Thomas Gibbons on the pressures around property practice, and what good lawyering looks like
Economic headwinds and regulatory flux are currently testing the feasibility of New Zealand development projects, forcing lawyers and clients to rethink how property work gets done.
That is the view of Thomas Gibbons, Auckland lawyer and principal of Thomas Gibbons Law, as a long-standing LexisNexis New Zealand author, has built a reputation as one of New Zealand’s respected voices on property and development law, points to three areas shaping today’s practice: the overall economic environment; uncertainty and the pace of change around resource management and local government; and unpredictability stemming from a steady stream of case law around transactions, conditions and warranties.
For property lawyers, that combination means development files now carry more risk and more moving parts than they did a few years ago, and clients increasingly need advisers who can read a shifting economic and regulatory picture rather than simply process a transaction.
“The overall economic environment… is having a serious impact on property transactions, and so on the feasibility of development,” said Gibbons.
Add to this policy uncertainty around resource management and local government.
"A second is the extent of uncertainty and pace of change around resource management and local government. These issues have less impact on property transactions, but have a massive impact on development projects," Gibbons said.
Third is case law.
"A third is the steady stream of case law around transactions, conditions, and warranties, and the unpredictability of some of these decisions," he said.
He noted that while overall levels of economic confidence are improving, development itself is not getting easier. “We see continued efforts by central government to speed things up, and local government is often in ‘reaction’ mode. There has been plenty of media that New Zealand needs to spend smarter on infrastructure, but that burden has to fall on the whole community, not just developers,” he explained.
This means that tensions between commercial goals and planning, environmental and community expectations continue to surface.
“Obviously we expect to see a lot of different views across the community. Housing affordability remains a massive issue, and giving existing homeowners too much of a veto over new housing can clearly have adverse intergenerational effects,” he said.
Gibbons observed that while many people have opposed urban intensification, urban sprawl may end up creating more environmental and social problems than greater density.
“There is much more to be done in seeing housing as a system, one in which developers play an important role, but which involves the full cross-section of our community,” he said.
The result is a job where lawyers must decide how much accessibility they can sustainably offer clients without diluting the quality of the advice underneath it.
Complex matters such as subdivisions and unit titles still demand rigorous attention, yet time pressures show no sign of easing. In such an environment, clear boundaries around responsiveness are needed, he says.
“It’s sometimes said that it’s easier to get hold of your lawyer than your hairdresser, and that reflects the high importance most lawyers place on top-level customer service. A real value-add remains around collaboration – working closely with the client and their other advisers to coordinate practical outcomes,” Gibbons said.
Regulatory obligations have piled up across the legal profession, and property is no exception.
"I think property lawyers are weary of the compliance load, which keeps increasing," he said.
Anti-money laundering rules are a big part of that.
"The AML-CFT (Anti-Money Laundering and Counter Terrorism Financing) regime serves important purposes but has imposed significant compliance costs on many businesses, including lawyers," Gibbons said.
Land Information New Zealand (LINZ) audits add further scrutiny, he said, while continuing professional development requirements sit too low for lawyers working in property and development law.
"LINZ audits keep some firms on their toes. Conversely, lawyers have it relatively easy in some areas: I suggest that 10 hours mandatory CPD is much lower than what most lawyers should be doing, especially in property and development law,” Gibbons said.
He was also wary of treating professional standards as a checklist.
"As a society, we have to be [wary] of treating good practice as 'box ticking'; certainly good lawyering is more than that," he said.
Several qualities are likely to stand out as the work evolves.
“Good communication, both with other professionals and with the client. Often good communication involves being able to communicate in client-friendly language. Being able to get on side with the client is important, while also being someone who can and will give them frank advice.”
Technical knowledge is also essential. Gibbons rates American legal realist Karl Llewellyn, whose writing stresses the practical operation of legal rules and who once observed that ideals without technique are a mess. Much of the lawyering role involves reading people and situations, judging how a new matter resembles or differs from earlier ones, and treating every file as distinct.
“A lot of the job involves reading people and situations and being able to evaluate how this situation is similar to, and different from, a previous issue. Treating every matter as distinct is important to good lawyering,” he said.
Gibbons isn't dismissive of artificial intelligence, but he's aware of where its usefulness ends.
"AI remains very much horses for courses. Some kinds of AI can do some things well; some kinds of AI will do the same things very badly," he said.
He's more concerned about how clients interpret AI output than about the technology itself.
"There is also a lot of hype. A particular danger is clients seeing a general-purpose AI-prepared contract or opinion as equivalent to top-quality legal advice, especially when the AI is giving the client the answers it wants to hear," Gibbons said.
For Gibbons, it comes back to first principles and remembering what humans do well.
"We need to remember that AI is essentially applied statistics. Humanity, discernment, and judgement remain important attributes," he said.
Gibbons has maintained a long association with LexisNexis New Zealand that stretches back more than two decades. His first article in the New Zealand Law Journal appeared in 2002 while he was still at law school. He began writing regularly for the Conveyancing Bulletin in 2006 and reporting cases for the New Zealand Conveyancing and Property Reports the same year.
His first book with LexisNexis New Zealand was the student companion on Equity and Trusts, which came out in 2008. Since then, he has written two editions of Unit Titles Law and Practice, A Practical Guide to the Land Transfer Act, and co-authored Subdivisions Law and Practice.
He contributes to Adams Land Transfer, and Hinde McMorland & Sim Land Law in New Zealand, has updated Adams on Land Transfer and to Hinde McMorland and Sim on Land Law in New Zealand, currently covering unit titles and cross-leases, easements and covenants. He has updated the Laws of New Zealand chapters on easements, covenants and profits, and on land law. His most recent title is the third edition of McMorland and Gibbons on Unit Titles and Cross Leases.
The association has continued through successive changes in practice and publishing, reflecting a sustained contribution to the technical literature that underpins property and development work. It's this body of published work, as much as two decades of client files, that underpins the authority behind his views on where the practice is heading. It also reflects the calibre of subject matter expertise behind LexisNexis New Zealand content, where trusted, authoritative sources such as Gibbons’ analysis help form the foundation of the legal content that powers solutions including LexisNexis Protégé.
Gibbons sees the various parts of property practice moving in opposite directions, with conveyancing needing to be valued as more complex work while resource management settles into more predictable patterns. In conveyancing, cost pressures still push many lawyers to undersell their skills unnecessarily.
“Property transactions involve a multiplicity of areas of law, and of risk, and the risks are increasing rather than diminishing,” he said.
Case law increasingly demands attention to the unique circumstances of each matter, pointing toward more bespoke advice in future.
“In resource management, there is much more attention to the circumstances of the individual matter or property. I would like to see a greater degree of convergence around these ideas, so property law comes to be recognised as more complex and bespoke, while resource management becomes less so. Through this, lawyers need to hold their place as trusted advisers who help drive outcomes,” Gibbons explained.
Asked what firms and clients should be thinking about now, Gibbons pointed to the need for a dual mindset.
Clients themselves are growing more sophisticated. That shift requires lawyers to combine a consultant mindset with a transactional one in order to stay focused on outcomes and efficiency, yet still deliver top-level advice grounded in knowledge, experience and expertise.
“Being able to ‘make a call’ and stand by it remains critical to good lawyering in this area,” he said.
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This article was produced in partnership with LexisNexis New Zealand.
