Worth Richard: Property Law Bill — First Reading 
Worth Richard: Property Law Bill — First Reading 
[Volume:635;Page:6461] 
Dr RICHARD WORTH (National) 
: 
 It is always a pleasure to follow the previous speaker whose knowledge and depth of legal skill is profound and widely admired. I must say I was disappointed on this particular occasion that he did not draw to the attention of the House what truly are the salient features of this most important legislation. With a crowded gallery and I am pleased to say a crowded House I say how important it is that we are gathered together to look at one of the most significant pieces of legislation to come before the House. Significant one may ask? Why? Well I respond to that simply by saying that in the life of this Parliament in terms of numbers of pages this is in fact the biggest bill the House will have to deal with. More important than that it is also one of the most important bills. 
The previous speaker omitted to say—but I now say—that the law of property is very complex; one needs only to look at legal texts on property to see that that is determinedly so. National supports this bill. We could do nothing else but that; it is important and critical legislation. As the previous speaker said it replaces the Property Law Act of 1952 in reforming and codifying certain aspects of the law relating to real and personal property. The microphones in this Chamber are selective in what they pick up and I was disappointed that the Minister in his comments did not respond when I asked him a question as to the difference between real and personal property because that is a critical difference in this legislation. Real property is concerned with land and personal property is concerned with non-land issues. 
The work that provides the basis for this bill was done by Peter Blanchard who was a commissioner with the Law Commission. He completed that task in 1994. It is quite shameful actually given the importance of this legislation that the Government has delayed its introduction until this date 14 November 2006. There was no good reason for that apart from indolence and inefficiency on behalf of the Crown. 
The report on which this work is based was well received by parties when it was published in 1994—[ 
Interruption 
]—and what we see here as Mr Brownlee has just affirmed is that the bill generally follows very closely the text of the bill in the commission’s report. Some changes have been made to accommodate refinements in policy and developments in statute and case law since 1994 and some proposals have not been carried forward including proposals on the release of assignors from liability the appointment of receivers in respect of mortgaged land mortgagee sales of goods through the registrar and of course this very important topic of waiver of contingent conditions in agreements for sale and purchase. 
I summarise the comments of other speakers by saying that the 1952 Act contains rules of general law relating to the creation and control of property of all kinds including land. These rules underpin a vast range of activities and transactions in the day-to-day life of New Zealanders. They are therefore—and I do not think it overstates it to say this—fundamental to the workings of our society. The 1952 Act the Law Commission noted was basically a collection of miscellaneous rules. It was not a code but more a repository for legislative supplements or corrections to judge-made law. 
As the previous speaker said the Act is over 50 years old and it was itself very largely a compilation of provisions introduced many years before some of them dating way back to the earliest pieces of legislation such as the Conveyancing Ordinance of 1842. So this legislation—the old legislation the 1952 Act—is long overdue for revision. One needs to look only at the many pages this bill comprises to see how far-reaching the changes are in terms of amending old statutes like 1267 52 Hen. 3 the Statute of Marlborough. Another statute that Mr Finlayson is well familiar with an important statute we studied together at law school is 1289 18 Edw. 1 the Statute of Quia Emptores which if my Latin is still with me roughly translates as “because they are purchasers”. As I said there are a raft of statutes dating over a time frame of 1267 to 1851—English statutes that were part of our property law in New Zealand. 
So what is this bill all about? Well it includes a number of complex technical general property rules. I suppose it is right to say that the provisions governing mortgages and leases were the most in need of reform and in this bill a large number of reforms are proposed to clarify and reform the rules governing mortgagees in possession mortgagees in breach of their duty—in the exercise of power of sale—and mortgagee sales. Just to take an example the procedural requirements for mortgagees relating to notices to mortgagors of the exercise of the mortgagees’ powers are to be extended and dealt with in more detail. Now mortgagees in possession will be required to account to mortgagors for income received from the mortgaged property. The bill also contains detailed and helpful instructions for the application of income and the priority of distribution for the proceeds of sale received by a mortgagee of a mortgaged property. 
I would like to pick up perhaps in the short time available to me to look at this complicated legislation a couple of issues that may be mainstream issues. The first is in the area of mortgages because a large number of small reforms to the law of mortgages will collectively be of advantage. I pick as one topic by way of illustration the covenants implied in mortgages over land. Those have been updated and drafted more clearly in plain language. So that concerns the area of mortgages. 
There are big changes in the areas relating to leases. The bill codifies the law relating to the cancellation of leases by lessors and relief for cancellation. At the moment the current law is of course split between Imperial law this English law—like the Landlord and Tenant Act of 1730—the rules of equity and the current Property Law Act 1952 depending upon which covenant is breached. So that concerns the world of leases and we similarly see that there are significant changes in covenants conditions empowered and powers implied in all leases of land. 
I am sure other speakers will talk about the right to distrain because one of the changes that is being made in the legislation is that the right to distrain has been abolished. That was a right to seize goods for unpaid rent. It is appropriate that that be abolished because there is already a process for the enforcement of judgment debts in the District Courts Act and District Court Rules and in the High Court Rules. The distress for rent provisions have already been abolished in relation to dwelling houses. There are a whole lot of changes relating to sales of land and to the assignment of what we used to call choses in action which are now called things in action. 
Then there are some special powers of the court where the substance of the old law has been re-enacted but in considerably more detail. Those of us who exercise constituency responsibilities will often be troubled with people who come to talk about the removal or trimming of trees or the removal or alteration of structures injuriously affecting a neighbour’s land. 
These then are significant aspects of important legislation. National commends this legislation but criticises the Government for its indolence and delay in not advancing it in a more timely manner.