To be read before reading the contents of this Memorandum.
This Memorandum has been prepared solely to assist interested parties in deciding whether to express their interest in the assets and then making their own evaluation of the property and its assets. The Memorandum does not purport to contain all information that a prospective Purchaser may require. In all cases, interested parties should conduct their own investigation, analysis and verification of the data contained in this Memorandum and the property. Neither the delivery of this Memorandum nor any contractual agreement concluded thereafter shall under any circumstances create any implication that there has been no change in the affairs or prospects of the property since the date of this Memorandum or since the date as at which any information contained in this Memorandum is expressed to be applicable.
The Advisors have not independently verified any of the information contained in this Memorandum. None of the Advisors or Owner make any representation or warranty as to the accuracy or completeness of the information contained in this Memorandum and none of the Advisors or Owner shall have any liability for any statements, opinions, information or matters (express or implied) arising out of, contained in or derived from, or for any omissions from, or failure to correct any information in this Memorandum, or any other written or oral communications transmitted to any recipient of this Memorandum in relation to the property.
Retention of this Memorandum will constitute acceptance by the recipient and readers of these terms and conditions and any recipients who do not accept any of the terms and conditions should return the Memorandum to the Advisors immediately.
Each office is independently owned and operated. SHB Limited (licensed under the REAA 2008) MREINZ.
2/64 THE ESPLANADE, WESTSHORE
PROPERTY ID: HBNP1515
Auction 2:00 p.m. Thursday 14 November 2024, NZSIR Napier office (unless sold prior)
Legal Description Together with an estate in Leasehold created by Lease No L 605985.1 being Flat 2 DP 23651 being more particularly described on Record of Title HBV1/89. Attached.
Legal Estate Crosslease (Freehold)
Legal/Lot/Unit/ 1/2 Share in 766 sw m (more or less) Town Section 224 Westshore
Legal Unique Identifier or CT HBV1/89
Age 1990-99
Floor Area 80 sq m
Aspect North, East, South, West
Land Value $495,000
Improvements $205,000
Capital Value $700,000
VENDOR HAS PURCHASED, MUST BE SOLD
Discover your ideal coastal retreat with this charming two bedroom beachside cottage, offering unobstructed views of Napier Hill that can never be built out. Whether you're dreaming of lazy days by the sea or a smart investment opportunity, this property has it all.
This well-presented home is designed for low-maintenance living and boasts an open-plan kitchen, dining, and living area, where stunning ocean, Napier Hill, and rural views take center stage. The bathroom has been recently upgraded, with further potential to enhance the home and add further value.
There is also a single integral garage, perfect for storage or easy parking, with ample off-street space designed to accommodate a motorhome or boat, ideal for those with adventurous lifestyles. In addition, there is still room to further landscape the grounds, allowing you to add your personal touch.
Whether you're looking for a first home, a lock-and-leave holiday escape, an Airbnb investment, or a permanent residence, this property is versatile and ready for whatever you have in mind. Approval has been given to build a second story, with concept plans available, offering potential.
This coast community is second to none, with a safe swimming beach and mutliple on water and land based activities at your door step here is an opportunity.
PROPERTY INFORMATION
2/64 THE ESPLANADE, WESTSHORE, PROPERTY ID: HBNP1515
Bedrooms One Double Bedroom, One Single Bedrooms
Wardrobes Double x 1, Single x 1
Kitchen Open-plan, Standard Pantry
Dining Combined Lounge
Lounge Open-plan
Bathrooms One
Garage/Parking Single Garage, Internal Access, Off-Street Parking
Water Heating Electric
Heating Air Conditioning / Heat Pump
Insulation Ceiling, Under Floor , Walls
Floor coverings Carpet, Vinyl
External Features Verandah, Low Maintenance Garden
Fencing Fully
Land Contour Level Contour, Sloping Contour
Views City, Rural, Water
PROPERTY INFORMATION CONTINUED
2/64 THE ESPLANADE, WESTSHORE, PROPERTY ID: HBNP1515
Roof Colorsteel
Exterior Hardiplank
Joinery Aluminium
Foundation Concrete Block
Water Supply City
Sewerage City
Chattels
Fixed floor coverings, Light fittings, Blinds, Drapes, Stove, Garage door remote control(s), Garden Shed, Aircon/Heat Pump - No. of Remote x 1, Extractor Fan, TV Aerial, Electric Gate Remote x 2.
AERIAL SHOT
2/64 THE ESPLANADE, WESTSHORE, PROPERTY ID: HBNP1515
CERTIFICATE OF TITLE
2/64 THE ESPLANADE, WESTSHORE, PROPERTY ID: HBNP1515
2/64 THE ESPLANADE, WESTSHORE, PROPERTY ID: HBNP1515
AGREEMENTdated 2024
BETWEEN KIWIRAILLIMITED("KiwiRail") AND TONYBARTLETT("Licensee")
BACKGROUND
A. NZRC is a statutory corporation established under the New Zealand Railways CorporationAct1981("NZRCAct").
B. Pursuant to the NZRC Act, NZRC is responsible for and controls the right to grant interestsinpropertyvestedintheCrownforrailwaypurposes.
C. By the Core Lease, the Crown and NZRC granted to KiwiRail Limited a lease of certain land.
D. TheLicenseehasrequestedKiwiRailgrantitalicenceoftheLicensedArea.
E. ThepartiesenterintothisLicencetorecordthetermsonwhichtheabovewilloccur.
AGREEMENT
KiwiRail shall grant to the Licensee and the Licensee shall take a licence from KiwiRail of the LicensedAreaonthetermsandconditionsspecifiedintheSchedulesattachedtothisLicence.
EXECUTEDASANAGREEMENT
SIGNED by KIWIRAIL LIMITED as Licensorby:
Royce Macleod General Manager – Commercial Property andwitnessedby:
Signatureofwitness
Nameofwitness
Occupation
City/townofresidence
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KIWI RAIL INFORMATION
2/64 THE ESPLANADE, WESTSHORE, PROPERTY ID: HBNP1515
SIGNED by TONY BARTLETT as Licenseeby:
SignatureofTonyBartlett
NameofTonyBartlett andwitnessedby:
Signatureofwitness
Nameofwitness
Occupation
City/townofresidence
KIWI RAIL INFORMATION
SCHEDULE1
REFERENCESCHEDULE
ITEM1 Land: Railway land at 2/64 The Esplanade, Westshore, Napier as shown more particularly outlinedinredontheattachedplan
ITEM2 LicensedArea: That parcel of land containing thirty-three square metres (33m2) more or less situated at 2/64 The Esplanade, Westshore, Napier and as more particularly outlined in blue on the attachedplan
ITEM3 Term: Nine(9)Years
ITEM4 CommencementDate: 1April2024
ITEM5 ExpiryDate: 31March2033
ITEM6 LicenceFee: $400.00 plus GST per annum, subject to reviewinaccordancewithclause4
ITEM7 DefaultInterestRate: 20%perannum
ITEM8 Minimum Public Risk Cover:
$2,000,000 or such greater amount as required fromtimetotimebyKiwiRail
ITEM9 PermittedUse Beautification.
ITEM10 FixedReviewDates Every anniversary of the Commencement Date (excluding Market Review Dates) fixed increase of 3% added to the Licence Fee payable immediately prior to the Fixed Review Date.
ITEM11 MarketReviewDates Every 5th anniversary of the Commencement DateandeveryRenewalDate.
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KIWI RAIL INFORMATION
2/64 THE ESPLANADE, WESTSHORE, PROPERTY ID: HBNP1515
SCHEDULE2
OPERATIVEPROVISIONS
1. INTERPRETATION
InthisLicenceunlessthecontextindicatesotherwise:
1.1 Definitions:
"Authority" means and includes every governmental, local, territorial and statutory authorityhavingjurisdictionorauthorityovertheLandoritsuse;
"CommencementDate"meansthedatesetoutinSchedule1;
"Core Lease"means theMemorandum ofLease dated 20December 1991 between the Crown and NZRC (as lessor), and KiwiRail Limited (as lessee), as varied from time to timebeforethedateofthisAgreement;
"Working Day" means any day of the year other than Saturdays, Sundays, the provincial anniversary as observed in Auckland, Wellington and the province where the Land is situated, Waitangi Day, Good Friday, Easter Monday, Anzac Day, the Sovereign's birthday, Matariki, Labour Day and any day in the period commencing 24 Decemberandendingon5Januarythenextyear(bothdaysinclusive).
1.2 Defined Expressions: Expressions defined in the main body of this Licence have the definedmeaninginthewholeofthisLicenceincludingthebackground.
1.3 Headings: Section, clause and other headings are for ease of reference only and do notformanypartofthecontextoraffectthisLicence'sinterpretation.
1.4 Negative Obligations: Any obligation not to do anything includes an obligation not to suffer,permitorcausethatthingtobedone.
1.5 Persons: References to persons include references to individuals, companies, corporations, partnerships, firms, joint ventures, associations, trusts, organisations, governmental or other regulatory bodies or authorities or other entities in each case whetherornothavingseparatelegalpersonality.
1.7 Sections and Clauses: References to sections and clauses are references to this Licence'ssectionsandclauses.
1.8 Statutes and Regulations: References to a statute include references to regulations, orders,rulesornoticesmadeunderthatstatuteandreferencestoastatuteorregulation include references to all amendments to that statute or regulation whether by subsequentstatuteorotherwise.
2. TERM
2.1 Commencement of Term: The Term shall commence on the Commencement Date, and shall expire at midnight on the last day of the Term and such licence shall continue fromyeartoyearuntilterminatedinaccordancewithclause2.2
2.2 EarlyTermination: EitherpartymayatanytimeterminatethisLicence bygivingsix(6) month's written notice to the other party and on the expiration of such notice the Licensee shall vacate the Licensed Area and shall not be entitled to any compensation fromKiwiRailwhatsoeverregardingsuchtermination.
2.3 Holding over: If KiwiRail permits you to continue to use the Licensed Area after the expiry or earlier termination of the Term you may do so on the same basis (including in respect of the payment and review of the Licence Fee) as under this Licence provided thatsuchlicencemaybeterminatedbyeitherpartyon20WorkingDays’writtennotice.
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3. LICENCEFEE
3.1 Payment: The Licensee must, during the Term, pay the Licence Fee to KiwiRail annuallyinadvance,onorbeforetheCommencementDateandeachanniversaryofthe CommencementDate,infullwithoutanydeductionorset-off. TheLicenceFee andany other payments to be made under this Licence shall be paid to KiwiRail by direct bank paymentorasKiwiRailmaydirect.
4. LICENCEFEEREVIEWS
4.1 Review of Licence Fee: The Licence Fee will be reviewed on each Review Date by KiwiRail giving written notice to the Licensee specifying the new licence fee (“Review Notice”),withthenewlicencefeetobe:
(b) In the case of a Market Review Date, determined by KiwiRail based on the amountKiwiRailconsiderstobethecurrentmarketlicencefeefortheLicensed AreaasatthatMarketReviewDate.
4.2 The Licensee may dispute the proposed new licence fee in respect of a Market Review Date,by givingwritten notice ofthis toKiwiRailwithin 20 WorkingDays ofreceipt ofthe Review Notice (“Dispute Notice”) which must also state the Licensee’s assessment of the current market licence fee of the Licensed Area (time being of the essence). If the Licensee does not serve the Dispute Notice within the specified timeframe, then the Licensee will be deemed to have accepted the new licence fee contained in the Review Notice. The Licensee may not serve a Review Notice given in respect of a Fixed ReviewDatesaveinthecaseofmanifesterror.
4.3 Resolution if reviewed licence fee disputed: If the Licensee does serve the Dispute Noticewithinthetimeframesetoutinclause4.2,thenthepartiesmustnegotiateingood faith in order to agree the new licence fee. If the parties cannot agree the new licence fee within 10 Working Days of receipt of the Dispute Notice, then either party may elect toreferthedisputetoarbitrationin Aucklandbyservingwrittennoticeontheotherparty. The arbitration shall be before a single arbitrator agreed upon by the parties, or failing agreement being reached within 10 Working Days,referred to the President for the time being of the New Zealand Law Society (or his or her nominee) who will appoint an arbitrator who is a member of the Arbitrators and Mediators Institute of New Zealand. Such arbitration is to be carried out in accordance with the provisions of the Arbitration Act 1996 as amended or replaced from time to time, and the arbitrator shall in directing the processes to be followed, have regard to the value of the sum in dispute so as to ensure that the costs of the arbitration are proportionate to the subject matter of the arbitration
4.4 Notwithstanding that the Licensee may validly serve the Dispute Notice, pending agreementor determination ofthenew licence feein accordancewith clause4.3 above, the Licensee shall pay an annual Licence Fee for the Licensed Area as set out in the Review Notice from the relevant Market Review Date. Once the new licence fee has been determined, the parties will immediately make an adjustment between them as is necessary so that the Licensee shall have paid the Licence Fee in accordance with clause3.1
4.5 TheNewLicence Fee asagreed,determined or acceptedinaccordancewithclause 4.1 or4.3(asapplicable)shallbetheLicenceFeefromtheMarketReviewDate.
4.6 In assessing the current market fee, no person shall take into account any buildings or improvementsontheLicensedAreawhichareownedbytheLicensee.
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(a) the current market fee for the Licensed Area as determined under that clause is either equal to or greater than the licence fee set out in the Review Notice in whicheventallsuchcostsshallbebornebytheLicensee;or
(b) itis decided by the arbitrator(s)thatbecause ofsomeimpropriety or lack ofcooperation or unreasonablenesson the partofoneofthe parties thatsuch party shallbearthewholeorsomefractionofthecostsinexcessofonehalf.
4.8 Notwithstanding the provisions of this clause 4, the Licence Fee payable by the Licensee as a result of a review of the Licence Fee shall not in any circumstances be lessthantheLicenceFeepayableimmediatelypriortotherelevantReviewDate.
5. OUTGOINGS
5.1 RatesandUtilityCharges: TheLicenseewillpay:
(a) all rates, charges, duties, impositions, fees, taxes and assessments together with any GST charged thereon which are now or may at any time hereafter be assessed,chargedorimposedupontheLicensedArea;and
(b) all charges for water, gas, electricity, telecommunications, line charges and all other utility and other services connected to the Licensed Area or any building ontheLicensedArearelatingtotheLicensedArea
5.2 Not separately assessed: Where any of the Outgoings are not separately assessed, the Licensee shall pay a fair apportionment of such Outgoings as determined by KiwiRail.
6. DEFAULTINTEREST
6.1 Default Interest: If the Licensee fails to pay any instalment of the Licence Fee or any other money payable under this Licence for 10 Working Days after the due date for payment or the date of KiwiRail's demand, if there is no due date, then the Licensee must pay on demand interest at the Default InterestRate on the money unpaid from the due date or the date of KiwiRail's demand (as the case may be) down to the date of payment.
(a) to keep in good and substantial repair and condition all fences, ditches, crossings, gates and other improvements on the Licensed Area including, without limitation, arranging for the prompt removal of any graffiti from the LicensedArea;
(b) to notplant,or permit or suffer any other person to planttrees or vegetation on the Licensed Area which will or may be or become or cause an annoyance, nuisance,damageordisturbancetoKiwiRail,railoperationsortotheoccupiers or owners of any adjoining or adjacent land, and during the term of this Agreement and on the expiration or sooner termination of this Licence the
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Licensee will be responsible for the trimming or removal of any vegetation or treesthenpresentontheLicensedAreaasnotifiedinwritingbyKiwiRail
(c) to keep the Licensed Area clear from gorse, briar, broom, noxious weeds and all other plant and animal Pests (as that term is defined in the Biosecurity Act 1993) at all times during the Term and shall in particular comply with the provisions of any Pest Management Plan (as that term is defined in the Biosecurity Act 1993) and all notices pursuant to, the Biosecurity Act 1993 or anyActinsubstitutionoramendmentthereof;
(d) to farm, cultivate and manage the Licensed Area in a good and husbandlike manner in accordance with approved methods of farming and in accordance with the law whether national or local in origin and whether created by legislation, regulation, bylaw, common law or otherwise and keep the Licensed Areaingoodconditionandnotallowanyparttobecomeimpoverished;
(e) inrelationtothefarmingoftheLicensedArea:
(i) to stock the pasture on the Licensed Area in accordance with the rulesofgoodhusbandryrecognisedinthedistrict;
(ii) to not at any time during the Term overstock the Licensed Area or depasturemorestockthanitwillreasonablycarry;and
(iii) to not during the last year of the Term depasture upon the Licensed Area an unreasonably greater number of stock than the Licensee shall have had at any one time depasturing upon the Licensed Area during the previous twelve (12) months of the Term without the consentinwritingofKiwiRailfirsthavingbeenobtained;and
(f) to repair, maintain and keep in good order condition and repair all ditches, drains, tracks, crossings and culverts, gateways, electric fences, fixtures and fittings and water courses on the Licensed Area to the same extent as at the Commencement Date and at all times during the Term during the proper season for so doing cut, top and trim any live hedges growing upon the LicensedArea
7.2 Entry by KiwiRail: KiwiRail together with KiwiRail's employees, contractors, agents and invitees may at any time during the Term on reasonable prior written notice except in the case of emergency enter and, if necessary, remain on the Licensed Area to examineandviewtheconditionandstateofrepairoftheLicensedArea
7.3 Fencing: The Licensee shall, at the Licensee's cost, fence such boundaries of the Licensed Area as KiwiRail may require, so as to separate the Licensed Area from the remainder of the Land (including without limitation the rail corridor). The Licensee must carry out such fencing to the satisfaction of KiwiRail. Such fencing shall not incorporate any gate opening onto the rail corridor unless it is at an approved crossing location supported by a grantissued under section 35 of the New Zealand Railways Corporation Act 1981. KiwiRail shall not be liable to contribute towards the cost of any fencing or maintenance to the fencing. On the expiration or sooner termination ofthis Licence,the Licensee shall, at the Licensee's cost erect or repair (as the case may be) a boundary fenceonthetrueboundaryoftheLandifrequiredbyKiwiRail
2/64 THE ESPLANADE, WESTSHORE, PROPERTY ID: HBNP1515
8.2 No Warranty: KiwiRail gives nowarranty or representation,express or implied, that the Licensed Area is now suitable, or will remain suitable or adequate, for use by the Licensee, or that any use of the Licensed Area by the Licensee will comply with any lawsorrequirementsofanyAuthority.
8.3 ReservedRights: KiwiRailreservestherightto:
(a) pass, with or without materials or implements of any kind, over the Licensed Area for the purpose of carrying out any works or inspections to the railway land;and
(b) erect,constructandmaintaindrainage pipes and other works and/or telegraph, telephone communication, fibre optic cables or electric power lines or cables on, over or within the Licensed Area, together with any necessary supports, and the Licensee shall make no claim against KiwiRail on account of any such works,provided that KiwiRail shall use its best endeavours to ensure that such works do not in KiwiRail’s opinion materially adversely inhibit the Licensee’s useoftheLicensedArea.
9. CONDITIONSOFOCCUPATION
9.1 Structural or other alterations: The Licensee may not make any alterations to any building forming part of the Licensed Area, construct any building, or undertake any excavation or earthmoving on the Licensed Area without the written consent of KiwiRail whichmaybegrantedorwithheldinKiwiRail'sabsolutediscretion
9.2 Compliance with enactments: The Licensee will at all times observe and comply with all statutes, ordinances, regulations, by-laws or other enactments affecting or relating to the use of the Licensed Area and with all requirements which may be given by any Authorityandallobligationsandrequirementsexercisedunderstatuteorregulationfrom timetotime,includingincompliancewiththerequirementsofallrailwaylegislation.
9.3 Compliancewithfirerequirements: TheLicenseeshallatalltimesandinall respects comply with the requirements of all competent Authorities and with the requirements of anyrelevantstatute,regulation,by-laworothernoticeissuedbyanyAuthorityrelatingto firesandfireprotection.
9.4 Compliance with easements: The Licensee shall perform and observe the obligations of KiwiRail in connection with any easement of any kind from time to time affecting the LicensedArea(whetherasdominantorservienttenement).
9.5 Right to grant: The Licensee acknowledges that (without limitation to KiwiRail's rights generally)KiwiRailreservestherighttoenterintoany:
(a) grants as prescribed by section 35 of the New Zealand Railways Corporation Act1981;
9.6 in each case in respect of or in relation to the Land and any adjoining land, and such grants, agreements or arrangements shall not constitute a derogation from grant, provided that KiwiRail may only enter into the same where to do so shall not materially adverselyaffecttheLicensee'suseandenjoymentoftheLicensedArea.
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9.7 Removalof soils or other substances: The Licensee shall notexcavate,remove,sell nordisposeofanyearth,clay,gravel,ballast,shingle,orsandfromtheLicensedArea
9.8 No Contamination of Licensed Area: The Licensee covenants that during the continuance of this Licence the Licensee will not permit any contamination of the Licensed Area and any contamination that occurs shall be cleared immediately at the Licensee'scost.
9.9 Access: TheLicenseeshallonlyaccesstheLicensedAreainthemannerpreapproved by KiwiRail with such access being reasonable given the nature of the Permitted Use of the Licensed Area At no time shall the Licensee cross the rail corridor to obtain access to the Licensed Area unless at an approved crossing location supported by a grant issued under section 35 of the New Zealand Railways Corporation Act 1981 and in accordancewiththetermsandconditionsofsuchgrant.
9.10 No Interruption to KiwiRail's Activities: The Licensee must not do or permit to be done in the Licensed Area anything which may become a nuisance, disturbance or obstruction to KiwiRail or which may impair the stability of that part of the Land adjacent toanyrailwaytrack.
9.11 Obstruction of Railway: The Licensee shall not do or permit to be done anything on theLicensedAreathatobstructstheviewoftherailwaycorridorfromanyroadorrightof waycrossingtherailway.
9.12 Core Lease: The Licensee will comply with all of KiwiRail's obligations in the Core Leaseinsofarastheyrelateto theLicensedArea(otherthanthecovenantsforpayment ofrentandothermoneyundertheCoreLease)asifallthoseobligationsweresetout in thisLicenseasobligationsontheLicensee.
9.13 Health and Safetyat WorkAct 2015: TheLicenseewillcomplywithitsobligations under the Health and Safety at Work Act 2015 (“the HSWA”) in respect of the Licensed Area, the Licensee's Property and their occupation and use including, withoutlimitation:
(a) Ensuring that as far as is reasonably practicable, all risks to health and safety are identified and eliminated, or minimised where such risks cannot reasonablypracticablybeeliminated;
(b) Having in place a written health and safety policy, including rules and procedures relating to health and safety at and in the vicinity of the Licensed Area, which the Licensee shall follow and keep under review to ensure the safety of its workers and other persons attending or in the vicinityoftheLicensedArea;
(c) Complying with all KiwiRail rules and procedures relating to health and safety on the Land in so far as they relate to the Lessee’s occupation and useoftheLicensedAreaswhicharenotifiedtotheLicensee;
(d) Identifying possible hazards for its workers and other persons attending or inthevicinityoftheLicensedArea;
(e) Taking steps as far is reasonably practicable to eliminate hazards, or to minimise such hazards where these cannot reasonably practicably be eliminatedandtoensurethatpeopleinthevicinityoftheLicensedAreaare notharmed;
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(f) Maintaining a register of accidents and incidents in compliance with the Licensee’s obligations under the HSWA, together with any complying with any additional code of practice and regulations promulgated regarding particularworkbeingdoneatorinthevicinityoftheLicensedArea;and
(g) Advising KiwiRail immediately upon the occurrence of any accident or incidentatorinthevicinityoftheLicensedAreas.
10. INSURANCE
10.1 Public Risk Insurance: The Licensee must take out and keep current a public liability insurance policy applicable to the Licensed Area and the use thereof in the joint names of KiwiRail and the Licensee for their respective rights and interests. The amount of cover under that policy must not be less than the Minimum Public Risk Cover. The policymustincludeliabilityfor:
(a) damagetoordestructionof:
(i) anybuilding(s)erectedontheLicensedArea;and
(ii) all fixtures, fittings, chattels and equipment affixed to, located in or installed in and building(s) (including equipment owned by other licenseesofKiwiRail,adjacenttoorneartheLicensedArea);and
(b) losses, including consequential losses, damages and costs arising directly or indirectlyfromanyoneormoreofthefollowing:
(iii) any act or default of the Licensee or of any person for whom the Licenseeisresponsible.
11. NOCOMPENSATIONFORFIRE
11.1 In the event of any fire damaging or destroying any buildings, erections, materials, animals, crops or other chattels or fixtures whatsoever in or on the Licensed Area, the Licensee shallmake no claim againstKiwiRail for any such damage and shall indemnify KiwiRailagainstanysuchclaimmadebyanythirdparty.
12. LICENSEETOOCCUPYLICENSEDAREAATLICENSEE'SRISK
12.1 The Licensee acknowledges that the use of the Licensed Area is at the Licensee's sole risk and the Licensee releases to the fullest extent permitted by law KiwiRail and KiwiRail's employees and agents from all claims and demands of any kind and from all liability which may arise in respect of any accident, damage or injury occurring to any personorpropertyinorabouttheLicensedArea.
2/64 THE ESPLANADE, WESTSHORE, PROPERTY ID: HBNP1515
(a) all costs (including legal costs) and expenses incurred by KiwiRail in taking action to demand and/or recover any part of the Licence Fee or other money payablebytheLicenseeunderthisLicence;and
(b) all actions, proceedings, calls, costs (including legal costs), expenses, claims, demands, damages, losses or liabilities of any kind suffered or incurred by KiwiRailasaresultof:
(i) the act or neglect of the Licensee or of any person for whom the Licensee is responsible relating to the use or operation of any equipmentinstalledintheLicensedArea;or
(ii) the Licensee's breach of, or failure to comply with, the Licensee's obligationsunderthisLicence
13.2 Payment by Licensee: The Licensee must pay on demand all amounts owing to KiwiRail as a result of the indemnity contained in clause 13.1, together with interest on those amounts at the Default Interest Rate calculated on a daily basis from the date KiwiRailincursthatliabilityuntiltheLicenseepaystherelevantamount
14. LIMITATIONONRIGHTS
14.1 Personal Licence Only: This License is personal to the Licensee and the Licensee must not assign, charge or otherwise alienate, in any manner whatsoever any right of the Licensee in the Licensed Area or any part of it, nor shall the Licensee allow any otherpersontousealloranypartoftheLicensedArea.
14.2 Rights in Contract Only: The Licensee's rights under this Licence are by way of contract only and create no interest in the Licensed Area, nor confer upon the Licensee anyrightofexclusiveoccupancyintheLicensedArea,andaresubjectatalltimestothe right of KiwiRail to allow its employees, contractors and invitees access to the Licensed AreaoranypartofitforanypurposenotinconsistentwiththisLicence.
15. DEFAULTBYLICENSEE
15.1 Groundsforre-entryandtermination: If:
(a) any Licence Fee payable by the Licensee under this Licence is in arrears for a period of ten (10) Working Days after having become due and the Licensee has failed to remedy that breach within ten (10) Working Days' after service of anoticeinaccordancewithSection245ofthePropertyLawAct2007;
(b) theLicenseefailstocomplywithanyobligationimposedontheLicenseeunder this Licence and such failure continues for ten (10) Working Days (or such longerperiodasmaybereasonableinthecircumstances)afterthedatewritten notice has been given by KiwiRail to the Licensee requiring the failure to be remedied;
(d) the Licensee (not being a company) is declared bankrupt or insolvent according to law, assigns the Licensee's estate, or enters into a deed of arrangementforthebenefitofcreditors;or
(e) theLicensee(beingacompany)either:
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(i) goes into liquidation (other than a voluntary liquidation for the purposesofreconstructionoramalgamation);
(ii) iswoundupordissolved;
(iii) makes or attempts to make any composition, assignment, or other arrangementwith,or for the benefit of,the Licensee's creditors or any classthereof;or
then, notwithstanding any prior waiver or failure to take action by KiwiRail, or any indulgence granted by KiwiRail to the Licensee in respect of any such matter or default, whether past or continuing and subject to KiwiRail having served, in accordance with section 353 of the Property Law Act 2007, a valid notice pursuant to section 245 or 246 (as the case may be) of the Property Law Act 2007, it shall be lawful for KiwiRail, or for any other person duly authorised by KiwiRail, to re-enter the Licensed Area, or any part thereof in the name of the whole, and thereby determine the estate of the Licensee. KiwiRailmayremove orotherwisedealwithall fittingsandfixturesoftheLicenseefound on the Licensed Area, without releasing the Licensee from any liability in respect of the failuretocomplywithanyobligationimposedontheLicenseeunderthisLicence.
15.2 KiwiRail's rights upon re-entry: Upon re-entry, KiwiRail may remove from the Licensed Area any stock in the apparent possession of the Licensee and place them outside the Licensed Area KiwiRail is not answerable for any loss resulting from the exerciseofKiwiRail'spowerofre-entry.
16. REMOVALOFEQUIPMENTONTERMINATION
16.1 Yield Up on Expiry: The Licensee must remove all the Licensee's property and repair any damage caused by that removal and resow the Licensed Area in good English grasses,on the expiry ofthe Term and peaceably surrenderand yield up to KiwiRail the Licensed Area clean and free from rubbish and in good and substantial repair and condition
16.2 Yield Up on Termination: If KiwiRail terminates this Licence under clause 15.1, the Licensee must remove the Licensee's property and repair any damage caused by that removal and resow the Licensed Area in good English grasses, within 5 Working Days of the termination and peaceably surrender and yield up to KiwiRail the Licensed Area cleanandfreefromrubbishandingoodandsubstantialrepairandcondition
16.3 Failure to Comply: If the Licensee fails to comply with either clause 16.1 or 16.2, any costs incurred by KiwiRail as a result of such failure will be recoverable from the Licenseeasadebtdueondemand
16.4 Removal by Licensee: KiwiRail may choose not to remove the Licensee's property, and then the Licensee's property will become KiwiRail's property and KiwiRail will not havetopaycompensationfortheLicensee'spropertytotheLicensee.
17. DISPUTERESOLUTION
17.1 Arbitration: AnydisputeswhicharisebetweenthepartiesconcerningthisLicenceorits subjectmattermustbesubmittedtothearbitrationofasinglearbitratorifthe partiescan agree upon one, otherwise to two arbitrators (one being appointed by each of the parties) and their umpire (who must be appointed prior to their entering upon the
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arbitration) such arbitration to be carried out in accordance with the provisions of the ArbitrationAct1996.
18. COSTS
18.1 Costs: The Licensee must pay to KiwiRail on demand all reasonable costs (including legal costs),charges and other expenses which KiwiRail may incur or for which KiwiRail maybecomeliablerelatingto:
(a) Preparation of Licence: the negotiation, preparation and execution of this LicenceandofanyvariationofthisLicence;
(c) Renewal of Term: any documents evidencing a renewal or extension of the Term;
(d) Remedying Breach: KiwiRail remedying the Licensee's breach of any term of thisLicence;
(e) Exercise of Powers: KiwiRail's exercise or attempted exercise or enforcement of any power, right or remedy conferred on KiwiRail by this Licence;and
(f) Proposals: theconsiderationandapproval(ifgiven)ofanyproposalsmadeto KiwiRail regarding any improvements to the Licensed Area and installation of anyequipment(includingcostsincurredinemployingconsultants).
19. NOTICES
19.1 Service of Notices: Any notice or document required or authorised to be delivered or served under this Licence shall be in writing and shall be sent to the other party at the addressfromtimetotimeandinwritingspecifiedbytheotherparty.
20. FIBREOPTICCABLE
20.1 Cable Located on Land: One New Zealand Limited (“One”) and KiwiRail have certain ownership, access and other rights in respect of a Fibre Optic System (“the System”) located within KiwiRail’s land by virtue of an Agreement dated 28 September 1990 (the “Fibre Optic Cable Agreement”) Where future extensions to the System are constructed on or under the Land, One’s and KiwiRail’s rights under the Fibre Optic Cable Agreement shall take precedence over the Licensee’s rights to the extent of any conflict, and the Licensee acknowledges that this Licence shall be subordinate to, and shallnotderogatefrom,thoserights.
20.2 TheLicenseecovenantsandagrees:
(a) nottointerferewith,ordisturb,theSystem;
(b) not to do anything which might cause increased maintenance or operating expensesoftheSystem,orreducetheSystem’sefficacy;
(c) to indemnify One and KiwiRail for any liability, claim, damage or loss arising out of installation maintenance or use by the Licensee of their facilities or
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interference with the use, operation or maintenance of the System or failure to complywiththisclauseoftheLicence;
(d) to reimburse One and KiwiRail for the costs of any relocation which One or KiwiRailcarriesouttomeettheLicensee’srequirements;
(e) that either One or KiwiRail shall be entitled to seek injunctive relief restraining any actual or threatened breach of this Licence by the Licensee causing interferencewithordisturbancetotheSystem;
(f) that for the purpose of the Contracts (Privity) Act 1982, One and KiwiRail is each designated to benefit under this Licence in respect of their respective rightsundertheFibreOpticCableAgreement.
20.3 In respect of the 2 metre strip centred on the fibre optic cable of the System, the Licensee shall have no right of entry except for normal use in passing over the strip (without obstructing it), or excavation or subterranean activities, without notifying and obtainingtheconsentofbothKiwiRailandOne
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AUCTION PROCESS GUIDELINES
Selling by Auction has become a very common method of sale for all types of real estate.
This flyer is provided as a general overview of the process, and will help answer some of the common questions of an Auction. Please also refer to the REINZ Best Practice Guide for Auction.
New Zealand Sotheby’s International Realty (SHB Ltd) advise both vendors and purchasers to seek independent legal advice regarding auctions.
An auction is an open process at which buyers bid against each other. Once the reserve price is reached, the highest bidder becomes the successful buyer.
Generally, an auctioneer introduces the item or property for sale, gives a description of the item or property (legal or otherwise), asks for an opening bid from the floor, people in the audience (or via telephone bids) raise their hands, the auctioneer takes bids, communicates who holds the bid and at what level, and on the fall of the hammer sells the item or property to the highest bidder.
AUCTION and ifnot soldprior
Sold prior or not, marketing materials must make it clear if the property can be sold before the set auction date. If it can be sold prior to the advertised auction deadline it will say“unless sold prior” If it cannot be sold prior to the advertised auction date it will say Auction and state the date and time that the auction will be called. Where a purchaser would like to submit an offer on the property prior to auction, and it is acceptable to the vendors, all other interested parties will be advised and the auction deadline may be bought forward. Pre-auction offers must be unconditional, must remain open and cannot be withdrawn.The offer will be presented to the Vendor for consideration. No counter offer will be made if the offer is not at an acceptable level and the auction will not be stopped.
Particulars and Conditions of Sale
This is the document that describes the property being sold, points out the manner in which the auction will be conducted and includes the terms of the contract of sale which will come into effect after a successful auction. Any terms of the contract that the auctioneer wishes to convey must be made clear to the buyers before the auction commences.
It is customary that 10% of the purchase price is required as a deposit with the settlement date usually 30-90 days from the signing of the agreement.
ATTHE AUCTION
The auctioneer will read aloud the terms and conditions of sale and state whether the seller has set a reserve price. The auctioneer will not reveal the actual reserve price. The auctioneer is working on behalf of the vendor and is looking to achieve the highest price for the property. The auctioneer must also state whether the seller has reserved the right to bid during the auction.This is called “vendor bidding”and is allowed but only under limited circumstances.
Vendor bidding is only allowed when:
•the property being auctioned has a reserve price
•the reserve price has not been met
• the auctioneer has made it clear that the bid being made is a vendor bid
Vendor bidding is sometimes used by the auctioneer as a way of starting off the bidding or trying to move bidding towards the reserve price.A vendor bid can be made by the auctioneer or some other person working on behalf of the seller
Bidding for the property will continue until the“reserve price” is reached or beaten, at which point the highest bidder will be the successful buyer
A Reserve Price may be fixed prior to the auction, by the vendor (seller). Until the bidding reaches this price, the highest bidder will not actually buy the property.The auctioneer will often say the property is“on the market”once the reserve price is reached. From that point on, the highest bidder will be the buyer
If the reserve price is not reached, the seller can instruct the auctioneer to stop the auction without selling the property. If the bidding stops before the reserve is reached, the Auctioneer may decide to pause the auction and speak with both the seller or the highest (or any) bidder in order to bring the parties together and reach price agreement. This can involve asking the bidder to increase their bid and/or the seller may choose to reduce their reserve price. The auction is then resumed, with the new bid (if any) announced and further bidding from the floor invited.
Property passed in
If the negotiation during the pause did not reach an acceptable price, then the property will not be sold immediately and the property is “passed in”. Contrary to the common myth, there is no automatic “right to negotiate” for the highest bidder to the exclusion of other parties. However, the sellers may instruct to offer this right and then the auctioneer announces this as part of the auction. Whether or not to offer this is a tactical decision that the auctioneer may or may not expressly recommend to the sellers. If such an option is given to the highest bidder during the auction, they are offered the first right to purchase the property immediately after the Auction at the vendor’s reserve price. This is announcement is carefully worded by the auctioneer in order to not tie the vendor into an unreasonably lengthy negotiation process. If a sale is not completed immediately after the Auction then the property will be offered for sale to all other interested parties. At this stage other potential buyers have the chance to negotiate the price, and conditions.
Sabine Davison
AUCTION MANAGER
An award-winning auctioneer with more than 20 years’ experience in the industry and thousands of auctions to her name, Sabine Davison adds an outstanding wealth of expertise to New Zealand Sotheby’s International Realty.
Sabine’s impressive resume includes, working as a salesperson, sales leader, trainer and lecturer. She called her first auction in 2007. Since then she has travelled throughout New Zealand, calling auctions from $10k to $10 million within residential, lifestyle, commercial/ industrial and rural sectors. She is currently a judge on the Australian Auctioneering Championships and REINZ National Championships and has called auctions at the finales of the first five seasons of TV3’s ‘The Block NZ’.
Sabine sees many advantages of auctions, including the definite timeframe on the sale process in three stages, as well as the integrity, transparency and equal opportunity
it brings to the process. This provides a high level of certainty to sellers, putting them at ease as they are ensured they will be receiving the best possible result. From her personal experience, Sabine has seen auctions to be the most successful method of sale in real estate, attracting a broad range of engaged buyers with their maximum prices in mind.
Sabine leads the auction strategy from Waikato to Wairarapa, bringing her impressive breadth of skills in all aspects of the real estate industry. She strengthens the teams of highly skilled and experienced sales professionals, working with them to attain premium results for clients.
Best Practice Guide
Auction
Version 1.2: April 2014
1.General
1.1 When conducting the sale of a property by auction, members should not engage in any conduct which is misleading or deceptive or is likely to mislead or deceive. This principle applies to conduct prior to, at and after the auction.
1.2 Nothing in this Guide limits or diminishes members’ obligations to report suspected misconduct or unsatisfactory conduct of a licensee to the Real Estate Agents Authority as required under the Real Estate Agents Act 2008 and/or its regulations.
2.Before the Auction
2.1 Members should not advertise a property as being for sale by auction unless there is intended to be an auction and unless a written auction authority form has been duly executed by or on behalf of the seller.
2.2 Members should provide a copy of this Best Practice Guide to prospective sellers prior to having them sign the auction authority.
2.3 Sellers should sign an acknowledgment of acceptance of the terms of this Guide, which should form part of the auction authority.
2.4 Prior to the auction, the member should make available for inspection the terms and conditions under which the sale of the property by auction will be undertaken.
2.5 If applicable, the member should specify in such terms and conditions of sale that the seller reserves the right to bid either personally or through an agent.
2.6 The member should make this Guide available for inspection prior to the auction.
2.7 Members should make reasonable endeavours to inform all interested parties if a property is to be withdrawn from auction or is to be sold prior to auction.
3.At the Auction
3.1 The auctioneer should conduct the auction at all times with integrity and in compliance with the law of New Zealand and this Guide.
3.2 The terms and conditions of sale should be on display and available for inspection, together with this Guide, at the auction. Any portion of the terms and conditions of sale relating to the description of the property will be read aloud by the auctioneer at the commencement of the auction of that property.
3.3 Before commencement of the bidding for a property, the auctioneer should announce whether the seller has set a reserve price. The reserve price, if any, should not be disclosed to bidders.
3.4 Before commencement of the bidding for a property, the auctioneer should announce whether the seller has reserved the right to bid one or more times at any level below the reserve price at the auction and, if so:
DISCLAIMER: The material and information contained herein is for general information purposes only and is not intended to form professional legal advice. REINZ does not accept liability for any claim or other action that may arise directly or indirectly from the use of or reliance on the material and information provided herein. REINZ recommends you seek independent legal advice if you are unsure of your legal position.
(a)Whether the member has been appointed to bid on behalf of the seller and, in such case, that all bids made on behalf of the seller will be made and declared by the auctioneer; or
(b)Whether the seller or some other person will be bidding on behalf of the seller and should identify that person in which case any bid made by that person should be declared by the auctioneer.
Neither the member nor any salesperson engaged by the member should make or assist any other person to make any bid on behalf of the seller in contravention of any announcement by the auctioneer pursuant to this clause. The member, or any salesperson engaged by the member, should immediately advise the auctioneer of any bid which they believe to be made in contravention of this clause.
3.5 Where the seller does not provide the auctioneer with a written reserve prior to the auction, the auctioneer should announce that the property is to be sold without reserve and no bid should be made by or on behalf of the seller at the auction.
3.6 In making a bid on behalf of the seller at the auction, the auctioneer should exercise his/her independent judgement.
3.7 Where in advance of the auction, any contractor/employee of the member or the auctioneer has been requested to bid for a prospective buyer, whether that buyer is present or absent, the auctioneer will announce that fact and identify those contractors/employees who will be so bidding.
3.8 The auctioneer should ensure that the amount of any bid is clearly stated.
3.9 The auctioneer may refuse any bid.
3.10 The auctioneer should resolve any disputed bid in accordance with the terms and conditions of sale governing the auction.
If such terms and conditions do not specify how disputed bids are to be resolved, then the auctioneer should resolve any disputed bid in accordance with the Particulars and Conditions of Sale by Auction 4th Edition (or any document approved by the REINZ in substitution thereof).
3.11 Under no circumstances will a bid by or on behalf of the seller be exercised by the auctioneer at or in excess of the seller’s reserve price.
3.12 The auctioneer will always clearly announce if the property is about to be sold under the hammer.
3.13 Subject to the reserve price being reached, the highest bidder should be the buyer.
3.14 If the seller so instructs, the auctioneer will announce during the course of the auction that in the event of the property being passed in the highest bidder will have the first right of purchase of the property at the seller’s reserve price.
4.After the Auction
4.1 If a property is passed in at auction, no post auction advertising for the property should make any reference to any seller bid made for the property at the auction.
DISCLAIMER: The material and information contained herein is for general information purposes only and is not intended to form professional legal advice. REINZ does not accept liability for any claim or other action that may arise directly or indirectly from the use of or reliance on the material and information provided herein. REINZ recommends you seek independent legal advice if you are unsure of your legal position.
