What is an Agreement for Sale and Purchase of Real Estate?

After you have decided that you wish to purchase a property, the next step is to make an offer to the Vendor. This offer can be recorded in an Agreement for Sale and Purchase of Real Estate (“Agreement”), this is a legally binding contract detailing the agreed conditions of the purchaser and vendor of a property. A commonly used form of Agreement is a form jointly prepared between Real Estate Institute of New Zealand and Auckland District Law Society.

The Agreement usually includes:
- Purchaser and vendor’s names
- Property address
- Type of estate and legal description of the property
- Area of the property
- Purchase Price
- Deposit amount
- Purchaser’s conditions
- Details of tenancy (if any)
- Date when the agreement becomes unconditional
- Rate of interest for late settlement
- Settlement date
- Any chattels to be sold with the property, such as curtains, drapes, white ware, light fittings and fixed floor coverings
- Purchaser and Vendor’s solicitors details

Should a lawyer review the Agreement?

The Agreement becomes a legally binding contract after signing, therefore it is advisable to ask your lawyer to review the draft Agreement before you sign.

What relevant checks should a purchaser complete on a property before purchasing?

It is recommended to complete the following:
- Obtaining valuation report;
- Obtaining a Land Information Memorandum (LIM) from the local authorities.
- Obtaining building inspection report;
- Obtaining a finance approval from your financier (if any mortgages to purchase the property);
- Completing a title search and obtaining professional advice on the title.
- Any other professional advisors – this could include a company that does moisture readings

What is a Title Search?

A Title Search is a search of the certificate of title and relevant encumbrances registered against the title for the property from Land Information New Zealand. This includes information such as the owner, legal description, easements, land covenants and mortgages. Your lawyer will be able to advise you about any encumbrances which may affect your decision to purchase the property.

What is a Fee Simple?

A fee simple estate in land is commonly referred to “freehold”, a fee simple title entitles the landowners to the greatest group of rights in the use, enjoyment and alienation (i.e. the power to dispose) of the land (subject to relevant laws and encumbrances).

What is a unit title?

A Unit Title is a “Strata Title” or “Stratum Estate” and a unit title can be either freehold or leasehold. This type of title is commonly seen in an apartment type development and it allows for multiple ownership of common spaces e.g. driveways, walkways and lifts.

What is a cross lease?

A cross lease fee simple property is where a number of people own an undivided share in the ownership of a piece of land and the building on the land are leased for 999 years from the other land-owners. This is common with flats or townhouses.

What is a LIM (Land Information Memorandum)?

A LIM is a summary of information held by the Relevant Local Authority on a property and it may include the following property information:
- Special land features or characteristics such as potential erosion, slippage or subsidence;
- Rates details;
- Information concerning building, plumbing, drainage, resource planning consents, which may include any building and resource consents granted;
- Notices relating to the property or neighbouring properties;
If you are looking to buy a house in New Zealand, we recommend that you get a LIM before finalising the purchase.

What is a Building Inspection Report?

A Building Inspection Report is a report prepared by qualified, experienced building inspectors. A building inspector will inspect parts of the house which are reasonably accessible.

A professional building inspection report will highlight any matters that may need your attention. An inspection will normally cover:
- Interior – services
- Exterior – roof, roof space and sub floor
- Site – potential for flooding, drainage, site conditions (retaining walls, etc.), run-off from adjacent ground
- Other buildings on the property
For apartments, the inspector will usually only inspect the interior and balcony (if any).

What is “buying off the plans”?

Buying off the plan property is purchasing a property before a structure has been constructed upon it.

The Agreement used by the developers in off the plans property is likely to be unique and may not contain a fair balance between the rights of the purchaser and those of the vendor. It is wise to have your lawyer to review the Agreement prior to signing.

Important points to note:
- Developers will often retain control over the construction until at least settlement and sometimes for a period post-settlement for staged developments.
- Deposits are usually required to be paid upon signing of the Agreement or after purchaser’s conditions are satisfied. If the developer is placed in liquidation prior to completion of the construction, the deposit is unlikely to be recoverable. Therefore it is recommended to pay the deposit into the vendor’s solicitor trust account or other third party stakeholder to minimise this risk.
- Many off the plans development are multi-unit developments and have unit title issued (i.e. Apartments). Each owner is a member of a Body Corporate and must contribute to a Body Corporate’s costs and must abide by the Body Corporate’s rules.
- The developer is unlikely to warrant when the construction will be completed. Settlement date will typically occur on the latter of:
o Certificate of title issuing;
o Practical completion; and
o Code of Compliance Certificate being issued by local authority.

What is a Code of Compliance?

A Code of Compliance Certificate (CCC) is a formal statement issued under section 95 of the Building Act that the building work carried out under a building consent complies with that building consent.

The property owner must apply for a CCC after all work set out in the building consent approval has been completed.

What are the different types of property ownership?

Sole ownership means one person owns and controls the property.

Co-ownership means more than one person owns the property, property can usually be owned in two different ways:
Tenancy in common allows for owners to hold a distinct share of the property. This can be equal shares or differing shares. If a tenant in common dies, their share can be passed to whoever they choose. .
Joint tenancy is where each owner has an equal share own an equal share of the property. If a joint tenant dies, the share is passed to the other tenant (they will become the sole owner).

When should I apply for a bank loan in New Zealand?

If you plan to take out a mortgage or bank loan to purchase a property, this mortgage will be registered on to the property’s certificate of title which protects the bank’s interest in the property.

It is wise to obtain a pre-approval from your bank before signing an Agreement. After finding the right property, you may wish to confirm the amount that the bank is willing to lend to you to purchase that particular property.

This is particularly important if the sale is completed by way of an auction, where the Agreement becomes unconditional once a sale results from the auction where you will become legally bound to purchase the property from the vendor.

What documents do I need to sign and can someone sign on my behalf?

After the Agreement is unconditional, you will need to sign some documents in your lawyer’s office before the settlement.

You must sign the said documents personally in your lawyer’s presence.

If you have properly executed a Power of Attorney, then your attorney may sign the relevant documents on your behalf in your lawyer’s presence. Please note that some banks may have specific policies which you have to follow before accepting signatures by way of Power of Attorney.

If you are not residing in New Zealand before the settlement or do not live in New Zealand usually, you may sign the documents in your country of residence in the presence of a Notary Public and post the original signed documents to your lawyer (subject to your lawyer’s acceptance of this arrangement).

What ownership structures may I own property in New Zealand?

It is important to consider and plan what the best ownership structure is for your circumstances. This will differ depending on if you are buying a rental investment property or a family home to live in.

You should obtain professional advice from your lawyer as to the preferred entity in whose name the property is to be bought. It is also wise to seek your accountant’s advice with respect to any taxation implication of these ownership structures.

Personal Names
This is the simplest method of property ownership, whereby the property is either owned in your personal name as Sole Tenant or in the names of two or more people as either Joint Tenants or Tenants in Common (see discussion on property ownership above).

Trust
A trust is a legally binding arrangement whereby the settlor transfers legal ownership of certain assets to the trustee held on trust for the benefit of the beneficiary.

Main advantages of setting up a trust (e.g. Family Trust):
1. Asset protection – protecting your assets from third party claims and in some instances protection against relationship property
2. Succession Planning - providing assets to your family members and future generations

Company
A company is a separate legal entity to their shareholders. This provides shareholders with limited liability from any of the business debts beyond the value of their shares in the company.

A Company needs to be registered with the Companies office, which manages the public registry of companies in New Zealand. It is wise to consult with professional advisers regarding the registration of your company in New Zealand.

What is an Auction Agreement?

An Auction Agreement usually is an unconditional agreement to purchase the property when a sale results from the auction.
This means that prospective purchaser must complete all relevant enquiries and checks, such as arranging finance, obtaining LIM reports, builder’s reports and title checks prior to the auction.

What is a Body Corporate?

A Body Corporate comprises of all unit owners of the unit title property acting as a group. It is a unique feature of unit title properties, common in Apartments or multi-unit developments.

Main functions of the body corporate are to organise and maintain the insurance for all buildings and other improvements and to keep the common property in good state of repair.

A Body Corporate has rules which govern the unit owner’s obligations and duties, prospective purchasers should be aware and familiar with the body corporate rules.

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