Real Estate 2020

Last Updated April 14, 2020

New Zealand

Law and Practice

Authors



Anderson Lloyd has one of the largest real estate teams in New Zealand, with seven partners and 37 staff located in Auckland, Christchurch, Dunedin and Queenstown. The team has a unique geographical spread, with particular expertise in acquisitions and dispositions, commercial, industrial and retail leasing, and overseas investment into New Zealand, and is involved in a wide variety of sectors within the real estate market, with a particular focus on forestry, mining, viticulture and agribusiness; large-scale subdivisions/new town developments; key infrastructure providers, such as port companies and utilities; and institutional clients such as listed property trusts, local authorities and large offshore fund managers.

As with other commonwealth jurisdictions, New Zealand real estate law is governed by both common law and statutes. New Zealand has adopted the Torrens title system, the main principle of which is that title is guaranteed by the New Zealand government and therefore there is no need to establish "chain of title". As New Zealand does not operate a federal system, transfers of land interests are relatively simple and straightforward, and are overseen by a single government entity: Land Information New Zealand. 

New Zealand has codified large sections of real estate law in the form of the Property Law Act 2007 and the Land Transfer Act 2017. New Zealand has also developed its own body of common law, but courts will often refer to decisions from other commonwealth jurisdictions with similar legal systems, such as Australia, the United Kingdom and Canada.

New Zealand is continuing to experience high levels of foreign investment in its real estate market, particularly in commercial/industrial/retail assets. This is likely due to:

  • relatively high yields compared with other investment markets; and
  • New Zealand's strong regulatory environment coupled with the relative ease of doing business, which has resulted in New Zealand establishing a reputation as a "safe harbour".

Yields are continuing to reduce as offshore investors are willing to pay more to secure what are seen as relatively higher returns.

After a recent slowdown, the residential market has started showing signs of increased activity and strengthening prices, as underlying fundamentals such as continued high immigration levels and new building supply continuing to fall short of demand reassert themselves.

Recent significant deals include:

  • the sale of three properties owned by Mansons at 155 Fanshawe Street, 136 Fanshawe Street and 46 Sale Street (all Auckland CBD office buildings either completed or under construction) to PAG Group for circa NZD700 million;
  • Todd Property's sale of a portfolio of assets including Kapiti Airport and various residential developments to NZPropCo; and
  • Oyster's purchase of a 60% stake in the Tauranga Crossing retail development for NZD189 million.

More activity is starting to be seen in New Zealand in these areas – newer players are using blockchain to build out their online commercial property syndication platforms and others are using crowdfunding to acquire residential property. Established property companies are also starting to see value in these use technologies. Lenders are also becoming involved, with most of the retail banks now having dedicated tech teams incubating investment in fintech. Notwithstanding this, it is unlikely these new technologies will have a significant impact on the real estate market in the next 12 months as New Zealand will likely follow rather than lead the adoption of these technologies.

The Government has announced that it intends to make material changes to the Overseas Investment Act 2005 in 2020. The changes address issues relating to the types of assets that are screened, who is screened and how the screening process is conducted. The reforms are expected to be implemented in late 2020.

The most common property rights are as follows:

  • freehold: the highest form of ownership in New Zealand, which confers freehold ownership of the land, the airspace above and the ground below;
  • leasehold: land that is leased from a freehold owner, or higher-ranking leasehold-owner. A leasehold estate confers exclusive possession for the term of the lease;
  • stratum/unit title: a freehold or leasehold estate with three-dimensional boundaries (meaning the land is limited in height and/or depth). Usually used for apartment/high-rise developments; and
  • composite/cross lease: a combination of freehold and leasehold estates comprised in one record of title.       

Other rights in land that are commonly granted are set out in 6.1 Types of Arrangements Allowing the Use of Real Estate for a Limited Period of Time.

The transfer of title is principally governed by the Land Transfer Act 2017. Save for fraudulent transactions, upon registration of a transfer of title, the new registered owner's ownership is indefeasible to other competing, non-registered interests.

All transferees and transferors of titles are required to disclose tax identification numbers to Land Information New Zealand, which allows the Inland Revenue Department to track ownership changes and tax liability.

There are no specific laws relating to the transfer of any particular type of commercial real estate, although there are established norms and procedures that are followed.

The transfer of title is usually effected by the solicitors acting for the transferee and the transferor registering an electronic transfer instrument with Land Information New Zealand, which (in most cases) is instantaneously registered.

All transfers are registered on the property's record of title and a historical version of the record of title, showing every transfer ever recorded by Land Information New Zealand, can be searched online by the public.

Title insurance is used only rarely due to the guaranteed title system, which produces title searches instantaneously. Land Information New Zealand also issues guaranteed records of title, which allow a purchaser to bring a proceeding in court against the Crown to seek compensation under the Land Transfer Act 2017 if that purchaser suffers loss or damage as a result of an undisclosed interest being registered against the record of title during a period of 20 working days following the completion of a real estate transaction.

Due diligence will usually involve reviewing:

  • record(s) of title and registered interests;
  • leases, licences or other unregistered interests;
  • relevant planning and zoning rules; and
  • land information memorandum prepared by the local authority to identify:

(a)       contamination;

(b)       building issues;

(c)       enforcement action;

(d)       building and resource consents; and

(e)       other records, particularly in relation to utilities, ground conditions, environmental features, etc.

Purchasers often also undertake on-site inspections and tests, including building and geotechnical reports, seismic assessments, asbestos assessments, methamphetamine drug contamination/toxicology reports, and obtaining valuations.

Most real estate transactions use a standard form sale-and-purchase agreement, particularly in the residential sector. Commercial contracts will usually contain negotiated terms that are specific to the nature and use of the real estate.

Typical representations and warranties include:

  • that the real estate and chattels will be unencumbered on completion;
  • certain chattels and the systems that provide basic services to the property (such as air conditioning, heating, cooling and security) are in reasonable working order;
  • certain chattels are in the same state of repair as at the date of the agreement;
  • no notices have been received affecting the property from any local or central authority;
  • the vendor has no knowledge or notice of any fact that might result in any legal proceedings being instituted by or against the vendor or purchaser in respect of the property;
  • there are no defaults under any lease;
  • the property will be vacant;
  • there are no arrears of rates/taxes; and
  • all works the vendor has undertaken have all necessary consents.

Generally, aside from the warranties set out in the sale and purchase agreement, "caveat emptor" applies to most real estate transactions. However, there are also certain statutory requirements that vendors cannot contract out of.

Typically, warranty breaches or misrepresentations only give rise to claims for compensation and equitable set-off, which – if discovered and notified to the vendor pre-settlement – will usually result in a reduction in the amount paid by the purchaser on settlement. The suffering party will not be able to cancel the contract as a result of a misrepresentation, unless the misrepresentation relates to an essential term of the agreement or substantially impacts the benefit or burden of the agreement.

Tax law: an investor needs to ensure that it receives tax advice from an accountant before buying real estate to ensure that it structures its purchase, ownership and use of the property in the most advantageous way, and avoids unexpected tax liability.

Overseas investment law: a foreign investor needs to obtain legal advice regarding whether it requires consent under the Overseas Investment Act 2005 for its purchase.

Resource management law: an investor needs to consider whether it will need, and be able to obtain, any consents or licences from relevant authorities for its specific use of a property. Also, there may be compliance requirements relating to contamination.

Building standards: an investor needs to consider whether a building complies with the Building Act 2004. Commercial buildings and some residential and other buildings may require mandatory earthquake-strengthening under recent changes to the Building Act 2004, which can be costly, time-consuming and disruptive to tenants.

Property law: an investor needs to ensure that the acquisition complies with New Zealand's laws in relation to real estate acquisitions.

It is possible that the buyer of a real estate asset may be responsible for soil pollution or environmental contamination of a property even if they did not cause the pollution or contamination.

Buyers should review the district plans prepared by city or district councils and the regional plans and regional coastal plans prepared by regional councils to ascertain the permitted uses of a property.

Development agreements can be entered into with public authorities in relation to a specific development.

This is possible under the Public Works Act 1981. It provides central government and local authorities (Acquiring Authorities) with statutory authority to acquire private land for public works.

The Acquiring Authority may negotiate with private landowners to purchase the land and is required to pay compensation to the private landowner, which, together with the other terms of sale, will be negotiated between the parties. If the value of compensation cannot be agreed, the amount of compensation payable may be determined by the Land Valuation Tribunal. Following the compensation and other terms of sale being agreed, a formal agreement is signed by the parties and the land transferred to the Acquiring Authority.

Where an agreement cannot be reached, the Acquiring Authority may compulsorily acquire the land. Every person having any estate or interest in the land may object by appealing to the Environment Court. However, the right to object to compulsory acquisition only applies to the land being taken, not the amount of compensation.

See 8.1 VAT, 8.2 Mitigation of Tax Liability and 8.4 Income Tax Withholding for Foreign Investors regarding taxation on real estate transfers.

The buyer and seller usually pay their own transaction costs, although, in larger deals involving a significant amount of pre-contract due diligence, a seller may offer to pay all or some of a buyer's due diligence costs if the transaction does not proceed.

The Overseas Investment Act 2005 (OIA) and Overseas Investment Regulations 2005 restrict "overseas persons" from acquiring certain real estate in New Zealand without consent. This land includes:

  • most residential land – noting that there are limited exemptions for Australian and Singaporean purchasers;
  • rural land over five hectares;
  • the foreshore or seabed; and
  • various other classes of land, including in some instances land that adjoins "sensitive land".

OIA consent is also required for a foreign investor to acquire an interest in land with a potential term of three years of more – such as a lease or option. Certain interests, such as easements, are exempt.

Acquisitions of commercial real estate are generally financed in the loan market, using either bilateral secured loans or, for larger transactions, syndicated secured loans.

The largest providers of commercial real estate finance are the main Australian trading banks or their New Zealand subsidiaries. Other foreign banks and domestic and foreign credit funds are increasingly active participants in the market.

The larger institutional holders of real estate also access domestic and international capital markets to fund their acquisitions.

The sorts of security typically created or entered into by a commercial real estate investor who is borrowing funds to acquire or develop real estate are as follows:

  • a registered mortgage over the record of title for the real estate asset, which will be registered on title; and/or
  • all-assets security, which will be given under a general security agreement over all the real and personal property of the borrower. To the extent the security is over personal property, it will be registered on New Zealand's online Personal Property Securities Register.

If the borrower is a special-purpose vehicle, the financier may also look to take specific security over the shares of the borrower.

A foreign lender taking security over real estate that is classified as "sensitive land" under the Overseas Investment Act 2005 (OIA) will be subject to the consent regime set out in that Act. However, the OIA provides for an exception from this regime (applicable to most ordinary-course secured lending arrangements.

Nominal registration fees apply to registrations of mortgages on title and on the Personal Property Securities Register. There are no taxes or stamp duties payable in respect of the granting or enforcement of security.

New Zealand has a "financial assistance" regime under the Companies Act 1993 (Companies Act), which provides that a company may give financial assistance to a person for the purpose of, or in connection with, the purchase of a share issued or to be issued by the company or by its holding company (whether directly or indirectly) if, before the financial assistance is given:

  • the company's directors sign a certificate as to the solvency of the company (on both a balance sheet and a liquidity basis) immediately after the giving of the financial assistance; and
  • the financial assistance is approved by all shareholders of the company.

Under the Companies Act, directors of a company must, among other things, act in good faith, in what they believe to be the best interests of the company, and for a proper purpose. The Companies Act also permits directors to act in what they believe to be the best interests of the company's holding company (even though it may not be in the best interests of the company), provided that this is expressly permitted in the company's constitution and (where the company is not wholly owned by the holding company) with the prior agreement of the company's shareholders other than the holding company.

There are formalities to be met before a lender is able to enforce its registered mortgage over real estate against the defaulting borrower under the Property Law Act 2007.

It is common for a lender wishing to enforce following a default to appoint a receiver, who will control the real estate with a view to realisation and, other than entering into a deed of appointment with the receiver, no particular formalities are required of the lender.

In realising an asset under a security, the security-holder or its receiver owes certain persons (including the grantor, any guarantors and certain other creditors of the grantor) a duty (of "reasonable care" in the case of the security-holder) to obtain the best price reasonably obtainable at the time of sale.

A lender may agree that an existing secured debt owed to it is subordinated to any other debt. This is achieved by way of a subordination deed. The subordination of security is usually also registered by way of priority instrument on title (for mortgages) or on the PPSR (for general/specific security interests over personal property).

A lender holding security should not become personally liable under environmental laws, as long as it does not enter into possession of the relevant real estate.

Validly created security interests granted by a borrower in favour of a lender will continue to be effective if the borrower becomes insolvent or enters into voluntary administration or liquidation.

However, if a company is unable to pay its due debts immediately after a security interest was granted by the company, and the charge was given within the two years prior to the commencement of the borrower's liquidation, there is a risk that the security may be voidable by the liquidator in certain circumstances.

The anticipated expiry of the LIBOR index by the end of 2021 is of limited relevance, given the relatively low levels of funding in the New Zealand real estate financing market using LIBOR as a base rate.

The legal and regulatory framework supporting the resource management system is a combination of:

  • legislation, national policy statements and national environmental standards enacted by central government;
  • regional policy statements, regional coastal plans and regional plans prepared by regional councils; and
  • district plans prepared by city and district councils.

The exterior design, appearance and method of construction or refurbishment are regulated through the applicable district plan and the Building Act 2004 (together with the Building Code). The district plan may impose rules in relation to matters such as site coverage, height, shading of neighbours, the location of living areas, etc. Resource consent may be required where a new building or refurbishment breaches one or more of these rules. The Building Act 2004 and Building Code also regulate internal design and overall construction. Prior to commencing construction, a building consent must be obtained from the local authority. The local authority will monitor construction and, following completion, certify that it has been constructed in accordance with the Building Code and the relevant building consent. 

Land use and development usually fall within local government control, although matters of national significance may be "called in" to a Board of Inquiry or directly to the Environment Court in certain circumstances.

The primary legislation is the Resource Management Act 1991 (RMA), which establishes a hierarchy of national and regional policy statements and regional and district plans that give substance to the sustainable management purpose of the RMA, with increasing particularity regarding content and locality.

While the rules vary between regions and between districts, the overall framework of regulations is similar. Land use is controlled by the division of land into zones, which indicate the type of development anticipated for that land, and identification of overlays and special features (such as heritage items). Plan rules identify whether resource consent is required to undertake specific activities within a zone or overlay or in the location of a special feature.

New projects or refurbishments will usually require resource consent. Resource consent applications are processed through a number of stages, including requests for further information, making a decision on public notification, receiving public submissions (if notified), holding a public hearing before a commissioner (unless non-notified and decided on the papers), and issuing a decision.

The Resource Management Act 1991 sets out a process for determining whether applications are non-notified (no ability for third parties to submit or appeal), limited notified ("affected parties" are given the opportunity to submit) or publicly notified (anyone can make a submission).

There is a right of appeal against a relevant authority's decision in respect of an application for permission for development or the carrying on of a designated use, but only for the applicant and any person who made a submission on a consent application.

There is also a right of objection against certain other decisions.

Councils usually impose detailed conditions relating to the undertaking of a development, therefore separate development agreements are only usually required for large projects that require large amounts of new infrastructure. The form of these agreements vary between the different councils and utility suppliers, and can include infrastructure cost-sharing and transfer of development rights. 

The Resource Management Act 1991 (RMA) establishes several enforcement options:

  • enforcement order: an order sought in the Environment Court by a council or third party to compel a person to comply with provisions of the RMA, planning rules, or conditions of a resource consent. Enforcement orders can require a person to cease or take an action to comply with the RMA and pay money or reimburse another person for taking action to avoid, remedy or mitigate adverse effects on the environment;
  • abatement notice: enforcement officers, appointed by local authorities, may serve abatement notices to require a person to comply with the provisions of the RMA;
  • criminal prosecution: the RMA includes a range of offences for contravening duties and restrictions in the RMA (including breaches of planning rules and resource consents). Prosecutions may be against a company or its directors. Some offences are strict liability, with limited defences;
  • infringement notices: as an alternative to criminal proceedings, a council may serve an infringement notice where certain RMA contraventions have been committed. Infringement notice fines are usually NZD300 to NZD750 per infringement.

Common entities include the following:

  • limited liability companies incorporated in New Zealand;
  • companies incorporated outside of New Zealand and registered in New Zealand;
  • limited partnerships;
  • portfolio investment entities;
  • trusts (including real estate investment trusts/listed property trusts); and
  • property syndicates.

New Zealand Incorporated Companies

New Zealand companies can choose whether or not to adopt a constitution (which, if adopted, is required to be made publicly available). The constitution and shareholder agreement (if applicable) typically set out the mechanics relating to the issue and transfer of shares, the relationship between shareholders and the company, the management of the company by the directors, etc. If no constitution is adopted, the provisions of the Companies Act 1993 will apply.

Companies Incorporated outside of New Zealand and Registered in New Zealand

The Companies Act 1993 does not apply generally to overseas companies, but applies only where the Act refers specifically to "an overseas company". As such, the constitution of an overseas company will usually reflect the position taken in its home jurisdiction.

Limited Partnerships

New Zealand limited partnerships have their own separate legal personality and are governed by the Limited Partnerships Act 2008. Limited partnerships are a form of partnership involving general partners (who manage the partnership and are, together with the partnership itself, liable for the debts and liabilities of the partnership) and limited partners (who do not take part in the management of the partnership but are liable to the extent of their capital contribution to the partnership). Every limited partnership must have a partnership agreement (containing certain specific matters prescribed by legislation) – this establishes the limited partnership and governs the partnership. They will cover matters such as any restrictions on disposal or assignment, the scope of the business of the partnership, the entitlement of partners to distributions and whether a general partner is permitted to compete with the partnership.

Portfolio Investment Entities

Portfolio investment entities (PIE Funds) are managed funds that invest contributions from investors, and have special tax treatment on the returns generated from such investments, which is usually lower than a person's marginal tax rate. PIE Funds are usually structured as unit trusts and are governed by the Financial Markets Conduct Act 2013.

Trusts

A trust is an entity established by a person (the settlor) to transfer legal ownership of assets, including real estate, to other persons (the trustees) to hold the assets on trust for the benefit of other persons selected by the settlor (the beneficiaries). Trusts are not publicly registered entities, except for charitable trusts. There are various types of trusts:

  • family trusts;
  • business or investment trusts;
  • charitable trusts; and
  • testamentary trusts.

Trusts are governed by a Trust Deed that also establishes the trust.

Real Estate Investment Trusts/Listed Property Trusts

There are approximately nine listed property trusts (LPTs) in New Zealand, each specialising in different sectors. LPTs are publicly traded on the New Zealand Stock Exchange and are regulated in a similar manner to listed companies. Shares in LPTs can be bought and sold relatively simply, and the entry level price point is relatively low (NZD5,000). LPTs allow investors the opportunity to invest in property without having to invest a substantial amount of capital.

Property Syndicates

Investors can also invest in property syndicates, which are proportionate ownership schemes usually involving the purchase of a single property. The minimum investment is usually around NZD50,000 and, in return, the investor is entitled to a share of the returns generated from the property. The property is normally managed by a professional management company and generates higher returns than other real estate investments, due to the higher level of risk involved (single investment, higher gearing, difficulties of selling, etc). A syndicate will usually be set up as a company, with the shares in that company being held on trust for the investors. 

There are generally no minimum capital requirements in order to establish real estate investment entities, noting that:

  • in order to establish a trust, there must be capital settled into the trust (but this can be a nominal amount); and
  • a company must not trade where it is insolvent.

New Zealand Companies

New Zealand incorporated companies must have a physical address in New Zealand and must also have at least one director that:

  • lives in New Zealand; or
  • lives in Australia, and who is a director of a company incorporated in Australia.

The business and affairs of the company must be managed by the board of the company, or under its direction or supervision. However, there are certain matters that require the approval of shareholders by a majority of 75% of the votes of those shareholders entitled to vote. The directors of the company are also required to comply with certain directors' duties.

Shareholders and directors must be registered with the New Zealand Companies Office.

Companies that are listed on the New Zealand Stock Exchange and listed property trusts will be subject to the relevant governance requirements contained in the listing rules.

Overseas Companies Registered in New Zealand

Overseas companies that are carrying on business in New Zealand must be registered on the Companies Office Overseas Register.

An application to register an overseas company in New Zealand must include a physical address of the company's place of business in New Zealand, and the details of one or more persons resident or incorporated in New Zealand who are authorised to accept service in New Zealand of documents on behalf of the overseas company.

Only certain requirements of the Companies Act 1993 apply to overseas companies.

Limited Partnerships

A person may not be both a general partner and a limited partner of the same limited partnership. Limited partners are prohibited from taking part in the management of the partnership; however, there are certain "safe harbour activities".

Every limited partnership must have a partnership agreement.

Trusts

There are wide-ranging duties on trustees, which are commonly set out in the Trust Deed; in the absence of any specific provision in the Trust Deed, the Trustee Act 1956 prevails. In general terms, trustees must exercise care and diligence in exercising their powers as trustee.

Where the trust earns income, the trustees are required to file an income tax return annually with the Inland Revenue Department. All trusts require an IRD number in order to transact real estate.

The administration of charitable trusts is governed by the Charitable Trusts Act 1957, and all charitable trusts must be registered on the charities register.

New Zealand Incorporated Company

The costs associated with the operation of a company will be determined by a number of factors, such as the size of the business, the nature of the real estate it owns and the complexity of its business operations. However, New Zealand incorporated companies are generally relatively easy to establish and maintain, and costs are usually not significant.

Overseas Company Registered in New Zealand

Overseas companies are required to complete an online annual return, and may be required to prepare, audit and file (publicly) their financial statements, depending on the scale of the business. As such, maintenance and accounting compliance costs are minimal.

Limited Partnership

The ongoing maintenance and accounting compliance requirements are similar to those of New Zealand incorporated companies.

Trusts

The trustees are required to file an annual income tax return, and to prepare financial accounts where required if the trust earns income. As such, maintenance and accounting compliance requirements are likely to be nominal.

The types of arrangements that the law recognises that allow a person, company or other organisation to occupy and use real estate for a limited period of time, without buying it outright, are as follows:

  • lease: this is considered to be the most preferable property right short of a freehold/fee simple interest, given that one of its main features is a right to exclusive possession of the relevant land;
  • licence: a licence is a contractual right only (ie, it does not confer equitable rights) to occupy or use a property, and cannot confer exclusive possession (otherwise it may be held to be a lease) and is therefore usually a right to use a property in common with others (eg, the landlord/fee simple owner and their invitees);
  • easements: an easement is a right to use a third party's land on a non-exclusive basis or a right to restrict a landowner from using their land, in a particular way. New Zealand law only recognises certain types of easements;
  • profits à prendre: a profit à prendre (profit) confers a right on a party to take things naturally occurring on the land, such as timber, soil or minerals.

The most commonly used form of lease is the Auckland District Law Society Incorporated/Real Estate Institute of New Zealand Incorporated form.

The Property Council of New Zealand also produces specific leases for office, retail and industrial premises.

It is not uncommon for large landlords or tenants to develop their own form of lease, usually based on these lease forms.

Rents and lease terms are freely negotiable.

The term of a lease usually depends on the size of the premises let. Smaller tenancies typically have terms of less than five years, with one or two rights of renewal of similar terms. Larger tenancies typically have terms for longer periods and more frequent renewals of longer periods.

Day-to-day repair and maintenance of the premises is usually the responsibility of the tenant. Landlords are usually responsible for structural maintenance and keeping the building weatherproof.

Rent is typically paid on a monthly basis.

Rent will typically be subject to rent reviews during the term of a lease.

The most common methods of reviewing the rent are:

  • adjusting the rent by reference to changes to the Consumer Price Index (or a similar index that measures inflation);
  • increasing the rent by a fixed percentage annually; or
  • adjusting the rent to reflect the market rent.

For index-based or fixed rent increases, the rent is typically calculated by the landlord, and the tenant is then notified by a landlord of the new rent.

With regard to market rent reviews, usually, either party may initiate the review by notifying the other party of its proposed market rent. If the party receiving a market rent review notice disputes the proposed rent and the parties are not able to reach agreement, the market rent is usually determined by registered valuer(s) or arbitration.

New Zealand's VAT equivalent (goods and services tax) is payable on rent and any other payments made by a tenant under a lease.

A tenant is typically required to pay a deposit of one or two months' rent as advance rent on signing a lease.

Each party usually pays its own legal costs of negotiating the lease.

Each tenant is commonly required to pay for a proportion of this maintenance and repair.

It is not unusual for each tenancy within a property to have a separate meter for various utilities, meaning that costs can be directly attributed to a particular tenancy. Where there are not separate meters or this is impractical, each tenant is usually required to pay the landlord for a proportion of the total costs.

The tenant typically pays the costs of the landlord's insurance.

The policy usually covers events that cause damage and destruction to the building(s) by fire, flood, explosion, lightning, storm, earthquake and volcanic activity on a full replacement and reinstatement basis or indemnity to full insurable value. Landlords will often also obtain insurance for loss of rents for set periods (eg, 12 months).

Leases usually contain restrictions on the tenant's use of the real estate. 

Various laws and/or regulations will also apply, depending on the use (eg, the sale of alcohol requires permits to be obtained).

The tenant is usually permitted to alter or improve the demised premises with the prior written consent of the landlord. The tenant is usually required to produce plans and specifications for the proposed alterations, to be reviewed and approved by the landlord. When undergoing building work, the tenant may also be required to obtain a building consent and code compliance certificate pursuant to the Building Act 2004. The tenant is also typically required to provide copies of the building consent and code compliance certificates to the landlord.

Landlords of residential tenancies must comply with a number of specific laws and regulations, including:

  • the Residential Tenancies Act 1986 (RTA);
  • the Housing Improvement Regulations 1947 (HIR); and
  • the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 (RTSAI Regulations).

All residential tenancies are governed by the RTA, which outlines the rights and obligations of a landlord and tenant. It also requires a landlord and tenant to enter into a written tenancy agreement, which outlines the terms and conditions of the tenancy. The HIR outline the minimum requirements of a residential tenancy to ensure that landlords let properties that are in a habitable state to tenants. The RTSAI Regulations require landlords to ensure that residential tenancies are warm, dry and safe.

There are no specific regulations and/or laws that apply to leases for the particular categories of real estate of industrial, offices, retail or hotels.

Leases commonly provide that the lease is immediately terminable on the event of a tenant's insolvency; however, there is no statutory legislation deeming this to be the case. Where a tenant is insolvent, they may have an ability to disclaim a lease, depending on the winding-up process adopted (effectively bringing it to an end).

The following forms of security can be provided to a landlord to protect against a failure by the tenant to meet their obligations:

  • a personal guarantee;
  • a bond/security deposit; and/or
  • a bank guarantee.

If a landlord permits a tenant to remain in occupation of the premises after the expiry or earlier termination of the lease, the occupation is deemed a periodic tenancy on the same terms as the lease. It may be terminated by either party giving 20 working days' notice.

A landlord should clearly communicate with the tenant to ensure that they leave on the expiry date of the lease. If necessary, the landlord may need to serve formal notice of the expiry date. Following the expiry date, the landlord is entitled to enter the premises and change the locks if need be.

A tenant is typically permitted to assign or sub-lease (in whole or in part) their leasehold interest to a third party, having obtained the landlord's prior consent in writing and having satisfied a number of standard conditions. The tenant will typically be required to satisfy the following conditions:

  • prove that the proposed assignee is respectable, responsible and has the financial resources to meet the tenant's commitments under the lease;
  • all rent and other moneys due under the lease are paid;
  • the assignee signs a deed of covenant in favour of the landlord;
  • appropriate guarantees are provided by the assignee; and
  • the tenant pays the landlord's costs.

It is also standard for a lease to provide that, where a tenant is a company (which is not listed on the main board of a public stock exchange in New Zealand or Australia), any change to the shareholding which results in a change in the effective management or control of the company will require the prior written consent of the landlord.

The following events typically give the landlord and the tenant a right to terminate the lease (under general contract terms and any applicable legislation):where the tenant is in default under the lease and fails to remedy the default after receiving notice from the landlord to do so. The most common reason for default is the tenant's failure to pay rent or outgoings. The tenant may also be in breach of other obligations under the lease, such as failing to comply with its maintenance obligations. A tenant becoming insolvent or going into receivership or liquidation is also typically a default;

  • where the premises are totally destroyed or so damaged that they are untenantable or require demolition or reconstruction. If the premises are only partially destroyed, a lease may also be terminated where the landlord cannot obtain a permit or consent to repair the damage to the premises, or where the insurance moneys received for the damage are inadequate to repair or reinstate the premises;
  • if the tenant is unable to access the premises for a specified period (usually nine months) or if it can be established with reasonable certainty that access will not be able to be granted during the specified period.

Leases are not required to be registered on the record of title to be valid or legally binding but, in most cases, must be validly executed to be binding. Leases are not typically registered (particularly for leases of short to medium terms) due to the costs involved of undertaking a survey of the leased premises.

A small fee is charged by Land Information New Zealand to register a lease on a record of title. Typically, the tenant pays the costs of registration of a lease.

A tenant may be forced to leave the premises if they are in default of the lease terms. The Property Law Act 2007 (PLA) sets out the process that must be followed before a commercial tenant can be evicted, and the lease formally terminated.

The PLA requires that notice must first be served on a tenant, setting out the essential details concerning the default, including the nature of the breach, the remedy required and the tenant's rights. It must be properly served in accordance with the requirements of the PLA.

The period to remedy the breach must not be less than ten working days in the case of failure to pay rent, or a timeframe that is reasonable in the circumstances for a breach of any other covenant.

A tenant may apply to the courts for relief against termination of a lease.

A government or municipal authority may acquire a leasehold estate pursuant to the Public Works Act 1981 (PWA). The relevant authority must comply with the procedures in the PWA. It may acquire the leasehold estate by negotiation or compulsorily. The timeframe involved will depend on the length of negotiations with the landlord and tenant. Compensation is payable by the relevant authority, and is not limited to the value of the land taken. Compensation may also be paid for permanent depreciation in the value of any retained land (injurious affection), damage to any land or disturbance resulting from the acquisition, including business loss resulting from relocation.

Lump-sum contracts: these involve a fixed price for a defined scope of work. However, the price can change if the owner alters the design/works, or if unexpected circumstances are encountered.

Measure and value contracts: a schedule of prices is usually agreed at the outset (eg, a rate per unit of work), and the quantity of work is then measured/assessed and paid accordingly.

Cost-reimbursement contracts: the owner pays the contractor its net costs plus a pre-agreed margin. This is less common than the above options, due to the lack of costs' certainty/control.

Also, the use of alliances and other forms of collaborative contracting is increasing on major projects.

There are two main categories of construction contract and design risk allocation in New Zealand: construct only, and design and construct.

Construct only: the contractor is responsible for its methodology of construction based on the design, but not for errors or omissions in that design. Between the contractor and the owner, the design risk sits with the owner. Typically, the owner separately allocates the design risk by contract to an architect and/or engineer. 

Design and construct: the contractor is responsible for both the design and the construction of the works (if the owner has a pre-existing design, it may be novated to the contractor).

Engineering, procurement and construction management arrangements where the head contractor project manages a set of specialist contractors and consultants are less common in New Zealand. Alliancing contracts that share the risks of design and construction are usually limited to larger projects where there is a high degree of uncertainty and risk.

Cost overruns are one of the most significant risks on a construction project. These are largely managed/allocated by whether or not the contract allows the contractor to claim a variation if the stated risks occur.

Cross-indemnities are commonly given for key risks that are within a party's control, such as:

  • damage to property (usually insurable);
  • injury to persons (limited by the Accident Compensation Act 2001 and the Health and Safety at Work Act 2015); and
  • infringement of intellectual property.

The owner is also usually indemnified for the cost of constructing or remedying defects in the works. Indemnities and insurance for statutory fines or infringement fees are unlawful and accordingly should be limited "to the extent permitted by law".

A wide range of contractual warranties are usually given by each side. The owner usually warrants that it has made the contractor aware of all pertinent information, while the contractor provides a range of warranties relating to its performance and the quality of the works. Owners often also require additional warranties from contractors and subcontractors.

Some warranties are incorporated into particular contracts (eg, consumer contracts) by statute. These include:

  • the Building Act 2004 – implies that building work for household units will be carried out properly and competently;
  • the Consumer Guarantees Act 1993 – requires services for consumers (eg, by tradespeople) to be performed with reasonable care and skill; and
  • the Fair Trading Act 1986 – provides that representations and conduct must not be misleading.

Parties commonly exclude liability for loss of profits, loss of revenue, loss of goodwill, and indirect or consequential losses. However, an exclusion of liability is not included by default in most construction contracts.

Contractors sometimes seek a cap on liability under the contract, but this is not standard practice, and liability caps are not included by default in most construction contracts. In contrast, consultants almost universally cap liability at or below the level of their professional indemnity insurance.

The law prohibits the limitation or exclusion of some forms of liability – eg, statutory penalties, or losses arising from fraud or criminal conduct.

The Limitation Act 2010 and the Building Act 2004 together provide contractors with a defence to civil proceedings if too much time has passed between a claim arising and the claim being brought.

The general rule in New Zealand is that, where there are multiple parties who have caused the same loss, each can be liable for the whole of the loss. The owner does not have to apportion that loss among the wrongdoers, unless the contract provides otherwise.

The contractor is usually required to complete the works within a stated number of working days. Contracts usually allow for that period to be extended if certain events occur. The prevention principle also operates to replace a stated period with a reasonable time period, if delays are caused by an act or omission of the owner and the contract does not provide an extension of time.

If the contractor does not complete the works within the applicable period, then the owner could be entitled to damages for losses caused by that delay. Delay-liquidated damages are commonly specified in the contract, and these liquidated damages are enforceable to the extent that they do not amount to a penalty. The law regarding penalties is evolving, but recent cases indicate that the New Zealand test is whether the liquidated damages are “out of all proportion” to a party's legitimate interests, which is a high bar.

It is very common for owners to require some form of security from contractors, such as bonds, retentions and guarantees.

In limited circumstances, a contractor may be able to retain materials in its possession under a lien. However, to prevent payment disputes from delaying projects, commercial contracts typically preclude a contractor or designer from exercising any right of lien or otherwise encumbering project materials.

Contractors can more effectively protect their security interests in materials by registering financing statements on the personal property security register. Owners can discharge or change incorrectly registered financing statements by following the change-demand process in the Personal Property Securities Act 1999.

To comply with the Building Act 2004, owners need to obtain a code-compliance certificate from the appropriate territorial authority. This is required before the public occupation, or sale, of the building. In some instances, an owner can obtain a certificate for public use to allow public access to the premises before a code compliance certificate is granted.

Owners of buildings with particular systems (eg, sprinklers, fire alarms, lifts) also need to have a compliance schedule and file an annual building warrant of fitness to confirm that the specified systems are maintained and operating effectively.

In general, New Zealand's equivalent to VAT (goods and services tax (GST)) is payable on all real estate transactions, unless the real estate is used solely for making exempt supplies (which includes residential accommodation) or the transaction is compulsorily zero-rated for GST.

GST is calculated at 15% of the GST-exclusive consideration.

Compulsory zero-rating generally applies to transactions involving land between GST-registered persons, provided that the purchaser intends to use the land to make taxable supplies. Where the transaction is zero-rated, no GST is added to the sale price and no GST is returned by the vendor or claimed by the purchaser. However, the purchaser may be required to account for GST if the property will only partly be used for making exempt supplies.

No transfer or recordation tax or stamp duty is payable on real estate transactions in New Zealand, aside from nominal Land Information New Zealand registration fees, therefore this is not an issue.

Local councils in all areas of New Zealand charge annual rates on land within their respective jurisdictions. These are usually assessed by reference to the value of the land. There are also additional rates charged for commercial properties and hotel operators. Rates are payable on all land, except certain land used for public, charitable or religious purposes.

While rates are the responsibility of the property-owner, they are generally passed on to commercial tenants.

Where a non-New Zealand tax resident receives passive income (including interest, dividends or royalties) from New Zealand tax residents, non-resident withholding tax (NRWT) must be deducted by the payor. The rates at which NRWT is deducted depend on the terms of any double tax agreement New Zealand has in place with the non-resident's country. If there is no double tax agreement in place, then the default NRWT rates are 15% for interest and royalties and 30% for dividends.

The general position in New Zealand is that any income received from leasing a property to a tenant will be taxed as ordinary income of the recipient. For companies, the rental income received is added to the company's annual tax returns.

New Zealand companies are subject to a flat income tax rate of 28%. Individuals are subject to marginal income tax rates, the highest of which is 33% for income over NZD70,000 per annum.

GST is also payable on non-residential rents, at a rate of 15%. This is almost always paid by the tenant to the landlord, who in turn accounts to the Inland Revenue for the GST payments received.

In general, capital gains made when disposing of property are tax-free in New Zealand. However, there are a number of exceptions that give rise to the taxation of capital gains, including:

  • where a person buys a property with the intention of resale; or
  • where a person buys and sells a residential property within five years (noting that there are exemptions, including in relation to the main family home).

In each case, any gain will be taxed at the person's marginal tax rate.

Tax deductions may be claimed for a variety of expenses incurred in connection with the generation of rental income. Such deductions include repair and maintenance costs, and interest costs on finance used to acquire the property, as well as rates and insurance. Property owners can also depreciate fixtures, fittings and chattels but not the land and buildings themselves. Typically, in a commercial leasing scenario, as tenants own the fit-out, there is little scope for landlords to claim any depreciation.

Due to a recent law change, landlords can no longer offset losses incurred on their residential rental properties (both in New Zealand and worldwide) against other sources of income (for example, salary or wages and investment income), which used to result in a reduced tax liability and, in many cases, an income tax refund. Those losses will now be ring-fenced to the landlord's property portfolio. The losses are not permanently lost, but are instead "quarantined" and can be carried forward and offset against any future income derived from residential rental property (noting that there are exemptions, including in relation to the main family home). While there are tax benefits in terms of deductions and depreciation, the main tax benefits from owning real estate are the tax-free capital gains.

Anderson Lloyd

Level 3
Australis Nathan Building
37 Galway Street
Britomart
Auckland Central 1010
New Zealand

+64 9 338 8300

+64 9 337 1115

lawyers@al.nz www.al.nz
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Law and Practice

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Anderson Lloyd has one of the largest real estate teams in New Zealand, with seven partners and 37 staff located in Auckland, Christchurch, Dunedin and Queenstown. The team has a unique geographical spread, with particular expertise in acquisitions and dispositions, commercial, industrial and retail leasing, and overseas investment into New Zealand, and is involved in a wide variety of sectors within the real estate market, with a particular focus on forestry, mining, viticulture and agribusiness; large-scale subdivisions/new town developments; key infrastructure providers, such as port companies and utilities; and institutional clients such as listed property trusts, local authorities and large offshore fund managers.

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