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We are trying to get compensation for our land that has been…

Hello we are trying...

Hello we are trying to get compensation for our land that has been leased and farmed since (we believe) 1971. we have not received payment of any sort. Is it law that we can only go back 7 yrs. We have also paid the rates on our block for as long as i can remember

Lawyer's Assistant: Because laws vary from place to place, can you tell me what state the property is in?

Rotorua district council

Lawyer's Assistant: Has anything been filed or reported?

Yes we have a lawyer and feeling a conflict of interest at the moment

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

I dont think so but it would depend on what he asks I guess

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Answered in 38 minutes by:
9/20/2017
Chris The Lawyer
Category: New Zealand Law
Satisfied Customers: 23,411
Experience: 38 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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Hi

I am a New Zealand lawyer based in Wellington and will help you with your question today

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There is a limitation period of six years for some purposes. But if you remain the owner, you can claim the lease payments going back six years. If this is Maori land, I would also ask if this matter went to the Maori Land Court to have the lease approved. These leases are typically for 21 years, do you know anything about the term of this lease?

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Customer reply replied 5 months ago
we are sole owners of a1acre block which is under european title. and adjoins a bigger block owned by a trust. under maori title. The deed/lease was set up by the trust in the 1970's. Last week we met with our lawyer to meet with the trustees of the adjoining block. A diagram of their block approx 80acres is drawn up in the lease but does not shade out our block. I asked why? we were told that a person (Edward Moke) ok'd our land to be used for farming. apparently they were led to believe that he was the owner. We also hold a court partition order declaring our dad as sole owner

If you are the sole owners of this block, and it has been used by the person for farming purposes, then you are entitled to claim for the use of the land for what is called mesne profits. The way you make a claim for this is to look at the going rate for leasing farmland, and look at this in relation to the size of your block. The next step would be to make a direct claim to the person using the land and seeking those mesne profits. If he refuses, then you are entitled to require him to vacate the land and stop using it. But you are still entitled to claim for the use.

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Customer reply replied 5 months ago
are we confronting the farmer who leases the land or is it the trustees who have leased to him. at our meeting it was stated that the farmer would be responsible for reimbursement of rates and general council charges and services.

The farmer is ultimately the one who has to pay. But if the trustees purported to lease the land which you own, and have received rental for the land, then they also may be liable, particularly if they collected money for rates and council charges, but you paid these. I would expect that this is likely to be settled, but if you need to bring a court case I would sue both, as the trustees hold some responsibility for the mess

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Customer reply replied 5 months ago
does the 6 yrs still apply or can we go 40+yrs back. yes we agree that this is ugly and totally unfair. Unfortunately we have never been given any advice from our lawyer. the only suggestion he has made is we should try and settle across the table. Last week after our meeting with the trustees one of them told me she was secretary to our lawyer.

I doubt that the sums of money are very large each year, for the rental, but over the 40 years it would have accumulated to a reasonable sum. In some circumstances you can go beyond the time periods of the Limitation Act which normally prevents action going back further than six years. But if the trustees have been collecting rent and money to pay rates, it is arguable that they are holding money on trust for you, by what is called a constructive trust and you may be able to use this to make a more substantial claim going back further than the six years. The real issue may be whether the trust has any money (often they distribute all money they get) and whether the farmer has any money.

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You may want to consider changing lawyers because of the conflict of interest

Chris The Lawyer
Category: New Zealand Law
Satisfied Customers: 23,411
Experience: 38 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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Customer reply replied 5 months ago
Thank you so very very much Chris for all this valuable information. A new lawyer sounds nice and we will be considering changing. Once again.....many many thanks
Customer reply replied 3 months ago
We have now spoken to our lawyer regarding the delay of a fair and reasonable compensation figure. He had not heard from the trustees of the bigger block. I mentioned to him that we had sought a second opinion as we were not satisfied with what was happening. I mentioned a mesne profit claim. Earlier, we did tell him that we could not prove that our father did/didn't consent to the use of our land, and for that reason the mesne claim would be difficult for us to follow through.. He also anticipates that the trustees would say that our father tacitly agreed to the land being used for grazing and that we would have some difficulty disproving the claim. We are also told that a mesne profit claim for the whole period that the land has been used for grazing might discourage the trustees from agreeing to an informal settlement. presently the trustees are engaging and appear keen to reach a settlement with us without court proceedings. Figures received from our lawyer are: $3412.32 rental $5309.83 rates TOTAL $8722.15 over 6 years. He keeps insisting that we have no proof of consent from our father. Can WE not ask for proof that dad did consent to their use of our land If so wouldn't there have been some sort of payment to him and even the take over of the rates by them.

You could request whether that information exists but it may run the risk of getting to provide this as a defence to what they have now offered. So I think push for the settlement being offered I think

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Customer reply replied 3 months ago
thank-you. We also have a copy of the deed which witnesses: that parcel of land containing 38.24 hectares more or less being Rotomahana Parekarangi Y(7) being all the land comprised in a Partition Order of the Maori Land Court bearing date the 9th day of May 1967 but excluding at all times the cottage and appurtenant land as defined by the fence line and more particularly coloured in red on the attached plan. The diagram on the deed does not exclude our land.
If your father was part of that negotiation for that Deed it may support the position he did not consent. But I think talk to the trustees on the basis that he didn’t consent and don’t mention the possibility. If they raise the issue of consent you can then ask for evidence
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Customer reply replied 3 months ago
we have always believed that our dad didn't consent, and if they don't raise the issue of consent we would not be able to ask for evidence....how do we proceed?
Proceed on the basis he didn’t consent and let them try to prove otherwise
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Customer reply replied 3 months ago
Thank you Chris, would you advise that we go through our lawyer to arrange a meeting with the trustees, are we also bound to tell him what we now know. We still have this conflict of interest but how else can we arrange a meeting with the trustees without him

I don't see why you need your lawyer to meet with the trustees – sometimes it can be seen as aggressive and it may be more friendly to meet without the lawyer. You may want to ask your employer to help draw up any settlement agreement, but if they just simply agreed to pay a sum of money this can be fairly simple

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Customer reply replied 3 months ago
I do not have an employer or did you mean lawyer to help draw up any settlement agreement. We have no idea of the requirements needed to come up with a sum for the trustees to agree on

Sorry, typo, I did mean lawyer. As for the amounts, you should look at the rates on the land as the first figure, and for the lease, look at what others pay in this area for leases. Work out what this is on a per square meter basis, and use that for what you ask for

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Customer reply replied 3 months ago
I previously gave you figures for rent and rates amounting to a total of $8722.15. Can we get calculations and figures for the lease from 1967 and at what rate. Are the rates only from 6years back? sorry, we have to be sure before going to our lawyer to ask him to draw up a settlement agreement for us. He is bound to ask what this is for
You can ask for the whole period but they may raise the limitation period of 6 years. Again, ask for this without mentioning the limitation period and let them respond. You could then calculate rental as I suggested before based on the going rate for similar land
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Customer reply replied 3 months ago
once again, on behalf of our family and myself I thank you so much for your valuable information. Will be in touch
Glad to help
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Customer reply replied 3 months ago
After a meeting with or family we will continue to pursue our land compensation claim. I have worked out a figure based on the same figures as the first settlement we received from our old lawyer. The breakdown to our land area of 0.3594 pays a rental of $568.72pa x 50. The rental rate p.a. is $128,000.00 ( which expired in May 2011 and was up for review) $128,000.00 divided into 80888hectares; the per hectare amount is $1582.43. Ourlast rates bill 2016-2017 (from 1st july to30 june) is $892.47 p.a. I also timed that by 50. We also have a rates assessment notice for the Waikato Regional Council for $143.59 p.a. for general charges. The lawyer has seen this notice, but has not included in the settlement figure.
My figures $568.72 x 50 lease $28436.00
$892.47 x 50 rates $44623.50
$143.59 x 50 Waikato ccl $ 7179.50
TOTAL $80239.00We also discussed at our meeting a pro bono lawyer. We have all agreed that if we are able we will proceed with a pro bono lawyer. We are aware that a percentage of what we get will be payable to the lawyer. If he feels its not worth persuing, will he advise us? Can you please advise and even recommend one for us please!!!!! I am maori but: for all we've been through, we had 3 maori lawyers and I don't trust them......and we dont need another.
Customer reply replied 3 months ago
I am not very confident in doing this ourselves and feel a lawyer would be strong support.
How would we continue, if the trustees of the bigger block dont accept our figure, and dont even mention the consent that dad ok'd the use of our land. We are all certain he did not consent to the use of it. Refer to clause 2 of the land deed. Are there any other Acts or references that can be used against us?
I would be happy to help but I am based in Wellington. I am sure you are on the right track with your claims however.
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Customer reply replied 3 months ago
Do you think that our claim to settle of $80239.00 would be a fair and reasonable one to make? and would it be a good idea that we meet with the trustees on our own, the reason I ask is; they may have a lawyer present.

I think your claim is a good starting point and you can negotiate from there. You can have a meeting which is on a without prejudice basis and subject to getting legal advice. So you could tell them from the start that you want to have any final settlement vetted by your lawyer. That would mean you would not be disadvantaged at the meeting because whatever you decide would be provisional on getting later legal advice

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Customer reply replied 3 months ago
Thanks again Chris, (if only you were in our area) I will write to the trustees of the other block to arrange a meeting and will let them know that any final settlement would be vetted by our lawyer. Is it ok to put this to them in the letter?

Yes, so they know you need the backup

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