LEGAL INQUIRIES

New Zealand Herald, Volume LXXVI, Issue 23486, 25 October 1939, Page 3

LEGAL INQUIRIES

MANY PROBLEMS SOLVED

This column appears each Wednesday. Care will be taken to ensure that the legal guidance is sound and accurate and as complete as possible on the facts supplied, but no responsibility is undertaken for the advice or information. Send questions to "Advocatus," care of Editor, Nmv Zealand Herald, Auckland, and enclose name and address as guarantee of good faith. Postal box numbers are not accepted as bona fide addresses. Initials or a pseudonym must also be given for purposes of reference in the column. Rochdale.—The trespass of a horso on an adjoining section belonging to someone other than yourself gives you no right of action unless the trespass extends to your own property. Even in that case unless your property is sufficiently fenced within the meaning of the Fencing Act your remedy would bo limited to having the horse impounded. If it is fenced you would have an action for damages. Unless a horse is in some manner particularly offensive the keeping of the same in a residential area would not amount to a nuisance at common Jaw. M.D.—ln the absence of agreement as to the nature and duration of a tenancy, one calendar month's notice in writing is necessary lo determine it. This applies to flats, apartments or rooms, as well as other tenancies. In your case the Fair Bents Act will apply, and to obtain possession you would require to show that you reasonably require the rooms for your own use and occupation, and that other adequate accommodation is available, or that the hardship on you in refusing an order would be greater than that of the tenants in making one. A.B.—You are under no obligation to make your fence pig-proof unless you keep pigs, in which case the obligation is on you to keep them on your own property. G.D.S.—You must pay the man employed by you on the dairy farm full award wages unless he has been granted an underrate permit. Application should be made to an inspector of factories, Labour Department, for an under-rate permit. F.M.R.—There is no award covering private domestics. Their wages, hours of work and holidays aro therefore a matter of agreement between employer and employee. Curious.—See answer to "F.M.R."

Essendon.—Regulations known as "Tho Courts Emergency Powers Regulations, 1939." have been made under the Emergency Regulations Act, 1939, by Ordcr-in-Council and were gazetted and came into force on September 22, 1930. There is a fairly general misapprehension as to the effect of these regulations. They do not interfere with tho ordinary Civil Court proceedings up to and including judgment. They -have the effect of making it necessary to apply for the leave of tho Court in which judgment is obtained before proceeding to execution or otherwise to tho enforcement of any judgment. They also prohibit without leave of the court: (a) The exercise of any legal remedy; (b) the-calling up of the principal, sum or any part thereof secured by any mortgage; (c) the exercise of any power of sale in a mortgage; (d) to commence proceedings in any Court for breach of covenant in a mortgage "other than a covenant for the payment of interest." "Legal remedy" includes: (a) The levying of distress; (b) taking possession of any property or appointment of a receiver; (c) re-entry-upon land; (d) the realisation of any security or the forfeiture of any deposit; (e) the rescission of any grecment for sale and purchase of land; (f) certain steps in bankruptcy or liquidation proceedings. You will see from the above that, subject to the leave of the Court, the regulations have the effect of a general moratorium, but that nevertheless there is nothing to prevent you from suing for interest due under a mortgage, this particular breach of covenant being specifically excepted from the regulations. You could not, however, proceed to execution on the judgment without leave of-the Court. "Execution" in general means (he seizure and sale of a debtor's assets in order lo realise the amount of the judgment. It has been contended that the issue of a judgment summons is a form of execution or enforcement of the judgment, and cannot be effected without leave of the Court. This is a matter that will be settled by a Court decision shortly. Certain judgments are excepted from the regulations:— (a) For damages for tort (i.e., a civil wrong, e.g., negligence, trespass, slander, etc.); (b) orders under the Destitute Persons Act; (c) certain penalties in criminal proceedings. The Property Law Amendment Act also deals with the rights of mortgagors and mortgagees and in particular makes it necessary to give one month's notice before exercising a power of sale or entry into possession of land over which there is a mortgage, orj before any moneys secured by the mortgage become payable. The Court, in granting leave under tho emergency regulations, may refuse leave if it is satisfied that h.v reason of circumstances directly or indirectly attributable to war. The regulations specifically state that no appeal shall lie from the Court decision. ,-s, Anxious.—See answer to "Essendon." Your mortgagee cannot call up the principal sum without the leave of the Court. Anxious.—You are not liable for the social security charge on money received upon the maturity of a life insurance policy or the Nile ot a house, since such money is not income within the meaning of the Social Security Act, 1938. Pigs.—Your land does not appear to be sufficiently fenced within the meaning of the Fencing Act. Your remedy as far as pigs is concerned is limited to impounding, and the trespass rates or damages fixed by the Act, unless your land is under cultivation or is in artificial grass, in which case you can destroy pigs irespassing, provided .vou follow the procedure laid down by the Impounding Act. Otherwise your remedy is to call on your neighbour to have the fence put in order, after which if the pigs trespass you can then destroy them. Worried. l —Your son, being under 21, must obtain his parents' consent before he can get married. If he makes a false declaration of his age and succeeds in getting the ceremony performed the marriage will be valid, but he will be liable to a fine up to .er>o or two years' imprisonment for making a false declaration. Where parents unreasonably refuse consent application can be made to a magistrate. The fact that your son is a soldier makes no difference to this position.

Ann. —A hedge, if it is a close and sufficient fence, may be a boundary fence within the meaning of the Fencing Act:—(a) ]f the adjoining occupiers have agreed to this effect, or (b) if it has been accepted bj* the adjoining occupiers as a boundary, or (c) if it has been declared by a magistrate to be a sufficient fenco within the meaning of the Act. If it is a boundary fence, then the parties are subject to the provisions of the Act, i.e., that neither party can destroy it, and both parties must keep it in repair, which in this case would include trimming. If it is not a boundary fence, then the owner of the land on which it is growing can do as he likes with it. Tho height of boundary fences causes somo trouble, and, in the event of dispute between neighbours, is a matter which will be settled by a magistrate. The same position arises with regard to the method of trimming and so forth. Provisions as to notice contained in tho Fencing Act must be observed. Assuming that the trees planted by your neighbour do not actually encroach on your property, you have no remedy. The matter was fully dealt with in an answer sub nominee "Trees" which appeared in tho llkrald on August IG, 1939. Wild Chase.—lf the house comes under the Fair Rents Act, the new owner cannot force you to vacate tho bouse unless he requires it for his own nso and occupation. There are other grounds provided by the Act, but theso do not apply in your case.

Glenview.—Tho Fencing Act provides that adjoining occupiers of land are liable to contribute in equal proportions to tho erection of a fence between such land, notwithstanding that such fenco may not extend along the whole boundary line. "Occupier" is given a wide meaning, and includes "any person who is in tho actual occupation of or entitled as owner to occupy any land alienated from the Crown, or any Maori or other land to which this Act applies . . . and also any person who has in any manner purchased or acquired any such land or any estate or interest therein." It has been held, however, that an owner of land who has parted with his right to occupy it by leasing or letting is not an "occupier" within the meaning of the Act, and is therefore not liable to contribute to the cost of fencing. Your remedies therefore are against the lessee of tho land, who is in actual occupation.

Optimist.—Tn most cases there is nothing legally to prevent a beneficiary selling his share in a deceased estate. It is not possible to advise yon as to the likelihood of finding a purchaser at a reasonable price without knowing full particulars. For instance, a purchaser would require to know the nature of the assets, whether they are likely to depreciate, how long it will bo before Ilie.v can be realised, the income thai is being produced, and so on. Failing a sale it might be possible for you to borrow a substantial amount on the security of your interest. Communicate with the solicitor for the estate and ask him for full particulars and for his opinion as to the possibility of selling or borrowing. If you have a hank account your bank might be prepared to advance you money by the way of overdraft for the purposo of carrying on your farm.

Corse.—-Under the Noxious Weeds Act, you, as occupier of tho land, aro liable to clear so much of tho gorso thereon as is required by an inspector by notice in writing. Unless there is anything to the contrary in your agreement with your landlord you are entitled to recover a reasonable part of. the expense, of so doing. In your case, if yon cannot agree on the amount with your landlord, it should be fixed by a magistrate. The length of your tenure has a large bearing on the amount recoverable from the landlord, and in some cases a landlord would-be required to pay the whole amount. Unless tho landlord agreed to do repairs you are not legally entitled to call upon him to do any. A sanitary inspector might, of course, requiro certain work to be done.