Canterbury Property Law Update - Best Practice in the Contemporary Environment

“There is no legal text book or the like to give guidance on the material covered here today.”

Emeritus Professor John Burrows
as chair in his closing address

As is painfully obvious, the practice of property law in Canterbury has undergone challenges on an exceptional scale in the post-earthquakes (EQ) environment. While anyone outside of Christchurch might scratch their heads in wonder at why anyone would purchase a damaged property or commit to a commercial lease when Building Act and Health and Safety legislation seem poorly aligned, the reality is quite different. The theory of supply and demand is evident in Christchurch, with a dramatic increase in prices following the removal of so many houses and buildings from the equation and the fact that people are still coming into the region. According to an article in the Christchurch Press, the sale turnover rate in the residential property market has on recent occasion surpassed that of the “hot” Auckland market.

Against this background, Christchurch practitioners are navigating the highly demanding and quickly evolving territory of best practice in the post-EQ environment. Over 170 lawyers took time out of their busy practices to hear from presenters at ADLS’s recent seminar in the Garden City - testament to the fact that the sharing of knowledge and experience in this area is highly valued.

Ingrid Taylor of Taylor Shaw started the afternoon outlining practical measures for the prudent practitioner to consider when acting in the sale or purchase of an EQ-damaged residential property.  Supported by a practically focused paper which included suggested precedent clauses, Ingrid gave excellent insights and guidance to practitioners when acting for parties to transactions concerning a properties that have suffered EQ damage and which have been repaired, which have yet to be repaired or which are to be sold on an “as is, where is” basis (i.e. for the land value). Ingrid also addressed the relatively new territory of specified or fixed sum insurance which also affects wider New Zealand.

Paul Calder and Karen Overend of Duncan Cotterill shared pertinent insights into commercial leasing, again with a practical focus. They addressed how lawyers might tailor leases to meet the needs of the client landlord or tenant, as the case may be. Peter Woods’ (of Anthony Harper) update focused on the high volume of case law which has been decided in a relatively short period of time due to the instigation of High Court and District Court lists for EQ related claims.

Garth Gallaway (Chapman Tripp) gave insight into health and safety issues arising from buildings deemed earthquake prone and offered practical guidance for practitioners in view of the apparent lack of alignment between building and health and safety legislation. Hamish Foote (also Chapman Tripp) gave a measured address on the legal approach taken by the Earthquake Commission (EQC) to claims for EQ-related events as distinguished from pre-existing defects.

The afternoon drew to a close with an excellent address from Storm McVay (Crombie Lockwood Risk Partners) and John Archer (Canterbury Recovery Commercial IAG (New Zealand) Limited) who co-presented a practical perspective on the insurance problems experienced with multiple use/dwelling units and how such problems have been effectively dealt with to date. They provided insights into what prudent practitioners can do to avoid or alleviate problems when acting for an owner or insurer of multiple properties in a unit title or cross lease arrangement in the face of a changing insurance market.

It is evident that, given the issues faced in Christchurch, the practice of property law there has moved to a level that other practitioners would find difficult to grasp. One practitioner mentioned in parting that it can at times be frustrating dealing with a lawyer outside Christchurch who is acting for the other party to a property transaction, due to the enormous learning curve they need to undergo. Certainly the local practitioners have a wealth of knowledge and experience that the wider profession would benefit from in the evolving property landscape, where changes in approaches to insurance, seismic strengthening ratings and new issues arising for landlords and tenants of commercial buildings need to be taken into account.

On demand recordings of the addresses of Ingrid Taylor, Peter Woods, Garth Gallaway and Paul Calder and Karen Overend will be made available through the ADLS website shortly. Please check  

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