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Tutorial Questions and most answers SUM 2018/19...

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LLB301 Real Property Law Student Workbook Tutorial Scenarios

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Real Property Law Student Workbook – All Scenarios

Contents Welcome to students.............................................................................................................................4 Contact details.......................................................................................................................................4 Tutorial 1. Introduction and boundaries to Land...................................................................................5 1.1 Overhanging Cranes.....................................................................................................................5 1.2 At Home by the Sea....................................................................................................................6 1.3 Gold Glorious Gold......................................................................................................................6 Tutorial 2. Tenure and Estates................................................................................................................7 2.1 Tenure in Australia.......................................................................................................................7 2.2 My Home is my Castle..................................................................................................................9 2.3 Sprucing up the Place................................................................................................................10 Tutorial 3. Co-ownership......................................................................................................................11 3.1 Share and Share Alike................................................................................................................11 3.2 We Had an Agreement...............................................................................................................12 3.3 Best Mates.................................................................................................................................13 Tutorial 4. Sub-division and Community Title......................................................................................15 4.1 Larry the Developer...................................................................................................................15 4.2 Common Property and Community living..................................................................................17 Tutorial 5. Dealings with Land: An Introduction...................................................................................19 5.1 Timing is Everything!..................................................................................................................19 5.2 The Results of the Search...........................................................................................................20 5.3 An interest in the Land?.............................................................................................................21 5.4 A Question of Timing…...............................................................................................................22 Tutorial 6. Exceptions to Indefeasibility...............................................................................................23 6.1 Faye gets into financial trouble.................................................................................................23 6.2 Belle’s Bequest...........................................................................................................................24 Tutorial 7: Priorities and Caveats.........................................................................................................26 7.1 (Another) Question of Timing....................................................................................................26 7.2 An interest in a lot?....................................................................................................................28 Tutorial 8 Leases (Part 1).....................................................................................................................30 8.1 Keep on Rocking in the Free World............................................................................................30

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8.2 By the Sea..................................................................................................................................32 8.3 Jelly Jumps takes possession......................................................................................................34 Tutorial 9. Leases (Part 2)....................................................................................................................36 9.1 Trouble with the Lease...............................................................................................................36 9.2 Assignment to Ripple Up............................................................................................................38 9.3 Desmond Trump........................................................................................................................39 Tutorial 10. Leases (part 3)..................................................................................................................39 10.1 Terminating the Lease..............................................................................................................40 10.2 Re-entering the Premises.........................................................................................................42 Tutorial 11. Easements........................................................................................................................43 11.1 Smith and Jones.......................................................................................................................43 11.2 Mary and Jason........................................................................................................................45 Tutorial 12 Mortgages..........................................................................................................................47 12.1 Development Ltd.....................................................................................................................47 12.2 Stop the Sale!...........................................................................................................................49

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Welcome to students Dear students, welcome to the tutorial content for Real Property Law LLB301. We hope you enjoy working your way through these activities. The questions are mostly scenario-based and you will get the most out of these by preparing dot points of your answer before attending class. Readings are provided for each tutorial and you should be able to answer the questions by the readings provided. We encourage you to read the entire cases but in some instances they are too lengthy. In such instances, the basic facts and ratio from these cases should suffice. However, you should be reading the actual provisions of the legislation provided. Some activities have documents which you will need to access on BlackBoard including an example lease and an example mortgage. These documents are provided to you so you can familiarise yourself with common documents that are used in legal practice. Good luck and remember we are here to help you through the content, so any questions, please just ask. Regards, Dr Evan Hamman and the LLB301 teaching team.

Contact details Dr Evan Hamman, Lecturer in Law LLB301 Unit Coordinator Level 7, C Block, Gardens Point Campus Email: [email protected]

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Tutorial 1. Introduction and boundaries to Land 1.1 Overhanging Cranes Before attempting this scenario you should read:     

Wallace Weir and McCrimmon textbook (2015 edition) [4.60-4.90] Graham v K.D. Morris & Sons Pty Ltd [1974] Qd R 1 Lord Bernstein of Leigh v Skyviews & General Ltd [1977] 2 All ER 902 Lang Parade Pty Ltd v Peluso & Ors [2005] QSC 112 Section 180 of the Property Law Act 1974 (Qld)

Cranecorp is a private company which supplies cranes for high rise construction in Queensland. Business has been booming recently due to the nature of overseas investment in Brisbane city. In years to come the Brisbane skyline will look fantastic, but for now, it is in a period of transition. Cranecorp is called to a job at a commercial site in Brisbane’s West End, an area close to the city and a thriving small business scene. There are many residential and commercial developments going up in West End. Cranecorp’s general manager - Suzanne - meets with the builder on site. Suzanne is advised that that Cranecorp will need to have their 60 metre ‘tower’ crane in place by Friday at 9am as several steel beams need to be loaded onto site before foundational work begins on Monday. The crane work is likely to continue over the weekend. Suzanne surveys the area next to the site for the best possible spot to access the loading point. She decides that the only way to get access is by swinging the jib (or boom) of the crane (which is 20 metres long) over the neighbouring house. There would be an incursion of about 10 metres over the driveway each time the beams are loaded into place. There are 1200 steel beams (groups in lots of 20) to Suzanne is concerned about interference with the house. It will take about 30 minutes for each lot to be picked up and moved into place. Suzanne rings her office and immediately asks the in-house legal advisor for email advice about whether this is possible: “None of that legal mumbo-jumbo this time” she says “I want a clear and concise advice. Tell me what do I need to be aware of? I don’t want to end up in Court!” 1. Does Cranecorp have a legal right to swing its crane boom over the neighbouring property?

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Land holders have the right to reasonable use and enjoyment of the land which includes the airspace. Graham v KD Morris; Bernstein v Skyviews This is a potential trespass would need to look at the extent of the interference with the reasonable use of the land Need to consider the height, time of day, amount of time that the trespass is occurring 2. If not, who can restrain Cranecorp, how and why? Mandatory injunction of the court by the owner of the house 3. How could Cranecorp seek to legally protect their proposed activity? Apply for an exception under s 180 of the PLA which is a statutory right to interfere with the land which would otherwise be a trespass

1.2 At Home by the Sea Before attempting this scenario you should read:    

Wallace Weir and Mc Crimmon [4.120]-[4.140] Svensden v Queensland [2002] 1 Qd R 216 Land Act 1994, Sections 8 and 9 (defn of ‘tidal boundary”) Survey and Mapping Infrastructure Act 2003 (SMIA), Sections 62 (def of ’ambulatory boundary principles’ 64, 70 (‘tidal boundary’) 71 and 72.

Mary owns a holiday house with an absolute frontage to a surf beach. The land is registered under the Land Title Act 1994 (Qld) has an area of 750 square metres which is shown on the registered plan in the Land Registry. The sea front forms the eastern boundary of the land on the registered plan which is described as extending to the ‘high-water mark’. After a cyclone season in January, wave and storm action has caused 200 square metres of land to fall into the sea along with her garden shed. A survey of the remaining land reveals an area of 550 square metres of useable area. The land alone before the storm had a market value of $1 million (approximately $1350.00 per square metre). It is now worth approximately $743.000. 1. Does Mary still own that part of her land which has been lost (200 square metres) which is registered on her plan of survey as part of the area mentioned on her certificate of title? S 9 of Land Act that the land lost will become property of the Crown 2. How is the position with Mary’s registered plan and title regularised in the Land Registry? 6

Look at part 7 of the Survey and Mapping Infrastructure Act 2003 3. What factors are taken into account to do so?

1.3 Gold Glorious Gold Before attempting this scenario you should read:  

Wallace Weir and McCrimmon [4.80] Mineral Resources Act 1989 (Qld) sections 6, 6A, 8(4)(a), 9,10, and 235

Peter is the lessee of a 1000 hectare pastoral property used for grazing cattle registered in Peter’s name under the Land Title Act 1994. Mineral Wealth Ltd hold a mining lease over 10 hectares of that land wishing to use it to mine gold. Consider the following questions: 1. Upon the grant of the mining lease who owns the gold under the surface of Peter’s land? The state (QLD government) owns the gold as it is a mineral (s 8 Mineral Resources Act 1999) 2. Can Peter prevent Mineral Wealth Ltd from entering his leasehold area to carry out mining operations? 3. Once the gold is extracted from the mine who owns the gold and does Peter receive any royalty payment? 4. Does the grant of the mining lease create an interest in peter’s land in favour of Mineral Wealth Ltd?

Tutorial 2. Tenure and Estates 2.1 Tenure in Australia Before attempting this scenario you should read:   

Wallace Weir and McCrimmon [1.140-1.160; 2.160-2.290; 3.10-3.20] Land Act 1994 section 14(1), Schedule 6 definition of "unallocated State land” Land Title Act 1994, section 47 7

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Mabo and others v Queensland (No 2) HCA 23 decision of Brennan J at paragraphs [48]-[51]

Answer the following questions: 1. Briefly explain the concept of ‘waste lands of the Crown’. It is now called unallocated state land. Land which has not been allocated to any particular person. Post 1788 the colonies meant there were vast unoccupied areas of land which the Crown assumed upon colonisation. They had not been alienated or granted yet by the crown. 2. What is the statutory source of authority for the creation of tenures in Queensland from unallocated State land? Land Act s 14 -> statutory power to grant in fee simple unallocated land Can also grant in fee simple in trust for community purpose. Can also lease land Also gives the power to grant a crown leasehold 3. What is the purpose of the Crown retaining the concept of ‘Crown Leasehold’? Free hold = give to someone indefinitely (fee simple) Crown leasehold is about control for a particular period of time and for the development of that land Resumption of the land would be the crown getting the land back Can take the land back because ultimately the crown owns the land Pastoral lease for development 70% of QLD is crown leasehold. Exclusive possession -> can exclude people from land Grant under Land Act (statutory lease) Exclusive vs non-exclusive is not defined under statute but is discussed in Wik by Gauldron. To maintain control. Crown leasehold is special to Australia not in England Allowed the Crown to control the use of land and develop particular areas (sugar/cattle/wool etc.). In QLD large amounts of land are held under leasehold. Granted under the Land Act Predominantly pastoral and agriculture leases. 4. How would you describe the notion of ‘Radical Title’ and what is its relevance today? Crown is absolute owner but native title will act as a burden to how Crown can lease out land

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Native Title: Mabo, terra nullius, no customary law but recognises Aboriginal interest in land but common law can take away the interest

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2.2 My Home is my Castle Before attempting this scenario you should read:    

Wallace Weir and McCrimmon [4.360] Land Act 1994 (Qld) section 14(1). Bone v Mothershaw [2002] QCA 120; Spencer v Australian Capital Territory and Ors [2007] NSWSC 303.

Jo McLeod is 22 years old and has recently inherited the fee simple to a 120,000 hectare property known as ‘Wivenhoe’ in South East Queensland. Jo is a fourth generation grazier and wishes to expand the family property for an additional two thousand head of cattle. Jo’s neighbour – the Jankowskis – tell Jo that he needs Queensland Government planning approval for the clearing. Given the land is known koala habitat, and many of the native trees over 50 years old, he is unlikely to get it. Jo is outraged about how much control the Government has over his land, particularly when he owns the freehold. Consider the following questions: 1. Does the Queensland Government have the power to control Jo’s proposed clearing? How? Why? Yes it does, the state is the absolute owner of all land (subject to native title) and it can grant and alienate land as it sees fit. Can someone’s fee simple be restricted? Spencer v ACT -> Spencer argued that his fee simple was a contract but this is not the case but rather it is a grant of land pursuant to a statutory power. Contract would put you on equal footing with rights and obligations going each way but this is not the case here. Grant from the statutory authority of the state government Dore v Penny Bone v Mothershaw -> mistake to suppose that s 6 of LA is directed to define the extent of rights conferred by the crown. Para 18-19: effect of the legislation to grant parcels of land means it is not the same as a contract Section 14 of the legislation Not a contract State can grant land as it sees fit and can therefore impart legislation restricting Jo’s use 2. Is Jo entitled to any compensation for the controls the State has put over his land? No compensation needed 3. Would it make a difference if Jo occupied Wivenhoe under a 99 year Crown Lease issued under the Land Act 1994 (Qld)? No, the same principles apply to a Crown Leasehold 10

Planning act applies to both freehold and crown leasehold

2.3 Sprucing up the Place Before attempting this scenario you should read:  

Wallace Weir and McCrimmon [6.170-6.210]; and Property Law Act 1974, sections 24 and 25;

Arthur died earlier this year and left his entire estate largely to his wife and only child. In his last will and testament he bequeathed the family home in clause 3 of the will as follows: ‘To my darling wife Therese, for the term of her natural life, to use in whatever way she sees fit, and thereafter, to my son Joseph in absolute.’ Therese who was several years younger than Arthur continued living in the property for several more years. She eventually became lonely and remarried Peter who came to live with her in the house. Peter fancied himself as a bit of a handyman and decided to ‘spruce up the place.’ With Therese’s verbal consent, he set about sanding the floorboards back to their original condition and deconstructing some of the internal walls ‘to open up the living area.’ Unfortunately Peter’s skills were not as good as he might have thought. Permanent structural damage was occasioned to the house. Peter’s disastrous craftsmanship took place over a 24 month period. Early on, Therese could sense the damage he was doing to the place, but loved him dearly, so never said anything. In the twilight years of her life, Therese and Peter fell out and eventually divorced. A few years later Therese died and Joseph inherited the property. After probate for the will was obtained Joseph visited the house. It was the first time he had seen the property since his father died over a decade earlier. He was shocked to discover the property was now worth only about 50% of what it used to be. Answer the following questions: 1. What responsibility did Therese have towards Joseph with regards to the property whilst she was alive? Is she liable for the damage Peter did? 2. If Joseph had seen the ‘renovations’ occurring whilst his mother was alive, what could he have done?

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Tutorial 3. Co-ownership 3.1 Share and Share Alike Before attempting this scenario you should read:    

Wallace Weir and McCrimmon [8.110] – [8.130] Property Law Act 1974 (Qld) section 35 Re Rose Deceased [1962] QWN 4 Re Barbour Deceased [1967] Qd R 10

Harry Harrison has drafted his own will and refused to get legal advice because he thinks it is too expensive. In a part of this will, he leaves his real property at 22 Norton Street, East Brisbane as follo...