Isn't Autumn a lovely time of year, despite the present damp snap in Christchurch! The colours we are seeing from the city's wonderful array of deciduous trees are just beautiful. Unfortunately cough and cold viruses which present themselves with the change of seasons appear to be with us again, so do remember to take just that extra little bit of care of yourself with healthy eating and regular exercise.
Our lead article in this issue is a repeat of one we published approximately one year ago - not because we're short of material, rather our reminder of its content - the Solicitor's Approval of Agreement Clause. If you are considering purchasing a property please take the time to read this article.
Coastal property owners will find our article on the Foreshore Debate informative. If you're hazy on the smokefree law we summarize the most significant changes. Whether you are an employer or an employee, you will be interested in the recent key amendments to the Employment Relations Act which we outline, and for our regular article "Shelly's Hot Tip", I continue with Outlook, and as promised in our last Update, discuss 'flagging emails' which, if you are not using, may help you to manage your inbox a little more efficiently.
Happy reading and until next time, take care.
Shelly Rotherham
| Autumn 2005 |
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 - What does this clause really mean? |
| - What is the Foreshore? |
| - Flagging for follow up |
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- The most significant changes - we're all affected |
| - Collective bargaining....... |
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- The contents from our last issue in case you missed it |
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| Approximately one year ago we published this article, however we still see contracts where this clause has been inserted without consultation with us, often resulting in misunderstanding as to its limited effect. For this reason, we reiterate our message............
It has long been the practice that a buyer will insert in an offer to purchase a property, the following clause, or something similar:
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"This agreement is subject to the purchaser's solicitor's approval of all terms and conditions within two working days of the date of this agreement".
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Contrary to popular belief, the above does not provide the buyer with a "cooling off" period. During the stated period the bargain (agreement) may be objectively viewed with input from the purchaser's solicitor, who is rarely present for advice at the signing of the agreement.
There is almost a universal belief that a solicitor's approval clause entitles the buyer to reconsider and re-write a signed and binding agreement at will. This is not the case. This clause must never be used if you expect it to automatically provide you with an unquestioned right to extricate yourself from a signed agreement, for whatever reason.
The courts have made it patently clear that the solicitor's approval clause may entitle a purchaser, or the purchaser's solicitor, to disapprove of an agreement, but on strictly legal grounds only. Matters relating to the property's title and to the conveyancing transaction itself will qualify.
The current legal position however, is that when two parties enter into a contractual agreement, their signature on that agreement (which for land in New Zealand must be at least partially in writing) transforms an intention or promise into a firm bargain that is then contractually binding on those parties. The courts will not allow this bargain to be altered or tampered with by the purchaser, through their solicitor not approving of the agreement's conditions for any of the following reasons:
- The solicitor trying to protect their client by insisting on a new or different condition being inserted in the agreement, relating perhaps to finance or a builder's report, which may have been inadvertently omitted when the agreement was signed.
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- The client having decided they no longer desire the property.
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- The client having decided they have agreed to pay too high a price for the property and are able to secure a better bargain elsewhere.
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To ensure you have the luxury of withdrawing from a binding agreement, an appropriate "Due Diligence" condition can be inserted in the agreement however it must be clear and unambiguous in its meaning and scope.
We can assist you in drafting such a condition before you sign , which if successfully relied on, will have been a very useful addition to your agreement!
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The issue of ownership of the Foreshore and Seabed entered the public arena in June 2003 when the Court of Appeal ruled that the Maori Land Court had jurisdiction to investigate customary title to the foreshore and seabed.
Proposed legislation to govern ownership of New Zealand's foreshore and seabed was controversial, and a source of much debate. However, on 24 November 2004, the Foreshore and Seabed Act 2004 ("FSA") was passed, together with amendments to the Resource Management Act 1991 ("RMA") to reflects the new legislation.
The FSA vests the full legal and beneficial ownership of all public foreshore and seabed in the Crown, and aims to maintain public rights of access while ensuring protection of the association of whanau, hapu and iwi with areas of public foreshore and seabed.
Key objectives of the FSA are:
- Recognising and protecting ongoing customary rights to undertake and engage in activities, uses or practices in areas of the public foreshore and seabed;
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- Recognising territorial customary rights (where there has been exclusive use and occupation of an area of foreshore to the exclusion of persons not belonging to the group) by group members without substantial interruption from 1840 onwards, and where the group has had continuous title to the land above the foreshore;
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- Enabling applications to be made to the High Court to investigate common law rights;
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- Enabling successful applicant groups to participate in the administration of a foreshore and seabed reserve, or enter into formal discussions on redress; and
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- Providing for general rights of public access, recreation and navigation in, on, over and across the public foreshore and seabed.
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Under the FSA, the foreshore and seabed is deemed to be the area between the line of the mean high water springs, and the outer limits of the territorial sea. It includes the air space and water space above that area, and the subsoil and bedrock below.
Some New Zealanders have been concerned that their coastal properties will be affected. The FSA only applies to public foreshore and seabed. Any land (including reclaimed land) that is subject to a specified freehold interest (and owned by a person other than the Crown or a local authority) and where a certificate of title for that land has been issued, is excluded. However, the RMA now provides that where a section of land that includes foreshore and seabed is subdivided, the foreshore and seabed portion of that land will vest in the Crown.
Land that is reclaimed after commencement of the FSA, or which was not subject to a specified freehold interest, vests in the Crown. And (other than for limited exceptions) the Minister of Conservation will not transfer freehold title over reclaimed land, but may provide an applicant with a lesser right or interest in the land.
The Act protects and secures the rights of access for members of the public in or on the public foreshore and seabed, and the right to remain in that area and engage in recreational activities in or on the public foreshore and seabed, but subject to any territorial customary rights or prohibitions or restrictions on access imposed under the FSA.
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The last tip we talked about Drag 'n Drop for emails into Tasks. If you missed it click here . I thought I preferred this to flagging for follow up, although I must admit I seem to be using this feature a little more lately.
Flagging a message, meeting request or contact adds a flag icon to it. You can use flags to categorise emails, to set an automatic reminder, or to indicate a request for someone else in an email you send - yes you can do it for someone else!
Like most functions there are a number of ways you can perform them. This is how I use it:
To 'flag', right click on the item, and from the shortcut menu select 'Follow Up' then a flag colour of your choice. This will flag your item, enabling you to sort by the flag icon and/or colour (see below on how to manage colour flags).
Rather than selecting a flag from here you can go one step further and select 'set a reminder' which brings up a dialogue box. Here you can set options for the message - use the preset messages, or type your own, flag a specific colour, and set a reminder date and time.
Use the colour flags to manage your incoming email items by using different colours for different purposes.
Now I know you'll be thinking, like I did, 'how on earth am I going to remember what I wanted each colour to represent'! Microsoft has thought of that. Under Online Assistance search for 'name your coloured quick flag' where you will find comprehensive instructions on how to customise your flags. It takes a little time if you are not familiar with customising tool bars, but I think it is worth it, just like most planning.
The best part of all, is that the items you have flagged, all appear automatically in the ' For Follow Up ' search folder, irrespective of colour or whether you have set a reminder time or date. You will find this folder in your mailbox sitting underneath the inbox, outbox, sent items etc.
I use this folder much like a 'to do' list now.
You can right click on the flag (with the item closed), and mark it as completed, or change your settings/followup date/time (no snoozing here!). When you 'mark complete', the item is automatically removed from the For Follow Up folder, and you will notice in your inbox (or wherever the item originated) the flag changes to a 'tick' - very satisfying.
Give it a go - you may find, like me, that it does have a place in managing your day to day tasks.
Remember if you have a fantastic time saving tip on anything to do with computers, let me know and I'll happily share it with all our subscribers.
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| The amendments to the Somefree Environments Act 1990 were actually passed at the end of 2003 and provided for progressive changes over a two-year period.
The most significant recent changes include:
- Buildings and grounds of schools and early childhood centres became smokefree with effect from 1 January 2004 (yes 2004).
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- Licensed premises (including bars, restaurants, cafes, sports clubs and casinos) became smokefree indoors from 10 December 2004.
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- All other work places became smokefree indoors from 10 December 2004.
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- Restrictions on the display of tobacco products in retail outlets applied from 10 December 2004.
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- All clubs or sporting organisations which are licensed for the sale of alcohol must comply with the new smokefree law.
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The underlying objective in making these changes is to protect the public from the harmful effects of smoking and to further promote a smokefree lifestyle as the norm.
To read more on this subject read our full article .
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On 1 December 2004 amendments to the Employment Relations Act came into force.
The amendments aim to better support the key objectives of collective bargaining and good faith, and provide effective processes for resolving relationship problems.
It also protects employees, by including a requirement for an employee protection provision, if their job is affected by the sale or transfer of their employer's business, or if their work is contracted out.
The four main areas are:
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Collective bargaining
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The duty of good faith
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The processes for resolving employment relationship problems
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Providing protection to employees in situations where business undertakings are sold, transferred or contracted out. |
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Read the full article in our website's Legal Library now.
If you have any questions we are happy to provide you with further information on the amendments to the Employment Relations Act and how they may affect you.
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If you missed the last Newsletter you can access it on our website . You are more than welcome to share our Legal Update with friends and colleagues too.
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Website: www.rotherhams.co.nz
Telephone: +64 3 343 6380
Facsimile: +64 3 343 6381
Address: Christchurch Office
Level 1, 85 Riccarton Road, P O Box 80162, Riccarton, Christchurch, NZ
Kaikoura Office
Hospital Building, Kaikoura - postal address as for Christchurch Branch |
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