霍建强（Raymond Huo）律师来自北京，执业方向：商法，地产法，IT&IP及诉讼。出版《实用英语分类致电》（合译），《实用英语俚语》（合译）等著作六种。目前就职于具有百年历史的著名律师楼Hesketh Henry Lawyers，是律师协会IT法委员会成员，曾任NZ Herald记者。
本文经霍律师审定。如果有任何法律问题,请发传真至+64-9-3655238。
霍建强（Raymond Huo）律师曾任全国最大英文报《纽西兰先驱日报》文字记者，目前就职于具有百年历史的著名律师楼Hesketh Henry Lawyers。
本文经霍律师审定。如果有任何法律问题,请发传真至+64-9-3655238。
Acquisition of Real Estate in New Zealand (1)
在纽西兰购买房地产（1）
Kevin is an international student who enjoys a sophisticated urban lifestyle. So his parents from China bought for him a stunning city apartment enjoying an elevated location with sea views. His girl friend Alice, also an international student, prefers an easy rural lifestyle and has tried to convince her parents to buy farmland. Her parents, who live in Hong Kong, came to New Zealand during Christmas and signed a contract to buy a large section which adjoins a beautiful reserve. However, her parents were told that they were purchasing “sensitive land” and needed to apply for consent to purchase. They want to know why, and want to know more about buying land in New Zealand.
[1] Neither Kevin's parents nor Alice’s parents are New Zealand citizens. Nor are they ordinarily resident in New Zealand. Therefore, they are “overseas persons” for the purpose of the Overseas Investment Act 2005 (“OI Act 2005”).
[2] As an aside, it is good that a written contract was entered into because a contract for the sale and purchase of land must be in writing signed by the parties involved in order to be legally enforceable under New Zealand law.
[3] The OI Act 2005 passed into law on 16 June 2005 and came into full effect on 1 September 2005. The OI Act is administered by the Overseas Investment Office (OIO) which considers applications for the purchase of certain types of land in New Zealand.
[4] The OI Act has been tightened to focus on sensitive assets, which comprise sensitive land and significant business assets. The threshold for business investments has increased so that screening is required for significant business assets which are non-land business assets valued at over $100 million (increased from the $50 million threshold under the 1995 Regulations).
[5] The particular types of land and interests in land for which the consent of the OIO is required are particularized in the OI Act. Examples for sensitive land as defined in section 12 and schedule 1 of the OI Act include:
non-urban land over five hectares (1 hectare = 10,000 ㎡) ;
land on most off-shore islands;
over 0.4 hectares of land that includes or adjoins sensitive land over 0.4 hectares, for example, certain islands, reserves, historic or heritage areas or lakes; and
over 0.2 hectares of land that includes or adjoins the foreshore.
[6] In principle, the OA Act was developed to recognize the benefits of foreign investments as well as the intrinsic value of New Zealand’s landscape and the ecosystems it supports.
[7] Therefore, consent is required for a transaction if it will result in an overseas investment in sensitive land, an overseas investment in significant business assets or an overseas investment in fishing quota. The land Alice’s parents were purchasing abuts a “beautiful reserve” which falls into the category of sensitive land. The parents were therefore required to apply for consent to purchase.
[9] All applications for consent are tested against the criteria detailed in section 16. In summary, applicants must demonstrate how their investment will benefit New Zealand and ensure the sensitive characteristics of the land on which the investment will be based are maintained.
第16条详列审批标准。简而言之，有两大标准。第一，申请人必须说明他们的投资如何使纽西兰受益；第二，投资地的敏感特性如何得以保障。
[10] The economic factors generally include:
create job opportunities for New Zealanders or retain jobs that would otherwise be lost;
ntroduce new technology or business skills into New Zealand;
increase New Zealand’s export receipt;
increase processing of primary products in New Zealand.
[11] In respect of protection of indigenous vegetation and fauna and historic heritage, consideration will only be given to, among other things, where there are or will be adequate mechanisms in place for the protection and enhancement of:
the habitats of indigenous vegetation and fauna;
the habitats for trout, salmon and other protected wildlife;
historic heritage within the relevant land;
walking access over the relevant land.
[12] It is possible that different applications may gain consent having demonstrated different types of benefits. For example, one application may be successful through demonstrating strong economic benefits while another through demonstrating a combination of those factors.
[13] In addition to the criteria to be met by the applicants, they must demonstrate that they have relevant business experience and acumen, financial commitment, good character and not being an individual to which section 7(1) of the Immigration Act 1987 refers (concerning, among other things, convictions, deportation or removal order in force or terrorism).
[14] If the purchaser buys a sensitive property with his or her spouse/partner who is a New Zealand citizen, then there is no need to apply for consent. Regulations 33(m)-(n) exempt an overseas person from applying for consent for a transaction whereby any land they acquire would be relationship property and their spouse is not an overseas person.
(In the next article, we will discuss about Torrens land registration system and general property law.)
（下一篇文章我们将讨论纽西兰的地产法和房契注册制度。）
DISCLAIMER: THE CONTENTS OF THIS PUBLICATION ARE GENERAL IN NATURE AND ARE NOT INTENDED TO SERVE AS A SUBSTITUTE FOR LEGAL ADVICE ON A SPECIFIC MATTER. IN THE ABSENCE OF SUCH ADVICE NO RESPONSIBILITY IS ACCEPTED BY THE AUTHOR(S) FOR RELIANCE ON ANY OF THE INFORMATION PROVIDED IN THIS PUBLICATION.
免责声明﹕本文仅就有关法律问题进行一般性评价﹐不可做专项法律行为之依据。本文作/译者拥有版权﹐但并不因此负担任何其它法律责任。
Acquisition of Real Estate in New Zealand (1)
在纽西兰购买房地产（1）
Background
背景
Alice’s parents from Hong Kong signed a contract last Christmas to purchase a North Shore farmland property, which abuts a reserve and is categorised as “sensitive land”. As overseas persons, they are required to apply for consent.
In an attempt to avoid having to obtain consent to purchase the property, their friends suggested that the parents should establish a company to complete the purchase. Alice and Kevin rejected this as a bad idea. Their friends then suggested that they should complete the purchase without applying for the consent, but this was rejected by the vendor’s solicitor. Apparently, their friends had many ideas, and further suggested that they could simply return to Hong Kong without completing the purchase because without the consent, they believed, the agreement was illegal and voidable.
Alice and Kevin were becoming impatient and disappointed that the parents were more interested in taking those “absurd” approaches.
Eventually, the parents instructed a solicitor, who prepared an application for consent and lodged it at the Overseas Investment Office.
In the meantime, the Real Estate agent who had helped the parents find the farmland introduced her property developer husband to them. They held serious talks about subdividing the property and instructed a surveyor to produce a report. The husband, Joe, voluntarily paid the surveyor’s fees when the bill arrived.
The application for consent was processed and duly granted. The parents were ready to settle. However, shortly before the scheduled settlement date, their lawyer telephoned them and gave them bad news.
They could not settle because somebody had lodged a caveat on the title.
individuals who are neither New Zealand citizens nor ordinarily residents in New Zealand;
a body corporate that is incorporated outside New Zealand or is a 25% or more subsidiary of the body corporate incorporated outside of New Zealand; and
a body corporate, partnership or other body of persons, trusts where, among other things, the composition of 25% or more of the governing body, or the right to exercise or control the exercise of 25% or more of the voting power at a meeting, is comprised of or controlled by overseas persons.
Even if the parents incorporate a company and nominate it to purchase, as suggested by their friends, given the company is or will be 25% or more owned and controlled by the parents as overseas persons, the company itself falls within the definition of the overseas person.
[2] One of the parents’ friends is a New Zealand resident and suggested that he should purchase the property on behalf of the parents. Alice is not happy because the relevant issues such as trusts, ownership structure etc are beyond her comprehension. She has since learnt that should that friend purchase the farmland on behalf of her parents, given the fact that the friend is actually controlled or subject to direction by the parents the friend would be an “associate” of the parents. The Act applies to investment by an associate of overseas person and the consent is still required.
[3] The parents asked to settle without the consent but this was rejected by the vendor. The vendor’s solicitor, through the agent, reminded the parents of the ramifications. They have explained that a person who is required to apply for consent to an overseas investment transaction commits an offence if that person gives effect to the overseas investment without the consent required by the Act. If convicted, the person who commits such an offence is liable to imprisonment for a term not exceeding 12 months or to a fine not exceeding NZ$300,000.
[4] All applications for consent are tested against the criteria detailed in section 16. In summary, applications must demonstrate how their investment will benefit New Zealand and ensure the sensitive characteristics of the land on which the investment will be based are maintained.. [For details refer to Part I of this article published in the February 2007 issue].
[5] The parents eventually instructed the solicitor to submit their application to the Overseas Investment Office, a dedicated unit within Land Information New Zealand. The time frame for an application to be processed is between two and six weeks but their consent was granted much quicker than expected. The parents were now ready to settle but their lawyer told them they could not because someone had lodged a caveat preventing the farmland from being transferred.
[6] Joe, the husband of the Real Estate Agent, took everyone by surprise and lodged the caveat on the title. The untold story was that the parents had allegedly promised Joe that they would purchase the farmland together and jointly subdivide it into different lots. Joe now relied on that alleged promise together with his payment of the surveyor’s fee as a partial performance to support this claim.
放“警示通告”的幕後黑手就是那位地产经纪的开发商先生。未被爆料的故事是爱丽丝的父母曾答应他一起购置这块农场地并分割成一块一块的地来卖。“粥”先生此举的依据，一是他们一起购买的承诺，二是认为付勘探费本身属於该承诺法律意义上的部分执行。
[7] The lawyer acting for the parents obtained a copy of the caveat and found that Joe’s lawyer had lodged the caveat on his behalf. The grounds on which the claim was founded were as follows:The abovenamed caveator claims beneficiary interest in the land contained in the above certificate of title as cestui que trust ….
[8] Baffled by the wording, Kevin, Alice and her parents were very upset. "Couldn't you lawyers speak simple English?" they questioned.
不知所云。凯文丶爱丽丝并她的父母大为苦恼。他们冲自己的律师撒气：“你们律师难道不会说简单的人话？”
[9] Their lawyer agreed and advised them that he did not believe Joe had any caveatable interest. The lawyer contacted the vendor’s solicitor and requested them to apply for the caveat to be removed. As registered proprietor, only the vendor can do so. However, since the end of last year when the parties negotiated the agreement, the value of the farmland has increased and the vendor was reluctant to assist.
[10] The parents became agitated as they had spent too much time holidaying in New Zealand and needed to return to Hong Kong. They asked their lawyer to speed things up and find a solution. Their lawyer replied:“Well, let's go to Court”
DISCLAIMER: THE CONTENTS OF THIS PUBLICATION ARE GENERAL IN NATURE AND ARE NOT INTENDED TO SERVE AS A SUBSTITUTE FOR LEGAL ADVICE ON A SPECIFIC MATTER. IN THE ABSENCE OF SUCH ADVICE NO RESPONSIBILITY IS ACCEPTED BY THE AUTHOR(S) FOR RELIANCE ON ANY OF THE INFORMATION PROVIDED IN THIS PUBLICATION.
免责声明﹕本文仅就有关法律问题进行一般性评价﹐不可做专项法律行为之依据。本文作/译者拥有版权﹐但并不因此负担任何其它法律责任。