Property Law Bill

The debate on this part includes schedule 1.

Part 2, of course, is concerned with general rules relating to dispositions, instruments, transactions, and property. It has some seven subparts, which separately deal with a range of issues of interest to lawyers but not, I suspect, to the general public. Subpart 1 deals with deeds, powers of appointment, disclaimers, and powers of attorney. Subpart 2, which I wish to deal with at some length, deals with writing required in certain cases. Subpart 3 deals with sales and other similar transactions. Subpart 4 deals with the apportionment of periodical payments between vendors and purchasers. And there are three more subparts, which deal with particular issues.

I was drawn—as I am sure the Minister would similarly have been drawn—to this curious provision in clause 22, which is entitled “Persons between 18 and 20 years may do certain things”. It is, perhaps, a statement of where the Labour Government is that it now is legislating for people in various age ranges as to what particular activities they are permitted to undertake. Clause 22 allows persons between 18 and 20 years of age to carry out a number of activities—some of which it may be that this Parliament would not approve of. But surprisingly clause 22(2) states: “Anything done by a person under subsection (1) has the same effect as if the person were 20 years old.” None of that is terribly clear to anyone interested in these matters.

I also noted, just looking at these technical issues that have so bogged down the Government and have resulted in the incredible delay in the legislation being introduced, that in clause 23(2)(a) it states: “words denoting a gender include every other gender:” Now, that is a very interesting statement, because most of us would have a view that there were two genders—masculine and feminine. But the Government has opened up a new possibility—perhaps more than one—that there may be genders apart from male and female that should be given specific consideration in this legislation. I rather doubt that, but it seems that it was an important point for the Government to make in this legislation.

What I think is probably more significant in Subpart 2 is that it records two obligations that have always been critical from the perspective of property lawyers—that is, that contracts for the sale and purchase of land need to be in writing. The bill makes it clear that a doctrine called the doctrine of part performance still applies. There was an opportunity to make a change there. I am glad that no change has in fact been made, because probably, in the reality of property transactions in the course of a person’s life, the buying and selling of his or her home is the most significant transaction—apart from marriage—that he or she enters into. It is important that there be a clear understanding as to what the terms of the deal are. That is why clause 24 provides that contracts for disposition of land are not enforceable unless in writing.

The other provision, clause 27, is about guarantees. From a practical lawyer’s perspective, it is clearly appropriate that contracts of guarantee be in writing. I also commend that particular provision.

That was what one would expect from Dr Worth—an outstanding contribution. So I do not need to spend long dealing with Part 2 of the Property Law Bill. It is a very interesting part of the bill. Subpart 1 brings together rules about deeds, powers of appointment, and powers of attorney, which may seem to be dry, dusty, and boring, but which are actually very important, indeed. Those changes will result in the repeal of quite ancient legislation.

For anyone who is interested in law reform and in some of the changes that are being made by this legislation, one need go no further than Subpart 7. I am surprised that Dr Worth, who is such an eminent legal historian, did not spend some time looking at Subpart 7, because it deals with the abolition and modification of common law rules relating to property.

💬 Dr Richard Worth: Well, I’d better take another call then.

I think Dr Worth should take another call, because I very much would like to hear from him about the effect of clause 57 and the abolition of feudal incidents of estate in fee simple. In fact, I would love for the Minister to take a call and explain that to us. That really would be interesting.

I ask members to look at clause 58—and I think Dr Worth could address this as well—which is entitled: “Abolition of obsolete estates and rules”. I ask members to look at what is going as a result of this ground-breaking legislation, constituting such a major reform of property law for the first time in 55 years. Under clause 58(1)(a) estates tail and estates by wrong go. Under clause 58(1)(b) the making of a forfeiture by any conveyance goes. Under clause 58(1)(c) the passing of the legal estate in any land by certain means—a covenant to stand seized, and a contract for the sale and purchase of land—goes.

Indeed, one of the changes that the Justice and Electoral Committee made was to remove the provisions of clause 58(3). Members of the Committee will see that originally this clause, as drafted, would have abolished the rule of law known as the rule in Shelley’s case. I would be most grateful if the Minister could take a call and explain to us what the rule in Shelly’s case was. We took the view that the rule in Shelley’s case had already gone. I refer members to page 2 of the commentary, which talks about the rule in Shelley’s case, and to the fact that section 22 of the Property Law Act 1952 had already abolished that rule. Unless one is a member of New Zealand First—whose members have a tendency to introduce legislation that seeks to repeal or abolish points of law or rules of law that have already been abolished—there would seem to be no point in trying to do that.

This is a very interesting subpart. It is the sort of thing that will interest law students in years to come. These ancient common law rules relating to property all go in this modernising statute. I commend Subpart 7 to members because it does make very interesting reading indeed.

Part 2 is very important. It deals with the general rules relating to dispositions, instruments, transactions, and property—the sorts of things that affect all of us on a day-to-day basis—and as I said, Subpart 7 deals with the modification and abolition of common law rules relating to property. It is very interesting, it is very important, and at the end of the day, it is very practical. That is why National is supporting Part 2.

I am glad that Mr Finlayson has drawn our attention to clause 58, “Abolition of obsolete estates and rules”. I think it is important to note—and probably the Minister will speak about this—that we are now seeing abolished some rather critical provisions that, I think, well stood the test of time. I am talking, obviously, of a covenant to stand seized, livery of seisin, and a contract for the sale and purchase of land. But what I would like to direct the attention of the Committee to is not clause 58, which Mr Finlayson has spoken on so well, but, rather, to clause 60 where we see, I think with some sadness, the doctrine of interesse termini abolished.

I hear from members of the Committee, perhaps, rumblings of concern to see that doctrine abolished. It was a seminal part of land law and it certainly, I think, detained many conveyancing practitioners, as with pens poised they looked to see whether changes might be made to a particular conveyancing document. The way that the Justice and Electoral Committee approached the matter has been to strike out that particular provision and substitute what is probably a much more workable framework. So not only is the doctrine of interesse termini abolished but additional provisions of a most helpful nature have been added. I think probably the most helpful is clause 60(2), which states: “A lessee acquires an estate in the land on the date fixed for the commencement of the lease, whether or not the lessee enters into possession of the land on that date.” That is a provision that I think it is worthy of particular note.

The question was put that the amendments set out on Supplementary Order Paper 146 in the name of the Hon Clayton Cosgrove to Part 2 be agreed to.

Amendments agreed to.

Part 2 as amended agreed to.

Part 3 Mortgages