Our property lawyers can give valuable advice where purchasers need to raise a loan, whether it be to complete the purchase of a property, to assist with setting up a new business or to refinance existing commitments.
Once finance has been arranged, the lender (usually a bank) typically instructs us as your lawyers to prepare loan and security documents (for example a mortgage or a guarantee) and to explain to you the terms of the loan and the effect of the security documents.
We can also give independent advice on the terms of loans and newer aspects such as the effect of having a "revolving credit" mortgage registered against a title. This type of lending can secure not only an initial loan but also any subsequent lending that you may require. We may also be able to assist in negotiations or varying the terms of any particular lending offer.
If a guarantor is involved, the guarantor should seek independent legal advice from another lawyer (in a different firm) about their obligations. A trustee should take advice in respect of liability under any loan documents or guarantees.
Property transactions frequently require legal attention. These may include the following issues:
Builders’ or engineer’s reports. We can advise whether to insert a condition in the contract making the purchase subject to the purchaser being satisfied with the results of an expert report.
A Land Information Management (LIM) report may be required. This is provided by the local authority and will give information on zoning and all matters over which the authority has jurisdiction such as building consents that have been obtained for any additions, alterations or installations, e.g. wood burners.
Issues around legal title to land. Legal titles can be complex, particularly those which are cross lease or unit title. Our property lawyers are skilled and knowledgable about the different forms of title and how they involve owners in rights and obligations.
Clients contemplating purchasing an apartment in a complex need to consult their lawyer before committing unconditionally to an agreement to purchase.
Correctly specifying chattels in the agreement for sale and purchase — failure to include chattels can result in disputes. It is also important to check that chattels are not the subject of a hire purchase agreement or other security.
Where there is more than one purchaser we can advise about various multi-ownership issues including the implications of ownership (normally joint tenancy or tenancy in common). It is especially important to seek advice in the case of de facto relationships concerning issues which may arise under the Property (Relationships) Act,and to make sure clauses in wills match the property ownership.
Tenanted properties raise a number of issues, e.g. where the tenancy is unexpired but the purchaser wants to move into the house on settlement.
Our Property lawyers are qualified to advise in all aspects of property law. In addition we can advise regarding making a will, preparing an enduring power of attorney, setting up a family trust, or the implications of the Property (Relationships) Act.
ESTATES AND WILLS
When you die, someone has to administer your estate and make sure that your assets (the things you own) get dealt with as appropriate. Your will should appoint executors, who will apply to the High Court for Probate of your will. The Probate confirms that they have the authority to deal with your assets. It is the executors, together with the estate’s lawyer, who will arrange the funeral (if this has not been done by relatives), realise the assets, pay the debts of the estate and finally distribute the estate to the beneficiaries named in the will.
If you have no will, and die intestate, your property will be administered and distributed as prescribed by the Administration Act. Usually a surviving spouse or partner will inherit your property, with children, parents, brothers and sisters, and so on, in accordance with the table in the Act. The administrator of an intestate estate must apply to the High Court for a grant of Letters of Administration. The administrator’s duties are similar to those of the executors.
Your executors or administrators must be conscious of the possibility of someone making a claim against your estate – by a spouse or partner under the Property (Relationships) Act, by children under the Family Protection Act, or by anyone who can prove you promised to leave them a bequest as a reward for services done, under the Law Reform (Testamentary Promises) Act. The executors or administrators will need legal advice for this.
ASSET PLANNING - FAMILY TRUSTS
Many people set up a family trust to protect their assets. The usual reasons are:
to pass assets from one generation to the next.
to control spendthrift ways of children or grandchildren, by locking in capital, but allowing access to income.
to protect personal assets if you are self employed — can give protection from creditors by ring-fencing personal assets from claim
to ensure that your assets are as well preserved as possible if you have to go into a rest home (rest home subsidy entitlement)
to make it more difficult for your child’s spouse or partner to claim a share of his or her inheritance
to minimise (not eliminate) Relationship Property Claims
to manage assets for a handicapped child
You will need to appoint trustees to look after the assets of the trust. We prefer a conservative approach for this, and recommend that you have at least one independent trustee (i.e. a person who is not a beneficiary of the trust). You should have at least two trustees, so that there can be continuity – if one dies, the survivor or you (if you are the appointor) can appoint a new trustee as a replacement. The beneficiaries are usually discretionary, and will include yourself; your spouse or partner; your children and grandchildren; perhaps other relatives particularly if your family is small and there is a possibility that you could all be killed in an accident; and possibly charitable organisations.
A trust can be set up to last for 80 years, but in practice many trusts will be wound up and distributed to children when the parents, who set up the trust, have died. A trust can run a business and own income producing investments, in which case you will probably need an accountant to make sure that everything is done correctly. However, many trusts just own the house in which the person who has set up the trust resides.
Companies that meet certain criteria can act as trustees, but we suggest you talk to us before making a decision.
RESOURCE MANAGEMENT SERVICES
The RMA dictates what you can do on your land, or in your house and buildings, and WCM Legal can provide the specialist knowledge and experience to manage the resource management and environmental law aspects of a wide range of activities.
Whether you’ll need a resource consent or not, and what type of consent you’ll need, will depend on the type of activity you are proposing and how it is classified in the Council’s plan. The introduction of a new Combined District Plan covering the three Wairarapa district councils has meant a number of changes to resource consent requirements in the region and we recommend seeking advice on your legal requirements.
If the Council decides that the effects of a proposed activity are more than minor, or that it will affect other people, you will have a chance to have your say. While consultation is not always a mandatory requirement under the RMA it can be useful to talk to interested or potentially affected parties when preparing an application, and we can guide you through this.
Land designations also affect what activities you can carry out. Areas of land can be designated for use by authorities as network utilities or public works, for example. This means that works can be carried out without the subsequent need to comply with district plan rules. The process for designating land is similar to a resource consent application and individuals, or their lawyers, can be involved in the process and have their say.
Often these applications are advertised in the Public Notices columns of the newspaper. You should read these notices and if you think they may apply to you, or affect you, give us a call.
WCM Legal has developed expertise in advising clients in various commercial enterprises, including transactional work involving commercial property, as well as mergers of commercial ventures. Projects we have advised on range from commercial joint ventures for mid-sized businesses in Wellington and the Wairarapa, to very large-scale commercial property and company transactions in Wellington and Auckland.
We can also help with basic requirements such as company registration, issues around company taxation, partnerships, financing arrangements and other tasks often inherent in setting up or buying a business.
With our wide range of experience as general legal practitioners, combined with our knowledge of commercial regulations and the services of specialist advisors where required, we are able to provide cost-effective solutions to many legal challenges.
A significant amount of our work in this area is Court-appointed, where our first role is to fully investigate all the circumstances, then report back to the Court with recommendations. Our staff solicitor Virginia Pearson specialises in family law. If things such as guardianship disputes cannot be settled by mediation then we have to resort to a Court decision.
Sometimes marriages have to be dissolved. We can arrange conciliation, protect our client’s rights to matrimonial property and advise about any welfare benefits to which parties are entitled. We have dealt with many personal, family business and property affairs and transactions.
We accept legal aid cases subject to the usual criteria laid down by the Legal Services Agency.
WCM Legal are experienced in all matters concerning Territorial Local Authorities’ (District Council) legislation, rules and regulations and have considerable experience both in working for local authorities and in representing clients in dealings with their local Council.
Our work in this area includes all aspects of specialist advice, particularly to the Carterton District Council.
Our work in the local government area has also included acting as the prosecuting authority for many Councils in such cases as breaches of resource consents and dog laws, and in Fish & Game prosecutions.
In addition we provide advice and practical assistance associated with roading legalisation, infrastructural development, reserves and the purchase or sale of Council owned property.
WCM Legal has extensive experience in defending a wide range of criminal and traffic related charges. We can also assist with associated matters such as limited (work) licences, appeals, log book offences, and transport licensing matters.
Our Senior Associate Jock Blathwayt has been the mainstay of the firm’s Court practice for many years and has acted for defendants in many trials. He is based in our Carterton office, but spends a lot of time in Court at Masterton, Wellington and Palmerston North.
He specialises in criminal proceedings as well as litigation at all levels, including the Court of Appeal.
Our criminal section is also supported by staff solicitor Virginia Pearson, particularly in respect of limited licences.
DISPUTE RESOLUTIONS, CIVIL LITIGATION AND MEDIATION
Disputes invariably generate stress and strain for those involved. What is needed is practical, straightforward advice, focussed on achieving results for the client. Our principals and solicitors concentrate on making themselves available to look in an independent way at our clients’ needs and achieve pragmatic, sensible solutions.
Where possible we encourage alternative dispute resolutions, including mediation, which can be an effective tool in resolving disputes.
For those disputes that cannot be resolved by that process, we have the experience and people to conduct civil litigation at both District and High Court levels. Where necessary, we instruct specialist Counsel and we have developed special relationships with experienced commercial barristers in Wellington to whom we can refer where necessary. Through these relationships, we are able to provide specialist advice to clients at a fraction of the cost of employing specialist litigators in Wellington , Auckland or Christchurch.
The origins of the office of Notary Public arose in Ancient Rome. Public officials acted as scribes, and rose in rank from being mere recorders of facts, meetings and judicial proceedings, to a learned profession. At first, in England, Notaries were appointed by the Pope, but in 1279 the Pope authorised the Archbishop of Canterbury to appoint Notaries in that country. This is still the position today, and all Notaries in New Zealand hold a warrant issued and signed by the Archbishop of Canterbury.
A Notary can witness and certify signatures, declare the law of New Zealand for use in overseas jurisdictions, and certify documents as correct. There are also some curious functions, such as completing Ships Protests, about goods damaged in transit – not common in the Wairarapa.
We are experienced in advising both employers and employees and in achieving the best results for them.
Our experience has included representing a large number of both employers and employees in personal grievance disputes, the vast majority of which are settled in the context of a mediator’s settlement. This can be undertaken in a mediated meeting convened by the Mediation Service of the Department of Labour. In our experience upwards of 95% of such disputes can be satisfactorily resolved in the context of a mediated meeting.
For those rare disputes that cannot be resolved by negotiation and mediation, then we may advise taking such cases to the Employment Relations Authority, where we can represent clients; we have also taken cases to the Employment Court on Appeal.
We can also provide sensible and practical advice in the drafting of employment agreements for employers, and advising an appropriate resolution processes. Our focus is client orientated and focused on achieving practical and cost-effective solutions.
If you need advice or assistance in debt recovery, or advice on how to avoid bad debt situations in the first place, we’re happy to assist.
Sometimes, debt collection involves more complex transactions, where advice is required on the preparation and registering of securities.
If outstanding debts cannot be resolved and court action is required, we are familiar with the required preparation and filing of proceedings in the District and High Court.
POWERS OF ATTORNEY
A Power of Attorney enables someone else to look after your affairs. There are two types – an ordinary power of attorney, and an enduring power of attorney.
An ordinary power of attorney enables someone to act for you if you don’t want to act yourself, or are unable to. Usually this type is used if you are going overseas, and enables the attorney to act for you, manage your bank account, sign documents, etc while you are away. This type of power of attorney only remains valid while you have full legal capacity.
An enduring power of attorney enables the attorney to act for you if you become mentally incapable. There are two types of enduring power of attorney – one relates to property and one to personal care and welfare.
The property enduring power of attorney can come into effect immediately and continue in effect if you later become mentally incapable, or you can choose to have it come into effect only if you become mentally incapable. It can relate to all your property, or can be limited to apply only to some of your property.
The enduring power of attorney as to personal care and welfare will enable someone to make decisions as to your care and treatment in a rest home or hospital.
At the same time as you arrange a personal care and welfare enduring power of attorney, you may also wish to talk to us about a living will. Although a living will has no legal effect, it is a good indication to your welfare attorney and doctors just what sort of treatment you would want, for example, if you were on a life support system.