loss as a result of the major transaction.
If the major transaction is entered into without a special resolution, this breach does not mean that the transaction is automatically invalid. It is possible for shareholders to later approve the major transaction if it was not entered into via a special resolution. This can be beneficial for the company and its directors as it would be more difficult for shareholders to later challenge the board of directors’ decisions.
If you are a shareholder who voted against the major transaction but the transaction was approved by the majority of the shareholders, you have the right to exercise minority buy-out rights i.e. require the company to buy your shares at a fair and reasonable price. The minority buy-out rights provisions provide an avenue for minority shareholders who do not agree with the majority shareholding and also allow for the majority shareholding to validly make changes to the company.
The company may apply to court for an exemption from the obligation to buy the minority shares on the following basis:
1. The purchase would be disproportionately damaging to the company;
2. The company cannot finance the purchase; or
3. It would not be fair to require the company to purchase the shares.
The major transactions requirements under the Act are vital for keeping directors accountable and allowing shareholders, as the underlying owners, to make decisions in the best interests of the company. Clients are advised to comply with these requirements.
What is paid work in New Zealand?
See what the courts have decided recently:- https://www.odt.co.nz/business/employment-court-rulings-define-what-paid-work
I have been in the legal industry for over a decade and have broad range of experience and skills.