Wealthy overseas landowners forced to sell in government crackdown

Thursday, 10 May 2018

The gated community has rolling hills, a private lake, and spectacular views over the Southern Alps.

What it doesn't have is people – which is why the Overseas Investment Office (OIO) has stepped in and forced its foreign owner to sell.

Using a rarely invoked power, the OIO has required the estate's owners to give up their land because they did not meet the terms of the agreement.

It is part of a crackdown by the agency and its new enforcement team, which monitors the hundreds of wealthy foreign investors who own sensitive land in New Zealand.

The planned gated community is owned by Serge and Lilian D'elia, American investors based in Wyoming. Serge co-founded the international shoe company Vans in 1966, and was once its vice-president. When the company was sold in 1988, he made $19m, according to court documents.

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The D'elias first bought into the estate in 2005, buying two of 16 lots in what was then known as Tui Creek. After Tui Creek went into receivership, the D'elias bought the rest of the estate in 2009, with the OIO's permission.

The OIO requires any foreign buyer of sensitive land to meet certain criteria: In particular, they must be 'of good character' and provide 'substantial and identifiable benefit' to New Zealand. The deal required the D'elias, who have New Zealand residency, to finish the development, citing the economic benefit to the country.

They built a large house for themselves and a model show home, but nearly a decade on, no other sites have been sold. The large estate is effectively empty, largely due to a delay in getting resource consents and a lack of buyer interest.

'Originally, the D'elias stated that they intended the development to take approximately six years,' the OIO's deputy chief executive Lisa Barrett said.

'In late 2015, it became apparent… that Tui Estate was not going to successfully fulfil its consent obligations.'

The estate is now on the market.

The lake at Tui Estate, with the mountains in the background.

A director of the development and the couple's New Zealand representative, Barry Hopkinson, said every effort was made to make the development happen.

They produced lavish brochures, made a website, and ran newspaper ads, but struggled to gather interest.

'The plan was we would build a spec house, sell it, build two spec houses, sell them, and so on, until the whole place was sold,' he said.

'We've had God-knows how many land agents up here and they say 'why hasn't this sold?' The views are spectacular, it's a very nice house – you wouldn't build it for what we've got it for sale for. We just haven't had any interest. We've not had one half-serious person come to look at the house.'

Hopkinson said the OIO's intervention was unnecessary, given they had already been trying to sell the land. He now had to provide half yearly updates on the sale's progress, which would become harder under the Government's planned legislation to make overseas purchases of residential land more difficult, he said.

'Someone in the OIO picked up we hadn't complied with our original plan … We said to them we're very keen to sell it, we can't do much more than that. We'd love to sell it.

'I sent them all the marketing material, all the initiatives we had implemented to sell the blimmin' thing and they seemed satisfied with that. So I don't know why they say they're forcing the sale because it's for sale anyway.'

Tui Estate from above. The D'elias' karge house is in the centre, the model house to the left.

The OIO accepted there had been sincere efforts to comply with the consent.

The agency has significantly stepped up its monitoring and enforcement arm. Prior to 2016, it had one full time staff member monitoring around 700 consents granted to overseas investors, which critics said made the agency toothless.

A review of the OIO by the Auditor-General's office released last month said prior to 2016, monitoring was 'approached as an administrative task,' and the information collected was not thoroughly analysed.

Starting last year, there has been a dedicated team of around eight people working on monitoring and enforcement.

Despite being near Lake Coleridge at the foothills of the Southern Alps, few buyers were interested in Tui Estates.

Six overseas investors were forced to dispose of land in 2017, a power invoked only around 10 times in the decade prior, and 19 compliance letters were sent, up from three in 2016 and none in 2015.

The recent crackdown also caught the owner of Waiheke Island's airport, who was planning to build a luxury resort around the runway. Neil Greer, a British pilot based in Dubai, bought the land for $2.6m around 2006, which was approved retrospectively by the OIO in 2011.

He received resource consent to develop an airpark resort, with luxury villas and private aircraft hangars, after a protracted battle with the now-defunct Auckland Regional Council. The development never emerged and the land was put up for sale in 2016, with no reference to the fact the OIO had forced the sale.

Similarly, the Korean owner of Whisper Creek, a failed $160m golf resort in Christchurch, was also forced to sell after failing to build the development.

Other recent casualties include:

German man Werner Braun, under the name Canres Ltd, was forced to sell a North Canterbury farm. He bought the land near Cust and subdivided it into four parts, planning to build a sports lodge on one section, but it never eventuated.
A Chinese company which sells oil products has been forced to sell a section in Northcote which it did not seek OIO permission to buy.
A Chinese-owned section in Flat Bush, Auckland has also been sold because the land was sensitive and the owner did not seek permission to buy.
In early 2017, Chinese developers were forced to sell land in Queenstown they had purchased for $1.4m. They were required to build an accommodation business but did not.
Warnings have also been issued relating to breaches of OIO rules.

Itoham Foods, owner of local meat giant ANZCO, was warned last year for acquiring sensitive assets without consent. It had owned the majority of ANZCO since 2015, but merged with another company the next year, meaning shareholders in the new company acquired sensitive assets without OIO approval.

Itoham Yonekyu, as it is now called, said the breach was accidental, but the OIO said it should have sought legal advice.

Queenstown lawyer Russell Mawhinney was warned last year for providing incorrect legal advice relating to two overseas land purchases. In a separate case, the OIO made a referral to the Law Society in December concerning advice given to Australian company Carbon Conscious prior to its illegal purchase of sensitive land in Taranaki.

*An earlier version of this story incorrectly stated the D'elias purchased the rest of the estate in 2009 for $1.2m. This payment was for one block of land; the entire estate was bought for a larger, unknown sum.