INTRODUCTION TO LAND LAW

1 INTRODUCTION TO LAND LAW Next to constitutional rights, property rights are the strongest interests recognized by our law (White v Chandler, 2001 - per justice Hammond) Property is considered as bundles of rights S 2 LTA defines land: Land includes messuages, tenements, and hereditaments, corporeal and incorporeal, of every kind and description, and every estate or interest therein, together with all paths, passages, ways, waters, watercourses, liberties, easements, and privileges thereunto appertaining, plantations, gardens, mines, minerals, and quarries, and all trees and timber thereon or thereunder lying or being, unless specially excepted Dimensions of land law: 1. Space - the three dimensional rights you have in land 2. Time - 4 th dimension, duration for which you may exercise your rights in land 1. WHAT IS LAND LAW? BBT & T: real property can t be moved. When land is unlawfully taken legal action may compel return of the land, not just monetary value. When personal property taken legal action may only compel return of monetary value Risk v Northern territory of Australia (2000, FCA) Claimed an area covered by water Goldsworthy mining ltd v FCT (1973) cited. Per Mason J - the word land can comprehend part of the seabed FCA majority held ordinary and legal meaning of land doesn t extend to the seabed of coastal waters beyond the low water mark Merkel J dissenting: prefers Mason J s view in Goldsworthy mining On appeal to HCA (2002) In its ordinary meaning land means the solid portion of earths surface, but in certain statutory contexts it is capable of referring to seabed (not in this case though) AG v Ngati-Apa (2003, NZCA) Maori iwi applied to Maori land court for declarations as to status of land in foreshore and seabed Elias CJ held: seabed and foreshore is land for the purposes of the Maori act. No distinction between riverbeds or lakebeds and seabed. Held crown owns foreshore and seabed Court of Appeal Gault P: cannot be said that there isn t a tenable argument that at least some seabed within the claimed area could constitute land within the te ture whenua Maori Act Tipping J: in some statutes parliament has used the word land in reference to the seabed Held foreshore and seabed still available for a customary title claim by Maori. This resulted in foreshore and seabed legislation being enacted

2 THE DOCTRINE OF TENURE IN NZ Starting point for development of NZ s land law was English statute law and common law so far as it was applicable to the circumstances and conditions of NZ (English laws act, 1858). The subsequent development of NZ land law hasn t followed a course parallel to English law Battle of Hastings in 1066 Prior to battle of Hastings: land owned absolutely - allodial ownership. Battle won by William (duke of Mormandy). Ended allodial ownership. Directed all land to be brought under his ownership as the ultimate lord of England. This is a feudal tenure system Forms of tenure: military, non-military, uncategorized Reforms of tenure system: eventually all land came to be held of the King. Incidents of tenure eventually abolished - Tenures Abolition Act 1660 Summary of tenure: interests in land held of the crown. Title traced back to supreme overlord (the crown). This system = the doctrine of tenure Doctrine of tenure in NZ Proclamation of British sovereignty in 1840 Generally understood crown negotiated with Maori over all land in NZ, but there were areas where crown simply assumed ownership Feudal principals extend to NZ. Doctrine of tenure said to prevail in NZ and land said to be held of the crown (Veale v Brown, 1868) and it was seen as a fundamental maxim of the law that the king was the original proprietor of all lands in the kingdom (R v Symonds) Courts in 19 th century decided that doctrine of tenure applied to Maori customary land BUT in 2003, it was found that while crown holds underlying title, it is subject to customary rights of Maori as these existed before any crown grant (AG v Ngati Apa, 2003). Judicial acceptance of escheat (landowner dies, has no children and doesn t leave land to anybody) to crown (Veale v Brown). Land vested in crown where: 1. Person dies without heirs or successors 2. Company removed from register and its property isn t distributed or claimed PLA 2007 - Abolition and modification of common law rules relating to property S 57 - feudal incidents of estate in fee simple abolished. (1) A crown grant or a certificate of title or computer register for an estate in fee simple gives a right of freehold tenure without any incident of tenure for the benefit of the crown. (2) An estate in fee simple is transferable. S 58 - abolition of obsolete estates and rules

3 DOCTRINE OF ESTATES what did a tenant own if they didn t own the land itself (due to doctrine of tenure)? Common law courts developed the Doctrine of estates: don t own the land, but own an estate in land. Abstract concept representing certain rights to be exercised in respect of land Estate in land owner has exclusive possession, either indefinitely or for limited time. Can be concurrent estates over same piece of land. Interest in land other land rights that don t give right to exclusive possession (e.g. easements, profit a prendre, covenants, mortgages) Estates and interests: may be owned by one person alone or by more than one person (co-ownership). Two types of co-ownership - joint tenancy and tenancy in common (distinguished by right of survivorship). All estates in land (and most interests in land) may be either legal or equitable Estates in land: Fee simple estate: type of free-hold. Highest form of estate. Estate in land for indefinite time (terminates only if owner dies without successors). It is inheritable. Owners have 3 categories of rights - rights of possession, use and enjoyment, and alienation. Life estate: right of exclusive possession for indefinite duration (your life, or life of another). Not inheritable. Mainly found in family arrangements. Stratum estate: unit that has been subdivided under units title act. Fee simple stratum estate and leasehold stratum estates. Can inherit stratum estates Leasehold: limited duration but exclusive possession. (ss 61 & 68 PLA - life estate may be created in relation to a leasehold estate in land). Cross lease Future interests: estates and interests in property may be created that take effect at a future time (s 59 PLA). Reversion owner of a freehold or leasehold grants out some lesser interest to another (i.e. A grants life estate to B or A grants lease to B (reverts back to owner, of if they have died their succesors, at end of term). Remainder owner of a fee simple grants an estate to one person and a second or more estates to others that only take effect once the prior estate comes to an end (i.e. A grants life estate to B, remainder to C). Estates and the right to possession: possession may be enjoyed currently OR in the future. Enjoyment not dependent on physical possession

4 COMMON LAW & EQUITY Common law and equity: all estates (and also most interests) in land may be legal or equitable Benefits of equity in relation to land: Equitable estate/interest may arise when: it is unregistered or it is unregisterable Equity allows for trusts of land to be created Covenants - don t bind successors in title to the land, but in equity, all future owners who purchase with notice of the covenant are bound to respect it (Tulk v Moxhay) Equity can provide remedies where gaps have been left by the common law of estates. Equitable interests in law are generally caveatable Equity s contribution to land law includes: trusts over land, mortgagors equity of redemption, restrictive covenants, purchasers interest under an agreement for S & P of land Equitable interests in land may be based on: 1. A trust 2. A contract which is specifically enforceable: valuable consideration and availability of equitable remedy of specific performance (either sufficient agreement in writing (s 24 PLA) OR Part performance (s 26 PLA)) 3. Some other equitable remedy or jurisdiction (e.g. mortgagors equity of redemption) Equitable interests from contract: Equitable interests may arise from enforceable contracts. Contract must be for valuable consideration The remedy of specific performance must be available, so you need either: - Sufficient agreement in writing (s 24 PLA) OR - Part performance (s 26 PLA) - oral contract that has been partially performance can be enforced despite s 24 PLA Purchasers agreement - S & P agreement: purchasers interest under an agreement for S & P is significant. Purchaser has equitable interest, vendor has legal interest. Legal and equitable interests compared: 1. Creation: Legal: formal creation (s 41 LTA). Lease instrument, easement instrument, mortgage instrument Equitable: may be created informally (i.e. agreement or deed of lease, easement agreement, agreement to mortgage). Can order specific performance 2. Assignment/transfer: Legal: can only assign/transfer in accordance with statutory requirements Equitable: may assign/transfer informally 3. Enforceability: Legal: enforceable as against the world Equitable: binds only original parties and 3 rd parties with notice. May be defeated by a 3 rd party bona fide purchaser for value without notice. Notice means knowledge. Three kinds of notice: actual, imputed of constructive knowledge. 4. Priorities Legal: priorities between competing legal interests based on date of registration

5 Equitable: prima facie, priorities are based on date of creation unless there is a reason to reverse If a person s legal right is infringed entitled as of right to a legal remedy. Person seeking an equitable remedy no right to anything, it is discretionary and may be refused in P acted unconscionably, if damages are adequate or if the claim is trivial

6 THE LAND TRANSFER SYSTEM THE CONCEPT OF TITLE Title holder can: maintain possession by an action in trespass or recover possession by an action in ejectment. BUT title is relative: a P only needs better title than the D and a person in adverse possession may have a better title than others (including the true owner) Three conveyancing systems: 1. private conveyancing 2. under the deeds system title issues by crown grant registered subsequent transfers by deeds of conveyance voluntary registration of subsequent transfers a system of registration of title 3. the land transfer (Torrens system) - LTA 1952 enacted this system in NZ Validates title once document is registered Cornerstone is the definitive register - no need to check chain of title A system of title by registration - not registration of title (deeds system) More certain than deeds system Title means: the document evincing title, the best right to possession or any right to possession A good title is one that is immune against adverse claims. Therefore to have a good title to land is to have the right to maintain or recover possession of the land against all persons.

7 ADVERSE POSESSION AND PRESCRIPTIVE TITLE Adverse possession = possession by some person in whose favor the limitation period can run. Quality of the possession must be such as to give the person entitled to prior possession a right of action for the recovery of the land, rather than a mere right to bring a proceeding in trespass Common law: P in an action for recovery of land doesn t need to prove a better right to possession than anyone else, it is sufficient to show a better right to possession than the defendant. At common law, possession is still a root of title, so every possession will create a title which is good against subsequent intruders. NZ LT system: register is normally conclusive evidence of the title of the persons named in it. General rule is that provisions of the LA do not apply to land under the LT system Ss 21 & 27 limitation Act 2010 apply to deeds system land and LT land in limited transitional circumstances - S 21 LA: S 21(a) LA: retains the 60 year limitation period for proceedings by the crown to recover land. S 21(b) LA: retains the shortened period of 12 years for proceedings by any other person to recover the land if the P is not a person claiming through the crown - S 27 LA: provides for extinguishment of true owners title is the s 21 period ends before a claim to recover the land is made Effect of ss 21 & 27 LA 2010 on land brought under the earlier LTA Adverse possessor gets title under LA 2010 if: 1. 12 years adverse possession of land before the land is brought under the LTA (s 79 LTA) OR 2. 12 years adverse possession of LTA land if adverse possession commenced before land brought under LTA and continues for 12 years and the title of the adversely possessed land was limited as to parcels (no accurate survey plan of land) or limited as to title (chain of title not certain) (s 199(1)(d) and (3) LTA) adverse possessor does not get title under LA 2010 if: 1. adverse possession started after land brought under LTA OR 2. adverse possession started less than 12 years before land was brought under LTA but the title issued was not limited as to parcels or limited as to title *NOTE: land transfer amendment act 1963 - After 20 year s adverse possessor can apply for title by prescription, but true owner can lodge a caveat to stop application must be an actual, open and manifest, exclusive and continuous possession (McDonnell v Giblin, 1904 & Boskett v Drummond, 2006, NZCA) At expiration of the period proscribed by the LA for a person to bring a proceeding to recover land, the title of that person is extinguished Under LA 2010, right to recover land only accrued when two conditions are met: 1. Owner has discontinued possession OR 2. Has been dispossessed and possession has been taken by some other person in whose favor the limitation period can run = Such a person is an adverse possessor

8 No title to the following things can be acquired by adverse possession: certain types of public land (roads, reserved or land held for public works) and Maori customary land McDonell v Giblin (1904) Facts: P (McDonell) claimed injunction to stop Giblin from proceeding with an application for a certificate of title under the LTA in respect of land in Wanganui on the group that the P had for more than 20 years been in continuous adverse possession of the land. P fenced the land 17 years prior and had grazed cattle on it 5 years prior to that To constitute a title by adverse possession, the possession must be for the full period of 20 years, actual, open and manifest, exclusive and continuous. Onus of proof on P. Possession only proved for 17 years, unfenced prior to this and only used intermittently for convenience. Don t need actual physical possession every hour of the day but must have reasonable continuity Sinton v King (2004, NZHC) Facts: wedge shaped piece of land on boundary of #3 Brown Street, but found to be within the legal title of #1 Brown Street. To have adverse possession the possessor must have legal possession without owners consent. Legal possession of land requires: (1) factual possession (appropriate degree of physical contact and possession) and (2) the requisite intent O Regan J: #3 brown street had title. Wedge was fenced off and enclosure is the strongest possible evidence of adverse possession (Seddon v Smith). Had factual possession & requisite intent. Owners of #3 had built studio and carport which encroached on the piece of land Example of legal owner losing title as a result of the running of time under LA Boskett v Drummond (2006, NZCA) Facts: boskets owned land adjacent to Drummonds land, property was surveyed and gave wrong boundaries. Fence was built To constitute a title by adverse possession, possession must be actual, open and manifest, exclusive and continuous and apparent to those living in the locality Boskets couldn t rely on prior possession of 20 years, not adverse.