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Property Law Victoris Uni 2019, Distinction grade...

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RealProperty2018 Real Property Law (Victoria University)

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Real Property Law: Week 1: Tenure, Estates and Native Title Doctrine of Tenure ‘DOT’ 

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The doctrine of tenure is the common law doctrine that describes how a person holds a freehold estate in land from the Crown as absolute owner or from a superior estate holder in a feudal hierarchy. King owned all the land, he would allow certain people to have a tenure (stay on the land) so long as you gave some sort of service such as military service. o Tenure means that you own the land, you allow someone else to stay on the land provided they look after it for me DOT means the king/queen own all of the land

Types of Tenure  The DOT grants the rights to possess and use the land on condition that certain services were to be preformed  There are different types of tenure; o Military: Service of protection o Spiritual: divine service or frankalmoign o Socage: payment of rent or other non-military service to a superior o Copyhold: or ‘villain tenure’; non-fixed labour to be preformed  The Tenures Abolition Act 1660 converted most tenures to free and common socage, prohibited the creation of other forms of tenure and abolished most remaining incidents of tenure (i.e suit id court, aids, wardship, marriage e.c.t). Basically, this Act abolished the different types of tenures and made it so that people paid to be tenures (rent).  This formally brought an end to the ‘strictly feudal’ period of English land law, but its legacy-nationally all land was held as a result of a grant from the Crown- Continued on Doctrine of Estates  The Doctrine of tenure has lost its significance.  On a Crown grant of land, the Crown does not grant ownership of the land but rather ownership of an estate in that land. Therefore, estate give certain rights to possess the land.  Estate comes from the Latin word Stare: ‘to hold’  Walsingham’s case (1573): ‘The land itself is one thing, and the estate in the land is another thing.  The Doctrine of Estates (DOE) is the common law doctrine that provides for successive interests in land and establishes which holder of interest in land is entitled to possession in the present and/or future

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DOE fragments land according to time, unlike DOT, which classified land according to the conditions upon which the land was granted.

Estates: Freehold v Leasehold  Difference Between Freehold and Leasehold- the difference is time.  Freehold estates are always of indefinite duration until you decide to sell itunlimited time  Leasehold estates must always be of definite duration- comes to an end and that time is mentioned at the start of an agreement Freehold Estates and Fee Simple  Estates are regarded as either ‘freehold’ or ‘leasehold’ estates  Difference = time. Freehold estates can be hold for an indefinite period of time, whereas a leasehold is fixed by time  A freehold estate in land is the most comprehensive form of title that can be held in private ownership  Fee simple is the largest estate a person can own  Fee derives from fief, meaning feudal landholding and capable of being inherited  Simple means that it descends without qualifications- i.e. no restriction on who can inherit the land  Fee simple, as a freehold estate in land of ‘unlimited duration’, is the closest estate to an absolute ownership and can theoretically last forever  In Fejo v Northern Territory (1998) it was held that the fee simple is o ‘For almost all practical purposes, the equivalent of full ownership of the land and confers the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination. It simply does not permit of the enjoyment by anyone else of any right or interest in respect of the land unless conferred by Statute by the owner of the fee simple or by a predecessor in title.  Words of limitation (to A and his/her heirs) no longer required under Australian statute, however appropriate words are still required in conveyancing- refer to the Property Law Act 1958 (Vic), s60(1)  What distinguishes fee simple from other estates is that it can be alienated (transfer ownership of property rights to another person or group) and even if the title holder dies without a will, the next of kin will still inherit. Fee Tail  ‘Fee tail’ is a historical category of Freehold estate in which the estate is inherited by family members  Derives from old French Taillir, meaning to cut or limit  It is rarely used in Australia Leasehold Estates  A lease is for a fixed term. It is necessary for the period to be certain  Periodic tenancy will not come to an end automatically at the end of the period it must be determined by giving of notice.

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Tenancy will arises when tenant is allowed to occupy land off the landlord on the basis that either party may determine the tenancy at any time. Notice is not required for termination. Tenancy at sufferance sees the tenant after the expiry of a valid tenancy, holds over without consent of the landlord. Continues in possession may be ejected at any time without notice. Common law has been modified significantly by statutory provisions, particularly in case of residential and retail tenancies.

Doctrine of Tenure and Colonisation  At the time of English settlement, Australia was regarded as ‘terra nullius’ (belonging to no-one).  DOT, as forming the basis of land ownership in England, was therefore subsequently applied to all Australian land. Doctrine of Tenure: In Australia  Australian courts readily adopted the English land law principle that when the British Crown obtained sovereignty of the Australian colonies, the ‘whole of the lands of Australia became the property of the King of England’ – refer to Williams v AttorneyGeneral (NSW) (1913).  As stated in Mabo (No 2) v Queensland (1992): “provisions of common law which became applicable upon the establishment by settlement of the Colony of NSW included that general system of land law”. Therefore, all laws and statutes of the British Parliament should be applied in NSW… system of land law, based on feudal notions…imported into Australia.  As such, feudal system was part of the law of NSW and therefore land could only be held under tenure.  Prior to Mabo: every square inch of territory in the colony became the property of the Crown. All titles, rights and interests whatever in land which existed thereafter in subjects of the Crown were direct consequences of some grant from the Crown. Radical Title  In Mabo, the court preferred to describe the Crown as having ‘radical title’ to the land, that being, it gives the Crown to appropriate to itself land it requires, and grant estates to citizens. What is Native Title?  Native title involves rights or interests owned by indigenous people in respect of land or water, in accordance with their traditional laws and customs.  It is therefore a property interest recognised and protected under statute.  Native title, or native title rights and interests, means the communal, group or individual rights and interests of Aboriginal peoples or Torres Straight Islanders in relation to land or waters that have been: possessed under traditional laws/customs, where a connection is established; and rights/interests recognised by the common law.  The land is taken off of the Crown and given back to the indigenous

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Pre-Mabo Cases  Cooper v Stuart (1889) held:  territory practically unoccupied without settled inhabitants or settled law;  declared indigenous rights to land did not exist in Australia; and  enforced the concept known as ‘enlarged terra nullius’ whereby, if there were people on the territory who were not cultivating the land in a “European Way”, then the country could still be considered ‘empty’ with no recognition being given to indigenous law.  Coe v Commonwealth (1979) upheld Cooper’s enlarged notion of terra nullius:  Aboriginal people were subject to the laws of the Commonwealth and the states in which they lived; and  Australian colonies became British possessions by settlement, and not by conquest. Mabo v Queensland (No2) (1992) 175 CLR 1  Mabo held that: o in conquered or ceded countries that already had laws of their own, such laws survived until they were changed; o the laws of England, therefore, became the laws of the land, protecting and binding colonists and indigenous inhabitants alike; and o The concept of terra nullius to “justify conquest” and colonisation therefore had to be condemned, since the common law of Australia would have perpetuated an injustice if it continued to embrace the enlarged notion of terra nullius. o Indigenous inhabitants entitled to possession, occupation, use and enjoyment of land, except to extent extinguished by legislative or executive exercise of power; and o Native title recognised by common law. Native Title Act 1993 (Cth)  NTA was enacted in 1993, with amendments being made after decision in Wik (to be discussed further later in this lecture).  Section 4 states that it recognises and protects native title, and that title cannot be extinguished contrary to the Act.  Purpose: purpose of which is "to provide a national system for the recognition and protection of native and for its co-existence with the national land management system".  Codifies the Mabo decision and implemented strategies to facilitate the process of recognizing native title. Native Title Act 1993 (Cth) and ILUA’s  An important aspect is future acts and the use of ‘Indigenous land use agreements” (“ILUA’s”).  Section 107 established National Native Title Tribunal, with appeals on matters of law to the Federal Court (s169). To primary roles: mediation of native title and compensation, and the administration of the future act regime. Agreements therefore form a major part of how native title operates in Australia.  An ILUA may be for an area where the existence of native tile has already been established, or for areas which native title may exist, but has not yet been

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established, or for areas over which native title may exist, but has not yet been determined. AN ILUA can also be registered, with this registration providing security for the validity of any future acts that have been authorised under the ILUA. These agreements are registered with the Registrar of Native Title Claims if a claim has been lodged, or the National Native Title Register for determinations.

Extinguishment of Native Title  As pointed out in Mabo, certain acts can extinguish native title.  There is a requirement that native title claimants show connection with the land, with this requirement being maintained in the definition of native title in s223 of the NTA.  In Yorta Yorta Community v Victoria (2002) – Changes and adaptations to traditional laws and customs, or some interruptions to the enjoyment of native title rights in the time since European settlement, will not necessarily be fatal to a native title claim. However, the term traditional refers to laws and customs acknowledged and observed at the time of sovereignty.  Observance, therefore, must have continued substantially uninterrupted since sovereignty, otherwise what was being observed now could not be said to be the traditional laws and customs of the people concerned. Wik v Queensland (1996) 187 CLR 1  In Wik, the question to determine was whether pastoral leases (leases of Crown land for agricultural purposes) were true common law lease that extinguished native title, or whether they fell into the category of a lesser interest that did not?  Decision = pastoral leases were not exclusive of all rights and interests of the indigenous inhabitants whose occupation derived from their traditional title.  Native title was not tenure and that it was not an interest held of the Crown. On the contrary, it was derived from the traditional laws and customs of the indigenous people, and was recognised by the common law until extinguished.  There was therefore an ‘intersection of traditional laws and customs with the common law’.  Therefore, native title rights could co-exist with pastoral leases. Wik in Summary  No necessary extinguishment of native title by the grant of a pastoral lease because the grant did not confer a right to exclusive possession on the grantee.  the rights and obligations of the pastoralist depend on the terms of the lease and the law under which it was granted  If inconsistency is held to exist between the rights and interests conferred by native title and the rights conferred under the statutory grant, the native title rights and interests must yield, to that extent, to the rights of the grantee.  As Wik concerned pastoral leases, and not common law freehold or leasehold estates, it stood outside the system for the determination of native title claims established by the Native Title Act (“NTA”).  Therefore, if there is a conflict of rights, the native title holders have an inferior interest/right. If there is no conflict, the rights of each co-exist.

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Tenure Estates and Native Title Re-Cap  Upon English settlement, Australia adopted the English land laws.  Doctrine of tenure grants land upon condition.  Doctrine of estates grants land for a time, not upon condition  Mabo dispelled the notion that Australia was terra nullius at the time of English settlement.  Native Title Act 1993 (Cth) codified Mabo and facilitates the process of recognising native title.  Wik decision held that pastoral leases (not common law freehold or leasehold estates) did not instantly extinguish native title rights and claims.

Week 2: Adverse Possession What is Adverse Possession? Adverse possession (“AP”) is a legal principle that enables the occupier of a piece of land to obtain ownership if uninterrupted and exclusive possession of the land for a specified period of time (Vic 15 years) can be proven.  AP highlights the distinction between the possession of land and of documentary title to land and how possession (via time) can become good title. Often referred to as ‘Squatters Law’ 

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Squatters often claim rights over the spaces they have squatted by virtue of occupation, rather than ownership; in this sense, squatting is similar to (and potentially a necessary condition of) adverse possession, by which a possessor of real property without title may eventually gain legal title to the real property.

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Possession is not the same as ownership. Ownership is the greatest right to a thing, but possession caries rights with it as well. They are however ‘subordinate ‘to the greater right of ownership. In the absence of ownership, we say that ‘prior possession’ confers the best right to the thing, and in the absence of any previous possessor, we say that ‘current possession’ of the thing confers the best right. Possession of the thing confers a right to possession of the thing, and that right holds good against everyone else, unless they can show a better right to possession.

Nemo dat quod non habet 

Nemo dat quod non habet (nemo dat rule): no one can convey what he does not own.

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Owner remains the owner, possessor the possessor, however owner must act to recover possession of the thing if possession has been taken without consent.

Limitation of Actions Act 1958 (VIC)     

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Limitation of Actions Act 1958 (Vic). 15 years is the general limitation period in Victoria (s 8). Differs between States/Territories (12 or 15 years). Victoria, there is no limitation period for Crown land. Reason, Crown’s inability to monitor its own land. LIMITATION OF ACTIONS ACT 1958 - SECT 8 Action to recover land No action shall be brought by any person to recover any land after the expiration of fifteen years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person: Provided that if the right of action first accrued to the Crown the action may be brought at any time before the expiration of fifteen years from the date on which the right of action accrued to some person other than the Crown. No. 5914 s. 9. Period of AP begins to run when: o Person entitled to possession has discontinued possession; and o AP of the land has been taken by another. Both elements must be present. AP must continue throughout the entire limitation period. Otherwise time begins again. What happens if true owner sells, gives away land, dies or devices it (via their Will) ? New owner of the land stands in shoes of the old owner and has whatever time is still left from the moment the action accrued to the old owner.

Meaning of Possession  Adverse means that the possession does not have the consent of the true owner.  The possessor must have both actual physical control of the thing as well as the intention to possess it.  As per Mulcahy v Curramore Pty Ltd [1974]: o possession of the AP must be “open, not secret; peaceful, not by force; and adverse, not by consent of the true owner”; and o Physical control of the land means: “expected to act like a real owner would act. He may not use the land, may or may not be continuously in residence, and may or may not maintain improvements and fencing. There are various ways of demonstrating possession and ownership”.  Must be proof of the AP physical control of the property. Must be for the duration of the limitation period. Intention to possess the land- Element of AP 

Powell v McFarlane (1979): Animus Possidendi involves intention to exclude the world at large, including the owner, so far as reasonably practicable and so far as the process of the law will allow”.

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Mere occasional trespasser is not interested in maintaining a relationship of possession with the land, whereas the AP has a relationship with the land. Need not have a specific intention to exclude the real owner. Intention is just one to control the land and exclude strangers. Nor does there need to be an intention to own the land. Therefore, the vital element is intention to possess the land, and what is needed for AP to be made out is factual possession and control of the land coupled with that intention to possess the land to the exclusion of all others. Intention to possess must be made clear to the world. At least make intentions ‘sufficiently clear’ so that the owner is aware that the AP is trying to dispossess him.

Rights of the Adverse Possessor AP can pass his/her rights on to others, including devised in a Will. The alienation of rights does not have to be by formal documentation. Importantly, if there is no break in AP from one person to the next, the rights of the AP are still aggregated, and when the limitation period is reached the rights of ‘the owner’ to bring an action are barred.  Example: AP cannot defeat third-party interests in land - i.e. covenants or easements. Extending the Limitation Period  Legal disability (but limited to 30 years) – s 23 Limitation of Actions Act 1958 (Vic) (“LAA”).  What about a ‘future interest’ (i.e. Mickey grants land to Minnie for life and to Goofy in remainder). Here, time begins to accrue from the time they have the right to possess the land - Time starts from then.  In Victoria, person has either: o 6 years from time of COA arose; or o 15 years from time COA arose from original beneficiary.  whichever is lon...