If you are buying a section to build on you will know there are many things to consider: where to buy? is it the right section for your needs? what is the neighbourhood like – are there schools, shops and public transport nearby? what are the local council plans for future development in the area? how does the slope of the section affect earthworks and building costs? is it part of a subdivision or standalone section? Whilst a Developer will generally be responsible for providing legal access for power, water, stormwater/sewer and telecommunications to the boundary of a lot, you will be responsible for the costs inside of the lot. You will need to consider how to finance the section and/or your new build, inspecting the section, and to what level of legal due diligence is required. Often for multi-lot subdivisions, you will be issued with an Information Pack that may contain the Approved Plans, Sale and Purchase Agreement, Resource Consent and any Covenants to name a few. It can seem like a lot of paperwork to review. This is where we can help you, making sure your interests are protected. We review and advise on: Certificate of Title – who has the legal ownership of the section, along with any rights and restrictions registered on the title for example, covenants, easements. Commonly there will be new easements and covenants to be granted as part of the subdivision process. This could affect where you can build on the section. Commonly the sections are sold off the plan and are still subject to survey (i.e. the size or shape of the section could change). Under the Agreement for Sale and Purchase, you will generally be deemed to have accepted all current and new easements and covenants affecting the title. Agreement for Sale and Purchase – there will usually be numerous amendments made to the standard form of an Agreement for Sale and Purchase and tailored further terms of sale attached. Proposed Land Covenants – reviewing whether there will be any restrictions registered against the land. Common restrictions are no relocatable dwellings, when building has to commence, approval of plans by the Developer prior to applying for building consent, the types of trees that can be planted, and the height they can grow to, the type of pets you can and cannot keep, even stipulating the level of maintenance required – no weeds allowed. Land suitability – are there any other hazards associated with the land eg is the area prone to flooding? Before signing any purchase agreement or for further information contact us or call (03) 477 8080

A person losing their mental capacity can look like many different things. Essentially it means that they are no longer competent to manage their own affairs. Since most trustee decisions have to be unanimous, a trustee losing their mental capacity has the effect of preventing the (remaining) trustees from being able to legally function. Historically, this has given rise to all sorts of problems – particularly with regard to trusts that own real estate. The following scenario is common: Jack*, Jill* and their daughter Mary* were the trustees of the Jack & Jill Family Trust. The Trust owned the family home where Jack and Jill lived. Jack’s mental condition had deteriorated to the point where he required a level of care that was now beyond Jill’s ability to provide. Jill wanted the trustees to sell the family home and help both Jack and herself move into more suitable accommodation. Jill and Mary were worried that Jack’s mental incapacity might give rise to some legal difficulties. Difficulties which historically have often been quite a challenge for trustees to overcome. At Lucas and Lucas we guided the family through the process of: 1. Retiring Jack as a trustee and updating the Trust’s property records; 2. Selling the family home; and 3. Making some of the proceeds available to assist Jack and Jill with moving into a retirement village. * Names have been changed. For further information contact us or call (03) 477 8080

Let us answer these very briefly. What does the new trusts legislation require? In simple terms, the new Trusts Act requires trustees to turn their minds to giving beneficiaries ‘basic trust information’. We have been using a document format to help people meet and record their compliance obligations. Is my trust deed okay? It’s a good idea to check that the mechanics in your trust deed still work the way you would intend. One issue that often comes up is whether the circle of beneficiaries is too wide. Should the trust include your son in law? Or your ex daughter in law? If a remote beneficiary is alerted to the fact that there is a trust, he or she may be encouraged to ask questions. What will happen if a current trustee loses capacity? The new legislation introduces some changes in that regard. What do I do about gifting? It can be undesirable to leave large balances owing back to your estate. When did you last check your gifting policy? Is it still worthwhile having a trust? For some, there are very obvious reasons why keeping the trust going makes sense. For others, it is not so simple. The new emphasis on beneficiary rights is making some trustees feel uncomfortable. A trust review can help sort these things out. Is your trust still effective for the purposes that matter most to you? This is a particularly important question if you are in business, or you are relying on the trust for relationship property purposes. Things change. Do you need to attend to some estate planning? It is amazing how many trusts are set up without any clear vision about what will happen after the settlors die. At the very least you should have some recorded wishes. For further information contact us or call (03) 477 8080

With much written and discussed on the Trusts Act 2019 the spotlight on family trusts is an excellent opportunity to take look at your trust(s), and whether they are still serving your interests. But what does a trust review look like? This will depend on how much time has passed and what has happened during that time. We take you through a checklist, and discuss how the trust is meeting your current requirements. Some things to think about include: The trustees of the trust Who are the current trustees? Has the appointment (and retirement/removal) of trustees been adequately documented? Are all of the trust’s assets registered in the names of the current trustees? Do all of the trustees have a copy of the Trust Deed? Have they read it? The beneficiaries of the trust Who are the beneficiaries? Do all of the beneficiaries (who are of age) know that the Trust exists; and that they are a beneficiary? Trustee succession Do all of the trustees have (and are they likely to continue having) mental capacity? Would it be sensible for one or more of the trustees to retire? Who is the Appointor – i.e. the person with the power to appoint (and if necessary, remove) trustees? Does the Appointor have (and are they likely to continue having) mental capacity? Is the legal machinery surrounding the appointment and removal trustees sufficient? Financial considerations What is the Trust’s asset vs liability position? Has the Trust earned any income during the previous financial year? Is there any outstanding gifting to be done? Are there any redundant mortgage instruments registered against Trust properties that could be discharged? Are the trustees currently guaranteeing any lending? Are the Trust’s current compliance costs justified? For further information contact us or call (03) 477 8080

Just as a motor vehicle should be subject to regular tune-ups, so too a trust should be subject to review from time to time. This means considering the following sorts of questions: Are the trustees and assets of the Trust properly documented? Do all of the trustees have a copy of the Trust Deed, and have they read it? Are the trustees fully aware of the extent (and limitations) of their powers? Would it be sensible for any of the trustees to retire, and if so, should others be appointed)? Is the Trust Deed still fit for purpose, or does it require modification? Do all of the beneficiaries know that they are beneficiaries? What is the Trust’s financial position and are all of the Trust’s assets properly accounted for? Is there any outstanding gifting to be done? Does the Trust still effectively serving a useful purpose? Is the Trust fully compliant with the requirements of the Trusts Act 2019? A regular review will keep a trust’s legal machinery in good order, which will in turn keep it running smoothly. For further information contact us or call (03) 477 8080

The Trusts Act 2019 came into force on 30 January 2021. These legal changes mean that the reasons for retaining a trust may now be marginal. For these clients it would be right to be thinking has my Trust become obsolete? While the return on capital is less, the administrative and compliance costs of trusts has grown. It may be time to ask if your trust has served its purpose and should be dissolved. By the disclosure rules of the Trusts Act 2019 and other laws we know that in the future there will be more focus on trustees’ performance. Anti-Money Laundering procedures flag family trusts for extra attention. Professional trustees demand more paper reporting and more communication with clients’ families. Cases indicate that family members who live on or work on trust property may have rights never before dreamed of. Families by definition, change in the generation since their trusts were settled. Everywhere there is more administrative cost, more record keeping, and more compliance. If you have a trust, ask yourself: Do you absolutely know that the trust settlement you made will do the job for your family now and into the future? Who will run the trust and will they do this properly? For further information contact us or call (03) 477 8080

I** In submission period – closing 4 March 2021 ** The Dunedin City Council is currently considering a variation to the Second Generation Dunedin City District Plan (“2GP”) with a view to making possible the construction of additional residential housing. See the Variation 2 – Summary of Changes here. It is estimated that the proposed rule changes could facilitate the construction of approximately 2,500 additional homes across Dunedin. This would be over and above the 3,400 new homes that the district plan already anticipates will be constructed over the next 10 years. The changes being proposed are, broadly speaking, as follows: 1. Zoning changes for some sites, which will give rise to: New greenfield sites (i.e. new building sites) for development in areas that were previously zoned rural or rural residential; and More areas of medium-density zoning (where the density of housing can be increased). 2. Rule changes for most of suburban Dunedin that are intended to: Make better provision for social housing by defining it as a standard residential activity; Remove the restrictions on who can live in family flats, and introducing a maximum gross floor area of 80m2; Allow smaller site sizes and provide for duplexes (or two units) to be housed within a single building (in some zones); Create more flexibility for development, through changes such as making the number of sites that can be undersized unlimited provided the other conditions are met, rather than the current limit of one undersized site. Improve the manner in which 2GP manages the development of areas rezoned for new houses to encourage good urban design and well-managed infrastructure. If you concerned about what these changes might mean for your property, or alternatively are in favour of the proposed variations, the link for writing a submission is here.

The Trusts Act 2019 came into force on 30 January 2021. If you are a trustee you already know that you have few rights and that trust law is there to protect beneficiaries. Reading the new Act, you realise it’s all about beneficiaries. Thus, from next year information must be given to beneficiaries so they can understand what the trust owns and what each trustee is doing. Beneficiaries will be better able to measure this against what they should be doing, and be better able to make trustees act properly. Giving information to families and others will be an unforeseen burden for some. Many trusts were settled when family breakups were less common, when people still accepted that parents knew best, and when the beneficiaries were infants. But if you have a trust and still think about the property as yours, you may see the sharing of trust documents and financials as an invitation to others to talk about your affairs. That is the point. The trust property is not yours, it’s held by you as trustee precisely for the beneficiaries, not just for yourself. The new Act is about transparency. Beneficiaries (with some exceptions) should know what is owned by the Trust and how it is being administered. If you have any disquiet about the new obligations or for further information contact us or call (03) 477 8080

For some trustees the new disclosure obligations from 30 January 2021 will not be a surprise. Others may need to consider if they are comfortable as trustees with the new obligations. Each duty is personal to each trustee, whether the beneficiaries are your own children or not. Your personal obligations include looking after trust property, insurance, accounting, knowing who the beneficiaries are, and considering their needs. As a trustee, you are required to know what the trust is up to, and everything your co-trustees are doing. If its your own family it’s not about checking that the trust still fits your original purpose – it’s about whether it serves the interests of all the beneficiaries. New Zealanders traditionally settled trusts to protect their families and lifestyles that their property supported; business people to limit risk to business assets, families to protect a home against expensive rest home costs, and others to stop assets being sold to meet demands perhaps of an adult child’s partner. Some legal and family changes argue compellingly for having or retaining a trust. But, ominously, it is growing area of law. The Courts are scrutinising trusts as never before, and judges comments in cases we have presented disclose a willingness to make highly intrusive rulings on trustees. It is not too soon to call us if your trust has not been reviewed in the last 10 years, or your circumstances have changed in that time. Call us and we can talk through these things including what the new Act may mean for you. For further information contact us or call (03) 477 8080

Separating is difficult. The process involved in reaching an agreement about the division of your relationship property can then take some time to work through, depending on the circumstances of your situation. At Lucas and Lucas, we can help you with the formal process of dividing your relationship property. Firstly, think about all of the items (assets & liabilities/debts) which you and your partner have accumulated during your time together. The starting point from a statutory framework, and legal basis, is that relationship property is divided on a 50/50 split, unless the parties reach an agreement otherwise. Different assets and/or debts can be set off against one-another on a valuation basis to achieve the equal division on a dollar basis. This may involve one party making a lump-sum “adjustment” payment to the other at the conclusion, or settlement, of an Agreement. A written agreement about how your relationship property is divided provides certainty going forward, and defines those assets which will be your separate property. The agreement will also set how debts may be repaid and/or a compensatory adjustment payment. The following list is a general example of the main items couples may own together: Family Home (valuation or ‘agreed property value’) Mortgage/loan amount still owing on property A business which one or both parties may own and/or operate – this may involve i. Limited liability company – ii. Shares owned by partners iii. Partnership iv. Sole trader business Valuation for family vehicles Personal chattels & household items Other ‘vehicles’ – boats, caravan, motorbikes, etc. Kiwisaver amounts Investments (i.e shares) Other lump sum cash pay-outs Personal savings Joint bank accounts and/or separate bank accounts Credit cards i. Personal names and/or ii. Joint CC Other debts e.g higher purchase, laybuys etc. Generally speaking, a schedule of your assets and the values given to these are balanced against a deduction for the debts owed. The difference between the two is your ‘Equity’ and the statutory entitlement is for to this to be equally divided. However, there can be exceptions to this and there may be special circumstances which permit entitlements or compensatory payments for eligible parties. If you are considering a separation, require independent advice, or have any questions about the next steps to formalise an arrangement, call us on 03 477 8080.

For couples contemplating a separation, most people understand the starting point for a division of relationship property is a 50/50 equal split. The Property (Relationships) Act 1976 details how the property of spouses, de facto and civil union partners, is divided at the end of a relationship. The Act recognises the equal contributions of both partners to a relationship, and the general presumption is that property is divided equally. However, there are often exceptions, special circumstances, allowances, or departures from the legislation which individuals may be eligible for, or decide they wish to depart from the standard entitlements agreement about. Something people are often unaware of, is that for an Agreement to be valid and binding between couples, both parties must obtain legal advice independent of the other from separate lawyers to ensure the effects and implications of the Agreement were explained to them. The respective lawyers must also then witness signatures and certify they have explained the effects and implications of the Agreement to each party. If you are considering a separation, require independent advice, or have any questions about the next steps to formalise an arrangement, call us on 03 477 8080.

It is easy to put off one of the most important documents that you will make in your lifetime – your Will. You may already have a Will in place but when was the last time you reviewed it? Does it still benefit the correct people in your life, or have your wishes or financial position simply changed over time? This may be the time to revisit your existing Will and think about any changes that may be required. We suggest that Wills are reviewed every 5-10 years, and particularly following a birth, marriage, death or dissolution of marriage. If your Will no longer reflects your wishes we will help you to amend your Will or to create a new Will when the existing one is not up to date. We are happy to talk through your requirements and supply you with our Wills questionnaire that you can prepare in advance of any conversation that we have with you. This will help you think about the various requirements of making a Will. It doesn’t need to be a complicated document but there are certain things that you should think carefully about. Some laws allow your family (de facto partners, partners (civil union) or spouse (married), children and others) to bring a claim against your Estate. These include: the Property (Relationships) Act 1976 which governs relationship property; the Family Protection Act 1955 which allows claims to be brought when it is believed that adequate provision has not been made; and the Law Reform (Testamentary Promises) Act 1949 which enables someone to seek provision from an estate if a deceased promised to reward them for a service undertaken while they were alive, but failed to record this in their Will). Whilst a Family Trust is not as common as they once were, special consideration needs to be given to ensure the longevity of a Family Trust (if this is what is intended). We will discuss this further with you. This is a good time to cross off something that may have been on your mind for some time, giving you a little peace of mind. For further information contact us or call (03) 477 8080