Wilkinson Kate: Property Law Bill — Third Reading 
Wilkinson Kate: Property Law Bill — Third Reading 
[Volume:642;Page:12121] 
KATE WILKINSON (National) 
: 
 In speaking in support of this Property Law Bill at its third reading it is interesting to note the introductory remarks of the Law Commission report some 13 years ago that recommended way back then a new Property Law Act. It basically stated: “Although property law could never be described as glamorous in comparison with other areas of legal practice”—and I have to have an aside here to say that I practised in the area of property law for 28 years—“it is nevertheless fundamental to the workings of our society dealing as it does with transfers leases mortgages and similar transactions. … The new Act which accompanies this Report is intended to replace a statute which is now over 40 years old and was itself very largely a compilation of provisions introduced many years before … [It] is not intended as a complete codification of property law much of which will continue to be governed by the common law. It will however provide a convenient statement of some of the common law and it will modify portions of it which are no longer thought to be satisfactory.” I would have to say that that is pretty much what it does. 
So 8 years later we have this new Property Law Bill. It is a Government bill that has I must admit the trademarks of being a Government bill. If one talks with practising conveyancing lawyers and asks them what their biggest bugbear is in relation to property law most would say shared ownership of land—in other words unit titles composite freehold or leasehold ownership. In fact the Law Commission produced a report back in 1999 addressing some of these very issues and difficulties. This new Property Law Bill would have been an ideal vehicle to deal with these issues but unfortunately it is silent. 
If we really need to codify our property law then surely it would make sense to consolidate it as much as possible into one statute. The Law Commission report back in 1999  
Shared Ownership of  
Land said about the consequences of inaction in relation to cross-leases: “It is important to be clear about the consequences of not grasping the nettle of reform … It is surely better to try and sort out such potential problems now than to shut one’s eyes to them.” Then in relation to unit titles—a statutory code enabling ownership of strata estates held by proprietors in defined shares—the commission reported 7 years ago that this scheme needed refining. In fact it recommended 14 changes to this scheme alone all of which have been ignored. If this bill really is intended to restate reform and codify our real estate law then it has done only part of the job. 
Apart from what the bill does not cover I have some concerns from a technical point of view about some of what it does cover. For example it provides that an attorney executing a deed must have been appointed by deed. We have just had the third reading of the Protection of Personal and Property Rights Amendment Bill from which members will be aware that some attorneys appointed under that legislation are actually appointed by court order and not by deed. So any such attorney appointed by court order and not by deed would be unable to sign a property agreement for sale and purchase under the Property Law Bill. 
When we read through the original 1994 Law Commission report and compare it with this Government bill it is important to note and understand why some of the proposals have been disregarded or ignored. I think the release of assignors from a lease of liability has been mentioned. That is a somewhat well debated and well discussed issue. It is well established that the liability of an assignor of a lease continues until the end of the lease term. The commission’s report refers to the difficulty caused someone who is assigned a lease and subsequently finds that there remains a continuing and open-ended liability. Several solutions—some of them arbitrary admittedly—were proffered including putting a cap of say 5 years on that liability. I have to say that as a matter of practice when negotiating a lease a clause is often inserted that puts an end time or a date on that liability. I would suggest however that it is of sufficient concern in the property market to have considered this liability and provided for it in the current bill. 
This bill is an important bill. It covers laws that affect all homeowners in New Zealand. It is interesting that in relation to easements which are a pretty important part of property law because they involve rights of way sewerage drainage and things like that this bill proudly proclaims that we no longer have prescriptive easements but the Land Transfer Act 1952 made that same proclamation. In some ways this bill is much ado about nothing merely because it repeats our existing well-known and understood property law. It assists some areas by clarification and it repeats some other areas. In some areas it is surprisingly silent and in some areas it does not go far enough. It would have been useful had it dealt with shared ownership of land and unit titles but it has not. It is a start and it is worth supporting. 
Bill read a third time.