LAWS2383 Land Law Notes Native title and Crown grants... 4 Determinable and conditional interests... 4 Legal future interests... 4 Fundamental concepts... 5 Recognised property rights... 5 Contracts and land... 5 Licences and third parties... 6 Equity and land... 6 Torrens system... 7 Principles of the Torrens system... 7 1. All parcels of land have had their boundaries determined by a professional, accurate survey... 7 2. There is a publicly accessible government register that definitively records who owns each parcel of land and who else may have rights to it... 7 What constitutes the register?... 7 Indefeasibility... 8 Adoption of immediate indefeasibility... 9 Indefeasibility of the terms in a registered instrument... 9 Volunteers also get indefeasibility... 9 Exceptions to indefeasibility... 10 Fraud... 10 Fraud and agency... 10 False attestation of instruments... 11 Fraud against the holder of a prior unregistered interest... 11 Rights in personam (for third parties against new RP)... 12 Types of causes of action... 12 There is a requirement of an element of unconscionability... 12 Mortgagee negligence not a property right... 12 Personal equity and breach of trust... 13 Short term tenancies... 13 Overriding statutes... 13 Caveats... 14 Must be a caveatable interest... 15 Caveats must be lodged with reasonable cause... 15 Application for removal of caveat... 15 1
Competing equitable interests... 16 Earlier interest prevails... 16 Exception better equity... 16 Significance of notice in equitable priorities... 17 Co-ownership... 18 Joint tenancy... 18 Severance of joint tenancy... 18 Tenancy in common... 20 Creation of co-ownership... 20 At law... 20 In equity... 20 Rights of enjoyment inter se of co-owners of land... 21 Rights of occupation... 21 Occupation rent... 21 Quantum of occupation rent... 22 Accounting for rents and profits... 22 Compensation for repairs and improvements to land by one co-owner... 23 Liability for waste... 23 Disposition of interests by co-owners... 24 Termination of co-ownership... 24 Leases... 25 Formation... 25 Substantive requirements... 25 Formal requirements... 26 Implied covenants... 27 Implied legal covenants owed by landlord... 27 Implied legal covenants owed by tenant... 29 Fixtures... 29 Enforceability of covenants after landlord assigns reversion... 29 Enforceability of covenants after tenant sublets... 30 Remedies... 31 Forfeiture of lease by landlord property law remedy... 31 Remedies of landlord and tenant in contract... 32 2
Mortgages... 34 Torrens system mortgage... 34 What is indefeasible in a void mortgage?... 34 Priorities, mortgages and tacking... 34 Covenants in mortgages (both general and Torrens)... 35 Remedies of the mortgagee... 36 Power of sale... 36 Easements... 39 Four substantive requirements... 39 1. There must be a dominant and servient tenement... 39 2. Easement must confer a real and practicable benefit on the dominant tenement... 40 3. Dominant and servient tenements must not be owned and occupied by the same person... 40 4. Easement must be capable of forming the subject matter of a grant... 40 Types of easements... 41 Rights of way... 41 Creation of easements by court order... 42 Extinguishment of easements... 42 Freehold covenants... 43 Law of freehold covenants... 43 Common law... 43 Equity is prepared to enforce burden of covenants... 43 Enforceability... 44 Public planning regimes... 44 3
Native title and Crown grants How Native title is extinguished: Legislative provision Commonwealth v Akiba (2012) Inconsistent grant in land Fejo v NT of Australia (1998), Wik Peoples v Qld (1996) Acquisition by Crown of native title land Determinable and conditional interests Grantor could impose limits on who his land passed to if breached, grantor or grantor s successor has right to re-enter If a condition subsequent is void, primary gift remains valid; if terminable limitation is void gift fails entirely Zapletal v Wright [1957] Tas SR 211 Plaintiff and defendant are joint tenants of land; defendant was married and separated from his wife, then some years later moved in with plaintiff, had two children and lived together for fifteen years until she left and married another She did not contribute to purchase but her name was on the title at her request, he claimed she said if she ever left she would take her name off the lease She claimed sale of the property and division of the proceeds trial judge found that it was intended to be a gift to her HELD: intention was to induce her not to leave him, void as promoting immorality o Condition is a distinct and separable provision, if a condition subsequent is void the primary gift remains valid, but if a terminable limitation is void the gift fails entirely o Difference is whether it is so intimately a part of the estate that it cannot be severed When will a condition or limitation be void? 1. Conducive to immoral behaviour (as in Zapletal) 2. Illegality (such as seeking to frustrate insolvency laws Re Machu) 3. Uncertainty (gift to daughter provided she marries someone not Jewish found to be vague because meaning of Jewishness was too vaguely defined Clayton v Ramsden) a. Extrinsic evidence can be used to clarify the testator s intention Re Tepper s Will Trusts 4. Restricts a right to marry (testator left estate to sons provided they and their wives were Protestant, but they had already married Catholic women Trustees of Church Property of the Diocese of Newcastle v Ebbeck) 5. Substantially restricts the grantee s rights of alienation Andrew v Park [1973] Qd R 93 couple lived in plaintiff s house, he transferred title to her on understanding that if she went back to husband she would retransfer title; eventually they reconciled and her husband moved in; plaintiff sought to recover title and she said condition not enforceable for inducing her to live in immoral cohabitation; agreement was upheld as condition simply provided for end of relationship, didn t induce anything from her Legal future interests Future interests interest of person to whom title passes after life tenant dies Can be reversion or remainder o Reversion: when holder of an estate grants a lesser estate in possession to another, doesn t dispose of whole estate o Remainder: grant of future interest to someone not previously entitled, includes vested interest (precise identity of person is known and there is no condition precedent) and contingent interest (might not take effect as a contingency must be met before vesting occurs) Legislation has now intervened to place contingent remainders in the same position as vested remainders 4
Fundamental concepts Recognised property rights Numerous clausus or closed list principle: there is a finite list of established interests in property, landowners are not at liberty to customise land rights to meet their own needs Fee simple Lease Mortgage Easement Freehold covenant Lien or charge Largest interest you can have in land, entitles owner to possession of the land for an indefinite period, subject only to government acquisition and regulation by planning and laws Time-limited interest in land, where lessee/tenant is entitled to possession to the exclusion of everyone else including the landlord; landlord still owns the fee simple but have carved out a smaller interest and given it to the lessee. While lease is running, landlord s interest is called the reversion. Lessee s interest can be sold/transferred called a sublease. Owner of a fee simple/lease (mortgagor) carves out interest in their land and gives it to mortgagee for money Mortgagee is entitled to sell the land if they are not paid back, takes whatever money they are owed from the sale price and gives the rest to the mortgagor Mortgage contains contractual promise to repay borrowed money, more secure than contractual promise because mortgagee can access a specific piece of land to satisfy the debt = secured creditor Right to do something on someone else s land Easements affect two pieces of land land benefitted (dominant tenement)/burdened (servient tenement) They run with the land whoever owns the benefitted land can use the easement and whoever owns the burdened land has to accept their land being used Right to stop someone doing something on their land e.g. adding storeys blocking view aka restrictive covenants Small interest in land equivalent to amount of money owed to owner of the lien, doesn t include the right to sell the land but when the land is eventually sold, owner of the lien has a right to be paid directly out of the proceeds of sale Contracts and land 54A Contract for sale of land must be in writing Contracts do not transfer the legal title to land, they are an agreement by one party to transfer legal title to a property interest to the other party in return for money on an agreed date. With offer and acceptance, all essential terms, and in writing, contract will be specifically enforceable. 54A (1) Contract for sale etc of land to be in writing No action or proceedings may be brought upon any contract for the sale or other disposition of land or any interest in land, unless the agreement upon which such action or proceedings is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged or by someone other person thereunto lawfully authorised by the party to be charged. 23C (1) Instruments required to be in writing Subject to the provisions of this Act with respect to the creation of interests in land by parol: a. No interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by the person s agent thereunto lawfully authorised in writing, or by will, or by operation of law, b. A declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by the person s will, c. A disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same or by the person s will, or by the person s agent thereunto lawfully authorised in writing. This section does not affect the creation or operation of resulting, implied or constructive trusts. 5
Licences and third parties Property rights are enforceable against the world (in rem) but only certain rights can be recognised as property Examples of where a licence/personal right is created and a property right is not: King v David Allen & Sons, Billposting Ltd [1916] 2 AC 54 o Appellant agreed to let respondents put posters on side of theatre he was building; then leased premises to a company and meant to assign interest in agreement with respondents but no reference in writing o Respondents were forcibly stopped from putting up posters, appellant (now director of company) protested without success to respondent sued o Appellant tried to bring in the company as a third party but was rejected o HELD: respondent s rights were taken away by company who had authority to do so from the appellant, who owed a personal obligation (no interest in land) and he is personally liable Georgeski v Owners Corporation Strata Plan 49833 (2004) 62 NSWLR 534 o Plaintiff built jetty on land she licenced next to river, defendants held easement on edge of plaintiff s land and she sought a declaration of rights and injunction to stop trespass o HELD: only someone with possession right can bring claim in trespass Equity and land Equity supplements law where: Rights or remedies are inadequate specific performance better than monetary damages No legal rights or remedies but contributed to property or was intended to have some interest Could never acquire interest legal title to trust property vested in trustee, only equitable title Legally complete contract for sale of land + in writing + purchaser gets equitable interest in land. Purchaser doesn t get equitable interest because vendor intends to give it, but as equity as done what ought to be Specifically enforceable contract to sell someone legal fee simple gives them equitable fee simple (Bunny Industries) Specifically enforceable agreement to grant someone a lease gives them equitable fee simple (Walsh v Lonsdale) Equitable interest acquired is a property right, not a contractual right enforceable against the world o If A contracts to lease to B, lease is contractually enforceable between A and B, but if A then sells to C, B can t enforce against C, but they can enforce equitable lease that arose by virtue of specifically enforceable agreement to grant a lease against C because it is a property right C becomes B s new landlord and has to allow B to stay for the full term of the lease 6