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ULL10

Update on Land Law

NZ $60.00
Daniel Kelleher Elizabeth Toomey
Daniel Kelleher
Simpson Grierson
Auckland
Elizabeth Toomey
Associate Professor of Law
University of Canterbury

Published: 18 October 2010
Pages: 121

Introduction

The new Unit Titles Act 2010 presents a challenge to all property practitioners as it represents an almost complete rethink of the way unit title developments will operate.  This booklet looks at a number of the new concepts and explain those by way of a practical examination of the issues.

The much discussed repeal of the Foreshore and Seabed Act 2004 has resulted in the introduction of the Marine and Coastal Area (Takutai Moana) Bill in September 2010.  This booklet looks at the Bill in detail and discusses the key concepts being introduced and the implications of those changes on the way the foreshore is used.

It also explores some of the latest decisions on credit contracts. When is a credit contract a buy-back transaction? What protection does the Credit Contracts and Consumer Finance Act 2003 provide, and can the oppression provisions capture companies such as Blue Chip? When would you argue fraud as an alternative action?  The position of the mortgagee in any such transaction has attracted considerable judicial attention recently.  All practitioners must now appreciate the effect of the Supreme Court’s decision in Nathan v Dollars and Sense Finance Limited [2008] 2 NZLR 557 which has direct relevance to the safety or otherwise of the mortgagee in a credit contract.  Dollars and Sense demonstrates an important shift in judicial thinking.  While previous mortgagees have been protected from their agents’ fraud by the imputation of knowledge principle, the Supreme Court might now target the mortgagee on the ground of vicarious liability. The mortgagee has to account for its risk-taking.  Is Blue Chip liable for the representations of its agents in their marketing and selling of apartments?

Landlocked land litigation continues to explore new areas. We look at three recent decisions that address the following questions: is an upstairs apartment a “piece of land” thus coming within the statutory landlocked land provisions (ss 326-331 Property Law Act 2007)?  Does the word “right” in the definition of “reasonable access” mean a right to apply for a resource consent thus allowing, for instance, an owner who has not yet gained resource consent for a bottling plant to apply for road access through his neighbour’s vineyard?  In what circumstances will the courts still hold that vehicular access is not necessary in 2010?

The leaky home saga continues to generate much litigation. This booklet examines the Court of Appeal decision involving the Sunset Terraces development and focuses specifically on the liability of the local authority and what parties can sue it.

It also examines the new provisions in the Property Law Act 2007 that concern dispositions that prejudice creditors (ss 344-350) and explains that for the current, and undoubtedly lengthy, transition period, practitioners need to be aware of the Supreme Court’s ruling in Regal Castings Ltd v Lightbody [2009] 2 NZLR 433.

The offer-back provisions of the Public Works Act 1981 (s 40) continue to test judicial minds. Treaty claims add to the complexity.  Four decisions that involve the following landmarks are: the Queenstown pre-school, Auckland International Airport, the bus terminal in Wellington, and the army hall land on the Whakatane River waterfront that has been the subject of a long running dispute between the Whakatane District Council and Te Runanga O Ngati Awa.

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