Client Advisory - Anti-Money Laundering
The Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (the Act) has applied to financial institutions and casinos in New Zealand since 2013.The Act is designed to prevent money obtained through illegal means from entering the New Zealand financial system to be “laundered”. Although New Zealand is considered to be a relatively clean market it currently falls prey to an estimated $1.35b in money laundering activities each year.
Since 2013, other non-financial businesses and professions have been captured by the act. Lawyers and Conveyancers and some businesses forming trusts have had to comply since 1 July 2018 and Accountants from 1 October 2018.
From 1 January 2019 entities carrying out Real Estate activities will be required to:
- have appointed a compliance officer;
- have assessed and documented the money laundering and terrorist financing risks the business faces;
- have established a programme to detect and manage any risks identified; and undertake a number of other specific tasks, including but not limited to performing customer due diligence when they enter a relationship with their customers (or vendors as described by the Real Estate Agents Act 2008).
At its core, Real Estate Agents need to identify who their customers (vendors) are and this is required before the agency work commences. When the property is in the name of an individual, proof of identity is relatively simple to collect and is straight forward.
For properties that are held in companies, trusts or a combination of both, a more enhanced suite of requirements for due diligence is required. Where the Real Estate Agent cannot perform the prescribed level of due diligence, then the customer must not be onboarded and the listing cannot be accepted.
Following the inclusion of Lawyers and Conveyancers from July 1, property transactions have already been captured under Anti-Money Laundering/Countering Finance of Tourism legislation. From this date members of the legal profession are required to perform to the same compliance regime and perform the same levels of due diligence as mentioned above to the buyers of property.
Fast forward to 1 January 2019, due diligence will be required to be performed on the buyers and sellers of property. This will result in property transactions, particularly commercial property which often involves complex ownership structures, to become more onerous to navigate and more time consuming.
In the meantime, it is important real estate agents have systems in place by 1 January 2019 to ensure compliance with the obligations imposed them. Additionally, buyers and sellers of property, especially commercial property need to fully appreciate the new requirements of this Act and the impact it will have on their businesses.
Crombie Lockwood has worked through the process of obtaining cover under the Act for Solicitors and Accountants. Most insurers have provided some sub-limited cover for defence costs and civil pecuniary penalties arising from an alleged breach of the obligations imposed by the legislation. We will be looking to obtain similar cover for Real Estate Agents ahead of the compliance date of 1 January 2019.