Week 5 - Doctrine of Tenure and Estates PDF

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PROPERTY LAW 200012 AUTUMN 2019 Week 5 Fragmentation of Proprietary Interests in Land Topics: Doctrine of Tenure Recognition of Native Title Doctrine of Estates Introduction to the Development of Equitable Interests in Land Nature and Characteristics of Leases Key Discussion Points: Introduction to the ‘Fragmentation’ of Proprietary Interests in Land The textbook outlines four different ‘dimensions’ in which proprietary interests in land were fragmented. A lot of the historical material about tenure, estates, and the development of equitable interests is for background information. For the purposes of class discussion we will focus on 1) the doctrine of tenure and the recognition of native title (building on the previous readings) and 2) the material on leases. Doctrine of Tenure What is tenure? Why is it described as a ‘spatial’ fragmentation of proprietary interests? What were some of the tenurial services and incidents? Does the doctrine of tenure apply in Australia? What is the basis for arguing that the doctrine of tenure was never appropriate to the conditions in Australia? Recognition of Native Title in Mabo (No 2) Note the various Land Rights Acts that preceded the decision in Mabo (No 2) (1992) 175 CLR 1. In Mabo (No 2) how did Brennan J treat the ‘theory of universal and absolute Crown ownership’? What was the basis of this theory of absolute Crown ownership? What is radical title? How does radical title differ from absolute beneficial title and allodial title? How did Brennan J describe the nature and incidents of native title? According to Brennan J, when will native title be extinguished? What consequences would flow from an act by the Crown extinguishing native title? Is compensation payable? [compare the different judgments on this point]. What is the significance of the Racial Discrimination Act 1975 (Cth)? Doctrine of Estates What is an estate in land? What are the different kinds of estates and what are their key features? Is a leasehold interest an estate in land?

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How has statute in NSW modified the common law rules regarding the creation of estates? Note again the difference between old system title and registered title. What is the difference between a reversion and a remainder? What is the difference between a vested and a contingent remainder? Nature and Characteristics of Leaseholds What are the main differences between leaseholds and freeholds? Make sure you understand the difference between the general law (ie, common law) of landlord and tenant and the various statutory regimes that have been introduced in relation to different types of tenancies (eg, residential, retail, Crown leases etc). We will consider the general law and terminology of landlord and tenant. This general law is still the basis of commercial leases and it also helps to understand the operation of statutory leases. What are the substantive requirements for a lease at common law? What was the issue with the terms of the agreement in Berrisford v Mexfield Housing Cooperative? Was the agreement capable of being a tenancy as a matter of law? What did the High Court decide in Radaich v Smith? What is the relevance of the ‘exclusive possession’ test? What is the difference between a lease and a licence? What is the relevance of intention? Give an example of a ‘sham’ agreement. Do you think Somma v Hazlehurst was an example of a sham agreement? Are there exceptional circumstances whereby a person with exclusive possession will not have an interest in land? Do you agree with the characterisation of the AirBnB agreement in Swan v Uecker [2016] VSC 313? Why or why not? Equitable Interests in Land What purposes did ‘uses’ serve? [See the text and the extract from North J’s judgment in Western Australia v Ward.] What was the significance of the Court of Chancery extending the enforcement of uses against persons other than the feoffee to uses? What were the three main rights of the cestui que use? What was the effect of the Statute of Uses 1535? What was the origin of the trust?

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Problem Questions (Leases) 1. Recall the first part of the question from Week 4 (Donald and Hilary) (reproduced here for convenience): Hilary is the registered proprietor of a fee simple estate in three adjoining lots of rural land near Narooma, NSW. Hilary’s house and garden are situated on Lot 1. Lot 2 is a large paddock where Hilary keeps alpacas. Lot 3 is a small, unused lot. The property is collectively called ‘Little Rock’. Donald is Hilary’s neighbour. Donald lives on ‘Shady Deals’ another small lot that shares a boundary with Lot 3 of Little Rock. In 1995 Donald decided to build some fences around ‘Shady Deals’ as he was concerned about his dogs and Hilary’s alpacas. Hilary offered to help out with the fence. Because of the position of a creek and the shortage of fencing materials, Hilary suggested it would be easier for Donald if he put the fence in a particular position which would result in Lot 3 and Shady Deals all being included within a single fenced area. Donald asked if Hilary was sure that this would be all right and offered to pay a small annual rent. Hilary replied, ‘Don’t be silly Donald, I don’t need your money, besides it’s better if the land is used rather than left empty.’ Since the building of the fence in 1995, Hilary has had no access to Lot 3. Donald has maintained Lot 3 by keeping the grass down and he regularly walks with his dogs around the entire area. Donald has also planted a small orchard on Lot 3 and erected some sheds for his tools. What is the nature of Donald’s interest in Lot 3? 2. Olive Enterprises is the registered proprietor of a large property in Orange NSW, called ‘Extra-Olive Grove’. There is a lock up shed on Extra-Olive Grove abutting the main road. The previous owners had used this shed as a roadside stall, where they sold farm produce. Olive Enterprises has been operating this stall since acquiring the property in 2010. In July 2016, Olive Enterprises entered into an agreement with Ramon Stewart to run this roadside stall. The agreement is expressed to run for five (5) years. It is entitled a “Licence Agreement” and payment expressed to be a licence fee is payable monthly in advance. In the agreement Ramon, referred to as “the Licensee”, is obliged to repair, maintain and keep the shed secure, and to pay electricity and water bills relating to his use of the shed. The “Licensor”, Olive Enterprises, reserves the right to inspect the condition of the premises twice during the term of the licence agreement, at times to be agreed between the parties. Ramon has commenced running the business selling local produce and handicrafts. When a dispute arises between Ramon and Olive Enterprises, the legal characterisation of their agreement becomes relevant. Advise Ramon whether or not he has a proprietary interest in the shed.

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