REAL Property LAW - Exam Notes PDF

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[Company name] REAL PROPERTY LAW NOTES

Victoria University

INTRODUCTION TO PROPERTY LAW

WHAT IS LAND LAW   

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Land refers to the surface of the earthc, including the airspace above the earths surface and the soil below the earths surface Land law is about ownership At common law and in some jurisdictions and in some laws, land includes the surface of the earth covered by water as well as the waters and airspace above and the soil below the water covered earth Land includes affixed buildings and other fixtures and improvements I5t also includes all interests and estates in land and tenure Personal property is all the property other than real property Personal property can be tangible and intangible Personal property inclides goods, goodwill, shares contractual rights and other intangible property

STATUTORY DEFINITIONS OF LAND 

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Statuory definitions of land vary between jurisdictions however in defining this concept, the most common definitions of land include messuages (a house or a similar structure together with as much land as is necessary for the convenient and comfortable enjoyment of the house), tenements and hereditaments, corpeal and incorporeal, of any tenure or description and whatever may be the estate or interest in it In Victoria land includes buildings and other structures, land covered with water and any estate, interest, easement, servitude or right in or over land – refer ti the interpretation of legislation act 1984 (Vic0 Land in Victoria is defined as; o Land of any tenure o Mines and minerals whether or not held apart from the surface o Buildings or parts of buildings (whether the division is horizon, vertical or made in any other way) and other corporeal hereditaments o An easement, right, privilege or benefit in over or derived from the land and o An undivided share in land

LEGAL MEANING OF PROPERTY   

Property is not the object but describes the relationship between a person and the object For a lawyer, the object is one thing the person another and property is the relationship between the person and the object More than person may have a property interest in the same object which may exist at the same time

TITLE MEANING OF TITLE 

Title means ownership

TWO MAIN SYSTEMS OF TITLE General law system   

The general law titles are based on a common law system, which originated in England The general law title system relies on a chain of deeds to prove ownership Under this system, the purchasers solicitor traced the title with the aid of an abstract of title provided by the vendor, inspecting bundles of documents making up the chain to ensure that the purchaser would actually receive ownership

 Torrens system  

Did away with the notion of derivative title Introduced a concept of indefeasibility in that the state took the responsibility of authoritatively certifying that a person named in the certificate of title had the title so certified.

FORMALITIES RELATING TO TITLE   

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Land law is also concerned with the requirement of certain formalities in relation to transactions involving land. A deed which must be signed, sealed and delivered is still required to pass a legal interest in general law land in Australia. Most of the freehold land in Australia is under the Torrens system of title. Under that system an instrument of transfer is required to be completed by the parties and the legal interest will not pass until the actual registration of that instrument. Once registered, the instrument has the effect of a deed but until that time has no effect in law.

PRIVATE LAW AND PUBLIC LAW 

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Private law; deals with relationships between private persons or entities and considers their ownership of interests in land, the transferability of such interests, their protection and the resolution of possible conflicts between them Public law deals with relationships between individuals and the state.

TENURE, ESTATES AND NATIVE TITLE

INTRODUCTION   

Individuals cannot own land, only the crown can An individual merely owns an estate in a land The doctrines of tenure and estates are derived from a feudal system of land holding which existed in England prior to settlement in Australia

THE DOCTRINE OF TENURE WHAT IS IT 

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

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Instead of granting ownership of land outright to his own followers, and those English landowners who supported hum, he granted the right to possess and use the land only on condition that certain services were to be performed

TYPES OF TENURE  

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The doctrine of tenure grants the right to possess and use the land only on condition that certain services are to be performed The tenures abolition act 1600 converted most tenures to free and common socage, prohibited the creation of other forms of tenure and abolished most remaining incidents of tenure This formally brought an end to the strictly feudal period of English Land Law but its legacy – notionally all land was held as a result of a crown grant continued on.

Military 

The tenant was obliged to provide the lord with a specified number of armed horsemen for battle in defence of the realm or grand sergeanty involving the provision of services of an honourable kind, usually personal to the king himself

Spiritual  

Could be either frankalmoign or divine service and generally required the provision of religious services so that land held by churches was held in the form of tenure The saying of prayers and masses for the king’s soul was the principle obligation

Socage 

Of a non-military or spiritual nature, this tenure covered a variety of services, the most usual, called common socage, being the rendering of specific agricultural work of the payment of rent money in the alternative

Copyhold tenure  

Unfree tenure. Like socage tenure, the provision of agricultural work was the service required but here the nature of the work was not fixed in advance. Such a villein tenant was generally a common labourer and really stood outside the fewdual system as only the lord could have tenure

RELEVANCE OF THE DOCTRINE OF TENURE TO AUSTRALIA 

Mabo v state of queensland (no 2) 1992 o If the slate were clean there would be something to be said for the view that the English system of land was not in 1788 appropriate for application to the circumstances of a british penal colony

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o It has however long been accepted as controvertible that the provisions of common law which became applicable upon the establishment by settlement of the colony of NSW included the general system of land law o Itt is far too late in the day to contemplate an allodial or other system of land ownership. Land in Australia which has been granted by the crown is held on a tenure of some kind and titles acquired under the accepted land law cannot be disturbed At the time of English setllment, Australia was regarded as terra nullius The doctrine of tenure as forming the basis of land ownershio in englad was therefore applied to Australian land Australian courts readily adopted the English land law principle that whne the british crown obtained soverenty of the Australian colonies, the whole of the lands of Australia became the property of the king of England (Williams v attorney general (nsw) 1912 The feudal susteem 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 becake the property of the crown. All titles, rights and interests whatever in land which existed thereafter in subjects of the crown were direct consewunces of some grant from the crown

RADICAL TITLE 

In mabo the court preffered to describe the crown as having radical title to the land, that being, it gives the crown the power to appropriate to itself land it requires and grants estates to ciizens

 THE DOCTRINE OF ESTATES

WHAT IS IT 

The doctrine of estates is a common law doctrine that provides for successive interests in land and establishes which holder of interests in land is entitled to possession in the present and or future.

THE NATURE OF AN ESTATE 

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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 estates give certain rights to possess the land Ownershop gives right to possession of that land Estate comes from the latin word stare; to hold Walsingham’s case (1573)

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o The land itself is one thing and the estate in the land another thjing. For an estate in the land is a time in the land or land for a time. The doctrine of estates fragments land according to time, unlike the doctrine of tenure which classified land according to the conditions upon which the land was granted

FREEHOLD AND LEASEHOLD ESTATES DIFFERENCE BETWEEN THE TWO 

The difference between a freehold and a leasehold is that freehold estates are always of indefinite duration whereas leasehold estates must always be of definite duration

Freehold estates  

The most comprehensive form of title that can be held in private ownership F

Fee simple   

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Fee simple is the largest estate a person can own Fee simple, a a freehold estate in land on unlimited duration is the closest estate to an absolute ownership and can last forever Fejo v northern territory 1998 o Fee simple is 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, ebvery act of ownership which can enter into the imagination o It simply does not permit of the enjpyment by anyone else of any right or interest in respect of the land unless conferred by stature., the owner or by a predecessor in title Words of limitationa re no longer required under Australian statute however appropriate words are still required in conveyancing; propery law act vic s 60 What distnguihses fee simple from other estates is that it can be alienated and even if the title holder dies without will next of kin can inherit

Fee tail    

Historical category of freehold estate in which the estate is inherited by family members A fee tail can be passed ownly to the specific lineal descendants of the holder, who has a life interest upon the holders death The purpose is to keep land in the family as the sale of land is prevented Most Australian jurisdictions have abolished the fee tail; property law act s 249

Life estate

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Unlike the fee simple and fee tail, the life estate is not an estate of inheritance. It wioll come to an end when the relevant life ends A life estate can be of two kinds the normal kind being for the life of the person to whom the estate is granted . the other type, an estate pur autre vie is for te life of another With an estate pur autre, the estate is not ,eausred by the length of the life of the person who owns the estate but the length of another persons life whom he choses. An estate pur autre vie also ovvurs where the holder of a normal life estate conveys the life estate to another so that if A conveys her life to B, B’s estate will come to an end at the death of A.

LEASEHOLD ESTATES 

A kease is for a fixed term. Is necessary for the period to be certain

Periodic tenancy  

A periodic tenancy will not come to an end automatically at the end of the period. Rather this type of leasehold estate must be determined by the giving of notice The notie may be given by ewither the land lord or the tenant and must be for the approoriate period

Tenancy at will A tenancy at will arises when a tenant is allowed to occupy land of the landlord on the basis that either party may determine the tenancy at any time 

Unlike the term of years, there is no definite duration and unliuke the periodic tenancy, notice is not required for termination

Tenancy at sufferance 

The tenant, after the expiry of a valid tenancy, holds over without the consent of the landlord. The tenant continues in possession but may be ejected at any time without notice

NATIVE TITLE

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 communcal, group or individual right and interests of aboriginal people or torres straight islanders in

relation to land or waters that have neem possessed under traditional laws and customs where a connection is established and rights and interests recognised by the common law PROPERTY SOCIETY AND THE ABORIGINAL RELATIONSHIP WITH THE LAND Property and society 

Allt he attributes of pownerhsip of property depend on the ability

ADVERSE POSSESSION WHAT IS ADVERSE POSSESSION

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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.

 THE NATURE OF POSSESSION AND OWNERSHIP  WHAT AMOUNTS TO POSSESSION  

Factual possession (physical control) Intention to possess (animus possidendi) intention to exclude the whole world or treat the land as her own

PRINCIPLES NEMO DAT QUOD NON BABET 

No one can covey what he does not own

OWNERSHIP POSSESSION  

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Without actual proof of ownership it is in our human nature to equate possession of an item with the best right to that item until proven otherwise Ownershiop confers the best right to the thing but in the absence of ownership, prior possession confers the best right to the thing and in the absence of a previous possessor, current possession confers the best right A persons title based on prior possession can be defeated by an older and therefore bettwe claim to possession and by adverse possession

 LIMITATION PERIOD LIMITATION OF ACTIONS ACT VIC   

The period starts when the cause of action to recover land accrues It differs for a present interest, future interest or whether it Is a certain tenancy. All actions require there to be an adverse possession before the right accrues Section 8 o No action shall be brough by any person to recover nay land after the expiration of 15 yearsfrom the daye on which the right of action accrued to

o him or if it first accrued to some person through whom he claims; that operosn provided that if the right of action first accrued to the crown, the action may be brought at any time before the expiration of 15 years from the date on which the right of action accrued to some other person other than the crown Personal interest section 9  

For a present interest, an action for recovery of land accrues when a person is dispossessed or has discontinued possession and; onky when there is an adverse possessor (s 14)

future interest 

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for an interest in reversion of remainder of a term of years, an action for recovery of land accrues when estate becomes an interest in possession (when the estate reverts or goes into remainder and becomes a present interest section 10, unless a person wrongfully takes possession of the rent section 13 where the proceeding estate is not one for a term of years, absoite, then no action can be brought on the expiration of 15 years from when the right accrued to the person entitled to the precedeing estate or 6 years from when the right accrued to the person entitled to the suceedijng estate s 10

Cerain tenancies  

tenancy at will shall be deemed to be determined one year from when the tenancy commenced until determined earlier, s 13 for periodic tenancy without lease in writing, right of action accrued from the end of the first period or if rent is later received, the date f the last recipet of rent s 13

EXTENDING THE LIMITATION PERIOD 

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Section 23; persons with legal disability o Where the person dispossessed suffers from disability or minority on the date that the action accrued, they will have 6 years to bring a claim from the date that they cease toi be disabled when they die Preople with a future interst o Time begins to accrue from the time they have right right to possess the land o 6 years from the time the cause of action arose or 15 years from the time the cause of action arose from the original beneficiary, whichever is loger

STOPPING THE LIMITATION PERIOD Legal acion to recover land 

Shaw v Garbutt the owener claiming the land bought an action of ejectment against the adverse possessor but then made no appearance when the case came on in court.

The case was dismissed byt in later proceedings on adverse possession issue it was held that the issue and service of a summons with the intention of obtaining an order for possession was more than a mere formal re entry onto the property eben if that intetion was changed later or the action was dismissed. Physical entry on the land \     

Owners can stop adverse possessirs by physically taking possession of the land Must make an effective but oeaceful entry onto the land with the intention iof possessionng it Must be more than a mere formal entry and more than an attemopt to enter the land that has been repulsed by the aadverse possewssor Must be true attempt to take possession of the property

Acknowledgement of owners title by the adverse possessor 

If squatter makes a formal acknowledgement of the owners title in some way then it might stop the limitation period.

ELEMENTS

Factual Possession 

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Factusal possessiojn is an appropriate degree of physical control. Sufficiency of control depends on the particular nature of the land and the manner in which he land of that nature is commonly used or enjoyed Possession of something confers a right of possession against everyone else unless better right to possession can be proven Owner remains the best possessor o However owner must act to recover possession of the thing if possession has been taken without consent Mulcahy v curramore pty ltd 1974 o The possession of the adverse possessor must be open not secret, peaceful notby force and adverse not by consent of owner o Physical control of the land means exoectred to act like a real owener 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 carious ways of demonstrating possession and ownership Possession must be open o Line between adverse possession and legalised theft

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o Adverse possessor cannot conceal their possession of the land o The true owner must be allowed the opportunity to discover the possession and take steps to remove the adverse possessor before the limitation period is over o P...