intro.tolaw(landuse&plan)#4

8/8/2019 Intro.tolaw(LandUse&Plan)#4

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Introduction to Land Use

Planning Law

Lecture # 4


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Land Use & Planning Law includes aspects of:

Municipal law

Constitutional law Administrative law

Civil Rights

Remedies

Environmental


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Introduction to Land Use Law

What is land use planning law?

A series of interconnected regulations which limit

the way in which real property can be developed

and utilized

What are its purposes?

Orderly development of local communities

Separate incompatible uses


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Origins of Land Use Law

Nuisance Law

Non-tresspassory invasion in anothers interest inthe private use and enjoyment of land

General Rule: owner is at liberty to use hisproperty as he sees fit without objection orinterference from his neighbor

But owner will not be permitted to make anunreasonable use of his premises to thematerial annoyance of his neighbor.


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Difference between a private nuisance

and a public nuisance is generally one of

degree. A private nuisance is oneaffecting a single individual or definite

small number of persons while a public

nuisance is one affecting the rightsenjoyed by citizens as part of the public.


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Property Law Component - Overview

IntroductionBasic Concepts in the Legal System

Public Land, the Doctrine of Tenures and Title

Private Title to land

Estates and Interests in Land

Unregistered, Inchoate and Informal InterestsEquity andTrusts

Co-Ownership

Easements

Land Covenants

Profits a Prendre

Mortgages

Adverse Possession

Title to Land and Priority between conflicting interests in land


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Common Law

Common Law is used in three senses -

1 Common Law system is one of the international legal families(Other legal families include Civil law, indigenous customarylaw, communist, religious systems)

2 Body of Rules built from court cases Legislation prevails over common law

Based on precedent

3 Common Law andEquity. Equity is discretionary and court

can make an order for the defendant to do something (specificperformance) or stop the defendant from doing something(injunction)


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Subordinate Legislation

Regulations

Statutory Rules

By-laws

The power to make subordinate legislation isdelegated to a subordinate public body byParliament

It is subordinate to legislation


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WHAT IS PROPERTY?

The third absolute right is that of property whichconsists in the free use, enjoyment, and disposal of allhis acquisitions, without any control or dimunition,save only by the laws of the land.. Blackstone

The word `property is used to denote legalrelations between persons with respect to a thing.ALI (RP)

Romanic ownership is a like a box which contains

rights to occupy, use, and alienate, whereas Anglo-American ownership is like a bundle of sticks relatingto a given thing with each stick a legal interestrelating to the thing (Merryman)


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The Good News & the Bad

The good news is that you have already

learned a lot of property law.

The bad news is that it is more difficult to get

ones arms around the law of property than

the law of torts or the law of contracts.


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Boundaries

One way to see this is to think about boundaries. Torts & Property

Intentional torts

Negligence

Strict liability

Tort claims as property.

Contracts & Property

Contracts pertaining to property

Contracts as property

Contract claims as property.


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What is left if you take away everything thatcould be considered a contract or a tort?

Think of property as a different way of

conceptualizing the legal world that you havealready been exploring in contracts and torts.

Compare property with persons and

imagine a course on the law of persons.

All law is about persons.

Not all law is about property, but much of it is.


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Traditional Property Classification

A. CLASSIFICATION BY CHARACTER OF PROPERTY

REAL vs PERSONAL PROPERTY

TANGIBLE vs INTANGIBLE

B. CLASSIFICATION BY SCOPE (EXTENT) OFINTEREST

COMPLETE vs LIMITED

C. TEMPORAL CLASSIFICATION

PRESENT vs FUTURE INTERESTS

D. CLASSIFICATION BY CHARACTER OF OWNER

PUBLIC vs. PRIVATE

CORPORATE vs. INDIVIDUAL


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CLASSIFICATION BY CHARACTER OF

PROPERTY

REAL PROPERTY (LAND)

Usually includes things attached to the land, like crops,

minerals, buildings & monuments (fixtures).

PERSONAL PROPERTY (A/K/A MOVABLES ORCHATTELS OR CHOSES)

TANGIBLE

E.g. Plants, Animals & Minerals (once removed from

the land) E.g. Manufactured items

E.g. Collectibles

E.g. Artwork


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INTANGIBLE PERSONAL PROPERTY

Money, stocks & bonds, bank accounts (often

represented by a certificate)

Intellectual property

Patents

Copyrights

Trademarks

Trade Secrets

Domain Names

Contracts

Insurance contracts

Purchase & Sales Agreements

Employment contracts

Options

Actionable legal rights (choses in action)


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CLASSIFICATION BY SCOPE (EXTENT) OF

INTEREST

Single owner vs. concurrent or shared

ownership.

Legal title vs. beneficial or equitable

ownership (trust relation)

Freehold vs. non-freehold (tenancies).

Estates in land vs. Interests in land that are not

estates (e.g. permissive rights to use).

In general, classification by particular interests

(sticks).


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Temporal Classification Present interests v. Future interests

E.g. Person by will bequeaths residence to

surviving spouse for life and upon spouses death,

to children.

Unlimited duration vs. Limited Duration E.g. Owning a house vs. Leasing a house or

apartment.

E.g. Owning a car vs. Leasing

E.g. Time-limited License to manufacture or

reproduce something that is patented or

copyrighted.


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Classification by Class of Owner Public vs. Private

Public lands

Creations in the public domain

Things that may not be privatized

Things that are owned privately

Collective vs. Individual Public

Federal

State

Local

Private collectives

corporations, partnerships, cooperatives, associations, families


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Problem

Imagine that Airco owns a tract of land which it hasidentified as an ideal site for a wind farm.

It proposes to erect 100 wind turbine generators tocatch the prevailing wind from the west.

To Aircos east is Neighbor E who would also like tobuild a wind farm.

To Aircos west is Neighbor W who wants to preserve

the unobstructed view to the east. Can Airco, E or W find support from any of the

authors quoted for their respective positions?


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Origins of Property?

Occupation

Ancient Law knows next to nothing of Individuals.

Are new claims based on occupation possible today?

Natural Law (Aquinas)

Is it inconsistent with the occupation theory?

Labor (Locke)

Is this alternative or elaboration?

Lockes limits?

Legal Construct (Bentham)

Sovereign government?


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What does it mean to own property

There are different concepts of ownership think about whatit means to own property

Dual European heritage

Old feudal laws from England (Hierarchy of Ownership)

Torrens System from German system


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Doctrine of Tenures

To understand how Property Law operates, it is

important to understand this archaic heritage

which was inherited at the time of European

Settlement


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Feudalism

In the middle ages, English land law expressedthe social relations of feudalism

Tenures in land were organised in a hierarchy,with the Monarch at the top as the ultimate

owner down to Barons, Bishops and free landholders (free holders)

At the bottom of the pyramid were peasantland holders

This hierarchy imposed multiple land tenureswith respect to the same piece of land

Everyone was a tenant of the Monarch


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Tenures, estates and interests in land in werefirst formed under this feudal structure

The idea that the Monarch is the ultimateowner of all land (which is where we getCrown Landfrom) and that all other privateinterests in land are held below the Monarchhas been retained

InMabo v Qld(1992) described this conceptof tenure as a skeletal principleof the

Common Law which is beyond the power ofthe courts to change


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Colonial Land Administration

Feudal conception: British Crown sells land to private

European settlers

Two parallel systems of colonial land administration:

The Surveyor-General was responsible for surveying andparcelling Crown land and then selling it to European

settlers. Freehold (private) titles were created

Private titles were registered at the Land Titles Office under

the authority of the Registrar of Titles


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What is Freehold? An overview of the

doctrine of Tenures

The meaning of freehold is derived from the Doctrineof Tenures

Difficult to understand freehold. Historicallyfreehold was a miscellaneous category any land

not held under some other type of tenure was deemedto be freehold

To understand freehold tenure completely, we need tounderstand what other types of tenure existed

Practically, any land that is not Crown Land isFreehold Land


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Historical tenure in England.

Some examples Knights Service Lords were obliged to provide a fixed

number of armed horsemen for 40 days of the year in

exchange for their land tenure Spiritual Tenures land leased to (for example) a

monastery with an obligation to pray or provide a spiritualservice such as an obligation to sing mass every Friday!

This is part of the problemto understand the

concept offreeholdwe are confronted with centuriesof English History stretching back to 1066!


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Ordinary Ownership Commonly termed freehold estate in fee simple

Most likely registered under the Torrens System (rarelygeneral law deeds conveyancing systemold law)

Further problem - thefreehold fee simple estate has never hada clear definition

Land held of the Crown in fee simple may be assured in feesimple without licence and without fine and the person takingthe assurance shall hold the land of the Crown in the samemanner as the land was held before the assurance took effect

A case for law reform long overdue?


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intro.tolaw(landuse&plan)#4

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