Glossary of Terms

Bankruptcy:

A restriction that could be imposed when transferring property or refinancing if you have not been discharged.

Builders Report:

The pre-purchase written report by a qualified trade certified builder of a visual inspection of the property you wish to purchase. This would normally identify the condition of all buildings and defects or problems.

Caveat:

A Notice registered against the Record of Title of a person’s interest in that property and preventing registration of other interests against the Record of Title.

Client Authority and Instruction form (“Client A & I”):

Required for all transactions to record the transfer of property or registration of encumbrances on LINZ.

Conditions and Conditional:

A Sale & Purchase Agreement may be subject to a party by a specified date obtaining for example finance, a LIM, or the sale/purchase of another property. The Sale & Purchase Agreement will not proceed (become unconditional) until the conditions are satisfied.

Conveyancing:

The legal process management to conclude a property sale, purchase or refinance.

Conveyancing Charge:

Halliwell’s charges are split in two parts:

• Initial charge is the agreed fee and disbursements payable to us at the time we accept your instructions.

• Completion charge is the agreed fee and disbursements payable to us on your agreement becoming unconditional.
  

Both charges are not refundable.

Covenant:

A Notice registered on the Record of Title that is legally binding on the owner and regulates matters such as current and future buildings or the use of land.

Crosslease:

Where the whole of a property is owned by more than one owner and – each owner has a long term lease of their particular portion of that property.

Deed of Gift:

A deed to record a Gift of cash from one person to another where the maker of the gift has natural love and affection for the recipient.

Deposit:

Part of the purchase price paid in advance of settlement, usually when a Sale and Purchase Agreement is signed or becomes unconditional

Deposited Plan:

The survey plan of subdivision once registered with Landonline from which Records of Title are issued, and covenants and easements are drawn and/or recorded.

Disbursements:

Costs incurred acting for you and paid by us on your behalf such as Land Transfer searches and document registration fees.

Discharge of Mortgage:

If you are selling or refinancing we need to remove your existing mortgage record from the Record of Title usually by your repaying your existing mortgage. This will happen on settlement.

Dispute Relating to Property:

May arise between Buyer and Seller before settlement. The Sale and Purchase Agreement has provisions for resolving some disputes. Halliwells contract with a Buyer or Seller may not include protected disputes.

Early Release of Deposit:

On occasion a Vendor may request for an early release of deposit. It is important to take serious consideration before agreeing to this and you should seek legal advice.

Edealing:

Used for all transactions to record the transfer of property or registration of encumbrances on LINZ.

Electronic Signing:

Accepted in New Zealand (Electronic Transactions Act 2002) provided:-

• The signatory identity and approval are adequate;

• It is as reliable as appropriate given the purpose for which the signature is required, and

• The person receiving the signature consents to receiving a signature of that nature.

Easement:

An easement is the right for someone who is not the owner of a property to have a benefit from all or part of a property or provide a benefit to that property from their property. The most common examples are services, water, telecommunications and sewage easements, or rights of way.

Encumbrance:

A restriction or limitation on the Record of Title which may or may not be able to be removed. Encumbrances include mortgages, changes, easements and covenants.

EQC Claim:

A property may be the subject of a uncompleted claim for earthquake, flood or landslip damage. This should be disclosed to a purchaser and needs to be carefully considered. Notices may be registered against the Record of Title recording that the Property is subject to specified natural hazards (section 72 Building Act 2004), or where the commissioner may want to limit future claims (section 28 Earthquake Commission Act 1993). www.eqc.govt.nz

Freehold/Fee Simple:

Ownership of the property, subject to national, regional and local rates and taxes. The State retains the right of compulsory acquisition and is the source of all freehold land.

Further Terms of Sale:

Terms of the Sale & Purchase Agreement additional to the printed terms. Where there is a conflict between the printed and Further Terms, the Further Terms prevail.

Guaranteed Search:

A search of the Record of title which provides for a specified period, statutory protection for a purchaser from registration of adverse interests on the Record of Title before settlement.

Guarantor:

Lenders often require borrower Trustees, Company Directors and income earners associated with the borrower to personally guarantee the borrower’s obligation to the Lender. Guarantees need careful scrutiny to protect the Guarantor’s own assets.

Halliwells:

A Hawera and Auckland based law firm established in 1896. Conveyancing, one of Halliwells specialties is undertaken by the firm.

HomeStart Grant:

A Grant to first home property purchasers from Housing New Zealand which may be available to KiwiSaver scheme savers who have contributed to their KiwiSaver account for at least three years. www.hnzc.co.nz

Instructions:

The selection of services you have submitted through our process for Halliwells to accept.

Interest Rate:

The interest payable on the balance of the Purchase Price owing in the case of late settlement – generally agreements must be settled by 4pm on the Settlement Date, and are.

Joint Tenants:

Where two or more owners (tenants) are not described on the Record of Title as taking separate shares. On the death of one owner, ownership of the property automatically passes to the other owner(s). Joint tenancy is a common way ownership is structured by property buyers in a relationship.

KiwiSaver First Home Withdrawal:

Available to savers members for at least three years, generally for their first home. www.kiwisaver.govt.nz

Leasehold:

The property is leased from the owner of the freehold for a certain period in a written lease and rent paid. At the end of the period the lease is renewed, or a new lease is agreed, or the property passes back to its owner.

Legal Description:

The legal description is taken from the property’s Record of Title. It generally includes the area in square metres (m2), lot number, the Deposited Survey Plan and reference.

LIM:

A Land Information Memorandum (LIM) is a report purchased from a city or district council detailing the council records on the property. This may include consents, rates, drainage systems, flooding problems, instability of the land, etc.

LINZ:

Land Information New Zealand (LINZ) is the statutory body responsible for maintaining the land recording and transfer system in New Zealand.

Mortgage:

The document where you grant a Lender security, registered over the property for a loan(s) made by the Lender.

Mortgage Broker:

Will organise a mortgage (loan) for you, providing you meet certain criteria.

Mortgagee/Mortgagor:

A Lender is the mortgagee, and a Borrower is the mortgagor.

Notice of Sale:

After settlement a seller is required to send a specific notice of the transaction to Land Information New Zealand and the relevant local authority. We attend to this for you.

Overseas Investment Act (OIA):

Consent under this Act to purchase property is required by any overseas person, Company or Trust – not a New Zealand Citizen or ordinary resident in New Zealand. www.linz.govt.nz or www.newzealandnow.govt.nz/overseas

Possession:

The right to actual physical possession of the property by the Purchaser usually on settlement.

Pre Purchase Inspection:

Under the ADLS Agreement for Sale and Purchase of Real Estate (Tenth Edition) clause 3.0 allows a Purchaser to complete a pre purchase inspection. It is important you become familiar with this clause and discuss the pre-purchase inspection with your Real Estate Agent so it can be arranged with plenty of time to spare.

Property:

“Property” includes land and buildings.

Purchaser:

The Buyer of the property. A Buyer may authorise someone to act as their agent in the Sale & Purchase Agreement, sign the Sale & Purchase Agreement, and bind the Buyer. Whether or not the words “or nominee” are added after a Buyer’s name, a Buyer may name someone else at a later date to complete the purchase instead. However, this does not release the named Buyer from their obligations as Purchaser under the Sale & Purchase Agreement.

RealAML:

Verification software used for proof of identification and proof of address for each person associated with a transaction.

Record of Title:

Is the Government guaranteed (by Land Information New Zealand – LINZ) electronic record which sets out the property legal description, owners of a property, and other rights and obligations attached to that property e.g. registered mortgages, easements, covenants.

Registered Proprietor:

The names of the registered proprietors (owners) listed on the Property’s Record of Title.

Relationship Settlement/Relationship Dissolution:

A Sale and Purchase Agreement may be subject to a written Agreement usually between the Sellers who have decided to separate and divide their assets in terms of a formal Relationship Property Agreement.

Resident Withhold Land Tax (RWLT)/Brightline Test:

There can be tax on the profits on the sale of property under the bright-line rules. Refer to www.ird.govt.nz or take your own tax advice.

Sale & Purchase Agreement:

A written or electronic contract between a property Buyer and Seller. It contains all the main terms such as the property address, legal description, the purchase price, relevant dates and the names of the Buyer and Seller. The Sale & Purchase Agreement sets out the process to be followed if anything goes wrong.

Services:

The options you select to quote for your conveyance.

Settlement:

On Settlement, the Buyer pays the Vendor the balance of the Purchase Price set out in the Vendor’s Settlement Statement. At the same time, the Seller’s pass to the Buyer’s the electronic property transfer document, and any other documents necessary to register a clear transfer of the Record of Title, keys and possession as agreed.

Settlement Statement:

This statement produced by the Vendor’s Solicitor apportions at the possession date, rates, rent paid or received, licence costs, the deposit if paid etc, showing a balance due on settlement.

Solicitor’s Approval Clause:

Care needs to be taken with this condition as a Solicitor’s discretion not to approve may be limited. It is not necessarily a unilateral way out of an Sale and Purchase Agreement. A due diligence condition is safer.

Source of Funds:

Evidence of funds required before any work can commence on any transaction under the Anti-Money Laundering and Countering Financing of Terrorism Act 2009

Tax Information:

Required for all transfers, whether you are buying or selling. Each person or entity will be required to complete a Tax Statement stating their residency and provide their IRD Number if the property being transferred is not their main home. If you live overseas, you will be required to provide your TIN Number

Tenancy:

A Sale and Purchase Agreement may be subject to an existing Tenancy if the Purchaser agrees.

Tenants In Common:

Where two or more persons/entities own property in defined shares. On the death of one, ownership of the deceased share passes according to the will of the deceased, not automatically to the surviving owner(s). A tenancy in common is usual where the property is a farm, or the co-owners wish to maintain separate ownership or different shareholdings.

Transfer:

This is the document that passes ownership of the Property from the Seller to the Buyer and is registered with LINZ. It is now also known as an Authority and Instruction Form.

Trust Account:

The New Zealand Law Society regulated bank account and accounting system maintained by Halliwells since 1896.

Unconditional Sale & Purchase Agreement:

When either party’s Conditions in the Sale & Purchase Agreement have been fulfilled or satisfied and notice of this has been communicated to the other party e.g. the Buyer has obtained finance or the Seller has obtained a replacement property.

Unit Title:

Where flats or apartments are individually owned and areas of common interest or property are administered by all the unit owners together through a Body Corporate. The plan on the Unit Title Certificate of Title should correspond with the foot print of the actual physical buildings and structures.

Vendor:

The Seller of the property.

Warranty:

A representation (generally always by a seller) as to certain matters of fact on which a Buyer can rely.