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Property Law

Helping a child purchase their first home

Family Law, First Home Buyers, Legal Guidance, Property Law, Relationship Property, Wills & Estates
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When Luke and Yassica’s daughter Mildred decided to purchase a house, Luke and Yassica were keen to support and help her. Then Mildred told Luke and Yassica that she was going to purchase with her partner Jack so that they could combine resources. They were still struggling to be able to afford the sort of house that Luke and Yassica thought they should live in. Luke and Yassica had some savings that they were happy to allow Mildred and Jack to use, so they started thinking about how they could best help Mildred and Jack.

 

After talking to their solicitor, Luke and Yassica proposed to Mildred and Jack that they would provide them with $25,000 towards their purchase. Luke and Yassica’s solicitor would prepare a simple document that would record that the payment of $25,000 would be a loan to Mildred and Jack. Mildred and Jack would not be required to pay any interest, no security would be taken, but they would need to agree that the loan could be called up at any time. This arrangement gave Luke and Yassica the comfort of knowing that they were helping Mildred and Jack to get into a lovely home, but if Mildred and Jack’s relationship ended, Luke and Yassica would be able to call for repayment of the loan, so that the benefit of their hard-earned savings was kept in the family.

Evoto

Trusts can protect assets

Criminal Law, Estate, Estate Planning, Property Law, Trust Law, Wills & Estates
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But they cannot ring fence assets derived from fraud

On 26 March 2021, John Bracken was convicted of New Zealand’s largest GST fraud having fraudulently obtained $17,311,262.29 in GST refunds over a period of four years.

On 23 February 2026, the Commissioner of Police applied to the High Court for a profit forfeiture order over property in which Mr Bracken had an ‘interest.’ In other words, the Commissioner sought to recover assets unlawfully obtained from Mr Bracken’s criminal activities.

The most valuable assets acquired from Mr Bracken’s criminal activities, however, were held by the Bracken Family Trust and not himself personally.

Despite this, under the Criminal Proceeds (Recovery) Act 2009 (CPRA), the court determined that the trust must forfeit $13 million of its own assets in response to Mr Bracken’s offending as he had an ’interest’ in the trust property.

 

Criminals may not profit from their actions

For the court to make a profit forfeiture order, it had to be satisfied that Mr Bracken had ‘unlawfully benefited from significant criminal activity’ and that he had ’interests’ in property.

It was quite clear that Mr Bracken had unlawfully benefitted from a significant criminal activity, so the question turned to whether he had an ‘interest’ in the trust’s property.

Discretionary beneficiaries cannot usually be said to have an ‘interest’ in trust property, because the property is legally owned and controlled by the trustees, not the beneficiaries. Discretionary beneficiaries do not have a legal right to the trust’s property, only a hope that the trustees might decide to distribute something to them, or that they will receive what is left when the trust comes to an end.

The Bracken Family Trust was unusual though, because Mr & Mrs Bracken had reserved a lot of power to themselves: they were settlors, trustees, discretionary beneficiaries, final beneficiaries and, as ‘Principal Family Members’, had the power to remove beneficiaries, and appoint and remove trustees.

Moreover, under the CPRA, an ‘interest’ in relation to property is much broader than simply owning something. It includes not only a legal or equitable interest in property, but also a right, power or privilege connected with the property.

In addition, the court can treat having ‘effective control over property’ as an ‘interest in property.’ As a part of this analysis, the court can have regard to ‘any trust that has a relationship to the property.’

The court determined Mr Bracken had both:

  1. An ’interest’ in the trust property both because he was a final beneficiary of the trust and due to his powers as a ‘Principal Family Member,’ and
  2. Effective control over the trust property, which was also due to his powers as a ‘Principal Family Member’ and that he was a trustee.

After much complex legal argument, the profit forfeiture order was granted with a maximum recoverable amount of $16,019,231.16, around $13 million of this was trust-owned property. The trust could retain the family farm (valued at $3.780 million), as this would allow the innocent beneficiaries to continue to benefit from this generational family asset. All the other remaining trust property was to be forfeited.

 

Trusts cannot shield ill-gotten gains

This case shows that while well-drafted trusts remain valuable and legitimate estate planning tools, they cannot be used as a shield for assets that have been acquired through crime – particularly in cases where the perpetrator has retained so much power over the trust assets that such power is tantamount to property (or an ‘interest’).

The court’s decision was said to be a strict statutory interpretation exercise, and there are clearly legitimate policy (and societal) reasons behind the CPRA having such a strong stance. It remains to be seen, however, whether a case involving a trust over which a criminal has few or no powers would result in the same outcome.

This case shows an intriguing relationship between statutory intervention and orthodox trust principles – giving us much to ponder.

 

 

DISCLAIMER: All the information published in Trust eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Trust eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Content Copyright © NZ LAW Limited, 2026.    Editor: Adrienne Olsen.       E-mail: [email protected]      Ph: 029 286 3650

Review of adult decision-making capacity law

Elder Law, Estate Planning, Family Law, Legal Guidance, Property Law, Wills & Estates
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Law Commission recommendations

The Law Commission recently reviewed the Protection of Personal and Property Rights Act 1988 (PPPR Act). This legislation governs how decisions are made for adults who lack capacity and can no longer make some decisions for themselves.

The PPPR Act applies widely; it includes adults who have declining capacity due to dementia, lack capacity due to intellectual disabilities or have a temporary loss of capacity (for example) due to injuries.

The Commission has made a number of recommendations for reform, particularly regarding property managers and welfare guardians who are appointed by the court to make decisions for people who cannot make decisions themselves.

 

Overall approach

The Commission recommends repealing the PPPR Act and replacing it with new legislation. The biggest shift is away from asking what is in a person’s ‘best interests’ (often considered paternalistic), and towards asking what the person’s own wishes, values and rights are, and how those can be respected.

Court-appointed decision-makers would be expected to support the person’s participation in decisions wherever possible; they would only step in to decide for them where genuinely necessary.

 

Changes to the roles of property managers and welfare guardians

The Commission also recommends renaming ‘property managers’ to ‘property representatives’ and ‘welfare guardians’ to ‘welfare representatives.’ The change reflects a shift in emphasis: these representatives would not simply make decisions they think are best, but would instead be required to represent the person’s wishes and values as far as possible.

Representatives would have clearer statutory duties. They would be required to act honestly, in good faith and with reasonable care, understand the person’s circumstances, support the person to participate in decisions, communicate in a way the person can understand, respect the person’s rights, and make decisions centered on the person’s wishes and values.

The scope of appointments might become more limited than they are currently. Representatives would only make decisions that the person lacks capacity to make and only where someone else genuinely needs to make those decisions. If a person retains capacity for some decisions, they would continue making those decisions themselves.

Property representatives would continue to have financial reporting obligations, and the existing financial limits on decisions they can make without court approval would be modified.

Welfare representatives could also be made subject to reporting requirements where appropriate. Representatives would also be expected to notify the court if significant changes occur that affect their suitability or the ongoing need for the appointment.

The court would have greater flexibility to tailor appointments. It could appoint multiple representatives, divide responsibilities, impose reporting obligations, require consultation between representatives and include safeguards where conflicts of interest exist.

Where a representative is also a spouse or partner, conflicts of interest would not prevent appointment, but specific conditions might be imposed from the outset to ensure conflicts of interest are handled appropriately.

 

Reasons for the proposed changes

Currently, many court-appointed representatives are family members with no legal training. The Law Commission found that the current duties are scattered between the PPPR Act and case law, making the roles difficult to understand. It recommends a single, clear list of statutory duties, and clearer obligations for representatives, so they are better equipped to understand their role and responsibilities.

The current law is also viewed as not sufficiently focussed on the person for whom decisions are being made. Property managers and welfare guardians are not always aware that they need to consider the person’s rights, wishes and values, rather than just making the decision they think is best.

 

Conclusion

Overall, the recommendations focus on encouraging people to participate in decisions which affect them and make as many decisions as they reasonably can make, but supporting them where needed. Where representatives are appointed, their role is to be as limited as possible and proportional to the lack of capacity in question.

If these changes become law, representatives will have clearer obligations, and will be accountable for respecting the rights, wishes and values of the person for whom they are making decisions.

The recommendations have not yet been considered by Parliament and may still evolve before any new laws are passed. It is, however, worth being aware that the roles and obligations of property managers and welfare guardians are likely to change in the coming years.

 

 

DISCLAIMER: All the information published in Trust eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Trust eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Content Copyright © NZ LAW Limited, 2026.    Editor: Adrienne Olsen.       E-mail: [email protected]      Ph: 029 286 3650

Postscript

Environmental Law, Planning Ahead, Property Law, Resource Management, Rural Law
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RMA replacement legislation reported back from select committee

 

On 20 July, the select committee reported back on the Natural Environment Bill and the Planning Bill, that are set to replace the Resource Management Act 1991 (RMA). The committee received 3,204 submissions and heard presentations from 178 submitters.

Whilst key features of the new system have been retained, the select committee recommended some improvements (that the government supports) that will refine and clarify some aspects of the bills.

After feedback from a range of submitters, the timeframe to implement the transition period from the RMA to the two new statutes has been extended from 30 months to 39 months.

The Labour Party has indicated that if it forms a government in November, it will not repeal this new legislation. The party does, however, state that it has some serious misgivings about some aspects, particularly the regulatory relief provisions.

In the meantime, there is some hard work to be done to incorporate the committee’s recommendations and present the bills again to Parliament for a second reading – all before the House rises in September for the 7 November election.

For more information on the Environment Committee’s report go here.[1]

[1]  https://www3.parliament.nz/en/pb/sc/scl/environment/tab report#filterformsearchtarget 

 

Fineprint’s 100th edition!

The eagle-eyed amongst you may have noticed we are publishing the 100th edition of Fineprint. This is not only a significant milestone for any publication, but also an affirmation to all our readers, that Fineprint continues to resonate with you in terms of relevant content.

Established in April 1997, we have moved from two-colour printed hard copy to publishing a full-colour beautifully-designed edition (thank you Mission Hall Creative) as you see today. Over the years, we have shifted from hard copy only, to now mostly publishing electronically. We have moved with the times.

Our biggest thank you goes to you, our readers, who continue to enjoy reading Fineprint and have given us valuable feedback in terms of topics to cover. We will continue publishing interesting, useful and sometimes thought-provoking content that not only covers legal issues, but also the wider business and social communities. If you would like to give us feedback, please email the editor at: [email protected].

Thank you and kia ora.

 

 

DISCLAIMER: All the information published in Fineprint is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Fineprint may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2026.     Editor: Adrienne Olsen.       E-mail: [email protected]     Ph: 029 286 3650 

Property briefs

Cross Leases, Easements, Neighbour Disputes, Property Disputes, Property Law, Residential Property
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There are a plethora of court cases involving property disputes. We highlight two cases – an easement issue and a cross-lease dispute that may resonate with property owners.

 

Right of way easement

The Wimax[1] case involved a dispute arising between neighbours over a right of way (driveway) easement.

Wimax and Fuge were neighbours along a right of way. Wimax owned the land on which there was the driveway; Fuge benefitted from the free and unimpeded right to use it to access their property.

Wimax had built structures on its property encroaching on the right of way area, including retaining walls and concrete parking walls. The structures replaced earlier structures, improved the driveway’s appearance and did not encroach further than previous structures. They were, however, larger and more permanent than before.

Fuge discovered the structures encroached on the driveway and demanded their removal. Wimax refused, arguing that the structures did not impede Fuge’s access and would be an unnecessary cost to remove.

Fuge initiated arbitration seeking an order[2] to enable the court to enforce the terms of the easement. The arbitrator found that the structures did not substantially interfere with the right of way.

Fuge appealed this decision to the High Court; this overturned the arbitrator’s decision finding that the structures amounted to a wrongful interference.

Wimax then appealed to the Court of Appeal.

The Court of Appeal held that Fuge needed to show that there was a ‘substantial’ interference with their ‘reasonable’ use of the right of way. Fuge could not.

Despite the structures, Fuge could still use the driveway to access the property, just as the previous owners had done for over 60 years. Further, Fuge had no plans to develop their property on which the structures would impact. On balance, Fuge had rights over an adequate and effective driveway which did not need to be widened and was still useable despite the structures.

The Court of Appeal overturned the High Court’s decision and Wimax was entitled to retain the structures.

Fuge, dissatisfied with this decision, appealed to the Supreme Court. The appeal was heard on 17 February 2026, although the judgment has not yet been delivered. It will be interesting to read it once it is released.

If you are a party to a right of way and have any questions regarding your rights and obligations under the terms of the easement, please contact us for advice.

 

Cross lease dispute

This involved a long-running dispute[3] involving the Goldsburys who withheld consent to their neighbours, the Turners, replacing an existing dwelling on their property which was subject to the terms of a cross-lease.

Most cross-leases provide that alterations cannot be made (or new structures erected) without the prior consent of the other parties. This consent cannot be unreasonably withheld.

The Turners owned the property at the front of a four-way cross-lease. The Goldsburys owned two properties to the rear. The Turner’s property was derelict, and they sought the Goldsburys’ consent to demolish and erect a modern building in its place. There were also issues with recurring flooding and so they wanted to ‘lift’ the property.

The Goldsburys refused to consent to the works, arguing (amongst other things) that their sea views would be impacted. The Goldsburys were only agreeable to a rebuild within the same footprint as long as there was no greater intrusion into the commonly owned airspace.

The Turners referred the dispute to arbitration, where the arbitrator ruled that the Goldsburys’ withholding of consent was not unreasonable, and that it was not unreasonable to withhold consent for demolition where the dwelling was not uninhabitable and the proposal was to extend the existing footprint.

The Turners responded by applying to the High Court for a partition order,[4] separating the Turners’ property from those of the Goldsburys under the cross-lease. Section 339 requires consideration of factors in section 342, including any hardship that would be caused by not making an order in comparison with the hardship that would be caused to any other person if an order was made. The High Court declined to make an order; the Turners then appealed to the Court of Appeal.

In a somewhat surprising move, the Court of Appeal placed greater emphasis on the relationship breakdown between the parties, the previous ‘intransigence’ and stubbornness of the Goldsburys about the development plans and the overall hardship to the Turners. Due to these facts and that the parties had reached an impasse, the court found it was necessary to grant a partition order subject to conditions to be determined by the High Court.

The Court of Appeal usefully confirmed that the test as to whether consent was unreasonably withheld under a cross-lease was to consider whether a reasonable lessor would withhold consent in the particular circumstances, and whether the lessor reasonably believed the proposed use would injure its interests.

If you are a party to a cross-lease and find yourself in a situation where you want to redevelop or are at odds with your neighbour, please be in touch and we can advise you on your options.

[1] Wimax New Zealand Ltd v Fuge [2025] NZCA 31.

[2] Section 313 of the Property Law Act 2007.

[3] Turner v Goldsbury [2024] NZCA 292.

[4] Section 339 of the Property Law Act 2007.

 

 

DISCLAIMER: All the information published in Property Speaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Property Speaking may be reproduced with prior approval from the editor and credit given to the source.
Content Copyright © NZ LAW Limited, 2026.    Editor: Adrienne Olsen.       E-mail: [email protected]      Ph: 029 286 3650

Revised Law Association Agreement for Sale and Purchase of Real Estate

Buying Property, Property Law, Real Estate Law, Residential Property, Sale and Purchase Agreements, Settlements
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Signatories should become familiar with changes

The majority of property sale and purchase agreements are recorded on The Law Association of New Zealand’s (TLANZ) Agreement for Sale and Purchase of Real Estate. TLANZ recently released the fourth revision of the Eleventh Edition of the Agreement for Sale and Purchase (ASP); most conveyancing transactions are now being completed using this revision.

There are a number of changes in the new revision of the ASP, so it is important that anyone signing the ASP is familiar with these changes and the implications of signing this document. We discuss some of the changes below, although this is not a full list of the amendments.

 

New warranties

Both buyers and sellers must now provide a warranty that they (or their real estate agent) have not altered, removed or added any wording to the standard ASP, unless any alterations are easily identifiable (for example, a clause has been crossed out using a strikethrough, or an addition is easily identifiable). The use of PDF editing software has meant that it is possible to change the wording in the ASP without making it clear that these changes have been made.

The new warranty provides both parties with reassurance that they can safely assume that all of the standard terms apply, unless it is abundantly clear that they have been modified. If you are the seller, it is important that your real estate agent also understands this warranty. If the agent has made any alterations to the agreement without these changes being easily identifiable, you have breached this warranty; this could have financial consequences for you.

Another additional warranty that the seller now provides is the situation where they have completed any ’restricted building work’ (as defined in the Building Act 2004, and typically involving work that is required to be carried out by particular qualified professionals such as a licensed building practitioner, chartered professional engineer or registered plumber/gasfitter or electrician) on the property on or after 13 March 2012, that this work was carried out or supervised by a suitably qualified person.

The effect of this new warranty is that the seller is warranting that they have actually complied with the exemption requirements, and may be liable for any loss the buyer suffers if it turns out that they did not.

Examples of restricted building work that may be exempt from building consent requirements include a carport between 20 and 40m2 in floor area, which needs to be carried out or supervised by a licensed building practitioner or a chartered professional engineer, or replacing sanitary plumbing fixtures (such as a toilet), which must be carried out by a registered plumber. This warranty will also apply to any building work completed using the new granny flat exemption.

 

Changes to conditions

The requirements regarding cancelling due to non-fulfilment of the finance condition have changed. Now, instead of having to provide a ‘satisfactory explanation of the grounds relied upon by the Purchaser,’ the buyer must provide a ‘reasonable explanation of the steps taken by the Purchaser to arrange finance.’ This change means that, while the buyer still has an obligation to take reasonable steps to obtain finance, the buyer does not end up in a dispute with a seller over whether the grounds relied upon by them are ‘satisfactory.’

If a buyer needs Overseas Investment Office (OIO) consent, the seller must now take reasonable steps to enable this condition to be fulfilled by the buyer. Previously, the seller was not required to do anything to enable the condition to be fulfilled. While OIO consent is primarily the buyer’s responsibility, this new clause acknowledges that the seller may need to take steps as well to enable the buyer to satisfy the condition.

 

Claims for compensation

The claims for the compensation process have changed slightly. Now, the claimant (typically the buyer, but not always) must raise a claim for compensation as early as reasonably practicable, but no later than the working day prior to settlement, and they now may raise multiple claims for compensation.

The previous revisions only required a claimant to raise a claim no later than the working day prior to settlement, and limited a claimant to raising only one claim for compensation. Removing the number of claims the claimant may make is necessary to enable them to make a claim as soon as reasonably practicable.

 

Chattels

The chattels list has been altered slightly. Previously, the agreement listed blinds, curtains and drapes separately as chattels. Now, there is just a catch-all ‘window coverings.’ ‘Automatic garage door facility’ has also been added as a chattel; this clarifies that a garage remote is a separate chattel to the actual door, and further clarifies that the door itself (if there is a garage door) should also be in reasonable working order on settlement.

 

What does this mean for me?

Any time you sign a legally binding document, you should ensure that you fully understand your rights and obligations under that agreement. We strongly recommend that you talk with us before signing an ASP, whether you are signing as a buyer or as a seller.

 

 

DISCLAIMER: All the information published in Property Speaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Property Speaking may be reproduced with prior approval from the editor and credit given to the source.
Content Copyright © NZ LAW Limited, 2026.    Editor: Adrienne Olsen.       E-mail: [email protected]      Ph: 029 286 3650

Structuring your development and considerations for buyers in new subdivisions

Land Covenants, Property Development, Property Law, Residential Property, Subdivisions, Unit Titles
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The relationships between neighbours in a subdivision and the rules, regulations and the way these are enforced have evolved significantly from handshakes and agreements over the fence.

In the last few decades, in order to protect the value of each property, developers have become increasingly concerned with not only managing the look and feel of their subdivision, but also prescribing the rights and obligations of property owners within those developments.

There are a number of ways that developers can do this; the arrangements vary depending on a number of factors ­– each coming with its own pros and cons for prospective owners.

 

Residents’ societies

These are becoming increasingly popular in larger scale developments. Residents’ societies are usually incorporated societies; their structure and requirements are governed by the Incorporated Societies Act 2022. Membership to these societies is often mandatory by virtue of a land covenant registered on the record of title to each property in the development. The society’s rules can be found on the Incorporated Societies Register.

Residents’ societies are usually responsible for the maintenance of any shared property within the development such as communal greenspaces or perhaps a tennis court. Each property owner is required to pay an annual levy for the maintenance of these areas.

A benefit of a residents’ society is that generally it will enforce the rules that individual property owners within that development must adhere to. In that way, as an individual property owner you won’t have to seek your own legal advice and incur cost if, say, your neighbour refuses to trim their hedge. However, a dispute with the residents’ society itself would require you to seek your own legal advice.

Due to residents’ societies falling within a statutory framework not designed specifically for them, there are a number of inflexibilities that means they may not always be the most desirable option when setting up a governance structure in a development.

One problem is that the minimum membership for an incorporated society is 10 members. Therefore a development comprising fewer than 10 properties/members cannot be an incorporated society. There are some exceptions to that membership requirement whereby a body corporate comprises three ordinary members.[1] In that instance a residents’ society may work for smaller developments.

Failing that exception, however, the developer will most often need to choose between a unit title or another mechanism to provide for governance between the property owners.

Further, when the residents’ society is wound up, any surplus assets held cannot be distributed to members of the residents’ society, instead they must be advanced to a nominated not-for-profit entity. This is very problematic as those assets will be critical to the development.

 

Unit title developments

Unit title developments exist within their own statutory framework – the Unit Titles Act 2010. They are usually administered by a body corporate which is responsible for collecting levies from the property owners, maintaining common buildings and assets, and administering the body corporate rules.

The body corporate manages the maintenance of the shared facilities – and in some instances the units themselves – in a similar way to a residents’ society. The body corporate will have an ability to issue levies to contribute to a maintenance fund.

The benefit of buying a unit title property is that the legislation prescribes minimum disclosure requirements before you enter into a contract for sale of a unit title property and before settlement.

This transparency can appeal to a buyer who would otherwise need to rely on their own due diligence in reviewing a residents’ society rules to ascertain any additional financial contributions they may have to make.

 

Land covenants

Property developers may use land covenants where there is little desire for a formal separate governance or management entity to administer the rules. The developer can simply prescribe requirements and obligations on the property owners through a land covenant registered on each record of title. These are enforceable by the owners of benefitted land, and often the developer.

A land covenant can be a cost-effective way to impose some obligations on the property owners, but without requiring annual levies or fees to be paid.

This can, however, become complicated when adjoining properties need joint insurance policies to be held by the property owners over their adjoining properties. Having to explain to a prospective purchaser that they must work out insurance arrangements between themselves and the other owners can be off-putting for a buyer.

As a consequence of this, a unit title structure, particularly where homes are adjoining, is probably a better structure for a developer to use.

 

Get advice early on

If you are considering doing any development work you should talk with us about the best structure for your purposes and whether any covenants should be registered on the titles.

If you are buying a property within a development bound by one or a combination of these structures, we can advise about what rules and obligations you may be bound by before signing on the dotted line.

[1] Section 14 of the Incorporated Societies Act 2022.

 

DISCLAIMER: All the information published in Property Speaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Property Speaking may be reproduced with prior approval from the editor and credit given to the source.
Content Copyright © NZ LAW Limited, 2026.    Editor: Adrienne Olsen.       E-mail: [email protected]      Ph: 029 286 3650

Purchasing a house

Conveyancing, First Home Buyers, Property Law, Relationship Property, Wills & Estates, Young Professionals
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Lukes friend Tom was excited to have found a property he wanted to buy and was preparing to make an offer. Having purchased property before, Luke suggested Tom speak with a lawyer before signing anything and passed on his lawyer’s contact details.

 

When Tom met with the lawyer, he learned about the purchase process and the importance of protecting his assets. Although he intended to buy the property in his sole name, he had not considered the implications of relationship property laws or the need for a Contracting Out Agreement with his girlfriend.

 

Although Tom wanted to make an unconditional offer to appeal to the vendor, his lawyer advised he needed the following conditions:

  1. KiwiSaver Approval Condition: To get KiwiSaver approval, Tom’s lawyer would need to send an application to his provider, who could take 10 to 15 working days to respond.
  2. Finance condition: Tom’s conditional loan approval from his bank was not enough. He needed unconditional approval and time to work through the bank’s conditions.
  3. Builder’s report condition: Although the property looked in good condition at a glance, there could often be structural issues that only a qualified building inspector would identify.

 

The agreement was signed and Tom started working through his conditions. The builder’s report identified some major structural issues in the living room and he ended up negotiating a significant price reduction from the vendor.

 

Tom soon satisfied his conditions, and settlement was complete a few weeks later. He was glad he took the time to work through his due diligence prior to purchasing.

Macayla Brdanovic

KiwiSaver changes open the door to first farm ownership

Banking & Finance, Government & Policy, Property Law, Rural & Agricultural Law, Wealth & Retirement Planning
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Good news for rural workers

The government has announced important changes to KiwiSaver that will make it easier for farmers and rural workers to use their KiwiSaver to buy their first farm. These reforms acknowledge the unique way in which farms are owned and operated in New Zealand.

For many in the rural sector, particularly sharemilkers, contract milkers and farm managers eager to climb the property ladder, this represents a meaningful step toward farm ownership.

Legislation giving effect to these changes will be introduced to Parliament in the middle of the year.

 

Key changes

Until now, KiwiSaver first-home withdrawals have been limited to residential property purchases, with strict requirements that the buyer both owns and lives in the home. This has created barriers for those pursuing farm ownership, as farms are often:

  • Purchased through companies or trusts, rather than in an individual’s name, and
  • Used as both a business and a place of residence, sometimes with accommodation arrangements tied to employment.

The upcoming changes are designed to address these challenges by allowing eligible KiwiSaver members to withdraw their funds to buy a first farm, even where the ownership structure is more complex.

 

Who can benefit?

The updated rules will apply to people who would ordinarily qualify for KiwiSaver first-home withdrawal, who have contributed to KiwiSaver for at least three years and not previously owned a home (or being approved as a ‘second chance’ buyer). The changes are aimed at first-time farm buyers, not those expanding existing farming operations.

 

Key conditions

While the rules are becoming more flexible, there are still some important conditions for first-time farm buyers:

  • Control of the farm: You must have a meaningful ownership interest in the entity purchasing the farm (for example, a majority shareholding or controlling interest). This ensures KiwiSaver is being used to support genuine ownership, not passive investment
  • Connection to the property: The farm must still have a residential element connected to you. While the strict ‘live in the home’ rule is being relaxed, the purchase must still align with the intent of helping you secure your primary place of living and working
  • First property focus: The withdrawal remains limited to your first property purchase (or equivalent approved situation), and
  • Standard application process: You will still need to apply through your KiwiSaver provider, providing supporting documents such as a signed sale and purchase agreement and statutory declarations.

 

Why this matters for farmers

For many in the dairy and wider farming sector, progressing from employment or sharemilking into ownership has always required significant capital. KiwiSaver is often one of the few accumulated assets available to younger farmers. By allowing KiwiSaver funds to be used in farm purchases — and recognising company and trust structures – the law is now better aligned with how farming businesses actually operate.

This change is expected to improve access to deposits for first-time farm buyers, support succession planning within the rural sector and help younger farmers transition into ownership earlier.

 

Considerations before proceeding

While the changes are positive, there is still some complexity involved. Before relying on KiwiSaver funds for a farm purchase, it is important to consider:

  • How the farm purchase will be legally structured
  • Whether your level of ownership meets the control requirements
  • The impact on lending and finance arrangements, and
  • Ensuring your application meets your KiwiSaver provider’s requirements.

We recommend you seek legal and financial advice early in the process; this will help ensure everything is set up correctly from the outset.

 

Final thoughts

These reforms mark a practical and long-overdue shift in KiwiSaver policy. By acknowledging that farms are both homes and businesses, the government will create a more realistic pathway for rural New Zealanders to enter farm ownership.

With the changes in the legislative pipeline, if you are considering farm ownership, now is a good time to start planning and take advice on how best to position yourself.

 

 

DISCLAIMER: All the information published in Rural eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Rural eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Content Copyright © NZ LAW Limited, 2026.    Editor: Adrienne Olsen.       E-mail: [email protected]      Ph: 029 286 3650

Caveats

Property Law, Real Estate Transactions, Relationship Property, Risk Management, Wealth & Asset Planning
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What are they?

A caveat is a warning and, once registered, notifies the world at large to ‘be aware’ of a potential claim.
In the property sector, a caveat is a legal instrument that can be registered against a property title to protect a person’s rights or interests in respect of a particular property. A caveat prevents the registered owner/s of the property from transferring, selling or disposing of, mortgaging or otherwise dealing with it.

Why register a caveat?

The Land Transfer Act 2017 stipulates when caveats can be registered. It is important that the person wanting to register a caveat (the caveator) meets specific requirements as set out in the legislation.

The caveator must have a ‘caveatable interest’ in the property. The legislation specifies the situations in which a caveatable interest may exist. If you think you may have a caveatable interest in a property, we encourage you to talk with us about your particular situation.

One common scenario in which caveats are registered is when a person dies and the executors of their will are in the process of transferring or otherwise dealing with the deceased person’s property. The deceased’s former partner or spouse may register a caveat (called a notice of claim in this situation) against the deceased’s property to protect their interests and their right to bring any claims under the Property (Relationships) Act 1976. This is particularly common in situations where executors are unwilling to cooperate or consider such claims.

Another situation in which caveats are commonly registered is where a person is a beneficiary of a trust and has an expressly recorded entitlement to a particular property or piece of land. That beneficiary may wish to prevent their entitlement from being transferred or otherwise dealt with, and so may register a caveat to protect their proprietary interest.

It is important to keep in mind that registering a caveat is not a decision that should be made lightly. There are serious potential consequences for the caveator if a caveat is improperly registered. The Act allows people affected by the registration of a caveat to claim compensation for loss or damage against the person who registered it, especially where there was no caveatable interest to begin with. Lawyers can also face liability and be penalised for assisting their client to register a caveat where there is no caveatable interest. Claims for compensation are heard and determined by the High Court.

One situation in which people may seek to claim compensation is when the sale of the property has been impacted or delayed by the registration of a caveat, and there were no reasonable grounds to justify the registration of the caveat or sustain one in the first place. Affected people may apply to the court for compensation for loss or damage. This compensation could include an award of compensatory damages (to compensate and restore the claimant to the financial position they would have been in had the caveat not been registered) and, in extreme cases, punitive damages (designed to punish the caveator).

Registering a caveat

Once you have confirmed a caveatable interest in a particular property, you should discuss with us about registering that caveat. We will prepare and ask you to sign an Authority and Instruction Form. This confirms your instructions and facilitates registration of the caveat on the Land Information New Zealand (LINZ) database.

When can caveats be removed?

There are three situations in which caveats are removed:

  1. By consent
  2. If the caveat lapses, or
  3. By a court order.

More commonly, caveats are removed when the parties have set aside their differences, and the caveator may decide to withdraw the caveat from the property title.[1]

Further, the Act[2] provides that a caveat may lapse following an application made by an affected person, usually the registered owner of the property, to the Land Transfer Registrar, unless a specific and timely response is received from both the caveator and the court. The caveat will lapse unless the caveator makes an application to the court within 10 working days to sustain the caveat, and the court makes one of three types of order within a further 20 working days. The orders the court can make include an interim or temporary order that the caveat not lapse, a final order or an order postponing the caveator’s application for the time being.

As well, the Act[3] confirms that a person who has an estate or interest affected by a caveat may apply to the court for an order that the caveat be removed. This means that the registered owner, for example, may apply to the court rather than to the Land Transfer Registrar seeking removal of the caveat. Claims for compensation for loss or damage may also be made at the same time.

In summary, a caveat is a robust tool for protecting one’s rights and interests over real property. It is important to receive sound legal advice on the effects and implications of registering a caveat, due to the risks and consequences associated with registering one incorrectly.

[1] Section 144.

[2] Section 143.

[3] Section 142.

 

DISCLAIMER: All the information published in Property Speaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Property Speaking may be reproduced with prior approval from the editor and credit given to the source.
Content Copyright © NZ LAW Limited, 2026.    Editor: Adrienne Olsen.       E-mail: [email protected]      Ph: 029 286 3650

 

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