FAQ

The most important functions of the Law Society are providing continuing legal education for Lawyers and Legal Executives, providing legal forms and stationery, reviewing and making submissions on new legislation and topical legal issues, dealing with complaints from clients about lawyer’s conduct or fees and administering the fidelity fund which provides compensation to clients in the case of dishonest lawyers.

When the Lawyers and Conveyancers Act 2006 comes into force which is expected to be later in 2008, it will be voluntary for lawyers to be a member of the Society. John will be maintaining his membership.

The position of Conveyancer has been created by the Lawyers and Conveyancers Act 2006. A Conveyancer will specialise in property transactions (i.e.conveyancing).

The potential problem with a Conveyancer will be the inability to recognise and advise on legal issues related to conveyancing such as relationship property, asset protection, tax, estate planning or business issues.

A cross-lease is a method of subdivision that was created in the 1960’s. It enabled multi-unit developments on land that was not ableto be subdivided in the conventional manner.

In a conventional subdivision eachflat has its own freehold title. In a cross-lease each flat owns a share of the land and buildings that comprise the total development and also has a 999 year lease of a flat. It is common for each flat to have the exclusiveuse of a defined area of land.

A cross-lease title is more complicated than a freehold title because it involves a plan (defining the flats and exclusive use areas) and a lease. There are also problems with making any alterations or additions to a cross-lease flat and sometimes with the repair and insurance obligations in the lease.

Two people who live together as a couple who are both 18 years or older and who are not married or in a civil union may be in a de facto relationship depending on:

• the duration of the relationship
• the nature and extent of common residence
• whether or not a sexual relationship exists
• the degree of financial dependence or independence and any arrangements for financial support
• ownership, use and acquisition of property
• the degree of mutual commitment to a sharedlife
• the care and support of children
• the reputation and public aspects of therelationship

Once a couple has been in a de facto relationship for 3 years (or in some cases if they have had a child, less than 3 years) the Property (Relationships) Act 1976 will apply to their relationship and property that was separate property may be deemed to be relationship property and be liable to be shared equally. Usually the most significant asset that will be affected is the family home..

A Family Trust is a way of protecting property from third parties such as creditors, the government or partners. In some situations a trust can also result in tax savings. The person who establishes the trust is called the settlor. The settlor appoints a trustee or trustees to whom the property is transferred. The trustees manage the property for the benefit of the beneficiaries. It is common for the settlor to also be a trustee and a beneficiary.

The process of fully transferring property to a trust usually takes many years to complete (depending on the value of the property) so the sooner it is established the better.

A Legal Executive is skilled in one or more areas of law and is employed as a fee earner in a law firm or in business. A Legal Executive has not completed a law degree but usually holds a NZ Law Society Legal Executive qualification and is a member of the New Zealand Institute of Legal Executives (NZILE). The training focuses on the practical aspects of legal work. Most Legal Executives specialise in property law, estate administration or litigation.

A Legal Executive with more than 10 years’ experience may become a Fellow of the NZILE who can then take statutory declarations. Deborah is a Fellow of the Institute.

A Personal Grievance is a complaintby an employee about their employment. The most common personal grievances are unjustified dismissal and unjustified disadvantage.

A personal grievance must be notified to an employer within 90 days.

If a personal grievance cannot be settled by negotiation it usually then goes to mediation at the Employment Relations Authority. If mediationfails then it goes to an Adjudication Hearing.

For an unjustified dismissal the usual claim is for at least 3 months’ wages and for lump sum compensation for humiliation and injury to feelings if the employer has not followed the correct procedure.

A Relationship Property Agreement is an agreement between married couples, de facto couples or civil union couples(including same sex couples) to alter the rules in the Property (Relationships) Act for the division of relationship property that would otherwise apply without such an agreement.

An agreement may be entered into before the relationship commences or at any time during the relationship and it can continue to have effect after the death of a partner.

It is becoming more common for people in new relationships to have an agreement to ensure that property they have acquired prior to the relationship (in particular, houses and businesses) remain their separate property for the duration of the relationship or someother agreed upon period.

A Statutory Declaration is a formal document that is signed in front of a lawyer or JP. It is generally used when an institution (e.g. a governmentdepartment) wants an assurance that the information in the document is true. It is offence under the Crimes Act 1961 to make a false declaration. The maximum penalty is 3 years’ imprisonment.

A unit title is a method of ownership for a multi-unit development under the Unit Titles Act 2010. The owners collectively are a Body Corporate and appoint a committee and a chairperson and employ a secretary. The Body Corporate is responsible for maintaining the common property and the building elements and infrastructure. There are rules for the use of units and common property. There is an annual levy payable for each unit.

If you are selling a unit title property you must give all prospective purchasers a signed pre-contract disclosure statement. We can prepare this statement for you.

New Zealand’s system of recording ownership of real estate property and interests such as mortgages is now electronic and not paper-based. Instead of signing a transfer or a mortgage the client now signs an Authority and Instruction to their lawyer. The lawyer then accesses the Land Information New Zealand website and registers the transfer or mortgage on a client’s behalf.

An Affidavit is a written statement that the maker swears on the Bible or by affirmation to be true. The affidavit can then be used in Courtas evidence without the maker having to appear as a witness in person (unless the maker needs to be cross-examined on the truth of the affidavit). It is an offence under the Crimes Act 1961 to make a false affidavit. The maximum penalty is 5 years’ imprisonment.

The basic rule is that communications between a lawyer and client for the purpose of legal advice or assistance are confidential to that client and may not be divulged by the lawyer to anyone else without the client’s permission.

There is also litigation privilegewhich protects any documents or communication that relate to preparations for litigation. These are confidential to the client and do not have to be disclosed to the Court or to the otherparty in the litigation.

A Solicitor does transactional work such as buying and selling property or businesses and operates a trust account through which the client’s money is handled. A Solicitor who also does litigation and appears in Court is called a Barrister and Solicitor.

A Barrister sole does only Court work and does not operate a trust account.

Both Barristers and Solicitors are commonly referred to as lawyers. John is a Barrister and Solicitor.

The Disputes Tribunal is a place where disputes for amounts up to $7,500.00 (or if the parties agree, up to $12,000.00)may be resolved quickly and cheaply. The parties must represent themselves and are not allowed to have lawyers. Each side presents their case to the referee. The referee will help the parties to reach a settlement but if they do not the referee will make a decision that has the same force and effect as a Court order.