Sarah Burns
Solicitor
tel:+6479272237
mailto:sarah.burns@hobec.co.nz
Qualifications
- LLB, University of Waikato 2021
- Admitted to the Bar in New Zealand 2021
- NZ Law Society Legal Executive Diploma 2016
Community Activity
- Trustee of the Tauranga Community Foodbank
Contact
- DDI: +64 7 927 2237
- E: sarah.burns@hobec.co.nz
Sarah is a Solicitor in Hilary Anderson’s property and commercial team.
Sarah has been employed with Holland Beckett since 2015. She began her journey with the firm as a legal secretary and shortly after completed her Legal Executive Diploma. Sarah then progressed and completed her law degree at the University of Waikato in 2021 whilst still working at the firm.
Having worked closely with Dean Thompson for many years until his retirement, Sarah has broad experience with private and commercial clients on property and financing transactions, along with specialist knowledge in trusts, asset protection and succession planning.
Sarah provides straightforward pragmatic advice.
Sarah Burns's Expertise
Sarah Burns's News & Resources
When will I get my keys on settlement day?
Receiving the keys to your new home is a significant milestone. Clients often enquire about the exact timing on settlement day, especially if they are coordinating with moving companies or eagerly awaiting possession of their new home. Unfortunately, there is no “one size fits all” answer for when this will happen.
Before you can take possession, the settlement process must be completed. This involves payment of the purchase price and transfer of the property\'s title. The timing of this process can be a bit unpredictable on the actual day of settlement.
The key issue revolves around the exchange: the Vendor doesn\'t want to transfer the property without receiving payment, and the Purchaser doesn\'t want to pay without assurance of acquiring the property. Lawyers handle this by providing each other with \'undertakings\' – enforceable promises to carry out specific actions. These undertakings ensure everyone can proceed confidently with their respective tasks.
There are 2 undertakings given on settlement, one from each lawyer. The Vendor’s lawyer undertakes to transfer the property\'s title to the Purchaser upon receiving the settlement payment from the Purchaser’s lawyer. The Purchaser’s lawyer can then pay the settlement payment to the Vendor’s lawyer and undertakes that the payment will not be altered or withdrawn.
While this seems simple enough, there are several other steps that must align before you can get those precious keys.
If the Vendor has a mortgage, their bank must confirm the amount payable to discharge the mortgage. This amount is confirmed the morning of settlement to include interest to that date; a key factor contributing to time uncertainties. The Purchaser\'s lawyer cannot release the settlement payment until the Vendor’s lawyer has given their undertaking, received any loan funds (if bank financing is involved), and the Purchaser’s contribution is deposited into the lawyer’s trust account.
So, there is a bit of patience required on settlement day, but this ensures that the various factors align so you can take possession of the property without a hitch. Rest assured that your lawyer is working diligently to ensure a smooth transition, enabling you to step into your new home with confidence.
Are you purchasing your first home? Completing a Kiwisaver First Home Withdrawal may help you get on the property ladder.
To complete a Kiwisaver First Home Withdrawal you need to have been a member for at least three years. These funds must be applied toward the purchase of a residential property which you intend to live in for at least six months.
If eligible, you can withdraw all your Kiwisaver savings other than $1,000 which you must keep in your Kiwisaver account.
The funds from your First Home Withdrawal may either be applied towards the payment of a deposit where you have entered a conditional agreement or towards the balance required to purchase the property on the settlement date. A withdrawal application cannot be completed until you have a signed agreement to purchase a property.
Most Kiwisaver providers take between ten to fifteen working days to process a withdrawal on receipt of your fully signed application. The amount of days your particular provider requires is set out on their respective first home withdrawal form which can be found online. Depending on whether you are wanting to use Kiwisaver funds for the deposit on the unconditional date or on the settlement date, you need to ensure that you give your provider enough time before your required date to complete the withdrawal. This can catch out first home buyers wanting to use their Kiwisaver funds to pay a deposit on a property going to auction, as at auction the deposit is usually payable the same day you sign the agreement upon your winning bid.
The withdrawal forms include a statutory declaration to be signed whereby you declare that you are eligible to make the withdrawal. Only certain people can witness signing of the statutory declaration including a Solicitor, Justice of the Peace or Notary Public. These forms also include a letter to be signed by your Solicitor. It is important that you factor in these signing arrangements when determining the timeframes required to withdraw funds.
Once your application is processed by your provider, your Kiwisaver funds are paid to your solicitor. Your solicitor will then use these funds to either make payment of the deposit or towards the purchase price on settlement.
We are well experienced at dealing with Kiwisaver providers. If you have any questions or would like any assistance with buying your first home, please get in contact with one of our property solicitors.
A Tradition of Generosity. What are you doing with your TECT rebate?
For 15 years now, Holland Beckett has been donating their TECT rebate to the Tauranga Community Foodbank.
This tradition began at the end of 2009 when the global financial crisis was putting pressure on many and the Foodbank was strained to provide for those who needed them, with Christmas just around the corner.
Unfortunately, the global financial crisis that started this initiative has been replaced by a housing and cost of living crisis and the demand on the Foodbank only increases. What began as a one-off donation where the firm saw a need, has now become a long-standing tradition.
Holland Beckett’s Bill Holland has been the chairman of TECT since 2014, leading the organisation though transformational change into a community trust. “Tect has been absolutely transformational for Tauranga. The contribution to the community ... is now in excess of a massive $20m a year\". Bill was named a Companion of the New Zealand Order of Merit in this year’s King’s Birthday Honours List, for services to community governance and philanthropy. The firm is proud to also champion ‘community’ as one of its core values, committed to supporting the BOP community in a variety of ways.
The firm views the TECT dividends as windfall, not allocated in the budget, and so it is easy to pass on to a good cause. It is a way of closing the loop and returning the profits generated by TECT to the community.
Fifteen years later and that initial idea has grown into something really meaningful, with Hobec\'s rebates gifted to Tauranga Community Foodbank now totaling $29, 843.
Hobec Solicitor Sarah Burns is on the Board of the Tauranga Community Foodbank - “We are immensely grateful to Holland Beckett for their annual donation. The Foodbank has been around since 1991, over this period demand has continued to grow and as a result so has our need for donations and volunteers. On average, the Foodbank provides over 20,000 meals a month to those in our community. We know right now a large number of households are really struggling due to the current economic environment, with the generosity of our donors we are able to step in and ensure these families don’t go without nutritious meals.”
With TECT rebates to be distributed for years to come, Holland Beckett will continue to pass these on to the Tauranga Community Foodbank as one of the firms many charity initiatives. If you are also a recipient of the rebate, in the spirit of TECT, why not consider also paying it forward?
Incapacitated Trustee
The Trustee Act 1956 reigned for over 60 years before the Trusts Act 2019 (“the Act”) came into force. The Act aims to simplify Trust-related issues by providing mandatory and default administrative trustee duties. One scenario under the spotlight is the process of removing an incapacitated trustee. Many Trusts that were established in the ‘Trust boom’ around 20 years ago may now be faced with a trustee who is losing capacity. This can be a tricky situation when trustees are trying to deal with Trust assets, especially in a family context. Fortunately, a Court order is no longer needed to remove a trustee.
Trustees can now exercise a compulsory removal of a trustee if they lose capacity (s104 of the Act). This can apply regardless of what your Trust Deed specifies, or fails to specify, in respect of removing an incapacitated trustee. It is then the question of who has the power to remove that trustee which is a case of reviewing the Trust Deed together with the Act. Removal of an incapacitated trustee is a compulsory ground of removal available to the Appointer and if the trustee has lost the capacity to perform the functions of a trustee then it would make sense to remove them.
Review your Trust Deed first
Your Trust Deed may specifically nominate someone with the power to remove trustees. That person may remove a trustee in accordance with their Trust powers or by using s104 of the Act. The Act’s processes may be more suited in some circumstances.
If the Trust Deed is silent on the removal of an incapacitated trustee then follow the Act
The Act’s process is used to account for the situation that the Trust Deed has not anticipated. In reality this is quite common and a good incentive to review or amend your Trust Deed.
The Act states if the nominated person in the Trust Deed is unwilling or unable to remove the incapacitated trustee then the remaining trustees can do so. If there are no remaining trustees or they are unwilling to act, then further individuals may be granted the power to remove. They can include:
a property manager appointed under the Protection of Personal and Property Rights Act 1988 to act as manager of the trustee’s property, or;
a person holding an enduring power of attorney over the property of the incapacitated trustee, or
a liquidator of a corporate trustee that is in liquidation.
A medical certificate confirming that the trustee of concern no longer has the capacity to carry out the role of a trustee will form the basis of the documentation required to give effect to the removal. Holland Beckett can guide you through this process.
Amendments to the Unit Titles Act – what managers need to know
The amendments to the Unit Titles Act 2010 and Unit Titles Regulations 2011 bring about many significant changes for body corporate managers.
These amendments were designed to improve the transparency and accountability of bodies corporate in their day-to-day running, ensure that potential buyers of unit titles obtain appropriate information from a vendor, establish professional standards and requirements for body corporate managers and committee members, and enhance the processes around long-term maintenance plans.
We outline below a number of manager-specific changes.
Body Corporate Managers
The amendments define a body corporate manager as a person employed or engaged to provide administrative, financial, and regulatory compliance services.
The manager’s written agreement of engagement or employment must contain certain terms, including, amongst other things, the manager’s reporting requirements to the body corporate on the performance their functions and duties, the requirement for the manager to comply with a new prescribed code of conduct, and the role of the manager at general meetings of the body corporate.
The code of conduct requires a manager to act in good faith, keep certain records, act with due care and diligence, act in the body corporate’s best interests, ensure the body corporate is informed of any significant issues, ensure they understand the Act and regulations, disclose any conflicts of interests, and ensure competitive prices for goods and services are maintained. The manager must also ensure their employees comply with the code of conduct.
When a body corporate manager discloses a conflict of interest to the body corporate committee, the disclosure is to be held in an interests register. This register must be available for inspection by members of the body corporate committee and any other persons subject to the operational rules. If the manager is engaged with two or more bodies corporate, they are required to act independently for each body corporate and not intermix any funds or records.
Record-keeping
Bodies corporate are required to keep certain records to ensure new disclosure obligations are met, usually for a period of three years. These include, for example, the information required to complete a pre-contract or pre-settlement disclosure statement, records of meeting minutes and decisions, and a register recording conflicts of interest. If the Ministry of Business, Innovation and Employment (MBIE) requests copies of these documents, a body corporate must provide those copies within 10 working days of the request.
Generally speaking, a body corporate and its committee contract managers to provide this administrative support, so it will be important that managers accurately record and store the information.
Enforcement
If MBIE believes that a body corporate or its manager is not complying with the Act or regulations, they may issue an improvement notice requiring the body corporate to fix an issue, apply to the Tenancy Tribunal for an order authorising inspection of the body corporate development, or initiate legal proceedings.
Where the Tenancy Tribunal has ordered an inspection, the body corporate is required to assist the inspector. In addition to a Tenancy-ordered inspection, an MBIE inspector can also inspect a unit title development by consent of the body corporate. An inspection requires 24 hours’ written notice to be given to the body corporate.
Where MBIE believes that there is conduct likely to cause (or has caused) a significant risk to a person’s health and safety, conduct that is a serious or persistent breach of the Act, or conduct that creates a risk of the public confidence in the administration being undermined, MBIE can initiate proceedings against the body corporate. However, the proceedings must be in the public interest and initiated within 12 months of MBIE becoming aware of the breach.
If a manager fails to disclose a conflict of interest, or fails to act independently of each body corporate if they are engaged with two or more bodies corporate, and that breach materially and negatively impacts on a unit owner or the body corporate, the manager may be liable to pay a penalty of up to $5,000.00. Various other penalties are also able to be imposed.
What now?
Body corporates and its managers should consider updating their disclosure forms, management contracts, conflicts registers, document retention policies and services, and other records to ensure they comply with the new requirements. The code of conduct for a body corporate manager will be available in Schedule 1B of the Unit Titles Regulations 2011, once the amendments formerly come into force (the Bill is awaiting an Order in Council to be issued). Failure to comply with the Act may lead to financial penalties.
Please refer to our article Amendments to the Unit Titles Act - what owners need to know for changes relevant to owners of unit title properties.
Amendments to the Unit Titles Act – what owners need to know
After much delay and consideration, amendment of the Unit Titles Act 2010 and associated regulations have been approved. The amendments modify the law in many significant ways.
These amendments were designed to improve the transparency and accountability of bodies corporate in their day-to-day running, ensure that potential buyers of unit titles obtain appropriate information from a vendor, establish professional standards and requirements for body corporate managers and committee members, and enhance the processes around long-term maintenance plans.
We outline below a number of owner-specific changes.
Decision-making
The amendments clarify that a matter must be decided by ordinary resolution (simple majority of eligible voters present) at a general meeting unless the Act requires the matter to be decided by special resolution (75% of eligible voters present) or the body corporate committee has exercised a delegated authority to decide that particular matter. It is, however, open for the body corporate to decide matters within its functions and powers regardless of whether they have been delegated to the committee.
The matters that must be decided by special resolution include, for example, a reassessment of ownership interests for each unit, a proposed sale of common property or a decision not to establish a long-term maintenance fund. These reserved matters cannot be delegated by the body corporate to its committee.
Owners are now also expressly allowed to remotely attend and vote at a general meeting, even if the body corporate operational rules say otherwise. However, the Act also clarifies that an owner can only vote once they have paid their levies.
Committee governance
Although common practice, a body corporate committee must have a written agenda and keep written records of its meetings and decisions. Minutes must be promptly disclosed to all unit owners and no later than one month after the meeting. If a unit owner requests a physical copy of the minutes, the body corporate committee must provide the copy within a reasonable time.
Members of the committee must now comply with a code of conduct: to act honestly, fairly, in confidence, in the body corporate’s best interests and in accordance with the Act and regulations. Members must also commit to understanding the Act and the code of conduct.
Members of the committee must also declare any conflicts of interest to the committee. The committee must then record these declarations in a register and produce these upon request to owners and other interested parties (depending on the operational rules).
A member who has a conflict of interest cannot vote on the issue, but may take part in any discussion relating to the issue or matter of interest and be present for any vote, unless the committee decides otherwise.
If a conflict of interest was not disclosed, the committee’s decision is still valid, but the member’s behaviour may be censured.
Disputes
The Tenancy Tribunal’s jurisdiction has increased from $50,000 to $100,000.
There is also a significant reduction in filing fees for proceedings at the Tribunal, from a maximum of $3,300 down to $500.
When a body corporate attempts to recover reasonable costs from owners relating to recovering unpaid levies, legal costs are now a fixed amount.
These changes are likely to increase efficiency and reduce costs when it comes to pursuing and resolving disputes in the Tenancy Tribunal.
Buying and selling a unit title property
If you are looking to sell your unit title property, as part of the sale process you must provide a pre-contract disclosure statement (before any agreement is signed) and a pre-settlement disclosure statement (before the settlement date). Under the new law, a buyer can no longer ask for additional disclosure. This is instead replaced by the requirements on the vendor to provide complete and accurate disclosure statements.
Compared to the previous law, there are additional matters that must be included in both the pre-contract and the pre-settlement disclosure statement. These include, for example, whether the body corporate is involved in any legal proceedings, the body corporate’s financial statements and audit reports, minutes of general meetings, the body corporate levies and whether there has been any changes in the operational rules since the pre contract disclosure statement was provided. There are also separate requirements for statements of “off-the-plan” units which acknowledge that many of the matters will only be estimates at that stage.
The new law recognises that pre-contract and pre settlement disclosure statements should only contain information to the extent that an owner is able to provide it at that time.
A buyer can cancel a contract to purchase a unit title property if the vendor fails to provide a complete and accurate pre-contract or pre-settlement disclosure statements, subject to strict notice periods.
However, the buyer cannot cancel if the vendor has done what they reasonably can to provide a complete and accurate statement or if the information does not exist or if the missing or wrong information does not substantially alter the benefit or burden of the parties.
If the vendor provides a complete and accurate pre contract disclosure statement at any stage, but it comes within five working days of settlement, the buyer can delay settlement by another five working days from the date of disclosure, presumably to have enough time to assess the information.
What now?
If you intend to sell your unit title property in the future, buy a unit title or be a part of a body corporate committee, it is important that you are aware of your obligations and duties, as well as your body corporate manager, real estate agent or solicitor, who may be assisting you through this process.
Changing the Trustees of your Trust
There is currently a Bill before Parliament that will amend many aspects of Trust Law contained in the Trustee Act of 1956. The amendments are likely to come into force in 2019. In anticipation of the overhaul of Trust Law it is a good time to consider whether the current trustees of your Trust are still the best people for the role.
There are various circumstances which may cause you to consider changing a trustee:
Change in Circumstances
A change in a trustee’s personal circumstances can have a direct impact on Trust management. For example, depending on how active your Trust is, a trustee moving overseas creates a geographical barrier that can transform into an administrative circus. With the increasing compliance obligations there are more and more documents for trustees to sign in accordance with specific witnessing requirements, so needing documents to be signed overseas is an added administration expense. In addition, having a trustee based outside of New Zealand can have significant tax implications.
Ageing Trustees
A trustee displaying early signs of dementia or another long-term medical illness should not be taken lightly. Trust Deeds typically direct that all decisions must be unanimous. If a trustee is deemed to have lost mental capacity then unanimous decisions are no longer possible. A mentally incapacitated trustee cannot sign any documentation, including Agreements for Sale and Purchase of Real Estate and even a Deed of Retirement of Trustee to enable them to be removed from Trust property. It is advisable to retire a trustee that falls into this category before they lose their mental capacity. Otherwise, an application to the Court is the only way in which you can remove the trustee and enable the Trust to continue to operate. This is a costly process that can take a number of months. It is important to note that while Enduring Powers of Attorney are very useful documents for dealing with a person’s affairs, they cannot be used for removing a trustee from a Trust.
Adult Beneficiaries
The beneficiaries of your Trust may be your children who are now adults. Perhaps it is suitable for a particular child or children to play a role in the administration of the Trust. It is common for settlors (holding the power of appointment of trustees) to appoint their adult children as replacement trustees in their Will if the Trust is to operate beyond their passing. However, involving your adult children in the Trust during your lifetime could be a beneficial learning experience and lighten the load on other trustees, rather than waiting until your death to thrust the new-found duty upon them.
Professional Trustees
A professional trustee’s retirement from accounting or law may be on the cards or you have moved your Trust’s affairs to a new firm. Appointing a new professional trustee or a trustee company could be a prudent change and is often easier to do while your existing independent trustee is still around and able to sign documents.
A change in trusteeship is usually formalised by a Deed of Retirement and Appointment of Trustees to be signed by the retiring, continuing and new trustees. Once the deed is signed, it can then be used as the base document to implement the change of ownership of the Trust’s assets. This could include real estate, shares and other investments. Bank accounts and insurance policies also have to be updated.
Changing the trustees of your Trust is not a two minute task, however, it is a process that enables the smooth operation of your Trust which ultimately benefits all involved. Holland Beckett can guide you through the process. Please do not hesitate to contact us if you have any queries.
Upcoming Changes in Trust Law
Trusts are a firmly established mechanism for protecting and managing assets in New Zealand. The upcoming changes in trust law are long overdue. However, such changes are also sure to call into question the country’s fixation with family trusts.
The Trusts Bill (“the Bill”) was introduced on 1 August 2017, following multiple reviews conducted by the Law Commission, which branded the Trustee Act 1956 (“the Act”) as out-dated and inaccessible. The Bill is to replace this Act and also the Perpetuities Act 1964. It is intended to make trust law more manageable by clarifying the key features of a trust, outlining trustees\' powers and obligations and streamlining administration processes.
The Bill outlines 5 mandatory trustee duties which cannot be negated by the terms of a trust. Trustees will have the duty to know and act in accordance with the terms of the trust, act honestly and in good faith, act for the benefit of beneficiaries or to further the purpose of the trust, and to exercise their powers for proper use.
The Bill also establishes 10 default trustee duties which must be performed by a trustee unless modified or excluded by the terms of the trust. These default duties largely reflect the current law. Both classes of duties will provide trustees with a clear understanding of their role and aid in beneficiaries holding trustees accountable for their actions, omissions and decisions.
Trustees will have to come to terms with disclosure requirements in favour of beneficiaries; a courtesy many beneficiaries are not afforded today. Part 3 of the Bill incorporates the presumption that basic information in relation to the trust’s affairs must be provided to beneficiaries. The provisions specify core documents which must be kept and for how long and the factors to be considered when determining what information should be shared or withheld.
Part 4 of the Bill contains provisions concerning trustees\' powers and indemnities. Trustees\' powers are currently minimal and scattered throughout the Act. The powers under the Bill are clear and flexible; providing trustees with more discretion in managing, investing and distributing trust property.
In some aspects, the Bill endeavours to make trust administration easier and inexpensive. For example, costs are to be minimised through no longer having to apply to the court for straightforward or contested changes of trustee appointments. The High Court will still have jurisdiction to review a trustee’s act, omission or decision, extend a trustee’s powers and give orders. However, alternative dispute resolution is encouraged throughout the Bill.
Whilst the Bill will undoubtedly modernise a considerably out of date piece of legislation, the focus on trustees\' mandatory and default duties, together with the new beneficiary disclosure requirements, will impose greater compliance obligations on trustees. The additional costs of compliance may cause some to question if the administrative hassle begins to outweigh the actual benefit of keeping or forming a family trust in certain circumstances.
The Bill has yet to have its first reading, so it is crucial that settlors and trustees of existing trusts continue to be aware of the proposed changes outlined above in anticipation of the changes coming into force.
Please do not hesitate to contact us if you have any queries.
This article was written for First Mortgage Trust.