December, 2016 - Parry Field Lawyers

You have a great idea. On your own you cannot make it happen. When you bring in employees to help make the idea work one of the ways to incentivise them (particularly in the lean years at the start) can be to offer them some shareholding stake. This post will point out three key topics that we think you should think through in advance.

What if things turn to custard?: Things are rosy at the start of a new venture and it can be tempting to think that everything will work out. A few months or years later it may not be the same situation and someone who was brought in for a specific task as an employee may want out. Or you may want them out. If they exit as an employee then should they remain a shareholder?
How can you deal with this?: It is best to think this through objectively at the start and provide for a clear mechanism in a shareholders’ agreement. That way there will not be confusion and disagreements later on. We would typically see that a shareholders’ agreement provide for one of the following scenarios:

Good leaver: Depending on how long they have been involved with the venture, it may be appropriate for the employee to simply end their employment and retain their shareholding. Situations may just have changed (health issues, partner with job somewhere else etc) but there is often no desire for them to also be forced to give up their shareholding when they stop being an employee.

Underachieving employee: It is possible to build in a description of what individual shareholders who are to be employees will be expected to do in the business. That way there are some criteria which can be used to determine if they are underachieving. If they are, then there can be a mechanism to require them to sell their shares back to the Company or to the other Shareholders. This means they will not be involved in the business either as employee or shareholder going forward.

Bad leaver: This is a situation worse than an underachieving employee and can occur where a person has become disillusioned with their situation. In this scenario it may be appropriate to build in the ability to repurchase the shares of the bad leaver but also build in a discount for the share price that is paid.
Why is all this so important?: The culture of your new start-up will be critical for it being a success. One of the most common issues for a start-up can be how you deal with a situation where there is a disgruntled employee. Without a clear mechanism in place it can be extremely difficult to come to an agreement on the way forward and whether they stay or go, remain as a shareholder or not. That is why thinking this through in advance is so critical. As the saying goes, “hope for the best, prepare for the worst.”

We hope this guidance is of use and will trigger some thoughts for you about this important issue.

1．先和您的律師溝通 – 越早和我們商議買賣流程，房產狀況和買賣合約（尤其是包含在合約裡的條款）對您越好。我們在這方面有經驗 – 讓我們成為您的嚮導！

2．確保這是適合您的房子 – 如果您不確定這房子是否適合您，請不要簽署出價協定，因為一旦簽署了而您又想改變主意的話就變得困難多了！

3．給您自己充足的時間 – 這可能是您最大宗的購買所以請不要焦急！這個過程可以有壓力，而緊迫的時間表則會讓事情變得更糟。試著給自己足夠的時間去徹底調查房產，儘量不要加快這個過程。

4．注意地震損毀問題 – 如果您購買的房子在基督城或坎特伯雷地區，您需要考慮地震對房子造成了什麼損壞。詳細詢問EQC和私人保險公司的索賠，確認索賠是否已經解決，或是如何解決。

5．房子是否有保險？提前跟您的保險公司洽談，因為您需要確認可以為房子買到令人滿意的保險。檢查保險政策是否有任何不承保的事項 – 不承保事項可能為您和您的貸款人製造為題。

6．不要忽視土地報告和產權 – 土地報告和產權文件提供關於房子的有用資訊，而且強調出值得注意的問題。嘗試審查這些文件以確保您不會接手這些問題。

7．願意花錢在專業的報告上 – 不要害怕聘請合格的專業人士進行物業檢查（例如：建築報告，工程師報告，電氣檢查和物業估值）。這些報告是您盡職調查的一個重要環節。現在花一些錢可以為將來節省很多錢！

8．我是否有資金來完成購買？如果您是貸款來完成購買，請儘早聯繫您的貸款人或抵押貸款經紀人。通常銀行在滿足審批條件後才會批出貸款。您需要準備完成銀行的這些條件。記得–請儘早讓我們知道如果您合資格從KiwiSaver撤回資金或可以得到紐西蘭房屋署的首次置業頭期款補貼。

9．想想您將來的計畫，您購買財產的目的是什麼？這將是您的家庭住房，一個出租的物業，您將會在那裡經營生意，還是您打算在將來進一步開發？考慮以及與我們討論您未來的計畫是很重要的。可能也需要來自其他專家建議，如稅務專家，城市規劃師，測量師。

10．請記住房子交割前的檢查 – 您的合約將幾乎都允許您擁有進行交割前檢查的權利。這是一個確保房子處於和您簽合約時類似的狀況的很好的機會，避免當您搬進來的時候發現不必要的驚喜！

The Christchurch earthquakes changed the landscape in many areas of life. One such area is insurance. Prior to September 2010 the words “EQC claim” were never muttered by a Christchurch property lawyer. Nowadays, if a Christchurch property lawyer goes a day without mentioning those words, they have done extremely well.

Recently and with the recent events in Kaikoura in the forefront of our minds, we brought you an article that looked at some lessons learnt from the Christchurch earthquakes from a home owners perspective which you can find here. We thought that it would be also useful to also look at this issue from the purchaser’s perspective.

The area of EQC and private insurance claims has evolved significantly since September 2010 and in many situations the 2016 position is more complicated than the position immediately after the earthquakes. This is mainly because many home owners have had pay outs for various aspects of damage to their properties, some of which has been completed and some of which has not. Almost all contracts for the sale and purchase of property contain provisions in relation to the claims that have been made on the property and the assignment or otherwise of those claims to the purchaser. Purchasers need to be on guard. The effect of getting these clauses wrong should not be understated. We offer the following tips to ensure that your interests are protected and no surprises occur on settlement.

Know your terminology

Be aware that there is a difference between an EQC claim and a private insurance claim. Unless there has been more than $115,000.00 damage to the property, an EQC claim will relate to damage to the dwelling and a private insurance claim will relate to aspects outside of the dwelling like the paths and the driveways.

Obtain information early on

In your discussions with the real estate agent, discuss with them the EQC and private insurance position of the property. In particular, what damage has occurred and obtaining scopes of work, did the vendor receive a cash settlement or did they have the repairs carried out by way of a managed repair process. This helps to inform you as to how much work has been completed on the property and the mode of repair.

Beware the cash settlement

If a cash settlement has occurred and the work has not been carried out, is the vendor agreeing to pay over the cash amount on settlement and if so, will the cash settlement be sufficient to complete the required work? If the cash settlement has been used to complete the work, can the vendor provide evidence (photographs, receipts and invoices) of the work having been completed? Often times, vendors who are cash settled for cosmetic work complete the work themselves. Therefore be wary of work that while technically “completed” has not been completed to a tradesman like standard. Your building report or other professional reports can be of use to determine the quality of work completed.

Obtain sign offs

If the work to the property has been carried out by way of a managed repair, ensure that you obtain all sign offs as well as any Council building consents and code compliance certificates in relation to the work. As you have probably seen in the media in recent times, even signed off work has had quality issues and therefore even with work that has been signed off, we would still encourage you to obtain independent professional reports to ensure the work has been completed to a good standard.

Feed back to your lawyer

The above information can then be fed back to your lawyer who can draft an appropriate clause in relation to the assignment of the EQC and private insurance claims. Your lawyer may want to confirm the information obtained with the vendor’s solicitor as well.

Make it a condition

You should consider making your approval of the EQC and private insurance information in relation to the property and the assignment of these claims a condition of the contract. This means that should any aspect of the EQC or private insurance position of the property that becomes clear through your due diligence process not be favourable to you, you have the ability to cancel the contract.

Beware of precedent clauses

We would caution you about relying on a standard EQC and private insurance provision that has not be tailored to the particular circumstances of the property. At Parry Field, we have more than 20 different clauses we use in relation to the assignment of EQC and private insurance claims so you can see that the variance is large.

Reliance on professional reports not commissioned by you

Be aware that professional reports (for example building and engineer’s reports) that are not commissioned by you (i.e. that you don’t pay for) can not be replied upon by you legally. Such reports must be commissioned and paid for by you if you wish to able to legally rely on them. Therefore, in a situation where a property has had significant damage, we would strongly encourage you to obtain your own structural engineer’s report in relation to the property.

Honesty is the best policy

if there is work still to be completed on the property, you should disclose this to your insurer and bank as early as possible. In relation to your insurance, this will likely result in your insurer excluding the damaged areas of the property from your policy coverage until the work has been completed. However, this is certainly the lesser of two evils given that if your insurers find out that you did not disclose damage when you are making an insurance claim for further damage to your property (a fire for example), this could void your policy and you be left with some hefty clean up costs.

Don’t rush

This is likely to be the biggest investment of you life so take your time, speak to your lawyer early to ensure the contract is right for you. This could save you thousands of dollars down the track.

This article is not a substitute for legal advice and you should talk to a lawyer about your specific situation. Should you need any assistance with this, or with any other Property matters, please contact Paul Owens at Parry Field Lawyers (348-8480) paulowens@parryfield.com

本事务所于1948年创立于基督城，面向社会提供范围广泛的法律服务。

我们致力于挑战大众对于律师工作方式的固有成见

-与其被动回应，我们更希望能积极主动地与您协作。

我们拥有超过30人的专业法律团队，服务范围涵盖如下领域：

• 咨询：公司企业经营，商业并购及买卖，国际合同与海外投资。

• 房地产：住宅买卖，商业租赁，土地分割开发。

• 争议及诉讼：商业及个人纠纷诉讼，保险及EQC理赔代理。

• 个人事务：雇佣关系，移民申请，信托，遗嘱及不动产。

与此同时，我们还拥有针对专门领域的专家队伍。例如农业法律团队专注向农场主和农业地区提供法律服务，科技团队专注于向IT行业及创新领域提供法律服务，另外还有由4名华语母语及2名精通日语的工作人员组成的亚洲团队。

如果您有任何法律问题需要咨询，期待您与我们联系。我们设于Riccarton区的总部，以及City，Rolleston和Hokitika地区的分部随时欢迎您的来电来访。

更多信息请致信 www.parryfield.com 或致电: 03 348 8480
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ext 340 蔡贞翎（Irene）律师
ext 318 李翠姬（Joanne）法律秘书刘萍（Yuki）法律秘书