Law of Land Tenure in Papua New Guinea

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1 Melanesia Law Series Law of Land Tenure in Papua New Guinea Professor Rudolph W. James Port Moresby Melanesia Law Publishers 2011

2 Foreword Preface Acknowledgement Table of Cases Table of Statues Glossary Content v vi vii xiv xxiii xxvi Chapter 1: Historical Basis of the Common Law 1 Objectives 1 Introduction 1 Origin of the Feudal System 1 Decline of the feudal system 2 General reception of common law 2 Application of common law doctrines of estates and tenure 3 Further Readings Traditional Land Rights 4 Colonial Principles 5 Waste and vacant declarations 6 Useful further Readings Summary 7 Chapter 2: Classification of Property 8 Objectives 8 Introduction 8 further Readings 8 Common law division of property, 1 9 Real and Personal property: differences 9 Real & personal properties (assimilation) Common law division of property, 2 Corporeal & incorporeal Hereditaments Classification of land: alienated & unalienated 12 Hybrid system of land holding 13 Classification of land tenure law: the public and private law divide 13 Witherto land titles registration? 14 Electronic Conveyancing 15

3 4 15 Summary 16 Chapter 3: Nature & Concept of Land 17 Objectives Introduction 17 Rights in air space 17 Right to fixtures 18 Test of fixture 19 Removability of fixtures 21 Legal recognition of improvements on land Rights below the surface 28 Law of Waste 31 Horizontal Ownership (Strata Title) 32 Summary 33 Chapter 4: The Nature of Estates 34 Objectives 34 Introduction 34 Definition & Classification of Estates 34 Possession, remainder and reversion 35 Freehold Estates: Types and characteristics Creation of freehold estates Summary 39 Chapter 5 Equitable Estates and in Land 40 Objectives 40 Introduction 40 further Reading 40 Contributions of Equity 41 Trust of land 41 Analogous equitable interests 41 Equitable remedies 42 New equitable interests 42 The bona fide Purchaser Rule & the Doctrine of Notice 43 Priority in Registered land Summary

4 Chapter Fundamental Principles of the Registration of Titles 53 Objectives 53 Introduction 53 Unregistered and registered systems 54 Advantages of a registered system over an unregistered system 55 Procedural or substantive? 56 Registration: Public or private law? 58 Classes of rights in registered land system 59 Administration of the system 61 Fundamental Principles of Land Registration 65 Is registration curative? 73 Protecting the mirror principle Flaws the system: 74 Rights existing in personam Summary 75 Chapter 7 Settlement, Trust for Sale & Trust of Land 77 Objectives 77 Introduction 77 further Readings 78 The Strict Settlement under the Settled Land Act (Papua) 78 Nature 78 Structure 79 Purchaser of Settled Land 79 Overreaching of family (beneficiary's) interests 79 The Trust for Sale and the Settled Land Act 79 Problems with Strict Settlement and Trust for Sale 80 Strict settlement 80 Trust for sale 80 Trusts Land 80 Analysis of the "Trust of Land" Summary 85 Chapter 8: 86 Objectives 86 Introduction 86

5 86 Nature & Characteristics 86 Joint tenancy 86 Tenancy in common 87 Severance of the joint tenancy 88 Creation of co-ownership 88 Tenancy in common 89 Some Aspects of co-ownership under the Land Registration Act 95 (Simultaneous deaths) 96 Registration of joint tenant and tenant in common 96 Rights and Obligations of co owners 96 Ending of Co-ownership Summary 99 Chapter 9: Leases 101 Objectives 101 Introduction 101 Changing nature of a lease 102 Assignments and sub tenancies 102 Essential Features of Lease 103 Distinction between lease and license 109 Types of Leases 18 Terms implied in leases Express covenants Determination of tenancies Enforcement of Covenants (lessor's remedies) Summary Chapter 10: Mortgages 122 Objectives 122 Introduction 122 further Readings 123 Nature of a mortgage 123 Role of the mortgage transaction 124 Changing social role of the mortgage 124 Creation of Mortgages Formalities for creating mortgages

6 Ministerial & land board approval 126 Appraising the "Common Law Mortgage" 126 Advantages and Disadvantages 126 Legacies of common law mortgage Mortgagor's right to redeem 129 Equitable "right to redeem" and the "equity of redemption": 130 Protecting the equity redemption 130 The equity of redemption must not be clogged 130 Attempts to exclude redemption 132 Postponing Redemption 132 Collateral advantages 134 Collateral advantage that are invalid after redemption 135 Collateral advantage that are valid after redemption Collateral advantages: miscellaneous consideration Extinguishment of equity of redemption 137 Remedies of the Mortgagee 137 Non Final Remedies 138 Final Remedies 143 Sale 145 Foreclosure 149 Mortgages at the crossroads: ambivalence of law and policy 153 Is the mortgage security real or illusory? Summary 156 Chapter Covenants and their enforcement 157 Objectives 157 Introduction 157 further Readings 158 Enforcement of covenants in leases: Privity 158 Enforceability between contractor and contractee 159 Enforceability by third party? 159 Privity of estate 159 Privity neither of contract nor estate: sublease 161 Special rules on enforcement of covenants by and against non contracting parties: common law 161 Burden Common law rules of enforcement by successor of dominant 164 The covenant must touch and concern the land 164

7 It must be the benefit of land owned by the covenantee 165 Covenantee and his successor must have the legal estate in the Requirement of same legal estate 165 Review of the common law Summary Chapter 12: Restrictive Covenants 168 Objectives 168 Introduction 168 Running of Burden of Covenant: Elements of 169 Registration 170 Running benefit covenant: Elements of Discharge of Restrictive Covenants Summary 176 Chapter 13: Easements 177 Objectives 177 Introduction 177 Further Reading 177 Essential features 177 Storage & Parking 179 Acquisition of easements Implied grant and reservation 183 Easements further implied in favour of the grantee Summary 187 Index 188

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