Personal Obligations Made Binding on Future Landowners in New Zealand – The Unstable Edifice That Is <i>Jackson Mews v Menere</i>

Abstract

The purpose of this article is to explain why the result achieved by the Court of Appeal and Supreme Court in Jackson Mews Management Ltd v Menere (Menere) is unsatisfactory and conflicts with our understanding of the nature and character of real property obligations. Flowing from those decisions, encumbrance instruments securing performance of personal obligations may be imposed in New Zealand against future landowners (perhaps) in perpetuity. The result brings into question whether there is justification in continuing to impose obligations by easements, leases or land covenants, given the same or more onerous performance may be imposed by using encumbrance instruments. The New Zealand Law Commission recognised the problems arising from Menere and proposed a legislative solution. However, this was not enacted as part of the Land Transfer Act 2017. Consequentially, the two Menere judgments need to be subjected to close scrutiny to better comprehend their impact and also to assist in future judicial consideration of this issue.