Alienation: Selling, gifting and other land transactions
How Māori land is sold or otherwise alienated
Te Ture Whenua Māori Act 1993, s 164
In general, Māori land can only be transferred by an order issued by the Māori Land Court (unless the land is vested in a Māori incorporation). A “vesting order” can be used to transfer shares in Māori land:
- from one person to another by gift or sale
- to the trustees of the landowners
- from trustees to the people beneficially entitled to the shares
- to provide a dwelling site for an owner, or
- between owners to enable the land to be partitioned (for information, see “Partitions (subdivisions) and other title improvements” in this chapter).
In some cases, the court can give approval for a transfer in the form of a confirmation order or certificate, rather than a vesting order.
Who can apply for a vesting order?
Te Ture Whenua Māori Act 1993, s 164
You can apply for a vesting order if you are:
- the owner of the land or shares being transferred, or
- the person receiving the land or shares, or
- a trustee for either the owner or the person receiving the land or shares.
In either case, the transferor (the person applying for the vesting order) must appear in the court to confirm that they want to alienate their land or shares.
What documents do I have to include in my application?
Māori Land Court Rules 2011, rule 11.14
For your application to be successful there must be sufficient support for it among the children and grandchildren that would otherwise be entitled to the land through the succession process (see “Succession: Transfer of ownership when an owner dies” in this chapter).
You’ll need to include:
- a copy of the land interests you want to transfer
- a certified copy of the entry in the district valuation roll or a valuation done by a registered public valuer
- details of the agreement and whether the interests are being transferred by gift or by sale
- whakapapa details to establish that the person receiving the interests is a member of the whānau or hapū associated with the land (belongs to the preferred classes of alienees), and
- an application to be exempted from the requirement to provide a special government valuation if applicable (see below).
Te Ture Whenua Māori Act 1993, s 164(6), Māori Land Court Rules 2011, rule 11.13
If the value of the Māori land shares is more than $2,000, the owner of the shares may need to give evidence. This can be done either by a written affidavit or by a declaration to support the application.
Te Ture Whenua Māori Act 1993, ss 158; Māori Land Court Rules 2011, rule 11.14
An application for a vesting order must be supported by a special valuation for each block of land, unless the court exempts you from this requirement.
How will the court decide whether to make an order?
Te Ture Whenua Māori Act 1993, ss 152, 164
For a confirmation of alienation, when you’re applying to confirm a sale, lease, or mortgage, for instance, the Māori Land Court has to make the order you apply for, if your application meets all the requirements of the act.
For a “vesting order”, the court will consider the effect the vesting order would have on the owners’ children and grandchildren. The court usually requires that an owner wanting to gift or sell an interest first consult with their children and whānau; this is in recognition of the principles of Te Ture Whenua Māori Act that Māori land is taonga tuku iho and should be retained in the hands of its owners and their whānau. The court will want to be satisfied that the children and whānau have had enough time to discuss and consider that, as a result of the gifting or sale of the land, they won’t be entitled to it in the future.
The court will usually consider whether the owners have thought about other options under the Act, such as establishing a whānau trust. The court will often explore alternative solutions to avoid unnecessary transfers.