Week 1

Reception of English Law Country acquired by conquest – laws & customs remain in force until replaced Country acquired by settlement – settlers carried with them so much of English law as

was applicable to their new situation

Reception of English Law in Australia- regarded as settled and not conquered- cut off date 25 July 1828 ( Australia Courts Act)- Question of reception settled by Imperial Acts Application Act 1969 (NSW)

Development of Australian law- Doctrine of repugnancy Colonial Case Law

Colonial Laws Vailidity Act 1865- Colonies bound only by those British statutes that were directed to colonies- Colonial statutes that conflicted would be void

Statute of Westminster- Australian laws would no longer be void for repugnancy

Created a climate where Australian land law could differ from English law

Conveyancing Act 1919 (NSW) various English statutes that were not implicated in Australia.

Doctrine of Tenure Linked with the social system of feudalism. Commendation Transfer ownership of land to more powerful neighbours ( a lord) Small landowner ( vassal) does not own the land, but hold it “of” or from the the lord. Vassal is now a “tenant” The tenants interest in the land is called a fee/

Subinfeudation In England all land was held by the king The kings knights (vassals) held land “of” the King. Provided military services in return

for the “fee”. The benefits of the land The Knights could then subgrant portions of their land to their own vassals. Land that was not broken into “fees” was “allodial”

Services in return for land not only military- Knight service- Socage- Serventary- Frankalmoin

The manorial system- The lords land was the manor- As far as feudalism was concerned, the only tenant of the manor was the lord- Lords Controlled ; taxes, marriage, movement of villagers

Tenure in NSW- Australian colony was never organised along feudal lines.

- Australian courts nevertheless adopted the principle that an assuming sovereignty over the Australian colonies, the whole of the lands of Australia became the property of the King of England

J Brennan in Mabo v Qld “ a doctrine which could not be overturned without fracturing the skeleton which gives our land law its shape and consistency.

“ Land in Australia which has been granted by the Crown is held on a tenure of some kind and the titles acquired under the accepted land law cannot be disturbed”

Week 2

The nature of property rightsYanner v Jones (1999) pg 24 CB“ It can be useful to think of property as a “bundle of rights “ – Main point“ There are several reasons to conclude that the ‘property’ conferred on the crown is not accurately described as ‘ full beneficial or absolute ownership’

The Doctrine of Estates Interests that entitled the holder of the ladn to “seisin” were called estates Seisin is difficult to define but a rough definition is the rights that we equate with

ownership combined with actual possession. Estates were distinguished by their duration- Life estates – duration of life- Estates in life – descendants gain

Fee Simple Right to full possession and enjoyment of the land to the exclusion of all the world Power of total or partial alienation of rights by will or by grant inter vitros

Fee Tail Fee Tail restricted inheritance to lineal heirs only Abolished by the Conveyancing Act 1919 NSW

Life Estates Not an estate of inheritance byr an estate of freehold because it entitles the holder to

seisin

Two forms- Estate for the life of grantee- Estate for the life of another

Remainders and Reversions A reversion is the interest remaining in a person who has granted away less then the

whole of his or her interest in the land A remainder is the future interest in an estate.

MortgagesMortgagee – Bank

Mortgagor – recipient of the loan

A mortgage is traditionally understood as a conveyance of property given as security fpor the payment of debt or discharge of some other obligation.

Mortgages of old system title Conveyance of the simple title to the mortgagee on the proviso that the mortgagee will

return the fee simple title to the mortgagor on repayment of the debt

Mortgages on Torrens Title- takes effect as a statutory or security only – no conveyance of land to the mortgagee.

Leasehold- 3 differences between leasehold and free hold1. No seisin2. Personal Property ( although for practical purposes of the Real Property)3. Doctrine of estates does not apply

Types of Leases- Tenancy at Sufferance- Tenancy at Will- Periodic Tenancy- Tenancies for fixed term – standard residential lease.

Lease v LicenceExclusive Possession

Radaich v SmithParties cannot by the mere words of their contract turn it into something else. Their relationship is determined by the law and not by the label they choose to put on on it. The test of a supposed lease is whether exclusive possession is upon the lease… per McTiernan J

Cowell v Rosehill RacecourseSome Licensees lack exclusive possession conventionally they are seen to lack standing to sue to recover possession but not that a licence may be coupled with the grant of a proprietary interest

Protection of Interests in LandActions for possession

s 20 & 92, Civil Procedure Act 2005 ( NSW) Rule 14.15, Uniform Civil Procedure Rules 2005 (NSW)

Trespass Every unjustified entry directly by a person on land in the possession of another, which is

carried out either intentionally, or negligently is a trespass - Plenty v Dillon p 57 CB.

Nuisance Attempt to balance the right of an occupier to use his or her land freely with that of his or

her neighbour to enjoy land without inteferecne- Plaintiff must demonstrate that he or she has title to sue in respect of the nuisance.- That the defendant has inteferred with a property right of the plaintiff- The interference was substantial and unreasonable

Victoria Park Racing & Rec Grounds v Taylor

Week 3 Systems of title- Old System- Torrens Title

Native Title

Old System Title- Proof of title depends on 2 features- - the land having been granted by the crown- The chain of the title being unbroken

As a practical matter these 2 features can be a difficult task.

Original Crown Grant→ Fee Simple to John in 1803→ John Sold to Fred in 1871→John died 1892, left to kid susan in 1937 → 1937 Susan sold to Penny

English courts adopted a rule that required a vendor to trace title back in an unbroken chain from acceptable documentary starting point not less than 60 years old.

What is an acceptable documentary starting point? “ It was of such a nature as to give rise to a reasonable sopposition that the person taking title under it would have investigated the title and be satisfied with it” Re Marsh v Earl Granville

In Australia, period is now 30 years, s53 of the Conveyancing Act 1919 (NSW)

Conveyances of Old System Title Must be by deed s 23B of Conveyancing Act 1919/ s 38 – no consideration needed for

deed. Signature witness, sealing – sign, seal, deliver. It is the most solemn form of document that a person can execute.

Torrens Title Developed to Deal with the problem oof the dependant nature of titles 1st Torrens statute was enacted in South Australia in 1858. Introduced in NSW by the Real Property Act 1862 (NSW) All land alienatred in fee simple by the crown is Torrens title. All land after 1 Jan 1863 is Torrens title. The registrar- general of the Dept. of Lands maintains a register of all Torrens land s 31

(B) (1)- RPA 1900 (NSW) The folio contains a description of the land, description of the proprietor m particulars of

any interests affecting the land. The folio is allocated a distinctive reference The registrar General may issue a certificate of title (CT) basically a copy of the folio in

the register

Effect of Registration of Torrens Title Confers indefeasible title ( title that can’t be beaten) Torrens system is one of “ title by registration” title rests on the act of the registrar

general registering an instrument rather than a party executing agreement. S 42 (1) of RPA

Bringing land under the Torrens system

All land alienated in fee simple by the crown after 1 January 1863 is Torrens title. Land alienated by the crown before that date is held under old system title. Land may be brought under the Torrens system by making a “primary application” s 14

of the RPA.

Traditional view of native title common law did not recognise indigenous property rights derived from traditional laws

& customs Milrippum v Nabalco- Gove?? Land rights Blackburn J – accepted the belief of Terra Nullius in the establishment of Australian law and property law.

The Mabo litigationFacts

Meriam people occupied Murray Islands before the first European contact. Retain a strong sense of affiliation with their forebears Groups of houses were organised in named villages Qld boundaries extended to include Murray Islands’ in October 1878 Laws of Qld became the laws of Murray in 1879 The doctrine of Terra Nullius and the fiction by which the rights and interests of

indigenous inhabitants were treats as non –existents’ had no place in the contemporary laws of Australia.

Recognition of the radical title of the crown is consistent with the rights and interests of the indigenous inhabitants

Extinction of Native title is not due to the acquisition of sovereignty but to its subsequent extinction by the crown.

1. QLD gov. acquired sovereignty on 1 August 19792. By CL – crown gained radical title.3. When crown acquired radical title – absolute beneficial??? ( Ownership of the land)

Crown ( Radical Title) – Beneficial ownership – use of the landHow does it gain beneficial ownership?

1) If land is uninhabited2) Settled - act of legislature – grant of the land3) Settled – NT not maintaining circumstances = beneficial title

Native Title rights → Don’t hold “of” the crown like radical title.

Native Title must be ascertained by reference to the laws and customs of the indigenous population

Rights and interests which constitute a native title can only be possessed by the indigenous inhabitants.

When the tide of history has washed away any real acknowledgement of traditional law, the foundation of native title has disappeared.

A sovereignty has the power to extinguish native title.

Native Title Act 1993 ( Clth)Section 223

The expression Native title or Native title rights and interests means the communal or individual rights and interests of the ATSI in relation to land or waters use.

The rights and interests are possessed under the traditional laws acknowledged and traditional customs observed by the ATSI.

The ATSI by those laws and customs have a connection with the land or waters and the rights and interests are recognised by the common law of Australia

Must be tradition YortaYorta v Victoria (2002) Must say what the laws are and prove they have been maintained Neowarra v WA)

Change or adaptation of traditional laws will not change Native title Sampii v WA (2005 FCA).

NT requires a “ connection” with the land. Connection does not require continuing presence on the lance. → Presence on land can be very good evidence though. Clth v Yasmir (2001)

If the “ connection” is lost, Native Title can’t be maintained

S 225 of NTA – Judgement- who they are – extent- relationship between rights and interestsExtinguish Native TitleConfirmation of the extinguishing effect of previous “ exclusive possession acts” s 233B/ - Freehold estate – commercial use . exclusive pastoral lease, residential lease

A non – exclusive possession act will only effectFuture Acts

Proposed activities or developments that may affect Native title are classed as ‘ future acts’ under the NTA.

Because claimant applications may taje years in mediation or court proceedings before a final decision is reachedm a system was devised to let claimants and project proponents negotiate about their interests while Native title applications are being resolved. This is the future act process.

2 main principles under the future acts schemeNTA compensation NT holders may be entitled to compensation for loss or impairment of native title cause by the following

- govt act that affect NT where compensation is payable- act done since Racial Act 1975 which were invalid because of the existence of native title.- The validation of some acts done between 1 January 1994 and 23 December 1996 which

were invalid because the future act steps in the NTA was not followed.

Compensation is payable only once for the same action in an area.

Week Four

Development of the equitable interest in land-trusts- lease – legal leases. Equitable leasesMortgages

- legal mortgages- equitable mortgages

History of Uses The development of the equitable interest in land law began as a result of the many fetters

( shackles) that the common law placed on the holders of freehold estate A “use” was where a holder of a freehold estate ( grantor) conveyed land to a trusted

person to hold for the benefit of the grantor and family,- The person taking the legal estate was called the “feofee to uses”- The person entitled to the use of the land was called the “ cestui que use”

The common law courts did not recognise the “cest que use” as an interest in land, but the court of Chancellery did

Equity follows the common law in terms of types of interests that could be created. Statute of Use of 1535 vested the legal estate in the “cest que use” Development of the “double use” to avoid the effect of the statute of uses Legal language began to change- relationship called a :”trust”- Legal owner called a trustee- The form of grant was to hold “in trust for”

Creation of an Express Trust The 3 certainties- Certainty of intention – “ relevant circumstances” – Commissioner v Joliffe. “hold legal

interest for Bill who will hold the beneficiary”- Certainty of subject – Mussoorie v Taynor- Certainty of Object : McPhail v Doulston

Declaration of trust to be in writing s 23C (b) Conveyancing Act -- a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by the persons will. Subject to part – performance re Ogilvie v Ryan in Contracts

Transfering of trust or equitable interest to be in writing s23C(C) Conveyancing Act - a disposition if an equitable interest or trust subsisting at the time of the disposition must be in writing signed by the person disposing of the same or by the persons will, or by the person’s agent thereunto lawfully authorised in writing.

LeasesRequirements for a lease – 2 Commencement and Duration

The date on which the lease commences must be certain, or capable of being rendered certain. “when the gas is connected” - Terry v Tarable

“ existing tenant vacates” Brilliant v Michaels Maximum duration must be certain( does not apply to tenancies at will or sufferation

Legal LeasesOld System Title

Must, by deed s 23B – Conveyancing Act

Torrens Title No requirement for a deed s 23 B(3) – ( s 23 of CA 1919 does not apply to land under the

title of the RPA 1900. Must be in writing s23C of CA1919 Must be registered to pass a legal interest s 41 of RPA 1900.- No dealing, until registered

in the manner provided by this act, shall be effectual to pass any estate or interest in any land under the provisions of this act, or to render such land liable as security for the payment of moneym but upon the registration of any dealing in the manner provided by this act, the estate or interest specified in such dealing shall pass, or as the case may be the land shall become liable as security in manner and subject to the covenants, conditions and contingencies set forth and specified in such dealing, or by this Act declared to be implied in instruments of a like nature.

A lease over 3 years must be executed in the approved for s 53 RPA.

Tenancies at Will All leases not in writing are leases at will s23d(1)- all interests in land created by parol

and not put into writing and signed by the person so creating the same, or by the person’s agent thereunto lawfully authorised in writing shall have, not withstanding any consideration having been given for the same, the force and effect of interests at will only.

CL implies a lease from year to year if- the parties have ageed on a lease and under that agreement gone into possession and paid

rent Dockrill v Cavanagh- tenant goes into possession with no binding agreement but pays a yearly rent Moore v

Dimond

In these circumstances, the lease can be terminated with 1 month of notice s 127(1) CALeases for less than 3 yearsS23D(2) CA Lease at best rent Takes effect in possession Term not exceeding 3 years

Equitable leases An agreement to grant a lease is a promise to grant a lease sometime in the future Equity may grant specific performance of this agreement for lease, compelling the grant

of a formal lease that is effective at common law Walsh v Lonsdale held hat there was no need for any actual order of specific performance

of the agreement to grant the lease. The agreement to grant a lease created an equitable lease

There cannot be specific performance of an agreement for lease unless there is firm agreement

- agreement as to parties- premises- starting date and duration- rent- Where binding agreement has been reached on the central matters of the lease, but the

parties have not turned their minds to other aspects of the lease, the court will flesh out their agreement by inserting clauses that are usual for that type of lease

Chan v CresdonCresdon ( Landlord) – Sarcourt ( lessee) Chan (guarantor) Ruling decided in obiter “ obligations to be performed under this lease”

1) executed form of lease did not create a legal interest2) commom law tenancy at will3) i) equitable leaseii) an agreement for lease is treated as an equitable lease for the term agreed upon and the equivalent of a lease at law without conferring a legal interestiii) courts willingness to find the lease in equity depends upon the specific enforceability of the agreement to grant lease.

Week 6

Mercantile Credits v Shell Co of Australia ( 1976) 136 CLR 326Facts: Celtic Agencies, the registered proprietor of land granted a 5 year lease to Shell. The lease was registered and contained a number of consecutive options for reewal Celtic Agencies mortgaged the land to Mercantile Credit

Mercantile Credit gave the notice of its intention to exercise a power of sale Shell lodged a caveat to forbid the registration of any subsequent dealing with the land

unless it was stated to be subject to the renewed lease. Mercantile argued that the extension was not binding because it was not registered

Decision Held that the right of renewal is so intimately connected with the term granted to the

lessee that it should be regarded as part of the estate or interest which the lessee obtains under the lease and on registration s is entitled to the same priority of the term itself

But not that in Re Eastdora Pty Ltd the Court held that oprtions to renew ina registered proprietor, notwithstanding the fact that the original lease had expired and the lease created by the exercise of the option to renew had not been registered

Exceptions to indefeasibilityFraud*Not defined* In Assets Co v Mere Roihi- The fraud which must be proved in order to invalidate the title of a registered prichaser for value must be brought home to the person whose registered title is impeached or to his agents- The mere fact that he might have found out fraud if he had been more vigilant, and had made further inquiries which he omitted to make does not of itself prove fraud on his part. But if it be shown that his suspicions were aroused and that he abstained from making inquiries for fear of learning the truth, the case is very different and fraud may be ascribed to him.* Notice : Section 43 (1) 43 Purchaser from registered proprietor not to be affected by notice -Except in the case of fraud no person contracting or dealing with or taking or proposing to take a transfer from the registered proprietor of any registered estate or interest shall be required or in any manner concerned to inquire or ascertain the circumstances in or the consideration for which such registered owner or any previous registered owner of the estate or interest in question is or was registered, or to see to the application of the purchase money or any part thereof, or shall be affected by notice direct or constructive of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding; and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud.

Recorded Interests The registered proprietor of an interest in land recorded in a folio of the Register holds

that interest subject to such other interests and such enteries that are recorded in that folio An interest is sufficiently recorded in the folio of the Register for the land if the folio

states the registration number of the dealing creating it and identifies the interest : R v Recorder of Titles 1991

A purchaser must cibsuder the rights conferred by the instrument itself , and cannot rely on the Registrar General’s interpretation of it’s effect Bursill v Berger

Prior folio of the Register * s42)(1)(a) A registered proprietors estate or interest is subject to the estate or interest of a proprietor

claiming the same land under a prior folio of the register This covers the situation where, by the Registrar –General’s oversight, 2 folios have been

covering the same area of land

Wrong Description of Land s 42 (1)(c) A registered proprietors estate or interest is not indefeasible as regards any protion of land

included in the folio of the Register by wrong description of parcels or boundaries, except where the proprietor is a purchaser or mortgagee for value and derives title through such a purchaser or mortgagee.

Tenancies s 42 (1)d

The registered proprietors estate or interest is subject to certain unregistered short term tenancies

- Term of tenancy must not exceed 3 years - Tenant must be in possession or entitled to immediate possession- Registered proprietor must have had notice of the tenancy against which he or she was not

protected

Rights in personam In Frazer v Walker, the Privy Council stressed that the principles of indefeasibility of

title “ in no way denies the right of a plaintiff to bring against a registered proprietor a claim in personam.

This means that personal claims against the registered proprietor may be enforce- There must be a known legal or equitable action- The legal or equitable cause of action must be such so as to make it unconscionable to

obtain or retain the registered interest.

Caveats against Dealings An unregistered interests in Torrens Titles land may be protected by a “caveat” lodged

with the Registrar- General Who may lodge – s74F(1). Form s74F(s). Effects s74H. Removal s74L, s74J, s 74MA. Extension s74K- There must be a serious question to be tried- And the balance of convenience must favour the extension of the caveat – balance of

convenience usually favours extending the caveat Allam Homes v Vocata Compensation s74P- The test is not whether a caveatable interest exists but whether the caveator had an honest

belief based on reasonable grounds that a caveatable interest exists Bedford v Surgo- The extent of compensation is loss that can be realistically be shown to be attributable to

the wrongful lodging of the caveat Lee v Ross

Priorities between competing unregistered interests Unregistered interests in Torrens title land are generally regarded as in the nature of

equitable interests, and that priority between competing unregistered interests is determined primarily by applying the general principles for resolving priorites between competing equitable interests in old system land

Section 43A RPA

First Interest Second Interest PriorityLegal Legal First in TimeEquitable Equitable Better equity

(otherwise, first in time)Mere equity Equitable Equitable

( If acquired FVWN)Legal Equitable Legal

( unless inequitable)Equitable Legal Legal

( if BFPFVWN)

Week 7

Rights above and below the surface The law governing the rights of a land owner to the airspace above the surface and the

soil below is traditionally embodied in the maxi, “ the person who owns land owns it from the heavens above to the centre of the earth below”

Rights above the surface

Judges have differed over the extent to which the maxim can be invoked to prevent intrusions into airspace above the surface

In a number of pre 20th Century English Cases,, it was said that trespass occurs if : - a bullet is fired into the soil of anothers land, but not if the bullet passes through the air without touching the surface – a balloonist touches down on land but not if he or she passes across land without coming into contact with the surface Pickering v Rudd

More recent cases have held that transient intrusions into airspace do constitute trespass. For example, the intrusion of a crane into the airspace above land Bendal v Murvac

Permanent intrusions into airspace above the surface of the land are more likely to constitue a trespass:

- Telephone wires are placed into the airspace above the land Wandsworth v United Telephones

- Advertising signs are placed in the airspace above the land : Kelsen v Imperial Tobacco

Bernstein v SkyviewsFacts

Skyviews carried on a business in the course of which it took aerial photographs of properties and then offered these for sale to the owners of these properties

An aerial photo was taken of the plaintiffs premises The plaintiff sued for trespass by means of wrongful entry into the airspace above and

included within his property The issue was whether aircraft flying over property was sufficient to constitute a trespass.

Griffiths J The problem is to balance the rights of an owner to enjoy the use of his land against the

rights of the general public to take advantage of all that science now offers in the use of air space.

The balance is best struck by restricting the rights of an owner in the airspace above his land to such height as is necessary for the ordinary use and enjoyment of his land and the structures on it, and declaring that above the height he has no greater rights in the airspace than any other member of the public

LJP Investments v Howard Chia InvestmentsFacts

LJP Investments owned and were the tenant of the property at Double Bay. Howard Chia Investments Pty Ltd was the owner of the adjoining property in Double Bay Howard Chia was carrying out commercial development of its property and in the course

of that development erected a wall along the boundary between the two properties A director of LJP investments noticed scaffolding extending into its property It sought an injunction for the removal of the scaffolding.

Hodgson J:Trespass Issues

The relevant test is not whether the incursion actually interferes with the occupiers actual use of the land at the time, but rather whether it is of a nature and at a height which may interfere with any ordinary uses of land which the occupier may see fit to undertake.

Injunction Plaintiff is prima facie entitled to an injunction If the injury to the plaintiff is small, capable of being estimated in money, and adequately

compensated, and the grant of an injunction would be oppressive, then an injunction may be refused. However, the jurisdiction to grant damages instead of an injunction should not be exercised so as to enable the defendant to purchase from the plaintiff against his will his legal right to the easement

Rights below the surface At common law, the surface owner’s rights extend downwards sufficiently to prevent the

following types of trespass Wade v NSW Rutile Mining Acts found to be trespass- the act of underpinning a building on another person’s land Stoneman v Lyons

- Inserting subsurface rock anchors on another persons land Di Napoli v New Beach Apartments

- Tunnelling under the surface of another person’s land Chicago v Troy Laundry Machinery

An exception At common law, ownership of land includes the minerals in the soil. An exception to this is “royal metals”. The case of Mines (1568) held that

notwithstanding ownership to the surface of the land, all precious metals found within the earth such as gold and silver were reserved for the Crown.

Legislation has now been enacted to vest “minerals” in the Crown : Mining Act 1992 (NSW)

Week 8

Fixtures are items that have become attached to land in such a way as to become parrt of the land

Whether an item that was previously personal property ( a chattel) has become a part of the land ( a fixture) may be relevant in a number of situations

- If land is sold, fixtures pass to the buyer as part of the realty- If land is mortgaged, the security includes fixtures- If a tenant affixes an item to the leased premises, it becomes part of the landlords realty

( although the tenant has rights to remove it) Fixtures are items that have been attached to the land in a manner designed to achieve a

specific objective or a variety of objectives, such as to become part of the land The question is one of intention. The affixers intention is usually determined objectively,

from- facts that are “patent for all to see”. Hobson v Gorringe- the “visual appearance” if the item in question Lockward Bildins v Trust Bank

Canterbury

What factors to consider- The degree of annexation- Object of annexation- All other facts and circumstances National Australia Bank v Blacker

Degree of annexationGeneral Presumption

If an item is affixed to the land to any extent, other than merely resting on its own weight, presumed to be a fixture ( onus on party asserting it to be a chattel)

If an item is not affixed in any way, but rests merely by its own weight, presumed not to be a fixture ( onus on part asserting it to be a fixture)

Hollland v Hodgson per Blackburn J

Extended by Jordan CJ in Australian Provincial Assurance v Coroneo- Whether the item was affixed with the intent to remain in position or permanently or for

an indefinite or substantial period ( fixture)

- Whether it was affixed with the intent to remain in position only for some temporary purpose ( chattel)

What are things that might be considered? Whether removal would cause damage to the land or buildings to which the item is

attatched Hellawell v Eastwood The mode and structure of annexation Leigh v Taylor Whether removal would destroy or damage the attatched item of property Litz v NAB Whether the cost of renewal would exceed the value of the attached property Metal

Manufacturers v Commissioner of Taxation

Purpose or object of annexation whether the attatchment was for the better enjoyment was for the better enjoyment of the

property generally or for the better enjoyment of the land and/or buildings to which it was attached Hobson v Gorringe

The nature of the property the subject of affixation. Metal Manufacturers v Commissioner of Tax

The function to be served by the annexation of the item Attorner General v RT

Surrounding Circumstances McIntosh v Goulburn City Council per Mahoney JA Adopted in NAB v Blacker- There is no single test which is sufficient to determine whether an item of property is a

chattel or fixture- No particular factor has primacy and each case depends on its own factsActual intention Notwithstanding the rule that the relevant intention is to be determined objectively, there

is authority that suggests that actual intention may be relevant when determining:- The level of permanence or temporariness for which the item is intended to remain in

position- The status of the person bringing the item on to the land ( i.e Owner or tenant) Monti v

Barnes Purpose to be served by its affixation or annexation NH Dunn Pty Ltd v LM Ericsson

Palumberi v Palumberi

Item Defendants Judge Comments

Decision

Blinds Freestanding on 2 clips. Easy to remove. No damage caused by removal.

Indirect and slight form of annexation

Chattel

Curtains Conceded by plaintiff

Did not consider Chattel

Cabinet Not secured to wall or door. Free Standing. Wall paint behind cabinet same as rest of walls.

Freestanding and easily removed by defendant

Chattel

Antenna Adjustable. Attached to brackets on outside of house

Installation was for better use and enjoyment of television

Chattel

Carpets On runners. Not Defendant Fixture

stapled to floor. Easy to remove. No damage to floor.

replaced caroets anticipating he would be owner and indefinitely enjoyed benefits

Spotlight & Timer

Conceded by plaintiff

Did not consider Chattel

Lightfitting Conceded by plaintiff

Did not consider Chattel

Stove Freestanding. Connected to gas supply by hose

Cooking facilities form an essential element of a kitchen for benefit of property

Fixture

Portable Heater Conceded by plaintiff

Did not consider Chattel

Right to remove fixtures All fixtures that have been attached to the land by a tenant must become part of the land,

and therefore must be left on the land when the lease expires : D’Arcy v Burelli Investment

Few exceptions – fixtures attached to the land by a tenant for trade.- ornamental and domestic fixtures.

Fixtures attached to the land by a tenant for trade: an underground petrol tank Shell v Bailey an engine placed in pillars to which it was clamped Love v Bloomfield Demountable fittings (such as shop counters and shop fittings) Lees & Leech v Cmr of

Tax Seats for an auditorium which were screwed onto the wall: NZ govt. v HM &S Electric transformers on the floor ibid A steam engine and boilers Climie v Wood A glasshouse erected in connection with market gardening Mears v Callender

Ornamental and domestic fixtures antique panelling, ornamental chimney pieces: Spyer v Phillipson Tapestries Ward v Taylor Window Blinds Colegrave v Dias Santos A water pump Grymes v Boweren A stove Darby v Harris House Bells Lyde v Russel Wall hangings and mirrors Grymes v Boweren

Tenant may remove fixtures during the term of the lease while the tenant retains possession of the property Shell v Bailey

Fixtures not removed in time by the tenant are deemed to be forfeited to the landlord.

Where a fixed term lease expires, the tenant does not lose the right to remove tenants fixtures as long as :

- the tenant remains in possession under a new lease granted immediately following the expiration of ht original lease NZ v HM&S

- the tenant remains in possession under a genuine colour of right to be a tenant D’Arcy v Burelli

As a condition for the removal of tenant’s fixtures, any damage caused to the premises in the course of removal must be repaired : Mancetter v Garmanson

Encroachments The common law rule provides that a person who erects or improves a building on

another person’s land generally has a no righto recover the benefit of the expenditure. Equity provides otherwise:- If a person begins to build on land in the mistaken belief that he or she owns it and the

true owner perceives the mistake, but leaves the person to persevere in the error, then equity will not allow the true owner afterwards to profit from the error by asserting an unfettered title to the land Ramsden v Dyson

- If a person builds on land knowing that it belongs to another person but where that person has expended money in reliance on the owners assurance that the claimant will acquire some right or interest in the land, or has expended money with the owner’s encouragement or acquiescence, the claimant will acquire some right or interest in the land Plimmer v Mayor of Wellington

Brand v Chris Building CoFacts

Brand owned block of land Chris building built a house on land, mistakenly believing that it was another block Brand did not become aware of construction until nearly complete ( did not visit land for

6 months) Brand contacted solicitor, who contacted Chris Building Chris Building admitted that it had made a mistake Negotiations failed and Brand sought an injunction restraining Chris Building from

entering land to demolish buildingHudson J

Whhen A stands by while his right is infringed by B, the following circumstances must be present for an estoppel :

1. B must be mistaken as to how legal rights2. B must expend money or so some act on the faith of mistaken belief3. A must know of its rights4. A must know of B’s mistaken belief5. A must encourage B in his expenditure of money or other act ( directly or by abstraining

to assert his legal right) In this case, the final 3 criteria were not satisfied

Encroachment of Buildings Act 1922 (NSW) Miniumum compensation :s4(1) Factors to take into account s4(2)

Lecture 9

Co –OwnershipTenancy in common

Where two or more persons hold land as tenants in common, each has a proportionate interest in the land

The share of a tenant in common is said to be “undivided” ( not physically divided from the other shares)

A tenant in common may generally deal with his or her share as he or she wishes The shares of tenants in common need not be equal

Joint tenancy Joint tenants do not hold proportionate shares in the property in the same way as tenants

in common Each joint tenant has a right to the whole property ( which he or she shares with others)

but no Individual right to any particular share in it A joint tenancy requires the presence of 4 unifying characteristics title, interest possession

and time

The Four Unities Unity of title : All joint tenants must hold their tilte to the land under the same

instrument Unity of interest : Joint tenants interests in the property must be identical in nature,

extend and duration.- No joint tenancy between people with interests of a different nature Woodgate v Unwin- No joint tenancy between people holding interests of unequal extent Re Speck- Where joint tenants acquire land and one tenant has notice of a prior equitable interest,

but the other does not, then the prior equitablele interest takes priority over the interest of both joint tenants Diemasters v Meadowcorp

Unity of possession : requires that each joint tenant be entitled to possession of the whole property, not exclusively for himself or herself, but to be enjoyed together with the other joint tenants

Unity of time : Interests of all joint tenanats must vest at the same time ( usually satisfied where unity of title is satisfied)

Rights of Co – Owners Occupation fees If a co-owner chooses not to remain in possession, they cannot recover rent or mesne

profits from the other co-owner. However, the co-owner in possession will be required to pay an occupation fee is

- Pursuing a claim for improvements Luke v Luke- Ousts the other co-owner by force Dennis v MacdonaldSurvivorship The right of survivorship is a necessary characteristics of a joint tenancy Carin v Patton The right of survivorship cannot be defeated by a joint tenant attempting to leave his or

her interest by will There is nor right of survivorship between tenants in common Where a company is a joint tenant, the right of survivorship operates when the company

is dissolved s 25(2) Conveyancing Act 1919 Presumption of survivorship s 25 Conveyancing Act 1919

Creation of Co-ownership The common law presumed that a grant of the same legal interest to two or more people

created a joint tenancy Campbell v Campbell This presumption in favour of a joint tenancy is rebuttable in any of 3 ways - if one or more of the 4 unities was absent- if the grant or devise contained words of severance ( things like a one half interest)- if there was any other indication that a tenancy in common was to be intended

Equity prefers to regard parties as tenants in common of the equitable interest in the property

Section 26 (1) of the conveyancing act 1919 creates a statutory presumption in favour of tenancy in common

Delehunt v Carmody Carmodys married in 1935. Seperated in 1939. Mr Carmody lived with Ethel Delehunt. Price was paid in equal shares by Mr. Carmody and Miss Delehunt . Oral agreement that

they owned the property in equal shares and tha it would in due course be put in the names of both.

Mr Carmody died without a will. Property was transferred to Mrs Carmody as registered proprietor.

Miss Delehunt lodged a caveat claiming an interest in the land as beneficial owner pursuant to a trust

Mrs Carmody commenced proceeding to have the caveat removed Court of Appeal held that Mr Carmody held the land on trust for himself and Miss

Delehunt as tenants in common in equal shares. The reasoning for this was that s26 of the Conveyancing Act had removed the presumption that it would be a joint tenancy.

Leave to appeal to the HC was granted on the question of whether 26 displaced the equitable presumption of a joint tenancy.

Gibbs CJ At common law, if land was conveyed to two or more persons, a joint tenancy of the legal

estate was created ( unless one of the four unities was not present, or words of severance employed.

- Since s 26 of the Conveyancing Act, a disposition in favour of A and B creates a tenancy in common

- In this case, there was no instrument that disposed of the beneficial interest in the land to Miss Delehunt and Mr carmody , therefore s 26 doesn’t apply/

Where a purchase is made in the name of one person, where 2 or more persons contributed to the purchase price, the propery will be held on resulting trust for the persons who paid the price.

- Where contributions are unequal, it will be held on resulting trust for contributors as tenants in common.

- Where contributions are equal, it will be held on resulting trust for contributors as joint tenants

- However, s26 altered the common law principle. Gibbs CJ held that equity follows the law. Although s26 had no direct application to the present case, its indirect effect was to require it to be held that there was a resulting trust for the purchasers as tenants in common.

Terminating Co-ownership Tenancy in common- Terminates if the lands vests entirely in one of the tenants in common- Partition

Joint Tenancies- Right of survivorship- Severance- Partition

Severance Severance is the process by which a joint tenancy is converted into a tenancy in common

during the lifetime of one of the joint tenants.-By transfer * s 30 Conveyancing Act

* S 97 of RPA

- By agreement Must be agreement of all joint tenants Williams v Hensman

- By Conduct Must be conduct by all joint tenants indicating a belief that their interest are held in shares

and without right of survivorship Williams v Hensman This may occur where joint tenants consistently divide the incvome from property

between themselves for their own separate use- but note, if the parties clearly intended right of survivorship to remain, there will be no severance, Bartin v Morris

Lecture 10

What is an easement- an easement is a right enjoyed by the owner of one parcel of land to carry out some

limited activity ( short of taking possession) on a parcel of land owned by another person.

Easements fall into two basic groups 1. Positive easements – give rights of entry onto anothers persons land to enable something

to be done on that land. A right of way over the land Right to discharge water Beeston v weate Right to use a toilet on another persons land Miller v Encer Right to clean fish on another persons land :Wilcox v Richardson

2. Negative Easements – gves rights to prevent something being done. They confer no right of entry.

right to the flow of air Bass v gregory Right to receive light colls v home Rights to receive water through pipes rance v elvin

Characteristivs of EasementsThe English court in Re Ellonsborough held that there are 4 requirements for an easement.

1. Must be a dominant and servient tenement.2. the easement must accommodate the dominant tenement3. the same person must not own and occupy the dominant and servient tenements4. The right claimed as an easement must be capable of forming the subject matter of the

grant

Dominant and servient tenement An easement is exercised over land ( the servient tenement) for the benefit of the other

land ( dominant tenement) Unless created by statute, an easement must be for the benefit of the dominant tenement

Corporal v Coles- for example, a right to cross land cannot be an easement unless the right is annexed to

other land. If it is not annexed, it is merely a personal right, not an interest in property

- A mere personal right binds only the parties to its creation. But an easement binds both the parties to its creation and their successors in title. It is said to run with the land.

Section 88 A of the Conveyancing act 191 (NSW) permits the creation of certain easements in favour of the crown or a public authority.

Easements to accommodate the dominant tenement* the easement must benefit the dominant tenement and be connected with its enjoymentA mere personal privilege or commercial advantage, intended to benefit the owner of the dominant tenement but unconnected with its occupation cannot be an easement Hill v Tupper

In determining whether an easement accommodates land: - the fact that it enhances the commercial value of land is relevant but not decisive Re Ellensborough Park

Crucial matter is whether privilege has a necessary connection with the land, in the sense of being reasonable necessary for its better enjoyment as a parcel of land

An Easement that accommodates the dominant tenement is presumed to accommodate each part of it Shelmerdine v Ringen

Dominant and servient tenements must vest in different persons- since an easement deals with rights exercisable over the land of another; a person cannot

have an easement over his own property Metro railway v Fowler- Section modified by 88 b (3)(c) (ii) , Conveyancing Act- Section 46A (1) RPA 1900

Capable of being subject matter of grant* The right claimed must not be too vague or indefinite. - Cannot be an easement for the free flow of air, unless it is through a defined channel Bass v Gregory- For protection from television interference Hunter v Canary Wharf - Easement to protect a view : Wakeham v Wood

The right claimed as an easement must not be inconsistent with the possession of the servient land

- cannot be an easement to store goods in a cellar, because that gives exclusive use Grisby v Melville

- Cannot be an easement to build on someone else’s land Tilesko v Bevelon

Riley v PentillaFacts

A developer, Kean, subdivided a block of land creating a number of housing lots and a reserve, which was adjacent to the housing lots

Kean granted to the transferees the : liberty to use and enjoy the reserve in common for recreation or as a park or garden, subject to any rules and regulations made by the registered proprietors and their successors

For over 40 years, a portion of the reserved area was forced off and transformed into a tennis court, garden and playground area.

In 1971, the defendants commenced excavating the fenced off portion of the reserve to install a swimming pool.

18 neighbouring lot holders objected on the ground that they were entitled to use and enjoy the reserve in common with each other and the defendants.

Gillard J Referred to the 4 characteristics of an easement in Re Ellonsborough Held that there was a direct nexus between thte right and the occupation and enjoyment of

the lots transferred. Held that the right conferred by Kean was not so indeterminate as to defy precise

definition

R v Registrar of Titles Facts

Bridgeland, the registered proprietor of ten acres of land in Victoria, purchased from Witt ( who owned land to the north) purchased a narrow strip of land which formed the southern end of a private roadway running throught witts land, together with an easement over the land.

Bridgeland subdivided his land, and conveyed a section of the strip purchased from Witt, together with an easement over Witt’s road to Waddington

The registrar of titles refused to register the strip

Hood J The main objection put forward on behalf of the Registrar was that this claim to a right of

way over Witt Street was not a registrable easement because it was nto connected with the enjoyment of the dominant tenement

The applicable test is whether the right claimed is given “for purposes wholly connected” with the land

Held that test was not satisfied and that there was a registrable easement.

Creation of easementsBy express grantOld System Title

The express grant of a legal easement must be deed s 23B Conveyancing Act An easement not validly created at common law may neverthe less be enforceable in

equity- Must be created or evidenced in writing s 23C, 54 A Conveyancing Act - An oral agreement cannot be enforced unless there are sufficient acts of part performance.

Torrens Title Sections 46 of the RPA provided for the creation of easements by executing and

registering an approved form of transfer. An easement may benefit Torrens title land, even thought the servient tenement is under

Old System title Margil v Stegul

Effect of the Conveyancing Act Section 88 (1) of the Conveyancing Act provides that an easement is unenforceable

against a person not a party to its creation unless several criteria are satisfied Section 181A of the Conveyancing Act provides short forms for the drafting of

commonly encountered easements

By implied grant or reservation A grant of reservation may be implied from the terms of the conveyance or lease- Term must be reasonable and equitable- Must be necessary to give business efficacy to the contract- So obvious that it goes without saying- Capable of clear expression- Must not contradict any express term BP Refinery v Hastings

Property Adjoining a road- On the conveyance or lease of land that adjoins a road or lane owned by the vendor, there

is implied in favour of the land conveyed a right of way over that road or lane Little v Dardier

Intended easement- the grant of an easement may be implied where the implication is needed to give effect to

the common intention of grantor and grantee as to the use that the grantee will make of the land

- The implication here depends on the circumstances under which the grant was made. That is, the parties must have intended the land granted to be used in some particular manners

Necessity following severance of land- Where an owner subdivides land, therefore rendering the part granted, or the remaining

part landlocked Gibson v McGeorge- An easement of necessity won’t be implied unless it is absolutely necessary Bolton v

Clutterbuck- No right of way will be implied where there exists an altenrative, but inconvenient

method of access McLemon v Connor Note that the courts will not lightly imply an easement Wheldon v Burrows

North Sydney Printing v Sabemo Investment GroupFacts

North Sydney was the registered proprietor of land Land was designated as being used for car parking In 1986, North Sydney successfully applied to have the land rezoned for commercial

development Plaintiff subdivided and sold land, reataining only Lot 4 ( which was still zoned as a car

park) Lot 4 had bbeen part of a larger block that had a laneway to the street. After the

subdivision, Lot 4 was landlocked) North Syend argued that it was entitled to an “ easement of necessity” over the land it had

sold

Hope J It seems to me that the balance of authority establishes that a way of necessiy arises in

order to give effect to an actual or presumed intention At the least, one must be able to presume and intention on the part of the grantor that he

intended ot have access to the land retained by him over the land conveyed by him In this cae, there was no such intention – therefore there was no easement

Re State Electricity Commission of Victoria & Joshua’s ContractFacts

The SEC gave notice to Mr Joshua that it intended to acquire compulsorily a portion of his land for the state purpose of erecting an electrical substation

After negotiations, SEC agreed to purchase an alternative portion of the property Mr Joshua refused to sign the memo of transfer prepared by SEC, which contained an

easement of transmitting noise and vibration into and across the retained land SEC sought a declaration that it was entitled to a transfer of land in the form tended. That

included the easement.

Martin J Admitted that the vendor knew that the SEC was acquiring the land for sub – station and

that operating the substation would meand the transmission of some noise over his property

The law will readly imply that the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property, with reference to the manner or purposes in or for which the land granted is to be used

In this case, court ordered that the easement be created

Creation by prescription Easements may arise by prescription ( continuous use) for a period of at least 20 year. Subject to legislationSection 179 of Conveyancing ActFrom and after the first day of December 1904 “ No right to the access or use of light or air to or for any building shall be deemed to exist, or to be capable of coming into existence by

reason only of the enjoyment of such access, or use, for any period, or any presumption of a lost grant based upon such enjoyment

Required nature of use The claimant must show that he or she exercised the use as though entitled to do so as an

incident of ownership of the dominant land. The use must not be by force, secret, or with permission- Force – use that can be maintained by force cannot give rise to a prescriptive right. This

includes violence and also the protests of an owner. Newham v Willison- Secrecy- owner must have knowledge ( actual or constructive). This is an objective test

Union Lighterage Co v London Graving Dock Co- Permission – permitted use does not create a prescriptive right. Permission must be

communicated directly or indirectly. This must be distinguished from mere acquiescence. The differences is that there is some “overt act” associated with permission

- There is no “permission” where the servient owner merely tolerates the use as amateur if good neighbourliness

- Permission at any time during the 20 years cancels out the prescriptive right : Austin v Wright.

Creation by Prescription Continuity of use :- The use must have been “ continuous” for the 20 year period is not fatal, as long - The means of sufficient frequency to demonstrate to a reasonably – minded owner that an

enduring right to enjoyment is being asserted * Depends on the nature of the right that is claimed- a right to support for a building is by nature, established by continuous - Use a right of way is generally discontinuous and so all that needs to be shown is use “whenever circumstances require provided the intervals are not excessive Hamilton v Joyce* A change in the precise location of use over the 20 year period is not fatal, as long as the use is substantially an exercise of the same right Davis v Whitby* Fluctuations in the quantity of use do not prejudice the acquisition of the right British Railways Board v Glass

Creation by PrescriptionPeriod of Use

The period of 20 years use is set by the common law : Delohery Permanent Trustee Successive owners can “tack” their periods of use against owners of the servient land, to

cumulatively run up 20 years of continuous use. Auckran v The Pakuranga Hunting Club A claim for a prescriptive easement will fail if the servient land was occupied by a tenant

for the whole 20 year period of use Wheaton v Maple Use that is begun against the fee simple owner og the servient land may grow into a

prescriptive right, even though later during the 20 year period, the land is leased to a tenant Palik v Shinner

Fernance v Simpson Mr and Mrs Fernance owned 49 Church Street, Newcastle Purchased property in 1985 Back gate opens onto land Have used land for purpose of access by car Done work to maintain lane Predeccessor in Title used lane on daily basis Mrs Handsen owned 47 Church Street- Purchased peoperty in 1976- Back gate used for pedestrian access Mr and Mrs Randall owned 45 Church Street- Mr Wheeler used lane from 1973-1988- Randalls used lane from 1988

- Used on a daily basis

Each claimed a right of way over the land owned by Simpson Held that clear use for 20 + years, uninterrupted there can be no doubt as to knowledge

and acquiescence that the lane was being used as an acess way – which would have been obvious to any reasonable observer.

Prescriptive Easements and the Torrens system

- If a prescriptive easement arose when the servient land was under old system title, but was not carried forward under the folio of the register, on conversion to Torrens Title, then it is “omitted” and is enforceable against the registered proprietor of the servient land s 42(1)(a1) RPA

easements that arise on Torrens title property- One argument is that so long as the ownership of the property has not changed in over 20

years, the proprietor of the dominant tenement can seek a court order directing the proprietor of the servient land to do all things necessary to secure the benefit of the easement. A new proprietor taking without fraud, resets the period. Golding v Tanner ( South Australian Law Argument)

- Other argument is that the idea of unregistered prescriptive easements is inconsistent with the Torrens system and therefore unenforceable Williams v State Transit Authority

Court Ordered Easements Section 88 K, Conveyancing Act The court can make an order imposing an easement over land if the easement is

reasonable necessary for the effective use or development of other land that will have the benefit of the easement

Court must be satisfied that- use of the land having the benefit of the easement will not be inconsistent with the public

interest- the owner of the land to be burdened by the easement can be adequately compensated for

any loss or other disadvantage that will arise from imposition of the easement- all reasonable attempts have been made by the applicant for the order to obtain the

easement but have been unsuccessful The Court must specify the nature and terms of the easement The court is to provide for payment by the applicant to specified persons of such

compensation as the court considers appropriate, unless the court determines the compensation is not payable because of the special circumstances of the case

Extent of rights granted by easementExpress grant or reservation

Nature of the rights determined by construction of the instrument- interpretation is the ascertainment of the meaning which the document would convey to a

reasonable persona having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the grant Investors Compensation v West Brom Building Society

a key circumstance is the physical nature of the site of the easement- Grant of a “right of way”- but the extent of the grant is not clear. If the “right of way”is

paved, with stones only a few feet wide – presumed only for a footway Cannon v Villars

Easements impliedly granted To determine the extent of the permissible use, determine the “nature” and “quality” of

the use of the dominant tenements at the time the easement arose. The perimssble use then reflects the nature or quality. Corporation of London v Riggs

Easements acquired by prescription Again, determine the nature or quality of the use over the 20 year period. A servient tenant cannot object to an intensification of use, but may object to a “radical

change in character of the use” McAdams v Robinson- A right of way by prescription acquired to provide access to agricultural land did not later

permit access for use of the land for a large scale residential development Wimbledon and Putney Commons Conservators v Dixon

- A right of way by prescription acquired to provide access to agricultural land did not later permit access for use of the land for a caravan park RPC Holdings v Rogers

Extinguishmetn of easement Express release : by deed and transfer Abandonment : where the owner of the dominant tenement intended to abandon the

easement. Abandonment is not established by mere non – use Ward v Ward Court Order s 89 of the Conveyancing Act, s 49 of the RPA

Treweeke v 36 Wolseley RoadFacts

A piece of waterfront land was subdivided in 1927 The transfer of the rear lot contained an easement entitling the owner to pass over a three

foot wide strip on Lot B to access Double Bay The right of way had never been passable and the owner of the servient tenement had

allowed it to become further blocked by a plantation of bamboo, two fences and a pool The owners of the dominant tenement had used part of the right of way and then an

alternative route across the land of a 3rd party to reach the harbour. In 1967, the 3rd party fenced the route. The owner of lot a obtained a survey and found the

existence of the right of way. The owner of Lot B argued that it had been abandoned

McTiernan J Miss Treweeke argued that the right of way was extinguished by acts and omissions

amounting to abandonments of the right of way Held that there was no abandonment and the non-use over a period of time does not, of

itself, extinguish the easement ( but may be a factor in determining intention)

Week 11Covenants

Landowners often find it useful to enter into agreements to regulate the use and development of land.

It is difficult to regulate the use of land by agreement. The doctrine of privity of contract means that although the parties themselves are bound, the purchasers from them are not.

Creation of an easement is not always helpful because the preservation of character, value, and view is not capable of being the subject of an easement.

These objects can be sometimes achieved by the law of covenants- A positive covenant requires an act to be done- A negative covenant requires an act not to be done ( eg not to build a house)

The person subject to the burden of the covenant is called the covenantor. The person subject to the benefit of the covenant is called the covenantee.

Enforceability of Covenants As between two parties, a covenant is enforced as a matte of contract law – the principle

of privity of contract applies. In some circumstances, the law of covenants gives a covenant a proprietary character and

therefore “ runs with the land”. The benefit of a covenant and the burden of a covenant need to be considered separately.

Burden of Covenants in CL The burden of covenants does not run with the land at common law Austerberry v

Corporation of Oldham This means that the original covenantors successors in title are not bound, regardless, of

whether the covenant is positive or negative. Example :- Simon buys land from Bill, and Simon ( covenantor) covenants Bill ( covanentee to build

a house on that land ( positive covenant)- Simon sells the land to Angela- Bill can’t enforce the covenant against Angela because Angela has the burden of the

covenant and it does not run with the land Are there any ways to make the burden run with the land at common law? A chain of personal covenants- Simon Buys land from Bill- Simon covenants Bill to build a house on the land and- Simon agrees to ensure that any subsequent purchaser of the land will enter into the same

covenant with Bill. This means that Bill will have a personal right against any subsequent purchaser ( because

each subsequent purchaser has entered into an agreement with Bill) The problem is that Bill has no guarantee that Simon will ensure that subsequent

purchaser enter into the covenant. Bill’s only remedy is for breach of contract, but he will not be able to force a subsequent

purchaser to build the house on the land.

Benefit of Covenant at CL The common law allows the benefit of covenants whether positive or negative, to run

with the land benefitted. The common law permits the covanentee’s successors to enforce the covenant against the

covenantor ( but not against the covenantors successors) Example- Simon buys land from Bill and Simon ( covenantor) covenants with Bill ( covenantee) to

build a house on the land ( positive covenant benefit with Bill, burden with Simon)- Bill sells to Jane- Jane can enforce the covenant against Simon ( because the benefit of the covenant runs

with the land)- But if Simon sells the land to someone else, Jane can’t enforce the covenant against the

subsequent purchaser.

For the benefit of a covenant to run with the land at common law, it must :- Touch and concern the land and- There must be an intention that the benefit will run with the land.

Smith and Snipes Hall Farm v River Douglas Catchment BoardFacts

In 1938, the River Douglas Catchment Board made an agreement under seal with the owners of farm lands adjacent to the banks of a flood prone river to make good the banks

and maintain them for all times. In return the landowners agreed to contribute part of the cost.

In 1938, one parcel of farmland was conveyed to a 3rd party ( Smith and Snipes) In 1946, the river burst its banks due to inadequate maintenance. Smith and Snipes Hall farm sued on the basis of this covenant. River Douglas argued that the benefit of the covenant did not run with the land.

Tucker LJ It is said for the board that the benefit of the covenant does not run with the land so as to

bind a stranger who has not and never had an interest in the land to be benefited and there being no servient tenement to bear the burden

Stated the relevant law- It is first necessary to ascertain from the deed that the covenant is one which touches or

concerns the land that is it must either affect the land as regards mode of occupation or must affect the value of the land

- It must then be shown that it was the intention of the parties that the benefit should run with the land.

Held that- The object was to improve the drainage of the land liable to flooding and prevent future

flooding- In my view the language of the deed satisfies both tests. It affects the value of the land per

se and converts it from flooded meadows to land suitable for agriculture and shows an intention that the benefit of the obligation to maintain shall attach thereto into whosoever hands the land shall come

Touch and concern the land For a covenant to touch and concern the land, the covenant must benefit the land and not

merely the covaneentee personally – the covenant must either affect the lands as regards its mode of occupation or must affect the value of the land Rogers v Hosegood

Examples- A covenant to build a house touches and concerns land where it at least preserves its

value Langdale Pty Ltd v Sollas- A covenant to repair a road touches and concerns adjoining land because it increases the

value and usefulness of that land Williams v Unit Constructions- A covenant not to carry on a business on land touches and concerns nearby land on which

the same kind of business is constructed Newton v Williamson

Intention The benefit of a covenant cannot run with the land unless the covenantor and covenantee,

when creating the covenant, intended that the benefit should run with the covenantee’s land, so as to be enforceable against the covenantee’s successors in title Smith and Snipes Hall Farm v River Douglas Catchment Board

No particular form of words is necessary, but the words must show na intent that the covenant is to be for the benefit of the covenantee’s land, not merely a personal benefit: Smith and Snipes Hall Farm v River Douglas Catchment Board

Examples :- A covenant is made for the benefit of the land, or made with the covenantee in his/her capacity as owner of the land Drake v Gray- A covenant for the benefit of the owner, their successors and assigns Rogers v Hosegood

This is modified by s 70 Conveyancing Act However, this section does not supply an intention for the benefit to run whether the

covenant indicates that the benefit is not to be enforceable by successors.

Enforcement of Covenants in Equity Equity developed various principles to allow certain covenants to run with the land. This

was achieved by developing the doctrine of “ restrictive covenants”

This covenant must be negative – restrictive in nature. Positive covenants do not run in equity.

In determining whether or not a covenant is negative, equity looks to the effect of the covenant and not merely to its form

Examples- A covenant to keep a park uncovered with buildings – looks like a positive covenant but

is negative cause it requires the covenantor to refrain from building Tulk v Moxhay- A covenant that land should only be used as a bowling and recreation club – looks

positive, but is negative in that it cab be compiled with by doing nothing on the land. Gosford RSL v Gosford Race Club

- A covenant not to let premises fall into disrepair, is phrased in a negative form, but it is positive in effect, because it requires the outlay of money on repairs Haywood v Brunswick Pernamnent Benefit Building Society

Burden of Covenants in EquityMust Benefit covenantee’s land

The covenant must be intended to and must actually benefit the land that the covenantee owns at the date of entering into the covenant : London City Council v Allen

The test is whether the land is “ reasonably regarded as capable of being affected by the performance or breach of the covenant” McGuigan Investments Pty Ltd v Dalwood Vineyards

Intention At the time that the covenant was created, there must have been an intention that the

burden of the covenant should run with the covenantors land, so as to bind successors in title Palm Beach v Marshall

Section 70A(1) of the COnveyancing Act provides a rebuttable presumption that the burden of a restrictive covenant is to run with the land.

Example- Simon ( covenantor) covenants with Bill ( covenantee) not to build a house on a piece of

vacant land ( negative covenant) - Simon sells to Mitch. Bill can enforce the restrictive covenant against Mitch because the

burden of the restrictive covenant runs with the land

Benefit of covenants in equity The benefit of a covenant runs with the land in equity when the benefit has been

“annexed” to the land. The covenant must touch and concern the land of the covenantee – this means that the

covenant must affect the land in relation to its mode of occupation or directly affect its value Rogers v Hosegood

The instrument creating the covenant must show an intention that the benefit of the covenant is to run with the land J Sainsbury v Enfield

Section 70 of the conveyancing act presumes this intention unless the terms of the covenant indicate that the benefit is not to be enforceable by successors

The restrictive covenant must identify the land intended to be benefit s88 Conveyancing Act

Example- Simon (covenantor) covenants with Bill ( covenantee) not to build a house on a piece of

vacant land ( negative covenant)- Bill sells his land to Sally. Sally can enforece the covenant against Simon, because the

benefit of the restrictive covenant can run with the land

Flowchart for identifying enforceable covenants Who is seeking to enforce the covenant Is the covenantee? ( original party who agreed to the covenant) Some other party entitled to the benefit of the covenant

Common Law EquityBenefit runs with land if:

Touches and concerns land Intention

Benefit runs with land if Touches and concerns land intention

Against whom is the covenant to be enforced? Is the covenantor ( the original party who agreed to the covenant Some other party who is subject to the burden of the covenant?

Common Law EquityBurden Does not run with the land Burden runs with the land if

Restrictive Covenant Touches and concerns the land Intention

Statutory RequirementsOld System

A restrictive covenant is an equitable interest- it therefore does not need to be created by deed, but must be in writing s 23 C , Conveyancing Act

Torrens System Section 88(3)(a) of the Conveyancing Act provides that the Registrar General has the

power to record a restrictive covenant in the register,- This is an “interest” for the purposes of s42 of the RPA- Recording the covenant in the register does not make it legal or render it enforceable –

still must be tested along ordinary principles-

Extinguishment of covenantsExpress Release

Old System – by deed ( if legal) , by written agreement ( if equitable) Torrens- deed of release, request to the RG to have the covenant deleted from the register

Implied Release If the owner of the land benefitted has- submitted to a long course of use which is wholly inconsistent with the continued

existence of the covenant Hepworth v Pickles- disregard breaches in such a way as to justify a reasonable person in believing that future

breaches will be ignored Chattsworth Estates co v Fewell

Court Order* s89 Conveyancing Act

Week 12

Possessory Title There comes a time when long continued possession of land must be regarded as good

against everyone The law in relation to possessory title is a mixture of common law and statute:- Common law determines the required nature of possession

- Statute deteremines the duration of possession

Limitation Periods Section 27 of th Limitation Act 1969 (NSW) provides that- The period of possession required to bar the itle of persons other than the crown is 12

years ( s 27)(2)- The period of possession required to bar the title of the Crown is 30 years ( s27(1)/ This is

subject to the provisions in s170 of the Crown Lands Act 1989 ( NSW)

The limitation period begins to run when the documentary owners “ cause of action” to recover the land “ first accrues” ( s 28 of Limitations Act).

- Where the documentary title holder claims through an instrument other than a will, time runs from the date of the grants s 20

- Where the documentary title holder claims through a will , time runs from the date of death s 29.

- Where the documentary title holder claims to be entitled to a future interest ( a reversion), time runs from the date on which that becomes a present interest s 31.

The running of the limitation period may be suspended or cancelled on particular grounds :

If the documentary owner is under a disability, the runiing of the limitation period is suspended during the disability s 52 (1)

- Defined as - Being Under 18 years of age. Or Incapable of managing their own affairs by disease. If the adverse possessor confirms or acknowledges the documentary owners cause of

action to recover the land s54 - Only occurs if the adverse possessors acknowledge in writing the documentary owners

right or title to the land. This is not a suspension,but a cancellation of the benefit of all time to date.

Despite the foregoing, an action to recover land cannot be maintained if brought more than 30 years after the cause of action first accrued s51.

Acts of Possesion To be sufficient to extinguish the documentary owners title, the possession must be “

open, not secret, peaceful, not by force and adverse, not by consent of the true owner Mulcahy v Curramore

- Possesion must be open – that is it would be noticed by an owner reasonably carefuk of his or her interests Re Riley v Pentilla

- Possession must be peaceful – in the sense without violence. ( note that force may be used to drive someone out of possession, but not to maintain possession)

- Possession must be adverse – must not have the permission of the landholder

Note that the qualities required to make possession “adverse” must be considered in the circumstances of each case. Especially important is what is apporopriate for this particular land. Acts of possession adequate in one situation may be inadequate in another

You need to consider- the character and value of the property- The suitable and natural mode of using it- The course of conduct that the owner might reasonably be expected to follow with a due

regard to his own interests Lord Advocate v Lord Lovat An intention to posses must proved. The intention to possess must be an intention to

exclude all others. Buckinghamshire v Moran Merely using the land for personal convenience, with no intent to exclude others, is not

enough ie Parking in a laneway - Permanent Trustee v Pangas

- Fencing a communal park for use as atennis court and garden without excluding others Riley v Pentilla

- Fencing in an area, not to exclude others, but to contain sheep Inglewood Investments v Baker

What circumstances may give the intention to possess?- Erecting and maintaining fences Re Riley.- Cultivating the Land Harnett v Green- Payment of rates and taxes QUach v Marrickville Council

In many cases, the circumstances themselves will suggest an intention. But where it is unclear, proof of the actual intention is important Littledale v Liverpool College.

Possesors Claiming each other

In this same way as acquiring an easement by prescription, the cumulative total of possesors claiming through each other can establish possessory title.

Where successive independent trespassers, the first person gets the title. A, B, C and D possess the land for 12 years. Title goes to A.

Retaking Possession Can be done most clearly by turning out the possessor Randall v Stevens Other acts may show an intention to resume possession – Removing fences Worssam v

Vandenbrande Merely returning to the land does not stop time running Randall v Stevens

Possessory Title and Torrens A person who has been in possession of Torrens land in circumstances under which the

registered proprietors title would have been extinguished by the statutes of limitation may apply to the Registrar- General to be recorded in the registrar as the proprietor. S 45 D(1) ( RPA).

The Registrar General may grant a possessory application s 45 E(1) But only in circumstances where there is no dispute about the possessors rights. The

courts retain the jurisdiction to determine contested cases. Bartlett v Ryan