Introduction

We trust you will find this publication a helpful addition to your resources. For further information regarding LANDinfoNET Limited and our services, including full Land and PPSR search and registration, please visit www.landinfo.net.nz

.:: AN EXTENSION OF YOUR OFFICE ::.

It hasn't taken long for the New Year to get moving. Many real estate agents have reported solid interest and activity throughout the Christmas break and we have been busy supplying searches to them and many solicitors who have continued along the busy trends they experienced last year.

It was with some surprise Alan Bollard increased the Official Cash Rate (OCR) late last month. Most economic commentators were expecting the OCR to remain at 5.0%. This increase is obviously due to the high activity in the real estate sector however it will have some negative impact on exporters, as it will also serve to hold the exchange rate at highs against our trading partners. Latest movements have seen the New Zealand Dollar rise to in excess of 70 cents of the USD. This high has not been witnessed since June 1997.

We are looking forward to a positive year as we continue to provide property professionals with a complete and comprehensive service in the supply of land and personal property information and registration.

Should you have any queries regarding our service please contact Ken Hix kenhix@landinfo.net.nz or by free phone 0508 534251.

PPSR focus group

Janelle has attended the first of this two day discussion forum held by the Ministry of Economic Development. We received a good number of issues from the law fraternity and we appreciate all the enquiries raised.

Janelle will be detailing the discussions and we will distribute a summary to you once the focus group is completed.

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Introducing Adele Oram

Adele Oram :: adeleo@landinfo.net.nz :: Freephone 0508 534251

Adele will start with LANDinfoNET Limited on the 2nd of March 2004. Adele boasts many years experience in Legal Agency work and has an excellent working knowledge of PPSR.

PPSR is an area of Legal Agency work that is growing fast and Adele is a welcome addition to our resources in that area. This will enable us to maintain excellent standards in service delivery for PPSR.

We invite queries from you in regard to PPSR issues. You can contact any of our PPSR specialists:

Janelle Weir :: Manager Auckland/PPSR Consultant :: janellew@landinfo.net.nz
Freephone 0800 106 206

Marian Kempster :: Manager Hamilton :: mariank@landinfo.net.nz
Freephone 0508 534 251

Adele Oram :: PPSR Searching and Registration :: adeleo@landinfo.net.nz
Land Transfer Search and Registration Freephone 0508 534 251

Chrissy Lloyd :: PPSR Searching and Registration :: chrissyl@landinfo.net.nz
Land Transfer searching/Office Administration Freephone 0800 106 206

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PPSR update

Update On Integrating Companies Office Site and PPSR Site

As mentioned in our last newsletter, the proposed link from the "former charges" tab, now called "charges - PPSR" tab, to the PPSR site is now available. This link provides up to date information about security interests registered against a particular company. As the automated cross check only checks the company number and not the name, an additional PPSR search of the companies registered name is still necessary in our opinion.

PPSR Debtor name rules

Under the PPSA it is the secured parties responsibility to ensure the information registered on a financing statement is correct. To ensure the enforceability of a security interest, complete and accurate information must be entered. If information is entered incorrectly, section 150 states that a registration is invalid if there is a seriously misleading defect, irregularity, omission or error in (a) the name of any of the debtors required by section 142 to be included in the financing statement… and (b) the serial number of consumer goods or equipment… (goods held by a debtor as inventory are not required to be described by serial number in the financing statement). The secured party is also responsible for maintaining the register, including debtor name changes and changes to debtor contact details.

The Debtor name rules are set out in the Schedule of Regulations:

The regulations also provides for how to enter data onto the register when an individual debtor has only one name, has an alias, or has multiple middle names (Even though a debtor middle name in the system is not mandatory, it is still required by statute where they do exist). The regulations provide for how to enter data onto the register when a debtor organisation is not a registered company. Contact us if you require assistance or in any doubt.

If a financing statement cannot be located due to debtor information not being entered correctly, the consequences could lead to court proceedings.

We will all be awaiting the outcome of the upcoming test case in the high court regarding a "seriously misleading" financing statement. This will be watched with interest and anticipation. Janelle will try and attend the case to get first hand experience of the arguments for and against and also to hear the summary and verdict by the judge.

You can rely on LANDinfoNET Limited's expertise to perform this process for you, reducing your risk and performing this important task with ease and efficiency.

Freephone Auckland 0800 106 206
ak@landinfo.net.nz
Freephone Hamilton 0508 534 251
info@landinfo.net.nz

For Your Searching Information

Financing Change Statements default to the same expiry as the financing statement to which they relate. However, the amendment itself is effective from the time that the financing change statement is registered and does not default to the original registration date.

Discharged or expired financing statements remain on the system but searching by financing statement number is the only way to locate information about a discharged or expired financing statement.

The PPSR does not hold copies of security agreements. To obtain more information about a security interest refer to section 177 of the PPSA which provides a process for access to:

You can rely on LANDinfoNET Limited's expertise to perform this process for you, reducing your risk and performing this important task with ease and efficiency.

Free Phone Auckland 0800 106 206
ak@landinfo.net.nz
Free phone Hamilton 0508 534 251
info@landinfo.net.nz

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Companies office update

In our last newsletter we informed you of some upcoming enhancements to the companies office site in relation to company incorporations. If you incorporate online yourself, you will have noticed the site and process has endured a few changes and now includes a couple of extra steps.

As previously stated, an email address is now mandatory much the same as creating a secured party group on the Personal Property & Securities Register. You are now able to view the status of a consent and the consent itself online via the document registration tab. The last date that the consents will be accepted by the ministry is also now shown highlighted in red.

If an error or omission is noticed on any of the applicant details, contact address, director or shareholder details, you can simply update them, submit the changes online and a new consent will be generated showing the amendment, however this will need to be completed prior to the last consent being received and the company being incorporated.

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Average time for new titles to issue and plans to approve

At LANDinfoNET we are committed to providing a registration service that not only provides our clients with an efficient document lodgement service but also a comprehensive guide to current LINZ time frames for registration of all types of documents. What this means for you as a client is that we keep you informed of current time frames, so you can keep your clients informed for future settlements.

Please refer to the table below setting out LINZ's guidelines and the average times we are experiencing. These averages are fairly consistent throughout New Zealand.

Each year at Christmas time LINZ is inundated with registration lodgements, it is our experience that registration time frames are usually affected. Thus we are now experiencing slightly longer processing averages.

Please be aware we are unable to request LINZ to give priority or urgency ahead of other dealings until the expiration of LINZ's performance standard time frames (shown above).

Should you feel circumstances permit for you to request priority over other prior lodged new title documentation, please forward to us a formal letter addressed to the Processing Centre Manager of LINZ, outlining your reasons for special priority. We will submit this letter on your behalf and advise you of LINZ's intention.

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Overseas witnesses

Contacting a suitable witness in many parts of the world is not always easy. Over the years we have developed contacts and we are continually building a database of these contacts for this purpose.

If you are looking for a valid witness for documents being executed in exotic locations. Our experienced staff will not only locate them but also advise how you contact them and the best way to get the documents there for execution.

Example:
We were recently requested to locate someone in Limmossal (a resort town in Cyprus). We came up with five options for the client to liaise with and get the documents executed.

Not only do we locate these people but we instruct on how the documents are required to be executed and how the person in the foreign country can get to the correct person.

Should you require advice on this issue contact David Barker phone 0508 534 251 or email davidb@landinfo.net.nz David will assist, should he be unavailable, Marian Kempster on 0508 534 251 mariank@landinfo.net.nz will ensure your request is dealt with.

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Copies of old acts

Over the years we have collected precedence and copies of old acts that are very relevant to many current titles. A good example is issues surrounding mines and minerals. Should you require assistance in these areas contact our consultancy team who can discuss issues and clarify how to apply to a given situation.

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Plan deposit solutions

Often Plan Deposits end up in the "too hard" basket for too long. Get them out and forward them to our consultancy team who can look over them and advise what is required to obtain issue of the title. Our consultancy team can also draft many of the documents you require to ensure that it is a seamless service.

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Latest LINZ Registrar-General of Land rulings and updates

Accretion Applications

Introduction

Accretion occurs where the property affected has a moveable water boundary which has changed over time due to a gradual and imperceptible accumulation of land. An Accretion application can then be made as to incorporate areas of accretion in the title for that adjoining title.

These 'adjustments' to the title boundary do not constitute an alienation of land by the Crown, as the title correction process merely formalises the ownership rights that already exist in favour of the applicant under common law.

Legal Prerequisites

• the land in question has a water boundary; and
• the doctrine of accretion was not excluded at the time of the original grant or conveyance of the land; and
• the area claimed as accretion has formed gradually and imperceptibly.

Survey Plan

• the land claimed as accretion and the land in the applicant's current certificate of title is shown on a survey plan.

Application Requirements

• The applicant provides, in the form a statutory declaration (accompanied by relevant supporting material such as diagrams and photographs and supporting evidence - see below), an account of the circumstances surrounding the movement of the water boundary that indicates the change occurred gradually and imperceptibly and not as the result of a sudden occurrence or event.

Supporting Evidence

• the application refers to records held by Land Information New Zealand that show that the land in question has a water boundary and that the doctrine of accretion was not excluded at the time of the original grant or conveyance of the land; and
• at least one disinterested party provides a statutory declaration that corroborates the applicant's declaration; and
• a person qualified to give expert testimony as to the soil composition of the area claimed as accretion provides, in the form of a statutory declaration, evidence that corroborates the applicant's declaration.

Objections

Any interested party may object in writing to an accretion application and the RGL will notify interested parties including adjoining owners, local and regional authorities, Commissioner of Crown Lands and Local IWI. If the party lodging the objection provides reliable evidence which conflicts with the accretion application in some material way, the application will be declined. The Crown Minerals Amendment Act 2003

Crown Minerals Amendment Act 2003

Background

• The Crown Minerals Amendment Act 2003 ('the Amendment Act') came into force on 21 August 2003 and repeals and amends various provisions in the Crown Minerals Act 1991 (CMA).

Documents that Can No Longer be Lodged with LINZ
The following documents under the CMA can no longer be lodged with LINZ:

• permits
• extensions to permits (even if the permit is already recorded in the Land Transfer Register)
• transfers and leases of permits (even if the permit is already recorded in the Land Transfer Register).

Any such documents lodged with LINZ will be refused.
Documents that Can Still be Lodged with LINZ
The following documents may still be lodged with LINZ:

• notices of access arrangements associated with permits
• terminations of permits noted on the register prior to 21 August 2003 (this includes surrenders, revocations and expiries).

Searching Existing Records

The Crown Minerals division of Ministry of Economic Development (MED) holds the authoritative records under the CMA.
Because LINZ will no longer be receiving any new permits or related documents (apart from notices of access arrangements and termination of current permits) most of the records held by LINZ under the CMA will not be kept up to date. Clients wanting to search CMA permits and related documents should therefore access the records held by the Crown Minerals division of MED in order to obtain the authoritative information. Please contact Landinfonet if you require assistance in searching any such permits.

Easements

The recent changes to the Land Transfer 1952 Act and Land Transfer regulations 2002 include more concise definitions of rights and powers, terms and conditions in relation to easements. These provisions are set out in the Land Transfer regulations and should be read in conjunction with what may be amended by the document that creates the easement and in relation to rights of way should be read in conjunction with the Property Law Act 1952.

Unfortunately there are a couple of omissions in the regulations and clauses that are inconsistent with what is set out in the property law act.

• 1. There is no provision in the LT regulations for damage caused by one party to the 'easement facility' (eg pipes, cables surface of right of way etc).
• 2. The LT regulations state that there shall be equal contributions from the users of the easement facility but this may not always be appropriate especially in relation to a right-of-way. The cost of maintaining a right of way is likely to be considerably more that a pipeline and we can all think of examples where it would be unreasonable to expect all of the users of a right of way to be equally responsible for the costs of maintenance which instead should be proportional to the amount of the right of way that they actually use or occasionally the type of vehicles that pass over it. Compare equal contributions under LT Regulations with the provisions in the Ninth schedule to the property law act that sensibly makes reference to the right to a reasonable contribution from the other users.
• 3. The document that creates the easement should of course take precedence over the rights that are implied in the Land Transfer Regulations and in the case of rights of way, the Property law Act.

We would recommend that additional clauses be added to any easement document that you prepare. We are able to email or fax to you suitable clauses to include in your documentation. (These additional clauses have been recommended by the Law Society).

Errors in Mortgage Documentation

The New Zealand Bankers' Association has asked LINZ to remind practitioners about the importance of ensuring that mortgage documentation is properly completed.
While minor errors or omissions may not lead to a rejection by LINZ, banks are understandably concerned to see that their mortgage documentation is free of any error that could affect the obligations secured.

To ensure your documentation is correct both in and out of LINZ we provide a pre-registration check and a post registration check service. Pre and Post registration searches incur a reduced agency search fee of $5.00 each. Please instruct the LANDinfoNET Limited team accordingly and we will undertake this process for you.

Our Land Transfer Consultants Roger Fielding, David Barker, Barry Green, Lana McQueen, Vesna Sudzum and Elaine Hancock are always available for consultancy and technical advice issues on these and any other matters. Please do not hesitate to contact them with queries.

Roger, Barry, Dave, Lana and Elaine have a prior cumulative experience of working with LINZ as senior Land Registrar for over 80 years please ensure you utilise their ongoing knowledge and recourses as an "extension of your office". A team of our registration agents to ensure they are free for high-end consultancy supports Roger, Barry and Dave.

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Real estate statistics

Some slowdown is evident with the latest statistics. Although it is taking affect mainly at the top end of the market with the more affordable residential properties still selling strongly. Overall sales numbers are down but the market is still relatively robust.
Click here to view a table which depicts averages across New Zealand.

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Your issues of interest (legal practitioners network)

We would like to extend an invitation for you to forward any situations regarding the legal implementation of land you have recently encountered, that you would like to share with others. We would like to offer this as a regular feature of this Newsletter as an informative tool to help enlighten your colleagues of unusual situations or traps for the unwary. To help us encourage a network forum for the benefit of legal practitioners any published articles would be accompanied by the authors name and contact address. LANDinfoNET Limited will have sole discretion as to relevance of articles published. Please forward all correspondence to Ken Hix at kenh@landinfo.net.nz. (N.B. no form of advertising will be published.

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Westpac NZ housing market

A roundup of New Zealand Market Indicators as at 06 November 2003

Click here to view this invaluable information. We are grateful to have this supplied by:
Westpac Institutional Bank.

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