Winter 2016 Newsletter

Flat mate or de facto partner?

The Property (Relationships) Act 1976 (“The Act”) provides an equal sharing presumption to relationship property for qualifying relationships. Qualifying relationships are marriages, civil unions or de facto relationships that are a minimum of three years in duration.

Section 2D of the Act defines a de facto relationship as a relationship between two persons who are both aged over 18 years, who “live together as a couple” (either heterosexual or same sex relationships) and are not married or in a civil union to one another.

If the parties are under the age of 18 years, the de facto relationship starts from the time the younger partner turns 18 years old.

In determining whether two persons are “living together as a couple”, all circumstances of the de facto relationship are to be taken into account including the matters recorded at section 2(D)(2), which are:

None of the above factors are essential to determine whether the parties are living together as a couple and the Court is entitled to attach such weight to any matter as is appropriate in the circumstances of that relationship.

Marriages and Civil Unions are legal processes, which require the parties to opt in from an agreed commencement date. However, there is no formal process that records the commencement date of de facto relationships. This can lead to the parties unknowingly entering into a legally defined relationship before they chose to declare their relationship (agree that their relationship is serious enough to commit to one another or tell friends and or family they are in a relationship) leading to the Act applying retrospectively, rather than from an agreed date.

This can be financially crippling to parties that may have amassed assets and property prior to the commencement of the de facto relationship as the partner may be entitled to half the value of those assets and property.

The ending of a de facto relationship is a question of fact and occurs either when one partner regards the relationship as over and has communicated that intent to the other partner or one partner dies.

Parties are also able to enter into contemporaneous relationships (marriage and de facto at the same time).

A remedy available to parties is that they are able to contract out of the terms of the Act by way of s21A of the Act. This type of agreement is called a Contracting Out Agreement or otherwise known as “pre-nup”.

If you find yourself in the above situation, gaining legal advice from a lawyer that deals with relationship property law could save you a lot of money in the future.

 

Property Purchase – Meth testing

Methamphetamine contamination has been described as being so prevalent that it could be worse than the leaky home crisis that affected New Zealand in the late 1990s and early 2000s.

Ministry of Health guidelines do not identify any safe level of methamphetamine contamination, and guidelines around the world vary. In New Zealand, decontamination is recommended if 0.5 micrograms (0.0005g) are detected in one 10cm by 10cm area. If detected, your local Council has powers under the Health Act 1956 to order cleansing of the property and could place a permanent requisition on your property file.

The chemicals used to cook Methamphetamine and the residue from its use can be highly toxic and can linger for a long time after being absorbed into housing materials. Health risks include burns, respiratory and neurological damage. Decontamination can require complete redecoration to the affected area, including replacement of carpets, curtains, and wall linings.

 

Reform – Health and Safety at Work Act 2015

The Health and Safety at Work Act 2015 (“the Act”) came into force on 4 April 2016. This Act has significant implications for workers and business owners alike, reforming New Zealand’s health and safety system.

The Act introduces the concept of a “person conducting a business or undertaking” (“PCBU”) and sets out a wide range of PCBU obligations – it is important to note that the PCBU concept also applies to entities running businesses, such as companies. The Act also imposes a positive duty on officers of a PCBU (for example a

director of a company or partner in a partnership) to exercise due diligence in ensuring compliance with health and safety regulations, failing which, officers can be personally liable.

For workers, there is an increased emphasis on worker participation and consultation with PCBUs, as well as an obligation on workers to take reasonable care for their own health and safety and not to affect the health and safety of others.

Buildings and Warrants of Fitness

Many commercial and multi-residential buildings require an annual building warrant of fitness (BWOF) to prove that the building’s safety systems have been maintained and inspected. The BWOF is obtained by the building owner and provided to the Council, and must be displayed in the building in a visible place at all times.

Building Warrant of Fitness

The name “Building Warrant of Fitness” can be misleading, because there is no obligation to inspect the building as a whole, and the document makes no statement as to the fitness of the building itself. Rather, it refers only to procedures listed in the compliance schedule that relate to specified systems in the building.

Compliance Schedule

The Building Act 2004 (“the Act”) provides that a building other than a single household unit requires a compliance schedule if it has one or more specified systems. This means most homes will be exempt, but any building that has more than one household (such as an apartment or townhouse) or any building that includes other non-residential uses must have a compliance schedule and annual BWOF, if it contains a specified system. The compliance schedule will state and describe each of the specified systems, state the performance standards, and describe the inspection, maintenance and reporting procedures to be followed in respect of each of those specified systems.

Specified System

A specified system is a system or feature contained in or attached to the building which contributes to the proper functioning of the building, and has been declared by the Governor General to be a specified system for the purposes of the Act. Specified systems include (amongst other things): fire suppression systems (sprinklers); automatic or manual emergency warning systems for fire or other dangers (alarms); electromagnetic automatic doors or windows; emergency lights; riser mains for use by fire services; lifts, escalators and travellators; air conditioning systems; smoke control systems; cable cars; and in some circumstances that typically relate to fire escape, they include smoke separations; fire separations; final exits and communication signs.

Independently Qualified Person

To complete the BWOF an owner will need to obtain certificates of compliance from an independently qualified person who can certify that the inspection, maintenance, and reporting procedures stated in the compliance schedule have been fully complied with during the previous 12 months. Typically this will include certification that any remedial action that may have been needed has been completed. Larger buildings may require several certificates for different specified systems. In addition to these annual inspections, some owners may still be required to carry out minor inspections that are specified to occur daily, weekly or monthly.

Penalties

For newer buildings, compliance schedules are typically issued as part of the building consent process, however all buildings must still comply. If a building requires a compliance schedule and does not have one, the owner could be liable for a fine up to $20,000, and further fines of $2,000 per day while that offence continues. If a building owner fails to obtain a required BWOF they could be liable for a fine of up to $20,000.

Finally, it is the building owner’s continuing obligation to ensure that each of the specified systems is performing and will continue to perform.

 

Snippets

McLeods Staff

Congratulations and all the best to Emma Webb, our Practice Manager, who is about to go on maternity leave for the birth of her second child, a brother for her daughter Paige (and we know she will be eager to re-join us at the end of the year).

We are lucky to have Law Clerk Sacha Yanke re-join us to cover Emma’s maternity leave.

Our Law Clerk Eimear Nelley  will also be returning to us part-time during this period.

All information in this newsletter is to the best of the authors’ knowledge true and accurate. No liability is assumed by the authors, or publishers for any losses suffered by any person relying directly or indirectly upon this newsletter. It is recommended that clients should consult a senior representative of the firm before acting upon this information.

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McLeods Lawyers — 21 Hobson Avenue, Kerikeri, Bay of Islands, New Zealand — Phone +64 9 407 0170 — Email law@mcleods.co.nz

The information on this site is not comprehensive legal advice. Please contact us for advice and information suited to your needs.