In its Practice Note for Lending on Whenua Māori (the Practice Note), the Māori Land Court aims to clarify how whānau, lenders, their bankers and their lawyers can navigate the nuances of the Act by providing guidance on:
- how owners of whenua Māori approve mortgages;
- how mortgages are registered against whenua Māori; and
- how mortgagees exercise powers of mortgagee sale in connection with whenua Māori,
in each case in connection with the four typical ownership structures for whenua Māori:
- held by a Māori land trust;
- held by a Māori Incorporation;
- held directly by the owners; and
- leasehold estates.
The Practice Note also seeks to clarify how enforcement of such interests will work, although how this will operate in practice remains to be seen.
Registering mortgages against whenua Māori
A brief summary of the guidance provided in the Practice Note is set out below in connection with each ownership type.
Whenua Māori held by a Māori land trust
Generally (and subject to the terms of the trust order) the trustees can agree to register a mortgage against the whenua by a majority resolution. All trustees must sign the mortgage documentation, and once it’s been noted by the Registrar of the Māori Land Court (the Registrar), it can be registered against the title in the usual way.
Whenua Māori held by a Māori Incorporation
Generally (and subject to the terms of the constitution or, if there is no constitution, the Māori Constitution Regulations) a mortgage can be approved by a majority of the members of the Incorporation’s committee of management. The mortgage documents can be signed by fixing the common seal of the Incorporation in the presence of two committee members, who must witness the seal, and also sign. Once the mortgage has been noted by the Registrar, it can be registered against the title in the usual way.
Whenua Māori held directly by the owners
In this case, every owner must approve the mortgage, and sign the mortgage documents. If there are a large number of owners, a mortgage can be approved by a resolution carried at a meeting held in accordance with Part 9 of the Act, or a trust or incorporation could be established to approve the mortgage. To register the mortgage, owners must apply to the Registrar for a certificate of confirmation which, once issued, can be used to register the mortgage against the title in the usual way.
Leasehold estates of whenua Māori
Generally (and subject to the terms of the lease), a mortgage can be registered against a leasehold estate of whenua Māori in the same way as a freehold estate. If lessor consent is required, then the process for approval (by a trust, incorporation or owners directly) applies to the lessor. Depending on the ownership model and the term of the lease, there are various approvals and confirmations required from the owners and the Māori Land Court.
Enforcement
The Practice Note confirms that mortgagees can exercise their power of mortgagee sale over whenua Māori in the same way as any other land (with the addition of noting required by the Registrar). However, the land will remain as Māori freehold land (as defined in the Act) upon a mortgagee sale. It is important to bear in mind a key aspect of the Act is “the retention of that land in the hands of its owners, their whānau, and their hapū”, and that no land can lose the status of Māori freehold land otherwise than in accordance with the Act (or as expressly provided for in any other Act), noting that the Māori Land Court has jurisdiction to determine the status of land, including changing Māori freehold land to general land.
If you have any questions about the matters raised in this article, please get in touch with the contacts listed or your usual Bell Gully adviser.