Foreign buyer ban: It’s the enforcement, stupid

KeallHauled

Chris Keall

David Parker at the foreign buyer ban briefing: "It will be enforced by making it illegal" (photo: Rob Hosking)

Scroll down for the latest LINZ (Land Information New Zealand) foreign buyer data

I’m not a fan of a ban on foreigners buying existing homes.

But if you’re going to do it, do it right.

“How will this be enforced?” Associate Finance Minister David Parker was asked last night.

“It will be enforced by making it illegal for a non-resident, non-citizen to buy New Zealand land,” Mr Parker replied.

It will be enforced by making it illegal. Oh, brother. Labour seems to have learned nothing from Australia's recent experience.

Unless, of course, Labour wants to have it's cake and eat it to. That is, a foreign-buyer ban that plays well to the cheap seats, but isn't that effective so doesn't rankle China.

“For those who want to because they’re going to be building a house for on-sale, they’ll have to go through a consent process via the Overseas Investment Office," Mr Parker continued.

“We’re also likely to require a certificate from the solicitor who signs the transfer document that goes through the Land Registry Office to certify to the best of their knowledge, the person who is buying is not an overseas person.”

Australia took the same tack in 2006 when the federal government passed a similar measure. The enforcement was simply that it was against the law.

As in New Zealand, the global financial crisis subsequently smacked house prices, and the issue stayed on the back-burner – until 2014, when, amid skyrocketing prices in metro areas, and a blush of newspaper articles about wealthy Chinese citizens buying up Sydney mansions, it was noted that there had not a single prosecution for a breach of the foreign buyer curb since it was introduced.

That was addressed in late 2014 by the government introducing much tougher penalties for those who broke the rules: a fine of up to $A127,500 for individuals, up to $A637,500 for companies, and up to three years’ jail for offenders.

But by mid-2015, media noted that only $700,000 in fines had been dished out as house prices continued to rise.

So after phase one (simply making it illegal) and phase two (introducing deterrent fines), the Aussies finally got around to phase three: enforcement.

Five staff at the Foreign Investment Review Board (the Aussie equivalent of our Overseas Investment Office) were supplemented by 50 from the Australian Tax Office.

Since then, things have heated up a little. Earlier this year, the ATO reported that foreign investors had been forced to sell 15 properties worth $A100 million in the previous year (in a market where about 500,000 properties change hands each year, according to Reserve Bank of Australia statistics).

It seems more enforcement is needed to serious analyse sales but, with the Australian housing market finally cooling off (because of a number of factors, including Chinese government restrictions on capital outflow), the pressure is off.

Here, we seem to be at just the beginning of the learning curve – back where Australia was with its naïve “it will be enforced by making it illegal” position in 2006.


POSTSCRIPT: LINZ foreign buyer stats for April 1, 2017, to June 30, 2017

Mr Parker says it’s hard to say what impact Labour’s foreign buyer ban will have on the market, as previous governments have kept no tabs on sales to non-New Zealand residents, and National’s tracking measure (requiring a non-New Zealand resident to have a New Zealand tax number) was inadequate.

He adds that he’s ideologically opposed to foreigners buying existing homes in any case.

“I have a pretty simple view of this. I don’t think that it should be an international market for houses. I think local homes are to live in,” he says.

“They shouldn’t be commodities that we trade internationally. I think just about everyone who’s a foreign person buying into New Zealand – they’re a very, very wealthy one-percenter if you like. And I think that’s one of the excesses of global capital when you allow those sorts of interests to influence your local housing market.”

Regardless of what Mr Parker thinks of its data, LINZ has been tracking sales by tax residency.

Critics argue that actual sales to non-NZ residents are higher due to people gaming the system through relatives or trusts or friendly real estate agents or lawyers but my take is that, if people won’t play ball with the existing tracking measure, they’re not about to follow the new rules either – especially if they’re lightly enforced or (as the plan seems to be at the moment) not enforced at all. So they probably do represent the sales that will be affected by the foreign buyer ban.

Note that Australians will be exempt from New Zealand’s measure, just as New Zealanders are exempt from the Australian rules described above.

Here’s the latest LINZ report:

Of the 48,603 property transfers registered with Land Information New Zealand from April to June 2017, there were 27,471 transfers where the property buyers provided only a New Zealand tax residence (57%). There were 1515 transfers where at least one of the property buyers provided an overseas tax residency (3%). 

Of those:

• 414 were tax residents of China (0.85% of 48,603)

• 348 were tax residents of Australia (0.71%; exempt from the pending ban)

• 240 were of mixed tax residency, including NZ (at least one of the buyers has NZ tax residency)

• 84 were tax residents of United Kingdom (0.17%)

• 84 were tax residents of USA (0.17%)

• 66 were tax residents of Hong Kong (0.14%)

• 279 60 (0.57%) were tax residents of 49 other countries, each with fewer than

LINZ adds: There were 19,617 transfers (40%) where tax information was not required because it involved the main home or for other reasons. To claim the main home exemption a person needs to live at the property and can’t be an “offshore person”, so there is a clear connection to New Zealand. Other reasons include Māori land, Treaty settlements, and purchases for central and local government purposes. Tax residency is not the same as nationality. You can live in New Zealand and also have tax residency in another country. Alternatively, you could be an overseas citizen and have only New Zealand tax residency.

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68 Comments & Questions

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Just because something may be difficult to enforce, does not mean it should therefore be legal. So to imply someone is "stupid" because they want to pass a law on that basis simply makes no sense and therefore substantially reduces the asserter's credibility in my opinion.

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And I agree....The author long ago nailed his colours to the mast and there they shall stay.
He has written some very biased and quite stupid articles that make no sense at all.
best he stick with watching cricket if that is what he does because writing logic is certainly not in his skill set.

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What a shame that we have lost our liberal approach to inclusiveness and just 'getting on' with different races for the sake of a typically Australian policy.

It's racism enshrined in policy to ensure popularity. The practicality will soon be apparent:

Rest assured, the circa 1000 people effected in the LINZ stats above will find another way to own their piece of Godszone. They are not randomly deciding to invest in New Zealand - they are connected here by friends, family and business. The loopholes and massive.

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I thought the point of making a law was to make or encourage people to change their behavior? I think what the writer is questioning is whether a law change as proposed will achieve this objective. If that is not the objective of the law change then what is it? Just something to make left wingers feel better about things?

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That's right, he should not of called it "stupid.
He should've called it "racism".
Hang on a min. but isn't racism stupid??

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New Zealand is now a racist country just like Australia because of this world wide ban on home ownership

New Zealand is too small to block out business who want to buy into our country and set up large corporations and job opportunities.

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They can still buy or build new houses. This increases housing supply. I think this is win/win as most Asians like to buy new anyway.

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Business people are too busy to go through the hassle and waiting for a year to get a house built for their family whilst setting up much needed business and employment for this country.

Have you ever built a house before it is a nightmare with risks! Building companies go under taking your deposit. Cost over runs. Council problems asking for more engineering and planning costs and much more issues.

No simply No way would intelligent business people who do not know the dreaded New Zealand building process would build a house here!

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Or those business-people could just rent until they have residency. Seems like the prudent thing to do for them to do anyway in case the business they are setting up fails or their bosses transfer them somewhere else.

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Strange...I've worked in China before. Expats never had a problem going there to set up business and work just because they couldn't buy land.

Sounds like rubbish to me.

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you can buy property in China as a foreigner

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It's recent, and technically a lease for 70 years. Just goes to show there's nothing wrong with leasing instead of owning outright, eh? Doesn't seem to discourage foreign business investment at all.

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"Most Asians likely to buy new anyway". Really ? And you base this on what ?

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If that was true then the law is not needed

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Please explain

The restrictions apply only to non-tax-residents wishing to buy residential housing located in NZ - haven't read anywhere of anything blocking large foreign businesses setting up in New Zealand - can you provide better details?

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Racist
noun
1.
a person who shows or feels discrimination or prejudice against people of other races, or who believes that a particular race is superior to another.

Choose another word.

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Why should he, "choose another word"?
If he/she was referring to the authors of this barmy attack on "foreigners", I say it fits perfectly.

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This proposal is aimed at ALL non-citizens and non-residents, regardless of their race. At no point is there any mention of different rules for different races. If there were, that would qualify as being racist.

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The foreign ban is simply just symbolic, it will have a short term damping effect and then people find a way to get around or ignore it as they realise that it’s a nightmare to enforce.

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Although I disagree with it, I think you're right: it will have a symbolic effect.

And along with other quick moves, it's giving the Coalition a government-of-action image, in contrast to National's softly-softly approach (speaking of which - how Bill English must have ground his teeth over the timing of John Key's sale of his Parnell home to a Chinese buyer).

The market is cooling off anyway, and it probably won't heat up again (thereby exposing the drawbacks of lack of/difficulty of enforcement) until after the next election.

Politically, it's a win-win.

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Think you'll find this will have the desired affect, by putting another barrier to entry.

Unfortunately, the horse has left the stable this time round, and the prices are correcting themselves anyway. The only benefactors have been the predator banks, who have enjoyed record profits (haven't tried to spin that it relates to efficiencies).

I, like most people, what my children to be able to afford the security of their own home. At least Labour are doing something, which is obviously constrained by the trade agreements previous governments have entered into.

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I'm not clear how this is going to benefit those aspiring New Zealand home owners who will be looking at the alleged low to middle price range, in Auckland anyway.
This planned new town of 500,000 people in South Auckland, will that mean we won't need to spend billions on an express commuter services to Hamilton?

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"At least Labour are doing something". Yeah but does it really count when that something will prove to be totally ineffectual ?

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Especially the stupid HC Labour unfree trade agreement that got someone a lucrative tax free sojourn at the world’s most ineffective cabal of socialists ? Surely Parker should have warned Taxinda? Unless that’s part of the plan to let her loose whilst they cement theirvpositions for the next move.

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We have previously had huge anti TPP marches up and down the country and now the Labour government and the media seem to think the protests never happened.
Maybe they are all just secret globalists and like the idea of unelected, unaccountable judges sitting in an overseas kangaroo court deciding our future.

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This could well be the first of a number of things National has ignored and put in the too hard basket for the last nine years. Will be a positive sign for many to have a government that actually represents generations of NZers, rather than just one.

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So this law has been in many European countries but the way around it has been simple. Domestic companies are setup with offshore capital and often obscure nominees and as there is no restrictions of local companies investing in property, these are almost never investigated. Trusts can be used as well as local residents with foreign connections or dual passports who act as fronts for the real investors. Its nice to have fines, but the real issue is transparency to identify the source of the capital or the actual investor. It will need not only very good and detailed drafting but maybe the onus should be on the seller to check and warrant not just the buyer. That may shift the risk to the right counterparty.

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Make it subject to money laundering provisions. Forget fines - property or value of property is confiscated.

Remember they can buy new so risk of buying existing is probably too high.

Maybe add the purchasers solicitor and bank into money laundering regime for property.

That would stop gaming the system fast.

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Thanks for the analysis of the land transfer numbers, do you have any similar analysis of the value of the transactions, volume of transfers alone only tells part of the story? (Although obviously individual residential properties, which seem to be the target of the new proposal, will almost always be a single transaction regardless of their value)

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I am just about to buy a property in Australia and as a non resident I must be there living in Australia from the day the buy/sale is signed until it is transferred to my name. Other than paying the stamp duty that's it for a Kiwi in OZ. If an Australian wants to buy here, no restrictions at all and of course not stamp duty

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And so we descend down the slippery slope of eroding private property rights all in the name of fixing a problem no one can give a definitive answer on.

Like how many foreign buyers are there. How much have they inflated the average house price. Will this move bring houses down and if so to what level and when. Will the drop result in mortgagee sales. So many questions with no answers.

Just populist dog whistle politics like the Chinese sounding names we saw.

Good governance policy is alas a stranger to politicians in this country,

The lack of sound policy is why we have a house price problem in the first place.

No attempt is being made to go back to first principles instead knee jerk reaction by a bunch of jerks and morons.

The property market is slowing as part of its natural rise and fall.

Intelligent students of Economics understand how markets go up and go down.

The dim bulbs dont.

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Government needs to, and should, act in the long term interests of the country and its citizens it represents.

If you keep putting people out on the streets, because they cant afford accommodation, and meanwhile you flood the country with record immigration there will be consequences.

I rather prevent this in the first place; rather than bear of the costs of fixing it. You see, all of us bear the cost of fixing it, yet only a few benefit from not fixing it.

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But does all this mean that people who can't currently afford accommodation will then be able to afford it?

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National had nine years to measure foreign buying but found it too hard.

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Teaching ESOL overseas students in Auckland the general feedback is that "New Zealand people do not like us and are racist."

Auckland schools are reliant on overseas students for income and now their numbers are dwindling because of Labour's racist policy.

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How is it racist? Please specify which racial group is being targeted.

Or, is this really about the prospect of fewer students coming into NZ and the future employment of local teachers?

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The Chinese are being targeted - self reliant, hard working, successful. This is a extension of Twyford’s anti-Chinese rhetoric.

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Illogical comment. A rule that applies to all foreigners singles none out.

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I find this to be extremely rich having lived in HK where attitudes towards anyone not from China range from discourtious ambivalance to visible hatred.

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"...having lived in HK where attitudes towards anyone not from China range from discourtious ambivalence to visible hatred."

Utter rubbish. You have never lived in Hong Kong. Hong Kong people are extremely deferential when it comes to Westerners. And they are well known to harbour quite prejudicial views against mainland Chinese.

https://thediplomat.com/2015/02/anti-mainland-sentiment-on-the-rise-in-h...

http://www.academia.edu/15499569/Mainland_Chinese_immigration_in_Hong_Ko...

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If you want to enforce this then make the penaties very high.

(1) If anyone found to be hiding behind a NZ resident - the property is confiscated under the proceeds of crime act. 100% loss.

(2) If it has been sold and funds dispursed then the registered owner is liable for the proceeds and or charge under money launderering act.

(3) Make the purchasers solicitor and bank liable - they should do Know Your Customer on the buyer. They should be able to identify where all of the money is coming from. If from overseas then need to do some more digging.

If the penalties are massive then this will put a stop to people trying to work around the provisions - they would be mauh better off just buying new.

I bet a lawyer is not going to risk a criminal conviction for a few thousand dollars for conveyancing.

If you think this sounds easy to get around, try opening a bank account these days at a new bank or for a new business.

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‎‎Email your suggestions to david.parker@parliament.govt.nz

Very large fines and jail time for those involved in circumventing the intention of the law, (including their lawyers, relatives and agents), together with making the lawyers and banks jointly liable in the screening and verifying the real source of funds is what is needed.

As you say if the banks, lawyers and agents are put under pressure, with legal and financial consequences, they will think twice about signing these off so readily.

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Absolutely everyone in the industry understands and accepts that a great deal of homes are bought from local resident chinese, for and on behalf of their familes in china, and using their funds. The offshore families will have no legal title in anyway or recourse to the property, but this is the Chinese way.

So those LINZ statistics are absolutely meaningless. Anyone claiming look the data proves no offshore buyers are impacting the market. and it also shows that Labour's policy - which is 100% well intentioned and I support - will probably do very little, because the flow of money is under the table.

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The money is not under the table it has to come through a bank......so the bank knows and can check.

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Are you saying that overseas persons cannot say they are paying for their kids to buy a property in NZ? Good luck with that one.

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No but the funds can be traced and then questions can be asked. The people invovled could also be required to sign a document that they are aware of the penalties (suggested above) etc.

Anti money laundering etc is becoming a "big" issue and banks etc are dealing with it.

Tell the local resident if they lie on the application they could end up in jail etc and I think they will think twice.

The penalties under the OIA I think is being forced to sell the assets - so if it has gone up in value the person still benefits. Force them to lose the lot.

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All well and good until the Chinese government makes a mention of this injustice to our meek public servants and that will be the end of that, the Chinese actively protect their interests abroad and sees it's citizens acquiring land overseas as a service to China. Labour will to well to get accustomed to doing business with China, i know an business importing Chinese manufactured food wrapping for the last 15 years, the ruthlessness of tbe Chinese government when dealing with small nations cannot be overstated

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The Chinese government are trying to stop people buying property. A Chinese consumer Cannot send more than $59k each year. So any "people" buying properties are probably breaking Chinese laws.

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Government decisions are founded on either ideology or reason – they may be either faith-based or evidence-based.

it is helpful that David Parker has disclosed the foreigner ban is ideological. This means there's no point in trying to figure whether it does more harm than good. Costs and benefits are trumped by beliefs and feelings.

The object of the ban is to stack the odds in favour of home buyers and against home sellers. But 99% of sellers are New Zealanders – and taxpayers. Why is the government ideologically opposed to them?

Local homes will always be lived in by local residents (by definition, non-residents don't live here). But this debate is not about the occupancy of NZ properties. It's entirely about asset ownership.

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My parents in China just gave me (a NZ Citizen) $5m as a wedding present. They have a packaging business that packs bulk milk powder from NZ for sale in China.

I think I'll buy some property in Auckland Central with that. Let's say 2 x 2.5m houses in Herne Bay/Ponsonby area. My wife and I don't need a large 2.5m house to live in as it's just us two so we'll stay put in our 500k CBD Apartment and put the 2 houses on rent.

If we keep the books looking good we'll go to the bank we'll get a mortgage over them and buy 2 more houses in the area. My siblings should be able to help out (they live in rentals but are earning 65k each) - the more incomes tied to the mortgages the better from the banks perspective and the more we can borrow.

My parents are thinking of moving here eventually, it'd be good to have a house for them when they retire. Ideally I'd like to be able to leave a house to each of my future children too.

Oh what's this housing crisis all about?....

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The housing crisis is about not having enough houses for New Zealanders to live in. Thanks to your avatar we will now have 2 x 2.5m extra houses which will probably accommodate 2 large families. Good work!

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David Parker seems a little naive, stating that "because it would be illegal for non-residents.. to buy NZ land", it is not going to occur.

Every transaction you make, legal or otherwise, has the following criteria: ROI or cost/benefit ratio. If the cost, in this case "the chance of getting caught", is lesser than the benefit "i.e: profit margin", then the likely outcome is under / nil reporting of "non-residents / overseas" purchaser.

Take a look in any prison. Most, if not all inmates, are likely to have done the same cost/benefit analysis in their heads before breaking the law and thought "its worth the risk".

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Most criminals behind bars probably don't think. I have suggested making this a crimial offence with heavy penalities and most people probably will not cheat the system.

why would you - buy an existing home and if we get caught we have big penalties, or buy new and get the saem economic return.......simple buy new. The returns are the same the costs a lot lot lower.

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I thought the idea was that they had to do the building rather than buy something new someone else had just bought. There is a lot of hassle in the former, not so much with the latter

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Email your suggestions to David Parker:
david.parker@parliament.govt.nz

Very large fines and jail time for those involved in circumventing the intention of the law, (including their lawyers, relatives and agents), together with making the lawyers and banks jointly liable in the screening and verifying the real source of funds is what is needed.

As you say if the banks, lawyers and agents are put under pressure they will think twice about signing these off.

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We have two Chinese funded apartments blocks planned for Auckland City both 50 level towers, comprising 500+ apartments in total; the Pacifica and Customs Residential. Construction of the latter is underway. Who can now purchase these apartments legally? They certainly weren't for local consumption. Will both projects have to be scrapped now and will this have a significant impact upon the current building boom and employment opportunities when combined with other similar projects affected by the new regime's policies?

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I suggest most of those would have been sold off the plan ----- so not existing houses etc. So anyone can buy them. Not that hard to understand.

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At least they are doing something, it will no doubt need to be modified and adapted but they're not going to sit back and watch prices spiral out of reach of most NZers, a lot of it is about intention. The last govt were completely asleep at the wheel.

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At least they are doing something, it will no doubt need to be modified and adapted but they're not going to sit back and watch prices spiral out of reach of most NZers with out doing anything, a lot of it is about intention. The last govt were completely asleep at the wheel.

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in my experience often nothing is better than the wrong something

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Good on the Labour lead government for putting a stop to the rampant speculation by foreign buyers of houses in New Zealand. This has done nothing other than to push the price of houses up beyond the means of New Zealand workers, the poor and first home buyers. And for what and whose benefit? No one except the foreign buyer, and those who have selfishly profited at the expense and wellbeing of New Zealand's workers, young and poor. At last we have a government that cares about our people before the profits of rich foreigners and their hangers on.

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A very emotive though not well researched. You can read the real figures here on NBR and it certainly does not support your comments. Facts please not rhetoric.

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The 3% is a bogus number that does not measure what people claims it does. But even using that data the number is 5% in Auckland and 11% in Queenstown.

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NZ will be now deeply Identified as anti Chinese, especially when added to Winston's racist taunts. This will do far more damage to NZ than a few houses being bought by offshore investors...all of which are available for rent to NZrs. The damage will not be able to be exactly measured but will occur in the form of lost opportunities, reduced employment etc.
The housing boom is over and this ban if anything will lead to losses and negative equity for hard working Kiwi families. Very dumb move.

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I doubt that it will lead to "losses". On paper? maybe? But banks probably do not want to "kick the first domino" and become owners of a lot of houses. (that they cannot sell to "foreigners)
So I do not see many, if any, losing their home.

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Sad to say that a lot of wealthy people actually keep their homes empty. This is a massive issue in HK

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Globally any country that has free education and healthcare , strong property laws with good infrastructure is where everyone wants to live/invest. Add NZ's pricing, clean beautiful environment and a pile of honest (which some perceive as naive kiwis) and the hot money flows in. Much of the sales and resales which the Herald reported (which was actually linked individuals on one my lawyer looked at), seems to money laundering.
The future urban zoned parts of Auckland from my experience is 75 to 80% Asian owned already .
The solution may be to invoke the " proceeds of crime " legislation. Caveat all suspicious property and have them prove to the NZ (and Chinese government ) where the funds came from . They would be bailing faster than rats leaving a sinking ship. I suspect the NZ taxpayer would be in for a major windfall .As the crown may have a pile of forfeited land with nil capital cost , affordable houses may actually be a reality. These fly by night , flee when things turn (with NZ wealth ) people are actually scared of the governments from where they are bolting. That will give significantly superior results, at far less cost than we trying to regulate and monitor from the NZ government.

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My goodness I hope winnie and co can get down to doing this,that would as you say, bring down the price of housing, maybe you should email your proposal to winnie he might be interested in that deal.

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