How to Obtain the Overseas Investment Consent

Strict rules will apply, if you are an overseas person or an associate of an overseas person wanting to invest in New Zealand.

You may need to apply to the Overseas Investment Office (OIO) for consent if you wish to acquire:

• sensitive land or an interest in sensitive land (e.g. by buying shares in a company that owns sensitive land), or

• business assets worth more than $100 million, or

• fishing quota or an interest in fishing quota.

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Persons requiring consent:

You are an overseas person if you are neither a New Zealand citizen, nor ordinarily resident in New Zealand. A company, a partnership, a joint venture or a trust can also be an overseas person. You will also require consent if you are an associate of an overseas person. You will require expert legal advice to know whether you or the entity that is going to acquire the sensitive assets is an overseas person or an associate of an overseas person.

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Sensitive land requiring consent:

Land will be sensitive if it comes within the types of land and area thresholds detailed in Part 1 of Schedule 1 of the Overseas Investment Act 2005.

While determining whether land is sensitive can sometimes be straightforward, often significant legal and land expertise is required, particularly if there are nearby waterways.

The Minister of Finance issued a new Ministerial Directive Letter to the OIO. The letter, dated 8 December 2010, takes effect from 13 January 2011 and provides direction to the OIO, as regulator of the Overseas Investment Act 2005, about particular factors that are of greater relative importance when assessing investments in large areas of farmland.

The letter notes, as an indicative guide, that an overseas investment in farm land would be considered 'large' if it were to result in the relevant overseas person owning or controlling an area of land that is more than ten times the average farm size for the relevant farm type.

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Obtaining consent:

Applicants for consent must satisfy a number of criteria, including the core “investor test” criteria.

In addition, consent to acquire sensitive land will only be granted if the transaction will, or is likely to, benefit New Zealand, or alternatively, the relevant overseas person intends to reside in New Zealand indefinitely. Some types of land (such as farm land) also have specific consent criteria.

Applicants for consent to acquire fishing quota must satisfy a “national interest” test.

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Next steps:

Determining if consent is required and applying for consent generally requires significant legal and land expertise. Seek assistance from a professional adviser as early as possible to help ensure a smooth transaction.

Source: Land Information New Zealand