s 19D
s 11A
A transaction does not require consent for the purposes of section 10(1)(a) to the extent that it will result in an overseas investment in sensitive land by a Māori person where the relevant land is Māori freehold land for which the person is a member of the preferred classes of alienees (where those terms have the same meaning as in Te Ture Whenua Maori Act 1993).
(1)
A transaction does not require consent for the purposes of section 10(1)(a) to the extent that it will result in an overseas investment in sensitive land if—
the interest in land described in section 12(a) is a periodic lease; and
the relevant land is residential land.
(2)
In this clause, periodic lease means a lease that—
is terminable at will, whether by the grantor or the grantee (including a periodic tenancy within the meaning of section 2(1) of the Residential Tenancies Act 1986); and
offers no certainty of term of 3 years or more (including rights of renewal, whether of the grantor or the grantee).
the interest in land described in section 12(a) is a residential tenancy for a term of less than 5 years (including rights of renewal, whether of the grantor or grantee); and
the relevant land is residential (but not otherwise sensitive) land.
In this clause, residential tenancy means a tenancy to which the Residential Tenancies Act 1986 applies (including a periodic tenancy within the meaning of section 2(1) of that Act).
This clause applies in respect of land that is being used, or intended to be used, for 1 (or more) of the following (a development):
in the construction of 1 or more multi-storey buildings as 1 development, where each building consists, or will consist, of at least 20 residential dwellings; or
to increase the number of residential dwellings in 1 or more multi-storey buildings, where the number of residential dwellings in each building will be increased by 20 or more.
A person involved in the development (the developer) may apply for an exemption certificate if regulations are in force under section 61(1)(if).
(3)
The relevant Minister or Ministers may grant an exemption certificate if they are satisfied that the development is likely to be completed, having regard to factors such as—
whether the development has appropriate resource consent, building consent, and any other relevant authorisations; and
the developer’s financial strength; and
the previous activity of the developer (or its associates or individuals with control) regarding use of residential land; and
the previous record of the developer (or its associates or individuals with control) in complying with consent conditions or applying for consent conditions to be varied.
(4)
An exemption certificate may be applied to up to the maximum percentage, as prescribed in the regulations made under section 61(1)(if), of the residential dwellings in the development.
(5)
A transaction does not require consent for the purposes of section 10(1)(a) to the extent that it will result in an overseas investment in sensitive land in respect of a residential dwelling in the development if—
the relevant land is residential (but not otherwise sensitive) land; and
an exemption certificate applies to the dwelling under subclause (4); and
the person (the purchaser) makes the investment before the construction of the dwelling is complete.
OP1 buys off the plans an apartment to which an exemption certificate applies, using the exemption in subclause (5). So the on-sale outcome does not apply to OP1 (but see subclause (6)(b) for the non-occupation outcome).
OP2 later buys a different apartment to which the exemption certificate does not apply. OP2 must apply for consent (but see section 16(3)(b) for an exemption from the investor test if OP2 applies for consent under the increased housing test.) OP2 must comply with the conditions of that consent as to the on-sale outcome and the non-occupation outcome.
(6)
The relevant Ministers may grant an exemption certificate subject to the conditions that they think appropriate, and must impose conditions as follows:
conditions that enable the regulator to identify and monitor the dwellings to which the certificate is applied; and
conditions that impose the non-occupation outcome on purchasers who rely on the exemption certificate under subclause (5); and
conditions that enable the non-occupation outcome to be monitored by the regulator.
(7)
Those conditions may be conditions—
that apply to either the developer (as a condition of the exemption certificate) or the purchaser (as a condition of the exemption in subclause (5)), or both; and
that require both the developer and the purchaser to provide the regulator with the name, contact details, and other details of dwellings to which the certificate is applied and the purchasers of those dwellings.
the relevant land is being used, or is intended to be used,—
in the construction of a hotel that has 20 or more units, or to increase by 20 or more the number of units in a hotel; or
for the operation of a hotel that has 20 or more units; and
the interest in land described in section 12(a) is either—
an interest in 1 (or more) of those units that is acquired by a person (a purchaser) and that is immediately subject to a lease-back to the hotel company; or
a lease of 1 (or more) of those units by the purchaser to the hotel company (a lease-back).
The exemption is subject to the following conditions:
the lease-back must meet the following requirements at all times on and after the acquisition of the purchaser’s interest:
the purchaser cannot occupy, reserve, or use the unit for more than 30 days in each year; and
for the rest of the year, the unit must be managed and used for the general purposes of operating the hotel; and
when the lease-back period ends, the purchaser must either, within 12 months of that period ending,— —
grant to the hotel company a new lease-back of the unit that complies with the matters in paragraph (a); or
dispose of its interest in the unit; and
the purchaser must not occupy, reserve, or use the unit while it is not leased back to a hotel company.
In this clause,—
hotel means premises used, or intended to be used, in the course of business principally for providing temporary lodging to the public
hotel company means—
the person (HotelCo) that operates the hotel or that will operate the hotel after the hotel is completed; or
any person involved in the development of the hotel (the developer), provided that the developer has assigned its interest in the land to HotelCo, or will assign it to HotelCo immediately after the hotel is completed to the extent that it relates to the relevant unit.
A transaction does not require consent for the purposes of section 10(1)(a) to the extent that it will result in an overseas investment in sensitive land (the relevant forestry investment) if—
the relevant forestry investment is the acquisition of a forestry right (the relevant forestry right); and
the area of the relevant forestry right is less than 1 000 hectares.
Subclause (3) applies to a transaction that will result in an overseas investment in sensitive land (the relevant forestry investment) if—
the relevant forestry investment is the acquisition of rights or interests in securities of a person who owns or controls (directly or indirectly) a forestry right that is an interest in land described in section 12(a) (the relevant forestry right); and
To the extent that the transaction will result in the relevant forestry investment, it does not require consent for the purposes of section 10(1)(a) in relation to the relevant forestry right.
Subclause (1) or (3) (as the case may be) does not apply if, immediately after the relevant forestry investment is given effect to, the sum of the following areas is 1 000 hectares or more:
the area of the relevant forestry right:
the combined area of all other forestry rights—
that related forestry investors acquire (or are treated as acquiring) in the same calendar year as that in which the relevant forestry investment is given effect to; and
that are for a term of 3 years or more (including rights of renewal, whether of the grantor or grantee).
For the purposes of subclause (4)(b)(i),—
related forestry investor means—
the person who makes the relevant forestry investment; or
any associate of that person; or
a body corporate related to that person or to any associate of that person (as determined in accordance with section 12(2) of the Financial Markets Conduct Act 2013); and
a related forestry investor (B) is treated as acquiring a forestry right if—
B acquires rights or interests in securities of a person (C) who owns or controls (directly or indirectly) the forestry right and, as a result of the acquisition, B has (either alone or together with B’s associates) a 25% or more ownership or control interest in C; or
the forestry right comes under the ownership or control (direct or indirect) of a person in whom B has (either alone or together with B’s associates) a 25% or more ownership or control interest; and
it does not matter if a forestry right is acquired (or treated as acquired) by a related forestry investor before the relevant forestry investment is given effect to.
In this clause, area, in relation to a forestry right, means the area of land covered by the forestry right (including any right, whether of the grantor or grantee, to have the original area increased).
the overseas investment is the acquisition of a forestry right; and
immediately before the forestry right is acquired, the area of land covered by the forestry right (the covered land)—
is fully covered by a Crown forestry licence granted under section 14 of the Crown Forest Assets Act 1989 (whether or not the covered land is the only area of land covered by the Crown forestry licence); but
is no longer regarded as Crown forest land; and
the person who acquires the forestry right is the licensee of the Crown forestry licence immediately before the acquisition of the forestry right or is a person who is related to that licensee; and
the term of the forestry right (including rights of renewal, whether of the grantor or grantee) expires no later than 35 years after the date on which the covered land ceased to be regarded as Crown forest land.
For the purposes of subclause (1)(c), a person (A) is related to the licensee if—
A is a body corporate and the licensee directly or indirectly owns at least 95% of A; or
the licensee is a body corporate and A directly or indirectly owns at least 95% of the licensee; or
the licensee and A are bodies corporate and a third person directly or indirectly owns at least 95% of each of them.
the licensee owns and controls 95% of A; or
A owns and controls 95% of the licensee; or
a third person owns and controls 95% of the licensee and of A.
For the purposes of subclause (2), a person (X) owns and controls 95% of another person (Y) if X has—
a beneficial entitlement to, or a beneficial interest in, 95% or more of Y’s securities; and
the power to control the composition of 95% or more of the governing body of Y; and
the right to exercise, or control the exercise of, 95% or more of the voting power at a meeting of Y.
This clause applies if a person (the original forestry investor) acquired a forestry right (the original forestry right) as a result of a transaction (the original transaction) and—
the acquisition of the original forestry right was an overseas investment in sensitive land and—
consent was given for the original transaction to the extent that it resulted in the acquisition of the original forestry right (whether or not the consent was also given in relation to other results of the original transaction); or
because of the exemption given by clause 7, consent was not required for the original transaction to the extent that it resulted in the acquisition of the original forestry right; or
consent for the original transaction was not required as referred to in paragraph (a)(i) because the original transaction was entered into at a time before commencement when forestry rights were exempted interests.
This clause also applies if—
a person (the original forestry investor) acquired a forestry right (the original forestry right); and
subsequently, another person acquired rights or interests in securities of the original forestry investor as a result of a transaction (the securities transaction) and—
the acquisition of the rights or interests in securities of the original forestry investor was an overseas investment in sensitive land and, in relation to the original forestry right, consent was given for the securities transaction to the extent that it resulted in that acquisition; or
consent for the securities transaction was not required as referred to in subparagraph (i) because the securities transaction was entered into at a time before commencement when forestry rights were exempted interests.
Despite clause 1 of Schedule 1AA, subclauses (1) and (2) apply to acquisitions of forestry rights, or of rights or interests in securities, whether given effect to before, on, or after commencement.
Clause 1(4) and (4A) of Schedule 1AA applies for the purposes of subclauses (1)(b) and (2)(b)(ii).
In subclauses (1) to (3), commencement means the commencement of clause 1 of Schedule 1AA.
A transaction does not require consent to the extent that it will result in an overseas investment in sensitive land if—
the overseas investment is the acquisition of a forestry right (the new forestry right) by the original forestry investor or a person related to the original forestry investor; and
immediately before the new forestry right is acquired,—
the area of land covered by the new forestry right is fully covered by the original forestry right (whether or not it is the only area of land covered by the original forestry right); and
the original forestry right is held by the original forestry investor or a person related to the original forestry investor; and
the term of the new forestry right (including rights of renewal, whether of the grantor or grantee) expires no later than 3 years after the end of the term of the original forestry right (see subclause (7)); and
the requirements of subclause (8) are met (if applicable).
For the purposes of subclause (6)(c), the term of the original forestry right must be determined as at the time of its acquisition by the original forestry investor, but including rights of renewal, whether of the grantor or grantee, existing at that time.
(8)
If this clause applies by virtue of subclause (1)(a)(i) or (2)(b)(i), the rights conferred by the new forestry right—
must be sufficient to enable the conditions of the consent to be complied with in accordance with subclauses (11) to (13):
must not include any right that was not conferred by the original forestry right, if the absence of that right from the original forestry right was the basis (wholly or partly)—
on which the relevant Ministers, when they granted the consent, did not apply or modified a requirement under section 16E(8); or
if the consent was a standing consent under clause 3 of Schedule 4, on which the relevant Ministers varied the conditions of the consent under clause 3(10) of that schedule in relation to a requirement set out in regulations made for the purposes of section 16E(4)(d).
(9)
Subclause (10) applies if—
the exemption given by subclause (6) is applied to the acquisition of a forestry right (including in a case where the exemption is applied by virtue of subclause (10)); and
the original forestry investor, or a person related to the original forestry investor, makes a subsequent acquisition of a forestry right.
(10)
The exemption given by subclause (6) may be applied to the subsequent acquisition by reading references in subclause (6)(b)(i) and (ii) to the original forestry right as references to the forestry right referred to in subclause (9)(a).
(11)
Subclauses (12) and (13) apply if—
this clause applies by virtue of subclause (1)(a)(i) or (2)(b)(i); and
the consent (the original consent) was subject to conditions that applied in relation to the original forestry right; and
the exemption given by subclause (6) is applied to the acquisition of a forestry right (the exempted forestry right) (including in a case where the exemption is applied by virtue of subclause (10)).
(12)
The conditions of the original consent apply in relation to the exempted forestry right as they applied in relation to the original forestry right (except to the extent that any area of land covered by the original forestry right is not covered by the exempted forestry right).
(13)
The person who acquires the exempted forestry right must comply with the conditions accordingly as if—
the original consent applied to the acquisition of the exempted forestry right; and
that person were the holder of the original consent (if that is not the case anyway).
(14)
For the purposes of this clause, a person (A) is related to the original forestry investor if—
A is a body corporate and the original forestry investor directly or indirectly owns at least 95% of A; or
the original forestry investor is a body corporate and A directly or indirectly owns at least 95% of the original forestry investor; or
the original forestry investor and A are bodies corporate and a third person directly or indirectly owns at least 95% of each of them.
A transaction does not require consent for the purposes of section 10(1)(a) to the extent that it will result in an overseas investment in sensitive land (the relevant profit investment) if—
the relevant profit investment is the acquisition of a regulated profit à prendre that is not a forestry right (the relevant profit); and
the area of the relevant profit is less than 5 hectares.
Subclause (3) applies to a transaction that will result in an overseas investment in sensitive land (the relevant profit investment) if—
the relevant profit investment is the acquisition of rights or interests in securities of a person who owns or controls (directly or indirectly) a regulated profit à prendre that is an interest in land described in section 12(a) but is not a forestry right (the relevant profit); and
To the extent that the transaction will result in the relevant profit investment, it does not require consent for the purposes of section 10(1)(a) in relation to the relevant profit.
Subclause (1) or (3) (as the case may be) does not apply if, immediately after the relevant profit investment is given effect to, the sum of the following areas is 5 hectares or more:
the area of the relevant profit:
the combined area of all other regulated profits à prendre—
that are not forestry rights; and
that are held (or treated as held) by related profit investors; and
the areas of which adjoin the area of the relevant profit; and
For the purposes of subclause (4)(b)(ii),—
related profit investor means—
the person who makes the relevant profit investment; or
held includes owned or in the possession of by any means; and
a related profit investor (B) is treated as holding a regulated profit à prendre if the regulated profit à prendre is under the ownership or control (direct or indirect) of a person in whom B has (either alone or together with B’s associates) a 25% or more ownership or control interest; and
it does not matter if a regulated profit à prendre is first held (or treated as first held) by a related profit investor before the relevant profit investment is given effect to.
In this clause, area, in relation to a regulated profit à prendre, means the area of land covered by the regulated profit à prendre (including any right, whether of the grantor or grantee, to have the original area increased).
See the regulations for other exemptions.