Compulsory Acquisition not fee simple because Crown wants to keep some control over agricultural land Doctrine of tenure Fragmentation of land

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1 LAWS2383 Crown Grants land granted by the Crown to citizens before Mabo. All land in the Colony belonged to the Crown. Once grant is done citizen can use the land as they use for economic and personal benefits Grant of land: people had to settle! hence the grants Compulsory Acquisition: when Crown wants it back! contemptuous issue in our democratic and capitalist society! need to pay compensation Urban areas: Crown grants = freehold fee simple Waterfront, bays! under leases for control over land! you don t permanently alienate the land, govt can get it back Rural areas: long-term leases e.g. up to 99 years after which possession will return to Crown or renewed! long enough to invest and economically exploit it.! not fee simple because Crown wants to keep some control over agricultural land! fee simple only the doctrine of acquisition by the Crown can claim the land back Leases! are grant of lands. You get the fee simple but you must adhere to the terms of the lease! you can sell it, etc. Fee simple expires after term of lease Doctrine of tenure (English 1066 Norman Conquest) assumes all citizens title of land can be traced back to the initial grant by the Crown. All land titles were held by the King s subjects as a result of a royal grant Made land grants to knights who risk their lives and are loyal to him No practical influence now But it still lingers all land still held by Crown! land titles originate in Crown grants: Mabo Landlord-tenant relationship bears some resemblance to the earlier tenurial relationship Fragmentation of land! many people having rights to the same land. LAND LAW BROKE DOWN THE FEDUAL PYRMAID TO DISCRERN the number of interests in land Doctrine of escheat Implies that the Crown takes back what was originally its own

2 Doctrine of estates Permits proprietary interests in a single piece of land each having separate bundle of rights present and a future right to possession Lead to development of future interests: Gray v Gray Definition of estate: the fullest set of rights of enjoyment over land the right to possession Estate in fee: maximum interest which a subject could have in land Crown owns all land. Common law developed the notion of estates ownership of the estate entitled the owner to possession of the land at some time, but not necessarily to immediate possession Example of doctrine of estates A owner of fee simple of a house want to convey life interest to wife (W) and a fee simple estate to his son (S). S acquires the fee simple estate immediate after conveyance but has no right to possession until W dies. S is free to convey his fee simple estate to prospective buyers, who in turn have a right to future possession on W s death. Estates of Freehold uncertain duration Life estate last for lifetime o Interest conveyed by gift o Doctrine of occupancy If B dies before A, B s heir gets the interest only if mentioned in the grant o First person to enter the land after B dies becomes the general occupant o Son gets fee simple, wife only has interest for her life o You can do whatever you want with it, but it s economically bad because you can die anytime and thus leasees leases will end. Fee simple (greatest estate) lasts forever. Greatest interest in land recognised by the CL closest to absolute ownership- Gumana v NT. Modern law permits the fee simple estate to be freely disposed of inter vivos or by will Fee tail relating to wills and heirs. o Family wealth ensuring the land would remain in the family forever o Rights of disposition are more limited o Disposition only for a specified class of descendants

3 o Doctrine to restrict the entitlement of interests of land! have control over land o Very hard to lease o Abolish in 1920 contrary to capitalist and democratic markets. Can t create anymore Leasehold estates (less than freehold) last for a certain period of time period capable of rendering it uncertain Initially regarded by CL as mere personal transactions Period tenancy: does not terminate until notice given (unlike leases) Landlord vs tenants Personal contracts Expropriation of land by Govt (Cth) s51(xxxi) Constitution allows govt to pay just terms to expropriate land from citizens no protection offered by Constitution to private land. Unlimited power to take land from citizens used for purposes like building infrastructure. Statute of Quia Emptores Permitted every free man to alienate his entire interest in the whole or part of his land without his lord s consent Prevented further subinfeudation from taking place A can alienate whole or part of his land to B putting B into A s shoes Native title Need to prove proprietary interest in predecessors! Milirrpum Argument: any interest in land must be by the Crown hence native title can t exist. HC: Crown has radical title (not fully beneficial title)! doctrine of tenure applies it s a skeleton of principle of the common law Crown still has power to grants, but native title still exists! acquisition of land Not economically alienable! you can t really lease/sell their native land [problem here]. You can t lease and sell native land

4 Native title is proprietary. Need rules to share land! every needs land. Ward: deals only about land and water! Native title Act (limited in this sense) Alodial System land without a lord not a CL title comes from the rules of the Indigenous people Principle of extinguishment Any grants made post 1975! compensation must be paid Mabo

5 Native Title Wik At CL, grant of a pastoral lease does not necessarily extinguish native title only if it is inconsistent with native title rights Native title rights could co-exist depending on the terms and nature of the particular pastoral lease. Where there was a conflict of rights, the rights under the pastoral lease would extinguish the remaining native title rights. pastoral leases doesn t grant exclusive possession Adverse dominion test: you actually need to look at what needs to be done (rejected) it s a Q of rights grants, and content of NT. Building land, houses (pastoral rights) NT rights = hunt cattle, etc = inconsistent. Conditions of lease = you have to comply with Interests classified as category A under s 229(3) = extinguishes NT Yorta Yorta Continued to acknowledge and observe, throughout the period from assertion of sovereignty to the date of their claim, the traditional laws and customs in relation to the land of their forebears NSW and VIC hardest to make native title grants because they re the most settled states Issue: connection with land. Held: claimants had cease to occupy their lands in accordance to their traditional laws and customs no evidence that they are continuing to do so o HC adopted strict requirements of continuity of traditional laws and customs for native title claims to succeed Derose Facts: they had responsibilities to the land. Issue: What if people don t have the physical connection to the land anymore? Held: Need connection to land by traditional laws and customs doesn t have to be physically present under s 223 NTA People who have limited connection with the land! you can still perform ceremonies on another land Oral vs written evidence they prefer oral evidence cos it s more creditable

6 Physical connection - doesn t have to be on the land, but to the land. Ward Evidence of present members of the community = sufficient evidence Akiba Fishing licenses and NT rights conflicts If people can fish in an unlimited way commercial purchasers will just buy from these fishers, circumvents the way the law operates Extinguishing NT Statutes can extinguish NT if there s inconsistency of rights Wik and Mabo Also a clear and plain intention to extinguish NT effective to bring NT to an end Inconsistent grants As long as if it s enclosed land can be unapproved. Up to us to establish laws which suit us the best that s consistent with our values Common law vs statutes: statutes are stringent you can easily get around it

7 Fundamental Concepts of Land Law Possession Entitled to be in control of the land and to use and occupy it In possession: when you actually use/occupy it Right to possession: when you are entitled to be in possession To be in possession, you must have an interest letting someone stay in your house = bare license = no right to possession S 79 Supreme Court Act bringing action to take back possession Doctrine of adverse possession if someone can t prove they have documentation evidence of possession, presumed they re in possession by physical presence with keys, fences, etc. Lease Landlord = fee simple (reversion); leasee = possession + carved out interest can be sold + subleased Mortgage Interest can be sold like leases Secured creditors Tiny interest in land entitling you to sell the land in default Easement Affects 2 pieces of land! dominant tenement (land benefited) and servient tenement (burdened land) benefited = can use, burdened = have to put up with land being used Pipes, roads, water, etc. In rem right to use the driveway = 3 rd party buyers cannot take away the easement right. Easement from leasee! ceases to exist after the lease Restrictive covenant attached benefit to a land, and burden another land Can t build building above a certain height Private right, come into existence when property developer creates a subdivision 200 lands Numerus clausus principle can t create new land rights, must use recognised categories

8 Edgeworth s Extract Closed list principle = landowners are not at right to customise land rights. Unlike contract law which give freedom of contract, buyers and sellers of land can t create land law rights to tailor for their bargains Land rights must come from the categories o Confers possession fee simple, life interest and leases o Servitudes easements, profits and restrictive covenants o Security interests mortgages Policy for numerus clausus principle o 1) Fragmentation of property rights into smaller bundles allows for economically efficient uses of land o 2) Too opened ended = enormous transaction costs for persons acquiring land! closed list allows for a consistent and reasonably efficient system of conveyancing o 3) Creating at whim any kind of property rights = bad for legal system judges and legislators have to know too many different types of interests in land o Fewer interests in land = easier to transfer land Property vs contract law In rem rights (whole world) vs counterparty rights In rem rights = attached to the land! so 3 rd party acquirers of land can also be enforced against King v David Allen & Sons Facts: agreement between appellant and respondent to allow respondent to use a wall in the appellant s premises for bills and posters rent paid by respondent. Appellant sold premises to company who got it incorporated. Appellant s transfer of interest of the agreement failed. New company didn t allow respondent to continue to use the wall Issue: property vs contractual rights Held: Contract between A and R. Nothing more than personal rights contemplated by parties unreasonable to create a landlord-tenant, grantor and grantee relationship out of this agreement. Breach of contract by A, liable to pay damages

9 Only property rights are enforceable against third parties. Licenses does not. Georgewki v Owners Corporation Strata Plan Facts: P held license from the Crown over a portion of riverbank, easement held by D over the western edge of P s land down to the riverbank. Held: P s right of occupation comes from the contract with the Crown. Trespass to land only enforceable if you have possession of land No legal right to possession of the land! just a right to occupy land for stated purpose Easements and leases = proprietary interest Doctrine of fixtures what part of the land is part of the land house, furniture, swimming pool? Attached to land = fixture Attached for the better enjoyment of the chattel = chattel! nailed machinery to land to use it better = chattel Social reasons for land Freedom! You do as you wish on your own land Contracts for land Must be in writing s54a Conveyancing Act Intention to create contract manifested when passing contracts to sign Completeness and certainty = solved with a standardised contract You just need to look at what the parties have actually agreed and see whether the rights that were intended to be granted fit in one of the property boxes we considered in the numerus clausus section. If they do, it's a contract in relation to land and writing will be needed under s54a. Contracts do not transfer legal title it is merely a promise to transfer legal title in the future! creates an equitable interest in land Equity vs contract which one? Monetary damages are insufficient want the house not the $ When contract not made out equitable remedies may be argued instead! Hospital Products (Fiduciary relationship)

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