Under New Zealand relationship property law, Māori land falls outside of the rules for dividing a couple’s property when they separate.

This means that if the family home is constructed on Māori freehold land it will generally not be included in the relationship property pool for the purposes of a relationship property division, as the law states that if a house or building is permanently attached to land, it belongs or attaches to that land.

A recent case in the High Court confirmed this legal position, as it was decided that the increase in the value of the family home would not fall into the relationship property pool as it was built on Māori land.

The Court in this matter determined that only the Māori Land Court can decide on the ownership of Māori freehold land, and refused to make an order based on lack of jurisdiction to do so. The effect of the Court’s decision was a loss of $80,000 to one of the parties, as the increase in the value of the property (land and building) was unable to be divided under the Act.

If the house or building affixed to the land is determined to be a “chattel”, then it can be included in the relationship property pool. Generally, a chattel is property that can be removed from the land. The Court has in the past regarded a house as a chattel for the purposes of this section of the Act, but only in specific circumstances.

In one instance, the Court decided that a house situated on Māori land was a chattel as the whole weight of the house sat on timber piles. The Court decided that this meant that the house was not attached to the land, as it sat on piles rather than attached directly to the underlying land. The Court came to the conclusion that because the building was not firmly fixed to the land, it was a chattel.

In this particular case, the Court found that the house sitting on top of the land was to be included in the relationship property pool, and both parties therefore received 50% of its value.

If there is confusion around your entitlement to property upon separation, it is wise to seek early advice from a professional with experience in the area.

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