From the Lawyer, FYI
Thanks,
Alex
Subject: | RE: Body corp rules, and how can banks view "draft" titles? |
---|---|
Date: | Wed, 9 Dec 2020 22:56:48 +0000 |
From: | Simon Milne <simon@mcmillanco.nz> |
To: | Alex King <alex@king.net.nz> |
CC: | UCOL Directors <ucol-directors@list.king.net.nz> |
Hi Alex,
Thank you for your email below.
We have reviewed the Body Corporate Rules
and generally we see no issue with the draft Rules you have
provided apart from some minor points as per our comments
below.
Please also see my other comments in
blue below regarding the
other matters you have raised.
Review of Body Corporate Rules:
The only rule that we can see as possibly
being problematic is that requiring attendance at meetings.
Apart from that, there are a few corrections all as noted
below.
Review
of Body Corporate Rules against the Unit Titles Act 2010
(“Act”):
Rule
3
- Principles of Occupation – Cohousing
community group attendance, requiring the attendance of
owners or occupiers at group decision making meetings.
Issue
1:
Are these in effect ‘body corporate
meetings’, to be assessed against those relevant sections of
the Act?
Issue
2:
Does compulsory attendance go beyond the
powers conferred by the Act.
Section
106 (2) of the Act provides that additions to the body
corporate operational rules cannot confer on the Body
Corporate (BC) any powers that are not incidental to those
conferred under the Act…. Phraseology which is open to
interpretation.
BC
powers are listed in s 84 of the Act. In relation to BC
meetings, under s 90 the only power conferred is the power
of the chairperson to call a meeting. Arguably requiring
attendance goes beyond the kind of powers conferred by the
Act.
If
included in the rules it is possible that this rule may not
be enforceable. Just something to be aware of but on balance
Rule 3 can remain as is.
Rule
3 - Principles of Occupation – Commons
Development fund,
requiring vendors to contribute 5% on sale to the
Commons Development Fund.
Section 121
(b)
of
the Act states that contributions to be levied on
unit owners in the case of any capital improvement fund, are
to be calculated in proportion to each unit owner’s
ownership interest.
The
Act obviously envisions each owner paying their
proportionate share, which would not be the case for those
owners who do not sell. It would be difficult to evidence so
is not likely to be a problematic rule.
Other
points of note:
Rule 17 (b) requires the repair of leaks ‘as soon as
possible’. It may be better to say ‘as soon as reasonably
possible’.
Rule
21 –
requires that firearms ‘should’ be stored off site. You may
consider a change in wording if you intend this to be more
than mere guidance. Replace “should” with “must”.
Rule
24 –
refers to a section when it should refer to a clause (i.e.
of a regulation).
Rule
25 –
the rules don’t provide for the appointment of the mediation
and dispute resolution team.
Rule
26(f) –
should refer to cl 11 not s 11, and ‘regulations’ not
‘resolutions’.
Rule
28 –
requires breaches to be rectified in a reasonable time, or
no later than 7 days after notice. 7 days may in itself not
be reasonable?
Regards
Simon
|
From: Alex
King <alex@king.net.nz>
Sent: Wednesday, 9 December 2020 1:30 PM
To: Simon Milne <simon@mcmillanco.nz>
Cc: UCOL Directors
<ucol-directors@list.king.net.nz>
Subject: Body corp rules, and how can banks view
"draft" titles?
Hi Simon,
A reminder to let me know if our adopted BC rules are legally
appropriate?
Also we have another issue, that (some at least) banks wont
give us an indication of whether they would likely lend before
they have seen the title. Kiwibank are explicitly saying the
5% capital gain on resale and the covenant requiring
participation in cohousing are problematic.
I presume the reference to 5%
capital gain is in fact to Rule 3 (Commons Development
Fund). It is possible that some banks may not be happy with
that requirement on resale and therefore you may want to
revisit that requirement but my recall is that this
provision was important to you all. The reason that a bank
may not be agreeable with this is that say on a resale of
$700,000 5% of that is $35,000 which depending on what
equity a purchaser has this could reduce the loan to value
ratio a bank might be working on for that particular
purchaser. I guess it is going to depend on each bank and
each purchasers situation. Generally there should be more
than enough equity ( given the currently rapidly increasing
prices in Dunedin) for that not to be a problem for most
purchasers and their banks.
I think we already have all the covenants drafted and
information that will go into the titles? Is there a way we
can gather this information and show the banks a draft of what
title will be like? So we can find out if these things are
going to be problematic and work on them now and not just
prior to settlement date?
Until the new titles issue we
can’t provide a copy of what the title will look like but
the banks can be provided with a copy of the surveyors unit
title plan which lists all the new titles, unit numbers and
accessory units and easements (as per the attached received
from the surveyors).
Our wider group meets on Thursday evening and it would be
good to be able to reassure people about those matters before
then.
Thanks,
Alex King
Director, UCOL
-------- Forwarded Message --------
Subject: |
RE: certificate of title |
Date: |
Tue, 8 Dec 2020 18:12:10 +1300 |
From: |
Roz Wilson <michael.rosemary@xtra.co.nz> |
To: |
'Alex King' <alex@king.net.nz> |
Thanks,
realise the title won’t come till later but, from what we
have been told, if we could produce some sort of
independent notification about what the conditions of the
title would be everyone might have another source of
mortgages. Regds roz
From: Alex
King
<alex@king.net.nz>
Sent: Tuesday, 8 December 2020 5:52 pm
To: Roz Wilson <michael.rosemary@xtra.co.nz>
Subject: Re: certificate of title
Yep, I'll explain in an email to everyone, we should know
more by Thursday, but titles probably won't be issued until
January some time.
Thanks,
Alex
On 8/12/20 4:38 pm, Roz Wilson wrote:
Hi, did Catherine email you? we are trying to get a mortgage from Westpac, not to buy our unit, but for another project. Two months later they still haven’t given a decision and apparently not likely to until they can see what the conditions are on the title. We were wondering how soon the conditions will be known cos a long wait if we have to wait till settlement till we find out.
A bit nervous about 6 people needing mortgages and the banks not being particularly helpful, we need those mortgages to clear kiwibank! Thanks roz