在新西兰购买房地产的相关法律

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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.

凯文是个留学生，喜欢现代都市生活，他在中国的父母给他买了一套时尚公寓，位置高，有海景。他的女朋友爱丽丝也是留学生，喜欢恬静的田园生活，一直鼓动他在香港的父母到纽西兰买个农场。她父母圣诞节期间来了，并签了合同买一大片可开发地，紧挨着这块地的是一片漂亮的保留地。可是她父母却被告知他们买的是“敏感地”，需要申请许可才能购买。他们想知道为什麽需要申请批文，并想了解更多的房地产买卖方面的规定。


[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”).

凯文和爱丽丝的父母既不是纽西兰公民，也不是居民。因此，就《海外投资法2005》而言，他们属於“外国人”。

[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.

另外一个与之相关的话题是，爱丽丝父母签署的是书面合同，这很好，因为根据纽西兰的法律，任何与房地产有关的合约都必须是书面的，只有经各方当事签署之後，才有法律约束力。

[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.

《海外投资法2005》是2005年6月16日通过并正式成为法律，2005年9月1日正式生效。海外投资办公室负责该法的实施。购置一定类别、受投资法约束的房地产，都必须向海外投资办公室提交申请。

[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).

和以前的法规相比，2005年海外投资法对敏感资产的规范有所收紧。敏感资产包括“敏感地”和“重大商业资产”两部分。对商业投资的审核门槛抬高了，因此，对非土地类的资产投资超过$1亿纽币的，都需要经过专门的审核（2005年规定的标的额为$5千万）。

[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.

至於土地类投资，《海外投资法2005》对各种类别及要求有详细规定。第12条及附则1详列“敏感地”定义。大致来说，属於以下情形的都属於“敏感地”：　　　
   超过5公顷的非城市用地（1公顷＝10,000平米）；
   大多数离岸/海面岛屿用地；
   超过0.4公顷并且该地包括或毗邻逾0.4公顷的敏感地，如一定的岛屿、保留地、历史遗产及名胜地或湖区、以及
   超过0.2公顷，如果该地包括或毗邻海滩。

[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.

原则而言，《海外投资法》的发展有两层含义：一是认定海外投资的价值；同时也要保护纽西兰固有的自然景观及生态系统。

[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.

因此，海外人士但凡涉及投资敏感地、大宗商业资产或捕鱼配额的，都必须事先申请许可。爱丽丝父母想买的那块地紧挨着一块“美丽保留地”而该保留地又属於敏感地，因此，（参见“敏感地”定义第3条），爱丽丝父母需要申请购地许可。

[8] Under section 22 of the OI Act, each overseas person or associate making the overseas investment must apply for consent.

《海外投资法2005》第22条规定，每一位海外人士或相关人士（如合伙人等等），在这种情形下的投资都必需事先申请。

[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.

第一标准可归纳为经济因素，主要包括（该投资能否）：
   创造或保留就业机会；
   引进新科技或商业技能；
   增加纽西兰出口收入；
   提高在纽西兰本地的原始产品加工量。

[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.

与之相关的第二标准则涉及到本地动植物及历史遗产保护问题。一般来说，要想得到批准，必须在申请中说明投资人已经或将会设立适当机制，以保护或拓展以下几个方面：
   本地动、植物栖息、生长地；
   鐏鱼、鲑鱼或其它保护类野生鱼类繁殖地；
   投资地段内的历史及遗产保护地；
   在投资地段上的步行通道。

[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.

综合以上因素，表明投资所带来的不同类型收益，而获批准的可能性也是有的。比方说，某一个申请获得成功是因为展现了投资所带来的经济效益；而另一类申请则展现以上因素的综合效益。

[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).

除上述标准外，申请人还必须表明他/她有相关的商贸阅历、资金支持、良好品行并且不受《移民法1987》第7条第1款所列情形约束（主要指犯罪案底、驱除令或反恐因素）。

[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.

如果买方配偶（同居人）为纽西兰公民，则无需申请。条例33（m）-(n) 规定，一方配偶不是外国人而所购不动产为“关系财产”，该海外人士则不需要履行申请程序。

(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.

　　爱丽丝的父母来自香港，去年圣诞节签了一份合同买北岸的一块农场地。这块地紧挨着一片保留地被认定为“敏感地”。因为她父母是海外人士，因此必须申请许可才能购买。

　　为了避免申请许可，他们的朋友建议他们在纽西兰成立一个公司，认为以本地公司名义买可能不用申请批文。凯文和爱丽丝认为这是个坏主意。他们的朋友便建议干脆不申请直接交割，但卖方律师驳回这个要求。显然这帮朋友鬼主意很多，又建议她父母干脆跑回香港不必履约等等，因为既然没有许可批文，这个合同不就是违法的无效合同吗？

    凯文和爱丽丝变得不耐烦，很失望她的父母为什麽对这些馊主意津津乐道。
最终她父母还是请律师准备了一份申请并递交到海外投资办公室。与此同时，当初帮爱丽丝父母找到这块农场地的地产经纪，把她做地产开发的先生介绍给爱丽丝父母。他们一拍即合，认真地讨论了联合分割的前景，并请勘探师出了一份报告。地产经纪的先生叫Joe（读“粥”），还自愿地出了勘探师的费用。批文申请进展顺利，很快就下来了。爱丽丝父母准备交割丶过户。但是就在交割前，他们律师来电话告诉他们一个坏消息。他们不能交割因为有人在房契上放了一个类似冻结条款式的“警示通告”。

    Sensitive Land
    “敏感地”[“敏感地”定义详见之前相关文章。]

    Overseas Persons
    海外人士

[1] Overseas persons are, primarily:

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.

符合以下几种情形的都属於“海外人士”：
*既非公民亦非居民的个人；
*纽西兰境外成立的法人或[结构成分]25%或以上的境外法人的附属机构/子公司；
*法人丶合伙或其它架构模式丶信托等等，决策机构组合达25%或以上，或是25%或　以上的投票行使权或行使控制权是由海外人士组成或控制。
*即使爱丽丝的父母如朋友所建议的那样成立一个公司来买农场，因为该公司[即便在纽西兰境内成立]25%或以上的拥有权归属或将归属爱丽丝父母，该公司本身也属於法律意义上的“海外人士”。

[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.

她父母有一位朋友是纽西兰居民，自告奋勇要替他们买这个农场。爱丽丝不爽，因为相关问题如信托丶产权结构等等麻烦多多，也弄不明白。她随後也了解到，即使那位朋友以她父母名义买下农场，鉴於那位朋友实事上是受她父母约束或导引，法律上属於她父母的“相关人士”。《海外投资法》明确规定，海外人士之相关人士投资，同样受该法规范。因此，绕了一大圈，你还是要申请许可。

Offences
违法处罚

    [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.

    她父母要求不申请批文直接交割，但卖方律师驳回这一要求。卖方律师通过地产经纪提醒她父母违法後果。买方律师的解释挻吓人：如果法律要求你申请批文而你不申请却自说自话地斩而不奏──一但罪名成立──对个人来说将面临不超过12个月的有期徒刑或不超过NZ$30万的罚款。

Criteria
批准标准

    [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].

    第16条详列测试标准，大致说来，申请人必须过两关：第一，要说明你的投资如何使纽西兰受益；第二，投资地之敏感特性如何得以保障。[批准标准详见上期文章，2007年2月刊]。

Consent Granted
申请批准了

    [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.

    爱丽丝父母最终还是想通了，委托律师将申请递交海外投资办公室（“海投办”是纽西兰土地局的一个分支机构。）审批时间通常在2到6周之间，但是这次批文下来比预料的快得多。於是万事俱备只等过户，但他们的律师却发现有人在房契上放上了一个“警示通告”，冻结了过户可能。

Caveat
“警示通告”[关於“警示通告”请见之前相关文章]

    [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 ….

她父母的律师拿到了“警示通告”的详细内容，发现是“粥”先生的律师替他注册的“警示通告”，其法律依据是：“上述警示通告人兹索求该契据所含之受益人权益，索求依据信托受益人之……”

    [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.

有的律师恐怕是不会简单的人话。爱丽丝父母的律师认为“粥”先生没有“警示通告权”并要求卖方律师启动法律程序撤销“警示通告”。因为只有产权注册人即卖方方能启用相关条款。但是，自从去年底双方谈判签约以来，地价如同夏天的气温一样每日攀升，因此卖方静观其变，却不肯帮助买家撤销那个“警示通告”。

    [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”

爱丽丝父母这次在纽西兰逗留实在太久了，农场地欲买不能，欲罢也不能。他们变得抓狂，拉着自己的律师说赶快赶快呀，想想办法呀。他们的律师於是答道：“那好吧，咱们上法庭”。

(to be continued)
（未完待续）

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。