New Year resolutions for property lawyers

Thomas Gibbons

January is traditionally a time of new year’s resolutions and somewhere between February and April is traditionally the time for giving up on them. While there are mixed views on how successful new year’s resolutions are likely to be, let’s have a go at some desired outcomes for property law in 2023.

■ Subdivision reform. We can anticipate that the Resource Management Act (RMA) will be replaced by the Natural and Built Environments Bill during 2023. However, the NBE Bill largely replicates provisions in the RMA, including some that are road blocks to efficient development and the enigmatic s 225 of the RMA. Let’s have a closer look at how the law relating to subdivision can be improved, not just carried forward.

■ Cross-lease reform. While we’re looking at subdivisions, let’s take a closer look at cross-leases as well. The impacts of this DIY type of title in New Zealand have been, well, catastrophic. The call for reform was started by the Law Commission as long ago as 1999. Let’s conclude the debate and fix things up.

■ Covenant reform. Covenants have spread far and wide across our land law system and we need to remember that (a) New Zealand has a very enabling covenant regime by international standards and (b) covenants aren’t contracts – they’re mechanisms for the private regulation of future land use.

■ Covenants and public policy. While we’re looking at covenant reform, a particular area of attention is the ability to set covenants aside for being contrary to public policy. To date, this test has been treated narrowly and needs to be considered much more broadly. Any covenant that cuts across what the law otherwise does or enables should be open to challenge and considering how the policy of the RMA (enabling housing) amendments to enable more housing intensification is a useful place to start.

■ Tidying up titles. Our records of title are getting more and more complex. There need to be simpler and easier mechanisms to remove out-of-date or redundant memorials from titles – starting, perhaps, with memorials relating to Part IV of the Conservation Act and then extending to repetitive covenants and other matters. Indefeasibility is one thing but getting rid of redundant memorials should be enabled in the interests of an efficient title system.

■ An updated REINZ-ADLS Agreement for Sale and Purchase. Well, that one I can help with. Watch this space!

I could go on. It’s an election year and unfortunately property law is unlikely to excite voters. But property law affects us all and there are obvious areas for improvement.

“Better property law for better communities” as a political slogan, perhaps?

Thomas Gibbons is a specialist property lawyer and a director of Thomas Gibbons Law ■