ASSIGNMENT OF

INSURANCE AND WEATHERTIGHTNESS CLAIMS

TO PURCHASERS

UNDER AN AGREEMENT FOR SALE AND PURCHASE

BY KAY KEAM

TOPICS TODAY

• ASSIGNMENT GENERALLY

• INSURANCE CLAIMS

• INSURANCE LAW REFORM ACT

• SFA

• EQC AND INSURANCE CLAIMS

• WEATHERTIGHTNESS CLAIMS

• GENERAL LITIGATION

• WHRS CLAIMS

• LAW COMMISSION PROPOSALS

ASSIGNMENT

• PRIVITY OF CONTRACT

• THE TORTS OF CHAMPERTY AND MAINTENANCE LIMIT THE ABILITY TO ASSIGN

• PERMITTED WHERE THERE IS A PROPERTY INTEREST

ASSIGNMENT TO PURCHASERS

“It is not contrary to public policy for persons to sell the right to bring an action against another, where the action pertains to recovery for damage to property being sold at the same time.”

Body Corporate 180379 and Donk Properties Limited v Auckland Council

[2012] NZHC 588

PERIOD PRIOR TO SETTLEMENT• INSURANCE LAW REFORM ACT

• PURCHASER GETS THE BENEFIT OF THE POLICY

• SFA

INSURANCE CLAIMS

• EQC AND PRIVATE CLAIMS

• CAN BE ASSIGNED

• CAUTION OF CASH PAYOUT

• RESIDUAL CLAIMS

INSURANCE CLAIMS

• EQC AND PRIVATE CLAIMS

• CAN BE ASSIGNED

• CAUTION IF CASH PAYOUT

• RESIDUAL CLAIMS

LEAKY CLAIMS

• GENERAL LITIGATION OR WHRS

LITIGATION CLAIMS

• GENERALLY ASSIGNABLE TO PURCHASERS

• REINZ CLAUSES

• DUTY OF CARE OWED BY COUNCIL TO BOTH COMMERCIAL AND RESIDENTIAL BUILDINGS – SPENCER ON BYRON

• WHAT IS THE LOSS IF PURCHASER HAS KNOWLEDGE? NAUTILUS

• LEVIES

LAW COMMISSION REPORT

• POSITION OF DEFENDANTS WHO ARE JOINTLY AND SEVERALLY LIABLE TO PLAINTIFFS

• LIMITS FOR DEEP POCKET DEFENDANTS

• LIMITS DO NOT APPEAR REASONABLE IN LIGHT OF NAUTILUS

WHRS

• RESIDENTIAL DWELLINGS

• OWNERS

• TERMINATION IF CHANGE OF OWNERSHIP WITH STANDALONE DWELLING

• DIFFERENT APPROACH TO STAND ALONE DWELLINGS AND MULTI UNIT COMPLEX

CONCLUSIONS

• CARE NEEDS TO BE TAKEN WHEN LOOKING AT ASSIGNMENT

ANY QUESTIONS?