What is ‘ordinarily resident in New Zealand’?
Under the Overseas Investment Act, if you are ordinarily resident in New Zealand you are not considered an overseas person and you do not need to apply for consent to invest in New Zealand assets.
Ordinarily resident for residential land investments
To be ordinarily resident for residential land investments, you must :
- hold a current residence class visa, and
- have been living in New Zealand for at least the immediately preceding 12 months (not just visiting), and
- have been present in New Zealand for 183 days or more of those 12 months, and
- be a New Zealand tax resident.
Ordinarily resident in New Zealand for all other investments
To be ordinarily resident for other investments in sensitive assets, you must:
- hold a current residence class visa
- be ‘domiciled’ in New Zealand or have been living in New Zealand for the 12 months immediately before the transaction, and
- not have left New Zealand for more than 183 days in total within those 12 months, and
- intend to live here indefinitely.
Overseas Investment Act 2005, s6(2)
What is a residence class visa?
A residence class visa means a permanent resident visa, or a resident visa granted under the Immigration Act 2009.
It does not include temporary visas (for example, student, work, or visitor visas) or limited, interim or transit visas.
If you are a citizen of Australia or hold a current Australian permanent residence visa, including a resident return visa, you can apply for a residence class visa when you enter New Zealand.
Australian residence visa – Immigration New Zealand
What does domiciled mean?
Domicile refers to the place you call home permanently. A person can become domiciled in New Zealand if they:
- have an independent domicile
- are in New Zealand, and
- intend to live indefinitely in New Zealand.
For us to consider you to be domiciled here, you must be able to prove a change of domicile and provide evidence to show you intend to live indefinitely in New Zealand.
Living here indefinitely means you have no plans to leave. It is unlikely you will be able to prove you plan to live here indefinitely if you are here on a diplomatic or business posting, or you have just arrived in New Zealand.
The evidence you provide could include:
- statements about your intention to remain in New Zealand that are consistent with your actions
- evidence that you have been living here for a long time
- acquiring New Zealand citizenship
- the ways you have integrated into the society and customs of New Zealand, and your connections here (for example, a business or job here, and financial or community ties).
We may need more evidence if you are leaving a country you were born in or have lived in for a long time.
What does residing mean?
Residing is not defined in the Overseas Investment Act. The Concise Oxford Dictionary defines it as ‘have one's home; dwell permanently’.
In Dempster and Attwell v C or IR ([1983] 6 NZTC 61,887), Thorp J stated: 'The word reside is a word of flexible meaning. In its usual meaning, a person is said to reside where he sleeps. The fact that he may be away at work somewhere else in the daytime does not mean that he is not residing at the home to which he returns each night'.
In Fox v Stirk & Bristol Electoral Registration Officer ([1970] 2 QB 463; [1970] 3 All ER 7), Lord Denning stated: 'I think that a person may properly be said to be resident in a place where his stay there has a considerable degree of permanence'.
Also in Fox v Stirk & Bristol Electoral Registration Officer ([1970] 2 QB 463; [1970] 3 All ER 7), Lord Widgery stated: 'Some assumption of permanence, some degree of continuity, some expectation of continuity, is a vital factor which turns simple occupation into residence'.