Good Business: Helping your Children into their First Home


Helping your children into their first home

In the current lending environment, banks seem to be requiring higher deposits from first home buyers. This, coupled with how quickly house prices have increased in recent times, means that houses have become unaffordable for many first home buyers. This often means that the “Bank of Mum and Dad” is asked to assist their children with a loan application.

There are a variety of ways this can be done, three of which are outlined briefly below:

Gift

A gift is a straightforward way to instantly increase your child’s deposit.

A gift does not have any repayment requirement and the gifted money becomes the recipient’s property outright. This is not to say that a reciprocal gift couldn’t be made at a later date but that would be solely at the discretion of the gift recipient (i.e. the child).

If you are gifting to your child and your child is in a relationship/purchasing the property with their partner, they should certainly consider entering into a relationship property (contracting out) agreement in order to retain the value of the gift as their ‘separate property’.

There can be inadvertent side effects with gifting where the amount of the gift exceeds $27,000.00 and a conversation with an accountant is recommended prior to signing a gifting certificate as this cannot be re-documented at a later date.

A gift is irrevocable and therefore needs to be carefully considered before proceeding.

Loan repayable on sale

Unlike a gift, funds can be advanced on the basis that they must be repaid at some future date.

Generally speaking, the banks are cautious with private lending arrangements, especially where interest may be charged by the lender.

In some circumstances the bank may be comfortable with a loan only if it is interest free and not repayable until the property is sold.

If you wish to use this option, please be aware that you will need to seek approval from the bank as early as possible in the process, to ensure there are no issues down the track.

Guarantor

Where servicing of the lending is not a problem and the application just needs some additional security to satisfy the bank’s requirements, a guarantee could be given to the bank in respect of the child’s obligations.

The nature of a guarantee means that you become liable to the bank for the obligations of the borrower. Guarantees can be limited or unlimited. If your liability is unlimited, you are effectively writing a blank cheque to the bank to cover all of the borrower’s obligations. You can ask the bank to limit your liability under the guarantee (which the bank may or may not agree to), and this is highly recommended.

Providing a guarantee is inherently risky and could ultimately result in the bank pursuing you for your child’s debts (which could involve forcing the sale of your home). Therefore, you need to be very cautious if requested to provide a guarantee, and if you decide to give one, you should seek to limit your potential liability as much as possible.

The above are some of the common methods but there are always other potential creative options.
Whichever approach is taken, there is no substitute for seeking early legal and accounting advice and discussing with your bank/mortgage advisor. Where there is sufficient time afforded, all can work together to create the best solution for your individual circumstances.

 

If you have any questions, please contact us for an appointment T: 06 3490090 or email jais@horsleychristie.co.nz. You can also visit our website at www.horsleychristie.co.nz

 

Jai Stephens LLB BCom (Finance)
SENIOR SOLICITOR

 

Disclaimer: This publication should not be construed or acted on as legal advice. It is brief and general in nature. Specific advice should be sought.

Good Business: The Ins and Outs of Holiday Pay in New Zealand

The Holidays Act 2003 (“Act”) can be a complicated piece of legislation. Many employers still struggle to understand what they need to pay their employees under the nearly 20-year-old Act. Below I tackle some of our commonly asked questions employers have when dealing with the Act.

How many public holidays are there in New Zealand?

There are 12 public holidays recognised in New Zealand; Christmas Day, Boxing Day, New Year’s Day, 2 January, Waitangi Day, Good Friday, Easter Monday, ANZAC Day, the birthday of the reigning Sovereign (observed on the first Monday in June), Te Rā Aro ki a Matariki/Matariki Observance Day, Labour Day (being the fourth Monday in October) and the day of the anniversary of a province or the day locally observed as that day.

(Where any of the public holidays above fall on the weekend, the Act permits the Holiday to be recognised on the following Monday.)

What happens if an employee does not work on the public holiday?

If an employee does not work on any part of the public holiday in question and they would usually work on that day, the employee is entitled to be paid their usual wage or salary for that day, being at their relevant daily pay or average daily pay (whichever is greater). The employee is not entitled to an alternative holiday.

What happens if an employee does work on the public holiday?

If an employee works on any part of the public holiday and they would usually work on that day, in addition to being paid their usual wage or salary, the employee is entitled to receive time and a half for the hours/time they actually worked on that day. On top of that, the employee is also entitled to an alternative holiday.

Note: Collective Employment Agreements (“CEA”) or Individual Employment Agreements (“IEA”) can provide for extra payment on top of the employee’s entitlement under the Act for working on a public holiday

What happens if an employee is “on-call” for any part of the public holiday?

If an employee is “on-call” for any part of a public holiday, their entitlement under the Act may change. The first hurdle is understanding if the employee being “on-call” is classified as work. Unfortunately, there is no straight forward answer. The Employment Relations Authority and the Courts have given us some guidance, to an extent.

Member Doyle in Sanderson v South Canterbury District Health Board, [2017] NZERA Christchurch 37 said at paragraph 39:

The factors to be considered when assessing what constitutes “work” were stated by the Employment Court in Idea Services Ltd v Dixon and confirmed by the Court of Appeal in Idea Services Ltd v Philip William Dixon. The three factors are:

(a) The constraints placed on the freedom an employee would otherwise have to do as she or he pleases;

(b) The nature and extent of the responsibilities placed on an employee; and

(c) The benefit to the employer of having an employee perform the role.

The Court of Appeal in Idea Services Ltd v Philip William Dixon [2011] NZCA 14 stated at paragraph 8:

“The greater the degree or extent to which each factor applied (ie the greater the constraints, the greater the responsibility, the greater the benefit to the employer), the more likely it was that the activity in question ought to be regarded as work … ”

And further at paragraph 12:

“ … that there are considerable differences between a typical on-call doctor, who is under relatively few constraints, and someone like Mr Dixon while on a sleepover. For instance, Mr Dixon, unlike an on-call doctor, is prevented from leaving his workplace and from seeing friends or family without his employer’s permission. He must be constantly available to anyone who might want to see him in his (compulsorily unlocked) room.”

What if “on-call” is classified as work?

An employee is entitled to time and half for the period that the employee is “on-call” during the public holiday. The employee is also entitled to an alternative holiday.

What if “on-call” is not classified as work?

An employee is only entitled to an alternative holiday “if the nature of the restriction imposed by the on call condition on an employee’s freedom of action is such that, for all practical purposes, an employee has not had a whole holiday.” (Section 59 of the Act). The employee must still be paid in accordance with the CEA or IEA for being “on-call”.

Note: The Employment Relations Act 2000 requires “availability provisions” to be recorded in the relevant employment agreement.

If you have any questions, please contact us for an appointment T:06 349 0090 or email mattb@horsleychristie.co.nz.

Matt Bouzaid LLB Bcom

SOLICITOR

 

Disclaimer: This publication should not be construed or acted on as legal advice. It is brief and general in nature. Specific advice should be sought.

 

Good Business: Director Duties and the Risk of Personal Liability for Directors

Whether you are a first-time director of a newly formed start-up, or a seasoned director sitting on multiple boards, it can be useful to regularly remind yourself of your director duties. Why is fulfilling your director duties so important? If you breach your duties and the company is placed into liquidation, you risk being held personally liable to repay funds, or to contribute an amount of money to the assets of the company.

By way of summary, as a director you have a range of specific legal duties, including to:
• act in good faith and what you believe to be the best interests of the Company (which includes an obligation to consider the interests of all creditors);
• use your powers for a proper purpose;
• follow the Companies Act and your constitution;
• be able to meet your commitments;
• trade in a manner that protects your creditors; and
• use company information appropriately.

Because these duties are active, rather than passive, it is impossible to be a ‘silent’ or ‘sleeping’ director. All directors are responsible for fulfilling these duties, which means that you cannot simply delegate duties to your co-directors.

In a 2020 decision (Debut Homes Limited v Cooper) , the Supreme Court clearly spelt out that that in insolvency, or near-insolvency situations, it is not acceptable to simply try to “trade through” in the belief that this will improve the Company’s financial position. Instead, directors must ensure they use the formal (or informal) mechanisms provided for in the Companies Act 1993 (“Act”) to address their financial predicament. If directors fail to meet their duties, they face a very real risk of incurring personal liability. Where there are no prospects of a company returning to solvency, it makes no difference that a director honestly thinks some of the creditors will be better off by continuing trading. Directors need to be careful not to enter into a course of action that results in some creditors receiving a higher return at the expense of incurring new liabilities which will not be paid. As the Supreme Court put it, it is not legitimate to “rob Peter to pay Paul”.

Options for directors
As a director, there are various mechanisms that are available to you if you are facing insolvency or near-insolvency. The key mechanisms are:
• Liquidation – winding up the company.
• Creditor’s compromise – this usually involves part of a company’s debts being forgiven. It must be approved by a majority of creditors, representing at least 75% of the debt owed to each class of creditors.
• Court-approved creditor’s compromise – where the court agrees that a compromise is fair and reasonable to creditors.
• Voluntary administration – an administrator is appointed to increase the prospects of a company surviving. This must be approved by a majority of creditors, representing at least 75% of the debt owed to each class of creditors.

Summary
If a company reaches the point where continued trading will result in a shortfall to creditors and the company is not salvageable, then continued trading will be deemed reckless and a breach of director duties. If as a director you allow an insolvent company to continue trading without using one of the available formal or informal mechanisms, then you will breach your director duties and likely incur personal liability. Whether or not to continue trading is therefore a critical decision for directors. If you are a director of a company in financial distress, it is essential that you promptly deal with the situation and seek both legal and accounting advice as to your options. This should include considering the mechanisms available through the Act, such as liquidation, voluntary administration or a creditors’ compromise.

If you have any questions, please contact us for an appointment T:06 349 0090 or email timo@horlseychristie.co.nz.

Tim Oliver
ASSOCIATE
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Disclaimer: This publication should not be construed or acted on as legal advice. It is brief and general in nature. Specific advice should be sought.

 

Good Business: Growing a Business starts with Strong Foundations

Starting a new business venture with other people can be a very exciting time, filled with good intentions, optimism and possibilities. It is also the perfect time to get your foundation or constitutional documents in order. Whether this is a shareholder’s agreement, a partnership agreement, a joint venture agreement or otherwise, the best time to get these foundation or constitutional type of documents prepared is right at the beginning of your business venture and the next best time is right now!

These foundation documents generally set out how the parties are going to work together, how decisions will be made and how the rewards are to be shared. These documents can also cover what happens when the parties cannot agree or if one party wants to exit the arrangement. By their very nature, these documents are best prepared when everyone is happy and things are going well – as it can be difficult to sort out these issues when things are not going well.

At Horsley Christie, we have one of the largest and most experienced commercial and property teams in Whanganui. We can help you to construct and shape these foundation documents to suit your individual needs. A lot of potential problems can be avoided with good planning and good systems. Well-crafted foundation or constitutional documents help set the respective parties expectations and will go a long way to manage those expectations going forward to ensure the parties remain on the same page.

Turning to the contents of the documents, there are a range of matters to consider, including but not limited to the following:

–              How will the business operate?

–              How will decisions be made? And how will they be recorded?

–              How will funding be arranged?

–              How will distributions be calculated? And when will they be paid?

–              What are the parties obligations to the business?

–              What are the parties obligations to each other?

–              When can one party bind the business or the other party?

–              What happens if the parties cannot reach an agreement?

–              What happens if one party wants to exit?  Or you want to introduce another party?

–              Will both parties do the same amount work or contribute the same amount of capital? And if not, how will you value the reward for effort and the reward for investment?

While some of these issues can be difficult to raise and perhaps uncomfortable to talk about at the beginning of your business venture, it is absolutely in your interest to still have that discussion. In our experience, those conversations are best had at the outset and do not get any easier if the parties are starting to disagree.

If you already have these documents in place, that is a good start but it is not the end of the matter. It is still really important that you regularly read and review these documents to ensure they are still appropriate, that they still reflect how you are actually carrying on your business and that they are compliant with any relevant legislation.

Your foundation and constitutional documents need to be living documents that are capable of growth, adapting to changes in law and to changes in the way you operate your business. Regular reviews with quality legal advice will ensure your business has solid foundations to help support future success!

If you have any questions regarding any of the above or if you would like an appointment to discuss setting up your own foundation documents or to review your existing documents, please telephone the Horsley Christie Lawyers for an appointment 06 349 0090 or email miken@horlseychristie.co.nz.

Mike Neil LLB

PARTNER

Good Business: Co-ownership arrangements as investor or getting on the property ladder

Getting on the first rung of the property ladder is becoming harder than ever to achieve. The reasons why are well known — sky-rocketing house prices, higher rents and costs of living, tight lending restrictions and a shortage of housing stock. This perfect storm presents a living nightmare for first home buyers. Is it time for prospective homeowners to give up on the Kiwi dream of home ownership? If not, there are other options.

 

The Kiwi dream
There are significant social and economic benefits to communities from the security that comes with having an established place to live. It brings freedom from the uncertainty and stresses of renting coupled with anxiety as house prices continue to rise. These benefits make the housing dream worth chasing and have driven private companies, the government and charities to provide innovative solutions to help Kiwis (with a variety of incomes and house price brackets) into home ownership. Necessity is, after all, the mother of invention.

 

Co-ownership
Co-ownership or shared ownership is a practical tool to get on the property ladder: by ‘shared’ we don’t mean pooling funds and cramming into one house with several other families (or your closest friends) bunk-bed style.

Co-ownership means buying the percentage of a property that you can afford now, with a silent investor partner providing the balance. Together you ‘co-own’ the property in those shares. The home is the one owner’s to enjoy (occupying owner) while the other owner has funds invested in property (investor owner).

The occupying owner pays a fee or interest to the investor owner for the portion of funds invested and in time the occupying owner can buy out the investor owner.

 

Filling the deposit gap
For many prospective buyers, their inability to save a large enough deposit is the main barrier to getting a loan from a bank. Most are quite capable of servicing a mortgage but cannot save for the required (and ever-increasing) deposit amount because life gets in the way.

The gap between the deposit saved and the deposit required is just too wide for many. This is where co-ownership initiatives help people who don’t fit mainstream mortgage criteria.

Buying a first home provides Kiwis (who have been in KiwiSaver for at least three years) a ‘single use’ key to unlock those contributions which can assist towards 5% of a house deposit. If the occupying owner has 5% of a deposit, they can use the investor owner’s contribution to top up the deposit required for regular retail lending — without having to resort to a second-tier lender.

 

If the worst happens – what next?
As well as the upsides of owning property, what happens if the property market dips, personal financial situations change or relationship break ups occur?

If things really go belly-up, the house can be sold, the mortgage repaid and the co-owners share in the loss (or the gain) in the percentage ratio that they contributed at the outset. Or there may be other alternatives by negotiation.

 

Conclusion
In high-price areas such as Auckland (actually, almost anywhere in New Zealand now) and without access to a ‘bank of Mum and Dad’ to solve the deposit gap, a co-ownership arrangement may be the best opportunity for prospective buyers wanting to escape private rentals and have a place to call their own. It is also an alternative investment opportunity to those with available funds.

Consider this property ownership and investment option and keep the dream alive. It may be you, or someone you know, who could use a helping hand onto the property ladder right now.
For more information contact Joamari van der Walt joamariv@horsleychristie.co.nz

 

Joamari Van der Walt │ LLB │ BComm(Economics)-Law (Stellenbosch) │
LEGAL ADVISOR

 

Disclaimer: This publication should not be construed or acted on as legal advice. It is brief and general in nature. Specific advice should be sought.