Property law [2nd edition.] 9780409337990, 0409337994

Citation preview

LexisNexis Study Guide

Property Law 2ND EDITION • Bronwen Jackman • Kip Werren Begin exam preparation or revision with this essential tool for success The LexisNexis Study Guide series is designed to assist students in learning the foundations for effective, systematic exam preparation and revision. Each chapter clearly identifies and explains the pertinent and often difficult topics within property law. The most important and recent cases are summarised to consolidate practical understanding of the theoretical concepts . Key cases are summarised with the facts, issue and decision to assist readers' understanding of the cases. LexisNexis Study Guide - Property Law covers:

• • • • • • • • • • • • • •

The Concept of Property The Doctrine of Fixtures Possession, Title and Ownership Adverse Possession The Doctrines of Tenure and Estates The Torrens System Legal and Equitable Interests and Priorities Restraints on Alienation and the Rule Against Perpetuities Co-ownership Leases Native Title Easements, Profits Prendre and Rentcharges Covenants Mortgages

a

Related LexisNexis Titles • Cameron-Dow, LexisNexis Questions and Answers - Property Law, 2nd ed, 2012 ISBN 978-0-409-33799-0

• Edgeworth, Quick Reference Card - Property Law, 2010 • Newton & Cheung, LexisNexis Case Summaries Real Property Law, 4th ed, 2015 [email protected] .au www.lexlsnexls.com.au

ot>YINo

l

rf-~~i 0

0

~

1::

,,,;;;

"'•o~n•'d>~?'

9 780409 337990

· LexisNexis· Butterworths

Lexis Nexis AUSTRALIA

LexisNexis Butterworths 475-495 Victoria Avenue, Chatswood NSW 2067 the internet at: www.lexisnexis.com.au LexisNexis Argentina, BUENOS AIRES LexisNexis Verlag ARD Orac GmbH & Co KG, V1ENNA LexisNexis Latin America, SAO PAULO LexisNexis Canada, Markham, ONTARIO LexisNexis Chile, SANTIAGO LexisNexis China, BEIJING, SHANGHAI Nakladatelstvf Orac sro, PRAGUE LexisNexis SA, PARIS LexisNexis Germany, FRANKFURT LexisNexis Hong Kong, HONG KONG HVG-Orac, BUDAPEST LexisNexis, NEw DELHI Dolt A Giuffre Editore SpA, MILAN LexisNexis Japan KK, TOKYO LexisNexis, SEOUL LexisNexis Malaysia Sdn Bhd, PETAUNG JAVA, SELANGOR

on ARGENTINA AUSTRIA BRAZIL CANADA CHILE CHINA CZECH REPUBLIC FRANCE GERMANY HONG KONG HUNGARY INDIA ITALY JAPAN KOREA MALAYSIA NEW ZEALAND POLAND SINGAPORE SOUTH AFRICA SWITZERLAND TAIWAN UNITED KINGDOM USA

LexisNexis, WELLINGTON Wydawnictwo Prawnicze LexisNexis, WARSAW LexisNexis, SINGAPORE LexisNexis Butterworths, DURBAN Staempfli Verlag AG, BERNE LexisNexis, TAIWAN LexisNexis UK, LONDON, EDINBURGH Lexis Nexis Group, New York, NEW YORK LexisNexis, Miamisburg, OHIO

Author: Title:

Property Law.

Edition:

2nd edition. 9780409337990 (pbk).

ISBN:

-it

LexisNexis Study Guide.

Notes:

Includes index. Real property - Australia - Textbooks.

Subjects: Other Authors/Contributors:

Werren, Kip.

Dewey Number:

346 .9404.

Table of Statutes

xix

,

CHAPTER 2 The Doctrine of Fixtures

13

CHAPTER 3 Possession, Title and Ownership

33

CHAPTER 4 Adverse Possession

43

63

>1' CHAPTER 6 The Torrens System

77

~ CHAPTER

7 Legal and Equitable Interests and Priorities

101

CHAPTER 8 Restraints on Alienation and the Rule Against Perpetuities

127

~ CHAPTER

9 Co-ownership

151

CHAPTER 10 Leases

175

CHAPTER 11 Native Title

203

CHAPTER 1.2 Easements, Profits

© 2015 Reed International Books Australia Pty Limited trading as Lex isN exis. First edition 2011; reprinted 2013 and 2014 (twice). This book is copyright. Except as permitted under the Copyright Act 1~68 (Cth), no part of_this publication may be reproduced by any process, electronic or otherwise, without t~e spec1f1c written permission of the copyright owner. Neither may information be stored electron1ca ll y in any form whatsoever without such permission.

vii

:/* CHAPTER 5 The Doctrines ofTenure and Estates

9780409338102 (ebk). Series:

Table of Cases

-; CHAPTER 1 The Concept of Property

National Library of Australia Cataloguing-in-Publication entry Jackman, Bronwen.

v

Acknowledgments

*

a Prendre and

Rentcharges

229

CHAPTER 13 Covenants

259

CHAPTER 14 Mortgages

285

Index

299

Inquiries shou ld be addressed to the publishers. Typeset in Optima and Helvetica Neue. Printed in China . Visit LexisNexis Butterworths at www.lexisnexis.com.au.

iii

TABLE OF CASES References are to paragraph numbers

A

Attorney-General v Antrobus (1905] .... 12.6

A' Beckett v Warburton (1888) .... 12.8

v Horner (1913] .... 12.8

-

Abigail v Lapin (1934] .... 14.6

Austerberry v Corporation of Oldham

Ackroyd v Smith (1850) .... 12.4

(1885) .... 13.4, 13.5, 13.8, 13 .17

Adamson v Hayes (1973) .... 7.12

Australian Provincial Assurance Co Ltd v Coroneo (1938) .... 2.2, 2.7

Adealon International Pty Ltd v London Borough of Merton (2007]

Australian Softwood Forests Pty Ltd v Attorney-General (NSW); Ex rel CAC

.... 12.15

(1981) .... 12.29

Agripower Barraba Pty Ltd v Blomfield (2013] .... 2.7 Alban v Dremsal I (1610) .... 12 .8 Aldin v Latimer Clark (1894] .... 10.18 Aid red's Case, Re (1610) .... 12 .6 Aldridge v Wright (1929] .... 12.13 Allen v Roughley (1955) .... 4.8 Andrews v Partington (1791) .... 8.12 Anthony v Commonwealth (1973) .. .. 2.22 Ashburn Anstalt v Arnold (1989] .... 10.10 Asher v Whitlock (1865) .... 3.6, 3.7 Asian Pacific Building Corporation

Axon v Axon (1937) .... 9.5 B

Bahr v Nicolay (No 2) (1988) .... 6.12, 6 .17, 8.4 Ball v Gutschenritter (1925] .... 1.2 Ballard's Conveyance, Re (1937] .. .. 13.26 Baramon Sales Pty Ltd v Goodman Fielder Mills Ltd (2001] .... 13 .22 Barry v Heider (1914) .... 6.19 Baumgartner v Baumgartner (1987) .... 6.17 • Baxter v Four Oaks Properties Ltd (1965] .... 13.29 Belgrave Nominees Pty Ltd v Barlin-

Pty Ltd v Sharon-Lee Holdings Pty

Scott Airconditioning (Aust) Pty Ltd

Ltd (2013) .... 10.37

(1984] .... 2.2

Assets Co Ltd v Mere Roihi (1905] .... 6.12

Belton v Bass Ratcliffe & Gretton Ltd [1922] .... 14.7

vii

TABLE OF CASES

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

Benn v Hardinge (1992) .... 12.23

Campbel I v Holy land (1878) .... 14.4

Bernstein of Leigh v S~iews & General Ltd [1978] .... 1 .2

Cancer Care Institute of Australia Pty Ltd (admin apptd), Re [2013] .... 2.7

Beswick v Beswick [1968] .... 13.2

Cardwell v Walker [2004] .... 12.5

Biviano v Natoli (1998) .... 9.10

Central Queensland Land Council Aboriginal Corporation v AttorneyGeneral (Cth) and Qld [2002]

Black v Garnock (2007) .... 7.8 Blackburn v Stables (1814) .... 8.11 Blacks Ltd v Rix [1962] .... 13 .3 7 Bogdanovic v Koteff (1988) ... . 6.18 Bondi Beach Astra Retirement Village Pty Ltd v Gora (2011) .... 8.4

.... 11.8

Cervi v Letcher (2011) .... 4.10 Chan v Cresdon Pty Ltd (1989) .... 10.6

Breskvar v Wal I (1971) .... 6.10

Chateau Douglas HunterValley Vineyards Ltd v Chateau Douglas Hunter Valley Winery and Cellars Ltd (Receivers Appt) [1978] .... 2.9

Brickwood v Young (1905) .... 9.9

Chatsworth Estates Co v Fewel I

Booker v Palmer [1942] .. .. 10.10 Borman v Griffith [1930] ..... 12.13

Brownev Flower [1911] .... 12.13 Brunker v Perpetual Trustee Co (1937) .... 7.11

Brunner v Greenslade [1971] .... 13.21, 13.27

Bruton v London & Quadrant Housing Trust [2000] .... 10.15 Buckinghamshire County Council v Moran [1990] ... . 4.3, 4.7 Buckley v Timbury (2013) .... 12.27 Burke v Yuri Ila SA (1991) .... 13 .8 Burton vWinters [1993] .... 12.27

c Cadell v Palmer (1833) .... 8.8, 8.11 Calabro v Bayside City Council [1999] .... 6.15 viii

[1931] .... 13.34

Commissioner of Stamps (WA) v L Whiteman (1940) .... 2.7

Dennerstein, Re [1963] .... 13.37

Commonwealth v Registrar ofTitles (Victoria) (1918) .... 12.6, 12.8

Diment v NH Foot Ltd [1974] .... 12.19

-

v Yarmirr [1999] .. .. 11 .8

Dobbie v Davidson (1991) .... 12 .19

-

v-

Dockrill v Cavanagh (1944) .... 10.11

[2001] (Croker Island Case)

.... 11.8

Dillon v Nash [1950] .... 10.20

Dolphin's Conveyance, Re [1970]

Congleton v Pattison (1808) .... 13.14

.... 13.29

Conlan v Registrar ofTitles (2001) .... 6.18

Double Bay Newspapers Pty Ltd v AW Holdings Pty Ltd (1996) .... 14.6

Cooper v Stuart (1884) .... 11 .3

Downie v Lockwood [1956] .... 10.40

Copeland v Greenhalf [1952] .... 12 .6

Corin v Patton (1990) .... 6.17, 7.11, 9.6 Corozo Pty Ltd v Total Australia Ltd [1988] .... 6.1 7

Dowty Boulton Paul v Wolverhampton Corporation (No 2) [1976] .... 12.8 Dugdale, Re (1888) .... 8.3 Duke of Norfolk Case (1682) .... 8.8

City of Canada Bay Council v Bonaccorso Pty Ltd (2007) .... 6.15

Cowell v Rosehill Racecourse Co Ltd (1937) .... 1.8

Dyce v Hay (1852) .... 12 .8

City of Subiaco v Heytesbury Properties Pty Ltd (2001) .... 10.33

Cox v Bishop (1857) .... 13.2

E

Clem Smith Nominees Pty Ltd v Farrelly (1978) .... 13.22, 13.26, 13.37

Cuckmere Brick Co Ltd v Mutual Finance Co Ltd [1971] .... 14.8

Ecclesiastical Commissioners, Re [1934] .... 13 .2 Edginton v Clark [1964] .... 4.8

.

D

Elitestone Ltd v Morris [1997] .... 2.5

Clifford v Dove (2003) .... 12.8

Dabbs v Seaman (1925) .... 12.17

Clos Farming Estates Pty Ltd v Easton [2002] .... 12.4, 12.29

Dalton v Henry Angus & Co (1 881) .... 12.8, 12.19

Ellenborough Park, Re [1956] .... 12.2, 12.6, 12.9, 12.20

Cohen v Popular Restaurants Ltd

Dare v Heathcote (1856) .... 12.19

[1917] ... . 10.24

Davis v Williams (2003) .... 6.12

Coils v Home and Colonial Stores Ltd [1904] .... 12.8

Delehunt v Carmody (1986) .... 9.4

Commissioner of Stamp Duties (Qld)

Delohery v Permanent Trustee Co of NSW (1904) .... 12.19

v Livingston [1965] .... 7.5

Elliston v Reacher [1908] .... 13.29, 13.31

Elton v Cavill (No 1) (1994) .... 8.2, 8.4 -

v-

(No 2) (1994) ... . 8.2, 8.4

ER Ives v High [1967] .... 13 .9

ix

TABLE OF CASES

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

Gower v Postmaster-General (1887)

F

Facchini v Bryson (19'S'2) .... 10.10 Farrar v Farrars Ltd [1888] .... 14.7 Federal Commissioner of Taxation v Everett (1980) .... 7.10 Federated Homes Ltd v Mill Lodge Properties Ltd [1 980] .... 13 .13, 13.25 Fejo v Commonwealth (1999) .... 11.5

- v Northern Territory (1998) .... 11.8 Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd (1998) .... 13 .1 2, 13.23, 13.26, 13.27, 13.37 Forgeard v Shanahan (1994) ... . 9.9, 9.10 Frater v Finlay (1968) .... 13.9 Frazer v Walker [1967] .... 6.8, 6.9, 6.10, 6.17

.... 10.24

v Oxford Square Investments Pty Ltd Grgic v ANZ Banking Group Ltd (1994) .... 6.17

Groongal Pastoral v Falkiner Co Ltd (1924) .... 14.7

(1997) ... . 9.13 Housden v Conservators of Wimbledon and Putney Commons [2008] .... 12.19 Hudson v Cripps [1896] .... 10.18 Hunter v Canary Wharf Ltd [1997] .... 12.6

H

Halbert v Mynar [1981] .... 9.5

Hunter's Lease, Re [1942] .... 10.24

Hall v Busst (1960) .... 8.4

Hurst v Picture Theatres Ltd [1915] .... 1.8

Halsall v Brizell [1957] .... 13.9 Hart v Windsor (1843) .... 10.18

Hyman v Van Den Bergh [1908]

Jones v Sherwood Hills Pty Ltd (1975) ... . 13.33 Jourdain v Wilson [1821] .... 10.24 K

Karaggianis v Malltown Pty Ltd (1979) .... 10.38 Kay's Leasing Corp Pty Ltd v CSR Provident Fund Nominees Pty Ltd [1962] .... 2.3 Kekewich v Manning (1851) .... 7.13 Kelly, Re [1932] .... 8.11 Kendle v Melsom (1998) .. .. 14.7 Kennedy v Trafford [1897] .... 14.8 Kenny v Preen [1963] ... . 10.18, 10.36

.... 12.5

Hawkesbury Nominees Pty Ltd v Battik Pty Ltd [2000] .... 10.18

Kenridge v Foley (1964) .... 13.35 Kerabee Park Pty Ltd v Daley [1978]

Haywood v Brunswick Permanent Benefit Building Society (1881) .... 13.19

Heid v Reliance Finance Corporation

Gallagher v Rainbow [1994] .... 13.9

Henderson v Eason (1851) ... . 9.10

Gibbs v Messer [1891] .... 6.10

-vSquire(1868) .... 10.19

Gleeson v Gleeson [2002] .... 14.7

Hepworth v Pickles [1900] .... 13.34

Golding v Tanner (1991) .... 12.19

Hickman v Peacey [1945] .... 9.5

Goldstein v Sanders [1915] .... 10.24

Hill vTupper (1863) .... 12.4

Gorman, Re [1990] .... 9. 9

Hircock v Windsor (Developments

x

Houghton v lmmer (No 155) Pty Ltd

Grigsby v Melville [1973] .... 12.6

Gaite's Will Trusts, Re; Banks v Gaite [1949] .... 8.12

.... 13.9

.... 10.24

(1989) .... 10.38

Hedley v Roberts [1977] .... 12 .8

v K A Reed Services Pty Ltd [1 988]

Horsey Estates Ltd v Steiger [1 899]

Greetings Oxford Koala Hotel Pty Ltd

G

Government Insurance Office (NSW)

Holroyd v Marshall (1862) .. .. 7.12

Pty Ltd (1983) .... 7.8, 14.6

No 3) Pty Ltd (1979) .... 9.4 Holland v Hodgson (1872) .... 2.2, 2.6

International Tea Stores Ltd v Hobbs [1903] .... 12.14

.... 6.20 King v David Allen & Sons Billposting Ltd [1916] .... 1 .9 -vSmail [1958] .... 6.18

J J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) .... 14.3, 14.6 JA Pye (Oxford) Ltd v Graham [2003] .... 4.3

Kirby v Caruso [19776] .... 10.38 Kreglinger v New Patagonia Meat and Cold Storage Co Ltd [1914] .... 14.4, 14.7 L

James v Plant (1836) .... 12.25

Lace v Chantler [1944] .... 10.8

JC

Lagan Navigation Co v Lambeg

Berndt Pty Ltd v Walsh [1969] .... 10.18

Jee v Audley (1787) .... 8.12 Jelbert v Davis [1968] .... 12.24

Bleaching, Dyeing and Finishing Co Ltd [1927] .... 12.27 Lane v Capsey [1891] .... 12.27 xi

TABLE OF CASES

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

Lardil v Queensland [2001] .... 11.8 Latec Investments Ltd 7'1--1.otel Terrigal Pty Ltd (in liq) (1965) .... 7.6, 7.8

Lord Advocate v Lord Lovat (1880) .... 3.4

Markham v Paget [1908] .... 10.18

Louis and the Conveyancing Act, Re [1971] .... 13.37

Snowy River (1994) .... 10.6 Martyn v Clue (1852) .... 10.24

Lee v Close (1870) .... 10.24

Luke v Luke (1936) .... 9.10

Mason v Clarke [1955] .... 12 .29

Leigh v Dickeson [1881-5] .... 9.9

Lyde v Russell (1830) .... 2.8

2 .6 Leitz Leeho lme Stud Pty Ltd v Robinson [1977] .... 10.11 Lend Lease Development Pty Ltd v Zemlicka (1985) .... 10.36 Leros Pty Ltd v Terara Pty Ltd (1992) .... 6.19, 6.20 Leverhulme (No 2), Re [1943] .... 8.11 Liverpool County Counci I v Irwin [1977] .... 10.20 Livingston v Commissioner of Stamp Duties (Qld) (1960) ... . 7.5 Lake Yew v Port Swettenham Rubber Co Ltd [1913] .... 6.12 London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] .... 12.6 London & Northern Estates Co v Sch lesinger [1916] .... 10.33 London County Council v Allen [1914] .... 13.22, 13.26 Long v Blackall (1 797) .... 8.11

xii

.-

Lyons v Elliott (1876) .... 10.38

v Shrewsbury and Hereford

M

.... 10.35

Mabo v Queensland (No 1) (1988)

Matzner v Clyde Securities Ltd [1975]

... . 11.2, 11 .3, 11 .8 -v -

(No 2) (1992) .... 1.6, 3.3,

.... 14.7

McBride v Sandland (1918) .... 10.6 McGuigan Investments Pty Ltd v Dalwood Vineyards Pty Ltd [1970] .... 13 .22

Emporium Pty Ltd [1970] .... 12.8

Macleay, Re (1875) ... . 8.3 McMahon v Ambrose [1987] .... 10.6 Mair v Rio Grande Rubber Estates Ltd [1913] ... . 6.12 Majestic Homes Pty Ltd v Wise [1978] .... 6.1 7 Malzy v Eichholz [1916] .... 10.16 Margiz Pty Ltd v Proprietors Strata

v Jackson [1977] .... 12.6

-

v Minister of Mines [1963] .... 6.20

Mills v Stokman (1967) .... 6.9 Mil mo v Carreras [1946] .... 10.24 Milroy v Lord (1862) .... 7.11, 9.6 Minister of State for the Army v Dalziel (1944) .... 10.33 Mischel v Hischel Holdings Pty Ltd (in liq) [2012] .... 9.5

Mayho v Buckhurst (1617) .... 10.24

Moffett v Dillon [1999] .... 7.8

Mellor v Walmsley [1905] ... . 12.17

Moody v Steggles (1879) .... 12.8

Members of _the Yorta Yorta Aboriginal

Moore, Re [1901] .... 8.11

Community v State of Victoria

Moore v Ulcoats Mining Co Ltd

[1998] .. .. 11.8

.. .. 10.38 [1975] ... . 13.29

-

May v Ceedive Pty Ltd (2006) .. .. 2.2 ·

Macintosh v Bebarfalds Ltd (1922)

Mack and the Conveyancing Act, Re

.... 12.4,12.8

Maurice Toltz Pty Ltd v Macy's

3.4, 5.3, 11.2, 11.3, 11.4, 11.5, 11.6, 11.7, 11.8

Miller v Emcer Products Ltd [1956]

Railway Co (1871) .... 12.8 Matthews v Smallwood [191 OJ

-vTaylor [1902] .... 2.3, 2.4, 2.5,

1 .6, 11 .2, 11 .3

Marshall v Council of the Shire of

Lukacs v Wood (1978) .... 6.1 7

v Jacks (1879) .... 4.3

Land Rights Case) (1971) .... 1 .1,

Marriott, Re [1969] ..... 12.23

Lavender v Betts [1942] .... 10.18

-

Milirrpum v Nabalco Pty Ltd (Gove

- v-

[1908] .... 10.34

[2001] .... 11 .5

Mou le v Garrett (1870) .... 10.23

v - (2002) .... 11.7

Mount Carmel Investments Ltd v Peter Thurlow Ltd [1988] ... . 4.8

Mercantile Credits Ltd v Australia and New Zealand Banking Group Ltd (1988) .... 6.8 Mercantile Mutual Life Insurance v Gosper (1991) .... 6.1 7

Mulcahy v Curr"amore Pty Ltd [1974] .... 4.3, 4.8 Municipal District of Concord v Coles (1905) .... 6.20, 12.3

Mervin, Re [1891] .... 8.11 Metal Manufacturers Ltd v Commissioner for Taxation [1999] .... 2.7

N National Carriers Ltd v Panalpina (Northern) Ltd [1981] .... 10.33

Plan No 30234 (1993) .... 9.14

xiii

TABLE OF CASES

LEXISNEXIS STUDY GUIDE• PROPERTY LAW

National Dairies WA Ltd v

Paine & Co v St Neot's Gas & Coke

Commissioner of Sta~ Revenue [2001] .... 2.6, 2.7

Co [1939] .... 12 .27 2.3, 2.6

Ainsworth [1965] .... 7.4 Netherby Properties Pty Ltd v Tower Trust Ltd [1999] .... 13.8

Ltd v Price-Robinson [1968] ... . 4.5

.... 3.6, 4.10 North Sydney Printing Pty Ltd v Sabemo Investment Co Pty Ltd [1971] .... 12.15

Minerals (Australia) Ltd [2003]

London Residuary Body [1992]

.... 2.6, 2.7

.... 10.8

.... 14.8

Oliver v Oliver (1958) .... 8.4 Oxford Meat Co Pty Ltd v McDonald [1963] .... 3.8

Permanent Trustee Co of New South Wales Ltd v D' Apice (1968) .... 5.10 Perpetual Trustee Co Ltd v Westfield Perry v Clissold [1907] .... 3.8 -

v Rolfe [1948] .... 14.5 v Walker (1855) .... 14.7

Pettey v Parsons [1914] .... 12.27

12.8 -

v Pears [1965] .... 12.8

Pilcher v Rawlins (1872) .... 7.8

p

Poltava Pty Ltd, Re Application of English Stores Group Pie [1989] .... 10.24

xiv

8.15 Pwlbach Colliery Co Ltd v Woodman [1915] .... 12.16 Q Quach v Marrickville Municipal Council (No 2) (1990) .... 4.1, 6.15

Management Ltd (2007) .... 12.8

Pirie v Saunders (1961) .... 10.8 P & A Swift Investments v Combined

Public Trustee v Bennett [2004] ....

Perera v Vandiyar [1953] .. .. 10.18

Phippsv Halliday [1891] .... 12.4,

0

Prudential Assurance Co Ltd v

Assurance Society Ltd (1912)

Taxation (1963) .... 7.10, 7.11, 7.13 North Sydney Council, Re (1997)

Progressive Mailing House Pty Ltd

v Webb (1699) .... 10.24

Pendlebury v Colonial Mutual Life

.... 13.4, 13.20 Norman v Federal Commissioner of

13.3,13.10

-

Pegasus Gold Australia v Mesta

[1982] .... 13.29 Powell v Mcfarlane (1979) .... 4.3

Rogers v Hosegood [1900] .... 13 .12 ,

Prior's Case, The (1368) .... 13.1,

10.33

Nickerson v Barraclough [1981] Nisbet and Potts' Contract, Re [1905]

[1969] .... 6.15

v Tabali Pty Ltd (1985) .... 10.32,

.... 13.15, 13.28 .. .. 12.15

Robinson v Harman (1848) .... 10.36

Parker v Mallon (1907) .. .. 10.38

Newton Abbot Co-op Society Ltd v Williamson & Treadgold Ltd [1952]

Pratten v Warringah Shire Council

Paradise Beach and Transportation Co

.... 12.30 National Provincial Bank Ltd v

Riley v Penttila [1974] .... 4.3

Palumberi v Palumberi (1986) .... 2.1,

National Executors and Trustees Co ofTasmania v Edwards [1957]

Pownall v Graham (1863) .... 8.11

13.15, 13.23, 13.26, 13.27 Rosher, Re (1884) .... 8.3 Russo v Bendigo Bank Ltd [1999] .. .. 6.12

s S & A Gallo Pty Ltd v Hollowood Pty Ltd (2012) .... 10.38 Sandi II v Franklin (1875) .... 10.8 Say v Smith (1530) .... 10.8 Schultz v Convill Properties (1969) .... 6.12 Sefton v Tophams Ltd [1967] .... 13.4 Shaw v Garbutt (1996) .... 3.7, 4.3 Shelfer v City of London Electric Lighting Co [1895] .... 13.31

R

Radaich v Smith (1959) .... 10.9, 10.10 Rains v Buxton (1880) .... 4.1, 4.3 Raymond Pemberton v Dimitrijevic [2001] .... 10.8 Renals v Cowlishaw (1878) ... . 13.13 Rhone v Stephens [1994] .... 13.4, 13.9, 13.17

Shelley's Case (1581) .... 5.6 Shepherd v Federal Commissioner of Taxation (1965) .... 7.10, 7.13 Shevill vThe Builders' Licensing Board (1982) ~ ··. 10.32 Showa Soji Australia Pty Ltd v Oceanic Life Ltd (1994) .... 10.24 Slee v Warke (1950) .... 10.40 Smith and Snipes Hall Farm River v

Rice v Rice (1853) ... . 7.8, 14.6

Douglas Catchment Board [1949]

Richard v Rose (1853) .... 12.8

.... 13.14

Ricketts v Enfield Churchwardens [1909] .... 10.24

Spencer's Case (1583) .... 10.24, 13.1

TABLE OF CASES

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

Sperry Rand Australia Ltd v Arrandale Properties ty Ltd [1979] .... 10.38

Thamesmead Town Ltd v Allotey [1998] .... 13.9 Thellusson v Woodford (1805) .... 8.11

Spyer v Phillipson [1931] .... 2.8 Squire v Rodger (1979) .... 9.9 St Edmundsbury v Clark (No 2) [1975] .... 12.15 State Bank of New South Wales v Berowra Waters Holdings (1986) .. .. 6.16 Steadman v Steadman [1976] .... 10.6

Theodore v Mistford Pty Ltd (2005)

Stuart v Joy [1904] .... 10.23 -

v Kingston (1923) .... 6.12

Stump v Gaby (1852) .... 7.6

.... 2.9

-

Vernon v Smith (1821) .... 10.24

v Sorrell (1673) .... 10.10

Thompson, Re; Ex parte Nulyarimma (1998) .... 5.3 Tiltwood Sussex, Re [1978] .... 13.35 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd (2010) .... 10.33 Titchmarsh v Royston Water Co Ltd (1899) .... 12 .1 5 Tito v Wadell (No 2) [1977] .... 13.9 Todrick v Western National Omnibus Ltd [1934] .... 12.4 Toohey, Re; Ex parte Meneling Station Pty Ltd (1982) .... 1.6 Travinto Nominees v Vlattas (1973)

T

.... 6.15

Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) .... 10.36 Tanistry, The (1608) .... 11.3 Teague v Trustees, Executors and Agency Co Ltd (1923) .... 8.12

Treloar v Nute (1977) .... 4.3 Treweeke v 36 Wolseley Road (1973) .... 12.23 Tulk v Moxhay (1848) .... 13.1, 13.17, 13.19, 13 .27 Twidale v Bradley [1990] .... 10.6

Telex (Australasia) Pty Ltd v Thomas Cook & Son (Australasia) Pty Ltd [1970] .... 10.18 Terry v Tindale (1882) .... 10.8

xvi

Vasile v Perpetual Trustees WA Ltd (1987) .... 10.18

Thomas v Hayward (1869) .... 10.24

Suhr v Michelmore (2013) .. .. 13.37 Sunstar Fruit Pty Ltd v Cosmo [1995]

Valerica Pty Ltd v Global Minerals Australia Pty Ltd (2001) .... 6.20

Vaudeville Electric Cinema Ltd v Muri set (1923] .... 2 .2

.... 14.3,14.4

Stern, Re [1962] .... 8.11 Street v Mountford [1985] .... 10.9

v

Union Lighterage Co v London

.... 10.24 Western Australia v Commonwealth (1995) .... 11.8 Western Australia v Ward (2000) .... 3.3, 5.6 Weston v Lawrence Weaver [1961] .... 12.27

Vicgrain Assets Pty Ltd v Yarriambiack Shire Council (1999) .... 2.1

Westpoint Corporation Pty Ltd v Registrar of Titles [2004] .... 13 .4

Victoria Park Racing and Recreation

Whaley, Re [1908] .... 2.3, 2.4

Grounds Co Ltd v Taylor (193 7)

.... 1.10

Wheeldon v Burrows (1879) .... 12.12, 12.13

Villar, Re (1929] .... 8.11

Whitby v Mitchell (1890) .... 8.7

Vukicevic v Alliance Acceptance Co

White v Taylor (No 2) [1969]

(1987) .... 6.8

w Waimiha Sawmilling Co Ltd (in liq) v Waione Timber Co Ltd [1923] .... 6.12 Wallis' Cayton Bay Holiday Camp Ltd v Shell-Mex & BP Ltd (1974) .... 4.3 Walsh v Lonsdale (1882) .... 10.6, 12.20, 12.29

.... 12.13 Whitlock v Brew (1968) .... 10.8 Wik Peoples v Queensland (1996) .... 5.3, 10.1, 11.6, 11.8 Wilcox v Richardson (1997) .... 12.8 Wilkes v Spooner [1911] .... 13.20 Wilkinson v Rogers (1864) .... 10.24 Williams v Earls (1868) .... 10.24 Wilson v Meudon Pty Ltd [2005]

Walton Stores (Interstate) Ltd v Maher (1988) .... 10.6

Witrong v Blany (1674) .... 11.3

Ward v Kirkland [1967] .... 12.13

Wollondilly Shire Council v Picton

Warren v Ken [1954] .... 10.19

u

Weg Motors Ltd v Hales [1961]

Watson v Delaney (1991) .... 10.6 WebbvBird(1861) .... 12.6

.... 10.8

Power Lines Pty Ltd (1994) .... 8.2, 8.4 Wood, Re [1894] .... 8.12

Graving Dock Co [1902] .... 12.15

xvii

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

Wood v Leadbitter (1845) .... 1.8

y

Woodall v Clifton [19""05] .... 10.24

Vanner v Eaton (1999) .... 1.3, 11.7, 11.8

Woodroffe v Box (1954) .... 8.4 Wright v Gibbons (1949) ... . 9.3,

Yarmirr v Northern Territory [1998] .... 11.8

9.5

-

v Macadam [1949] .... 12.14

z Zapletal v Wright [1957] .... 5.11

References are 10 paragrapllJ

Commonwealth

Australian Capital Territory

Australia Act 1986 .... 11.4

Civil Law (Property) Act 2006

Bankruptcy Act 1966 s 5(2) .... 9.6 Constitution s 109 ... . 1.3 Corporations Act 1989 s 420A .... 14.7 Lands Acquisition Act 1955 .. .. 11.2

s 202 .... 6.2 s 203(2) .... 10.12 s 223 .... 6.2 s 224 .... 6.2 Conveyancing Act 1919 s12 .... 13.16

s 5(1) .... 11 .2

s 23A .... 8.7

s 5(1 )(b) .. .. 11.2

s 400 .... 10.24

Native Title Act 1993 .... 1 .3, 11 .2, 11 .6, 11.7, 11.8

s 401 .... 10.24 Land Titles Act 1925 .... 6.1, 6.7, 10.21

Pt 2 Div 2 .... 11 .6

s 14 .... 6.16

Pt 2 D iv 2A .... 11 .6

s 54(2) .... 9.4

Pt 2 Div 2B .... 11.6

s 58 .... 6.12

Pt 2 Div 3 .. .. 11 .6

s 58(1 )(a) .... 6.14

s 3(a)-(d) .... 11.7

s 58(1)(b) .... 6.7, 12.28

s 11 (1) .... 11.6

s 58(1)(c) .. .. 6.13

s 26A .... 11.8

s 58(1 )(d) .... 6.7

s 26B ... . 11.8

s 58(1 )(e) .... 6.7

s 26( .... 11.8

s 58(1 )(f) . .. . 6.7

s 43 .... 11 .8

s 59 .... 6.9, B.12

s 43A .... 11 .8

s 82 .... 10.13

s 223(1) .... 11.7

s103C .... 12.9

s 223(1 )(b) .... 11.7

s103E .. .. 12.26

Native Title Amendment Act 1998 .... 11.8 Racial Discrimination Act 1975 .... 11.3, 11.8 sl0 .... 11.3 xviii

s 201 ... . 6.2, 10.12, 13 .30

s 107A .... 6.20 s 109 .... 13.13 s 110 .... 13.2 SS

143-155 .. .. 6.21

s 169 .... 4.4, 4.5, 4.6

xix

TABLE OF STATUTES

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

Leases (Commercial and Retail) Act 2001 .... 10.27 Perpetuities and Accumulations Act

s238(1) .... 7.2, 9.16, 10.12, 14.2

s 88D .... 13.19, 13.26

Limitation Act 1969

s 23 8(2)(a)-(f) .... 14.2

s 88E .... 13.19, 13.26

s 27 .... 4.6

s 23C .... 7.9, 7.12, 13.30, 14.3

s 88F .... 13.19, 13.26

s 27(2) .... 4.4

s 23C(1 )(a) .... 7.12, 9.6

s 88H .... 13.19, 13.26

s 28 .... 4.7

s 8(1) .... 8.13

s 23C(l)(b) .... 7.12, 9.6

s881 .... 13.19, 13.26

s 29 .... 4.7

s9 .... 8.13

s 23C(l)(c) .... 7 .12

s88K ... . 12.18

s30 .... 4.7

s 10(1) .... 8.13

s 23D .... 6.2

s 89 .... 12.26, 13.36

s 11(3) .... 8.13

s 23D(2) .... 10.12

s106 .... 14.7

s 38 .... 4.5, 4.7 s 51 .... 4.9

s 18 .. .. 8.15

s 24 .... 9.6

s 106(1 7) .... 14.7

s52 .... 4.9

Real Property Act 1925 .... 6.2

s25 .. .. 9.16

s112(7) .... 14.7

s53 .... 4.9

Registration of Deeds Act 1957

SS

s 117 .... 10.24

s55 .... 4.9

s 26 .. .. 9.4

s 118 .... 10.24

s 56 .... 4.9 s 65 .... 4.4

1985

.... 6.2

2 6-2 7 ... . 9 .1 6

s 26(1) .... 9.4

s 1338(2) .... 2.8

s 30 .... 9.16

s 134 .... 13.6

Local Government Act 1919 .... 6.15

Wills Act 1968

s 35 .... 9.5, 9.16

s 179 .... 12 .19

Neighbouring Land Act 2000

s27 .... 5.6

s 36C(1) .... 13.2

s 1818(1) .... 12 .8

s38 .... 7.2

SS

Residential Tenancies Act 1997 .... 10.26

New South Wales

Agricultural Tenancies Act 1990 .... 2.9

s 6 .... 2.9 s 10(4) .... 2.9 Civil and Administrative Tribunal Act 2013 s32 ... 9.16 Community Land Management Act 1989 ... . 9.16 Conveyancing Act 1919 .... 5.3, 10.21 s 12 .... 7.9, 7.10, 13.16 s14 .... 6.2 s17 .... 5.6 s23A .... 8.7 s 238 .... 6.2

xx

s 44(2) ... . 9.6 s 47(2) .... 5.6 s 53(1) .... 6.2 s 54A ... . 9.6 s 66G .... 9.8, 9.10, 9.16 s67 .... 12.14 s 70 .... 13 .13 s 70A(1) .... 13.4, 13.21 s 78(1 )(c) .... 14.2 s 88 .... 13.37 s 88(1) .... 13.15, 13.27, 13.37 s 88(3) .. .. 13.37 s 88A .... 12.9 s888 .... 13.35 s 888(3) .... 13.37 s 888A .... 13.19, 13.26

184A-184J .... 6.2

Conveyancing and Law of Property Act 1898 Pt IV .... 8.5 Crown Lands Act 1989 s 170 .... 4.6 Crown Lands Consolidation Act 1913

s 2358 .... 4.10 Crown Lands Occupation Act 1839 .... 5.3 De Facto Relationships Act 1984 .... 9.10 Imperial Acts Application Act 1969 ... . 1.1,9.10

s 42(1)(c) .... 6.13 Landlord and Tenant (Amendment) Act 1984 .... 2.2

.... 12.18 Perpetuities Act 1984 s 3(1) .... 8.15

s 7(1) .... 8.13 s8 .... 8.13

s 9(1) .... 8.13

s 9(4) ... . 8.13 s 17 .... 8.15 Real Property Act 1862 .... 5.3, 6.2 Real Property At:t 1900 ... . 4.10, 6.1, 6.7, 7.2, 7.8 s 12 .... 6.16 s 42 .. .. 6.9, 9.16 s 42(1)(a) .... 6.14 s 42(1)(a1) .... 6.7, 12.28 s 42(1)(c) .... 6.13

s 43 .... 6.9 s 43(1) .. .. 6.9

xxi

TABLE OF STATUTES

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

Real Property Act 1900-cont'd

s 5(1) .... 9.12

Land Title Act 2000 .... 6.1, 6.7

s 182 .... 13.16

s 45D .... 4.10

s 5(2) .... 9.12

s 1 7 .... 6.16

s 187 .... 8.13

s 45D(1) .... 4.10

s 8(1)(c) .... 9.12

s65 .... 10.13

s 190 .... 8.13

s 53(1) .... 10.13

s 18(2) .... 9.13

s 140 .... 6.20

s 191 .... 8.13

s 53(4) .... 14.7

s21 .. .. 9.13

s 183 .... 6.18

s 199 .... 8 .1 5

s 188(1 )(f} .... 6.13

s 201 .... 8.7

s 188(2)(a) .... 6.9

s217 .... 9.16

s 56A .... 6.8 s60 .... 14.7 s62 .... 14.7

Strata Schemes Management Act 1996 .... 9.12, 9.16 s 8(2) .... 9.14

s 188(3)(b) .... 6.12

Real Property (Unit Titles) Act .... 9.16 Residential Tenancies Act .. .. 10.26 Wills Act 2000

s11 .... 9.14

s 189(1 )(b) .... 6.7

s 74H(1 )(a) .... 6.20

s18 .... 9.14

s 189(1)(c) .... 6.7, 12.28

s 97 .... 9.6

s 21(4) .... 9.14

s 189(1 )(d) .... 6.14

s 100 .... 9.4

s 54(3) .... 9 .1 4

s 189(2)(b) .... 6.7

s 100(1) .... 9.4

s 61(2) .... 9.14

s 189(3) .... 6.7

s105 .... 7.7

s 62(3) .... 9.14

SS

s 105A .... 7.8

s66 .... 9.14

s 198 .... 4.4, 4.5, 4.6

s 105B .... 7.8

s 67 .... 9.14

s 1058(2) .... 7.8

s 68(1)(a) .... 9.14

s 105C .... 7.8

s 68(1)(b) .... 9.14

s 7 .... 6.2 s 9 .... 6.2

s 105D .... 7.8

s 68(1)(c) .... 9.14

s 9(1) .... 10.12

s120 .... 6.21

s 83 .... 9.1 4

s 10 .... 13.30

s96 .... 9.14

s 11 (2) .. .. 10. 12

s 97 .... 9.14

s 28 .... 5.6

sll0 .... 9.1 4

s29 .... 5.6

s 117(1)(b) .... 9.15

s 35 .... 9.4

s 118(1) .... 9.15

s 36 .... 9.4

s 183 .... 9.1 6

s 56 .... 13.2

s 74H .... 7.8

SS

128-135 .... 6.21

Real Property Limitation Act 1833 (Imp) s 34 .... 4.8 Residential Tenancies Act 1987 .... 10.26 Retail Leases Act 1994 .... 10.27 Sale of Goods Act 1923 .... 7.9 St Thomas' Church of England, North Syd ney, Cemetery Act 1967 .... 4.10 Strata Schemes (Freeho ld Development) Act 1973 .... 9.11, 9.1 6

xxii

Succession Act 2006

s 38 .... 5.6 Trustee Act 1925 s9 .. .. 9.16

192-196 .... 6.21

Law of Property Act 2000 .... 10.21

s 130 .. .. 10.24 s 131 .... 10.24 s 156 .... 12.9 s 164 .... 12.18 s 171 .... 13.4, 13.13, 13.21

Northern Territory Business Tenancies Fair Dealings Act 2003 .... 10.27

s 172 .... 13.4, 13.21 s 177 .... 12.26

s 37 .... 5.6

Queensland Fauna Conservation Act 1974 .... 1.3 Land Title Act 1994 .... 6.1, 6.7, 14.3 s 15 .... 6.16 s 64 .... 10.13 s75 .... 14.3 s 75(2) .... 14.3 s82(1) .... 12.9 s 82(2) .... 12.9 s 97A .... 13.37 s 124 .... 6.20 s 180 .... 6.18 s 184(2)(a) .... 6.9 s 184(3)(b) .... 6.12 s 185(1 )(b) .... 6.7 s 185(1)(c) .... 6.7, 12.28 s 185(1 )(d) .... 4.10 s 185(1 )(e) .... 6.14 s 185(1 )(g) .... 6.13 s 185(2) .... 6.7 s 185(3) .... 6.7 SS

188-190 .... 6.21 xxiii

TABLE OF STATUTES

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

s213 .... 8.13

s 6 .... 4.7

Settled Estates Act 1880 .... 8.5

s 6 ... . 4.6

s215 .... 8.15

s 7 .... 4.7

Wil ls Act 1936

s 13 .... 4.4

s216 .. .. 8.7

s 8 .. .. 4.7

s31 .. .. 5.6

Limitation of Actions Act 1974

s 14 .... 4.7

s 237(1) .... 6.2

s 20 .... 4.5

s19 .... 4.7

s 239 .... 12.14

s25 .... 4.9

s 22 .... 4.5

SS

s 24 .... 4.4 s29 .... 4.9

241-249 ... . 6.2

Queensland Coast Islands Declaratory Act 1985 .... 11.3, 11.8

s 29(2)(b) .... 4.9

Real Property Act 1861 .... 6.2

s38 .... 4.9

Residential Tenancies Act 1994

Property Law Act 1974 .... 10.21

.... 10.26

s 45 .... 4.9 s 45(3) .... 4.9 Real Property Act 1858 .... 6.1, 6.2 Real Property Act 1886 .... 6.1 , 6.7, 10.21 s 69(a) .. .. 6.12

s 8 .. .. 6.2

Retail Shop Leases Act 1994 .... 10.27

s 69(c) ... . 6.13

s 10(1) ... . 6.2, 10.12

Succession Act 1981

s 69(d) .... 6.7, 12.28

s 11 .... 13.30 s12(2) .. .. 10.12 s22 .... 5.6

s33K .... 5.6

s 69(e) .... 6.14

Trust Act 1973

s 69(f) .... 4.10

Pt IV .. .. 8.5

s 69(i) .... 6.7

s28 .... 5.6 s29 ... . 5.6 SS

30-35 ... . 9.16

s 35 .... 9.4

s 69(g) .... 6.7

South Australia

s74 .... 9.4

Crown Su its Act 1769 (Imp) .... 4.6

s 86 .... 6.7, 12.9

Law of Property Act 1936 .... 6.2

ss 90A-90E .... 12.26

s 36 .... 9.4

s 8 .. .. 6.2

s 53 .... 13.4, 13.13, 13.21

s 15 .... 13 .16

s186 .... 6.9

s 55(1) .... 13.2

s22 .. .. 12.19

s187 .... 6.9

s 28(1) .... 6.2, 10.12

s 191 .... 6.20

s117 .... 10.24 s 118 ... . 10.24 SS

153-167 .. .. 2 .9

s29 .... 13 .30

SS

s 30 .. .. 6.2

s 220 .... 6.16

s155 .... 2.9

s30(2) .... 10.12

s178 ... . 12.19

s34 .. .. 13.2

s 180 .... 12.18

s36 .. .. 12.14

s 181 .... 12.26,13 .36

s 62 ... . 8.13

s 199 .... 13.16

s 95A .... 9.16

s 209(1) ... . 8.13 s 2 12 .... 8.13

xx iv

s 116 .... 10.13

Limitation of Actions Act 1936 s 4 .. .. 4.4

201-219 .... 6.21

Registration of Deeds Act 1935 .... 6.2 Residential Tenancies Act 1995 .... 10.26 Retail and Commercial Leases Act 1995 .... 10.27 Rights-of-Way Act 1881 .... 12.28

Tasmania

Conveyancing and Law of Property Act 1884 Pt XVA .. .. 12.26 s6 ... . 12.14 s 9A .... 13.35 s 10 .... 10.24 s 11 .... 10.24 s 34B .... 12.8 s 35(1) ... . 6.2

s 59 .... 6.2 s 60 .... 6.2, 13.30 s 60(1) .... 10.12 s 60(4) .... 10.12 s61 .... 5.6 s 61(c) .... 13.2 s 62 .... 9.1 6 s 65 .... 5.6 s 71A .... 13.4, 13.21 s83 .... 13.6 s 84 .. .. 12.18 s 84C .... 13..16 s 86 .... 13.13, 13.16 s 90A(1) ... .. 12.9 Land Titles Act 1980 .... 6.1, 6.7, 10.21 s 40 .... 6.12 s 40(3)(b) .... 6.1 4 s 40(3)(c) .... 6.7 s 40(3)(d) .... 6.7

xxv

TABLE OF STATUTES

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

Land Titles Act 1980-cont'd s 40(3)(e) .... 6.7, f'L.28

Perpetuities and Accumulation Act 1992

Perpetuities and Accumulations Act 1968

Retail Leases Act 2003 ... . 10.27 Settled Land Act 1958 .... 8.5

s 40(3)(f) .. .. 6.13

s 6(1) ... . 8.13

s 5(1) .... 8.13

Transfer of Land Act 1866 .... 14.5

s 40(3)(g) .... 6.7

s 10 .... 8.13

s 8 .... 8.13

Transfer of Land Act 1958 .... 6.1,

s 41 .. .. 6.12

s 11 (1) .... 8.13

s 9 .... 8.13

6.7, 6.1 8, 10.21

s 41 (1) .... 6.9

s 11 (2) .... 8.13

s 11 .... 8.15

s 30(2) .... 9.4

s12 .... 8.7

s37 .... 6.6

s 44 .... 9.4

s11(3) .... 8.13

s 46 .... 4.10

s 11 (4) ... . 8.13

s 64(1) .... 10.13

s 12 ... . 8.15

Pt 1 ... . 6.2

s 42(1)(a) .... 6. 14

s 76 ... . 6.8

s21 .... 8.7

s21 .... 9.16

s 42(1)(b) .... 6.13

Prescription Act 1934 .... 12.19

s28 .... 9.16

s 42(2) .... 6.7

Real Property Act 1862 ... . 6.2

s 44(1) .. .. 6.2

s 42(2)(c) .... 6.7

Registration of Deeds Act 1935

s 51 .... 6.2

s 42(2)(d) .... 6.7, 12.28

s 52(1) .... 6.2, 10.12

s 42(2)(e) .... 4.10, 6.7

s53 .... 13.30

s 42(2)(f) .... 6.7

s 102 .... 13.37 s 103(1) .... 13.35 s 106(2) .. .. 13.36 s 110(4)-(12) .... 12 .18 SS

127-128 .... 6.21

s 132 .... 6.20 s 139 .... 6.16 SS

150- 159 .... 6.21

Landlord and Tenant Act 1935 s26 .... 2.9

.... 6.2 Residential Tenancies Act 1997

s 10(1) .... 4.6 s 11 ... . 4.7 s 16 .... 4.7 s 16(4) .... 4.5 s21 .... 4.4 s26 .... 4.9 s 26(4) .... 4.9

s 27 .... 4.9 s28 .. .. 4.9 s32 .... 4.9 Neighbouring Land Act 1992 ... . 12 .18 xxvi

s 42 ... . 6.1 2

s 54 .... 6.2

s 43 ... . 6.1 2

Settled Land Act 1884 .... 8.5

s 54(2) .... 10.12

s 60 .. .. 4.10

Settled Land Act 1911 .. .. 8.5

s 56(1) .... 13.2

s 66(1) .. .. 10.13

s 60 .... 5.6

s 73 .. .. 12.26

.... 10.26

Wills Act 1992

s 62 .... 12.14

s75B .... 6.8

s78 .... 13.13

s 88(1) .... 13.37

Victoria

s 79(1) .... 13.4, 13.21

s 89 .. .. 6.20

Limitation of Actions Act 1958

s 79A .... 13.26

s 103 .... 6.16

s 7 .. .. 4.6

s 84 .... 13.36

SS

s 8 .... 4.4

s130 .... 5.6

s 9 .. .. 4.7

s134 ... . 13 .1 6

s14 .... 4.7

s 141 (1) .... 10.24

s 14(4) .... 4.5

s 153 .... 13.6

s 18 .... 4.4

s 154A .... 2.9

s23 .... 4.9

s195 .... 12.19

s 23(1 )(c) .. .. 4.9

s196 .... 12.19

s37 .... 5.6

Limitation Act 1974 s 10(2) .... 4.4

Property Law Act 1958

s 27 .... 4.9 Local Government Act 1989 s187A .... 12.9

Real Property Act 1862 ... . 6.2 Residential Tenancies Act 1997

108-111 .... 6.21

Transfer of Land.(Single Register) Act 1998 .... 6.2, 6.5 Wills Act 1997

s 42 .... 5.6 Western Australia Act6Wi ll IVNo41836 .... 12.19 Commerc ial Tenancy (Reta il Shops) Agreements Act 1985 .... 10.27

... . 10.26 xxvii

TABLE OF STATUTES

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

Imperial Acts Adopting Act 1844 .... 12.19 Land Administration Act 1997 s114 .... 2.9

s 49 ... . 13.26

Trustees Act 1 962

s 77 .... 10.24

Pt IV .... 8.5

s 101 .... 8.13 s102 .... 8.13

Limitation Act 2005

s 105 .... 8.13

s 3(6)(d) .... 4.5

s 109 .... 8.15

s 12 .... 4.6

s114 ... . 8.7

s 19 .... 4.4

s 121 .... 12.19

s35 .... 4.9 s36 .... 4.9

s 38 ... . 4.9 s42 .... 4.9 s 42(1) .... 4.9 s52 .... 4.9

s 65 .... 4.7 s 66 .... 4.7 s 67 .... 4.7

s 68 .... 4.7 Property Law Act 1969 s 11 .... 13 .2

.. .. 6.2 Residential Tenancies Act 1987 .... 10.26 Sale of Land Act 1970

s 22 .... 6.2 Stamp Duty Act 1921 .... 2 .6 Transfer of Land Act 1874 .... 6.2 Transfer of Land Act 1893 .... 6.1, 6.7,10.21 s 60 .... 9.4 s 68 .... 4.10 s 68(1) .... 6.7, 6.12, 6.13, 6.14

s 23 .... 5.6 s 27 .... 5.6

s 68(3)(c) .... 12.28

s 29 ... . 9.16

s91 .. .. 10.13

s 32 .... 6.2

s 129A .... 13.37 s 129C .... 12.26, 13.36

s 34 .... 13.30

s 134 .... 6.9, 6.12

s 35 .... 6.2

s 141 .... 6.20

s35(2) .... 10.12

s 188 .... 6.16

s37 .... 5.6

s 201 .... 6.21

s41 .... 12.14

SS

xxviii

International

Convention on the Elimination of All Forms of Racial Discrimination .... 11.8

s 56(1) .... 13.2 s 62 .... 12.14 s 78(1) .... 13 .13

s 79 .... 13 .4 s 79(1) .... 13.4 Law of Property Act 1 969

s 23 .... 6.2 Prescription Act 1832 .... 12.19

United Kingdom

Australia Act 1986 .... 5.3 Australian Courts Act 1828 (9 Geo 1v, c 83) .... 1.1 Contracts (Right ofThird Parties) Act 1999 s 1 .... 13.2 Conveyance Act 1881 s6 .... 12.14 Judicature Act 1873 .... 7.9, 7.10 s 25(6) .... 7.10

Public Health Act 1875 .... 13.4 Rentcharges Act 1977 .... 12.30 Settled Land Act 1882 .... 8.5 Statute of Anne 1705 .... 9.10, 9.16 Statute of Frauds 1677 .... 10.11 s9 .... 7.13 Statute of Quia Emptores 1290 .... 5.2 Statute of Uses 1535 .... 8.6 Statute of Wills 1540 .... 5.2, 8.6 Tenures Abolition Act 1660 .... 5.2

s69 .... 6.7

s 33(1) .... 6.2, 10.12

s 48 .... 13.4, 13.21

s 26(e) .... 5.6

Registration of Deeds Act 1856

s20 .... 13.16

s 47 .... 13.13

Wills Act 1970

Law of Property Act 1925 .... 9.5

205-211 .... 6.21

Transfer of Land Act 1969 s129BA ... . 12.9

xx ix

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

CHAPTER 1 • THE CONCEPT OF PROPERTY

OVERVIEW

of property governs those relationships in both an inclusive and, in

1.1

particular, an exclusive manner. Persons can have a relationship to goods, land, rights attached to land, contracts and rights under trusts as beneficiaries. While ownership of property can often mean the ability for

This chapter is an overview of the concepts of property in Australian jurisdictions. The concept of 'property' includes: • the reception of property law historically; • definition of land; • chattels (personal possessions); • real property (realty); and • other interpretations of property. In Australia, the reception of English law into 'terra nullius', that is, a land belonging to no one, resulted in the adoption by the colonies of what we now recognise and refer to as the 'common law'. The question then was: what laws applied to the colony, and in particular which statutes? One view, held by the then Attorney-General of New South Wales, was that any statute passed in England after settlement

one's property without interference from others, or the right to assign or alienate an interest in land to whomever one chooses: Milirrpum v Nabalco (1971) 17 FLR 141 at 171. In essence it means the right to have dominion or control over property, to the exclusion of others. The basis of property rights therefore may include elements such as the right to possess, to manage the property, to use any capital or income and to have the ability and authority to alienate the property and to exclude all others. A hallmark of ownership of property is the right to exclude all others.

did not apply unless expressly stated to apply. The other view, held

Definition of 'land'

by the colony's first Chief Justice, was that the relevant date was when

Land can be defined as any area of three-dimensional space. It is not

the first legislature in New South Wales was established in 1823. This still did not solve the issue of exactly which statutes and laws were to

confined to the earth's surface area and may extend either above or below. Cuius est so/um eius est usque ad coelum et ad inferos is the Latin

be applied in New South Wales. The binding force of English law was continued until the cut-off date recognised by the British Parliament

maxim that governs the rights of the landowner. It means the person who owns the land (the landowner) owns it from the heavens above to the

in 1928 with the passing of the Australian Courts Act 1828 (9 Geo 1V, c 83). The effect of this statute .was that laws and statutes in force in

centre of the earth below. This common law interpretation of the rights of a landowner has been modified by statute. A literal application of the

Britain were to be applied to the courts in New South Wales. The issue of which laws and statutes were to apply was not resolved until 1971,

maxim obviously leads to such questions as to whether there are any limits then on height, depth and width and so forth. This would mean

following the enactment of the Imperial Acts Application Act 1969 (NSW), which resulted in the categorisation of laws into three separate

that any object flying above a person's property would be likely to have trespassed on the owner's land. Various statutes, however, have been

categories. The first category included statutes that the 1969 Act stated had been in force in 1829 and remained that way until 1969. These were then repealed. The second included particular British Acts which

aircraft fly overhead or building construction equipment potentially effects a trespass. Legislation enacted in all states and territories

the 1969 Act stated had been in force in 1828 and had remained so until the 1969 Act; and the third category included all other British Acts in force in 1828 and which were repealed in relation to any application

2

persons to exercise rights over either land or chattels, it may also mean some type of gradation of those rights. It can mean the right to enjoy

1.2

enacted to exclude this possibility in various situations such as when

remedies the potential absurdity of a strict application of the common law doctrine. In Bernstein of Leigh v Skyviews & General Ltd [1978] 1 QB 479, the plaintiff took action against Skyviews for taking aerial

to New South Wales following the 1969 Act.

photographs of his property, claiming the defendants had trespassed

It is probably more advantageous to consider property law as the relationship a person has to resources, objects or possessions. The law

on his land. While they admitted taking the photographs they said they had done so while flying over a neighbour's property. Griffith J stated 3

CHAPTER 1 • THE CONCEPT OF PROPERTY

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

that there was not an unrestricted right to claim property to unlimited airspace. Tn case established that a landowner's right over land incorporates only the height necessary for ordinary use and enjoyment of the land. Ownership of land also includes rights to access various minerals found below the surface. The question is whether any minerals found on land then belongs to the owner. Common law allows for ownership to include the minerals found in soil: Ball v Gutschenritter [1925] SCR 68 at 71. The Crown, on the other hand, owns all 'royal' minerals such as gold and silver. Of course the Crown can allow express conveyances of these minerals when it chooses and reserves the rights of the Crown to any minerals found on the land itself.

Scope of property relationships and its relational nature 1.3

Samantha

Hepburn

(Australian

Property Law: Cases Materials

and Analysis, 2nd ed, LexisNexis Butterworths, 2011, Ch 1, p 9) acknowledges that the legal definition of land is relational, meaning that a single object of possession may have different types of property relationships attached. The scope of property relationships and the relational character of property are clearly stated in the following

which was said to have some totemic significance related to their spiritual beliefs. The appellant was found not guilty and after the informant's application to review the decision in the Court of Appeal, the order was set aside and the matter remitted to the Magistrate's Court. The appellant by special leave appealed to the High Court. ISSUE: The issue was whether or not the Native Trtle Act 1993 (Cth) preserved the appellant's right to enjoy his native title rights and interests. It followed then that the Fauna Conservation Act, in prohibiting the taking of crocodiles in exercise of those rights and interests, was invalidated bys 109 of the Constitution. DECISION: Gleeson CJ, Gaudron, Kirby and Hayne JJ held (at 264): The word property is often used to refer to something that belongs to another. But in the Fauna Act, as elsewhere in the law, 'property' does not refer to a thing. It is a description of a legal relationship with a thing ... Usually it is treated as a 'bundle of rights'.

In short, property does not always mean full ownership of a thing but rather the degree of power exercised over a resource or land.

judgment, Yanner v Eaton (1999) 166 ALR 258.

THE PHILOSOPHICAL UNDERPINNINGS

(@ »

CASE SUMMARY

,

A useful way to consider and understand land law and the relationship individuals can have to land is to appreciate the

1.4

philosophical basis of property, including the following approaches: VANNER v EATON (1999) 166 ALR 258

HIGH COURT OF AUSTRALIA FACTS: The appellant, a member of the Gunnamulla tribe, was charged before a magistrate under the Fauna Conservation Act 1974 (Qld) for using a traditional harpoon to catch two juvenile crocodiles in Queensland without a permit. It was found (at 260) the appellant's clan had a connection with the land that existed 'before the common law and ... thereafter continued'. As such, it

was the custom for that clan to hunt juvenile crocodiles for food,

4

• The labour theory of property: discussed by Johrr Locke, it states that individuals are entitled to own what they produce by their own work, and whatever they work on. This theory is

based on natural law principles that we should not waste our resources, such as land, and we should leave enough for others to enjoy as well. • The utilitarian approach to property:

allows for the

proposition that all individuals are allowed to maximise their own happiness which, in a just society, will be organised in such a way as to achieve the greatest happiness for the 5

LEXISNEXIS STUDY GUIDE • PROPERll' LAW

CHAPTER 1 • THE CONCEPT OF PROPERll'

greatest number of people. This notion can be linked to the

PROPERTY AND INDIGENOUS RIGHTS

propon nt of utilitarianism, Jeremy Bentham.

The theories and concepts so far mentioned all have something in common: they are theories developed through an historical prism

• The economic aspects of private property: focuses on the

promotion of efficiency and wealth maximisation . This economic theory has three necessary components: i. owners of property must have exclusive rights of ownership, protected by law; ii. those rights must be legally transferable; and iii . all things should be privately owned. • Legal positivism: this well-recognised approach focuses on what is, not what ought to be. Positivism maintains that private property is not a naturally occurring right, but one which has been conferred, or given, by an authority such as the government.

1.6

of Anglo-Saxon history and development. An Australian indigenous viewpoint of property and ownership historically was not reflected in English law. In Milirrpum v Nabalco (see 1.1 ) Blackburn J held (at 272) it made 'little sense to say that the clan has the right to use or enjoy the land' except to the extent they could perform their rituals on it. In this case there was no right to alienate the land, nor to exclude other clans from using it. To that extent it could not be said that these few rights amounted to identifiable property rights. Of course this position is no longer in existence since Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo (No 2)), where the majority of the High Court held native title recognisable by the common law.

PROPERTY AND WOMEN

1.5

Some theorists view concepts of property using a feminist analysis and

Also it was held by Mason J in Re Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 342-3 in relation to the right to alienate

posit that women have been viewed through a patriarchal approach

land that assignability is not always an essential feature of a property

to property over centuries. This kind of analysis focuses on the gender-blind theories of John Locke, whose labour theories ignore the

right. For example, some forms of property are not by virtue of statute alienable. Native title is not alienable, although it can be passed from one generation to another according to customary rules, and can

traditional ways in which women have laboured. Women's labour has been traditionally more invisible than men's labour. Another viewpoint analyses how doctrinal laws of property contribute to a gender-based inequality that works inconsistently against women. In other words, the law does not treat women and men equally. Australian leading academic and feminist writer Marcia Neave ('Women, Divorce and Redistributing the Cost of Children' in A Edwards and S Magarey (eds), Women in a Restructuring Australia: Work and Welfare, Allen & Unwin, Sydney, 1995, pp 223-43), says that traditional property rules operate in the domestic sphere to unfairly compensate women for their domestic labour contributions. Thus, the ru Jes of constructive trust are applied against women. Then there is the functional approach to

be transferred to the Crown but not to others. Sti II, it is considered property.

THE DISTINCTION BETWEEN PROPERTY RIGHTS AND CONTRACTUAL RIGHTS With property rights there is an enforceable right against everyone,

1.7

while with contractual rights the right is against the other contracting party. Of course there can be an overlap where property rights arise from a contractual right. For instance, ownership of a contractual right may be enforceable in rem. For example, if A decides to sell her boat to B for $20,000 and B agrees, but A then changes her mind, B's right is to sue for damages. However, if B then obtains

a feminist theory that focuses on the outcomes of property regimes, so that the visible outcome is that women own less property and,

an order for specific performance to complete the contract then B

therefore, there exists a 'feminisation of poverty'. These are all differing

will be said to have a proprietary right over the boat. There can,

feminist viewpoints to the concepts of property and ownership of

however, be an overlap between the two, so that a contractual

property and are by no means the only feminist analyses available. 6

7

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

right may be capable of forming a subject matter of property. Those rights may pertain to shares and insurance policies. Nonetheless, in the case of leases, which are a hybrid of contract and property law, there is a different issue; a contractual right (in personam) is enforceable against the parties to a lease, and a property right (in rem) is enforceable against all.

LEASES OR LICENCES 1.8

A licence is a right that is held to be insufficiently substantial to confer a power over a thing. So even if there is a contractual obligation created by the licence it does not give rise to a proprietary interest. The decision in Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 shows the court's approach to the distinction between a licensee and a lease, and highlights the fundamental differences between property and contractual relationships. "' ;Jt CASE SUMMARY , -

-~~~

COWELL v ROSEHILL RACECOURSE CO LTD (1937) 56 CLR 605 HIGH COURT OF AUSTRALIA

FACTS: Cowell sued Rosehill Racecourse in damages for assault. The defendants said that Cowell trespassed on the defendant's land when they were holding a race meeting, and refused to leave when asked to do so. The plaintiff claimed he had paid the defendants four shillings, and that he had been promised he could stay at the racecourse and view the races. Further, the defendants promised not to revoke the licence, which they did by their actions. The Supreme Court of New South Wales upheld the demurrer to the pleading and the plaintiff appealed. ISSUE: Should the court follow the decision in Hurst v Picture Theatres Ltd [1915] 1 KB 1, where it was held that the doctrine of Wood v Leadbitter (1845) 13 M & W 939 was no longer good law? Further, did the availability of remedies, such as injunction and specific performance, assist in determining whether a licensee has some rights over land?

8

CHAPTER 1 • THE CONCEPT OF PROPERTY

DECISION: It was held (at 615): The doctrine of Wood v Leadbitter is clear and coherent. If a man creates a proprietary right in another and gives him a licence to go upon certain land in order that he may use or enjoy that right, the granter cannot divest the grantee of his proprietary right and revest it in the granter, or simply determine it, by breaking the agreement under which the licence was given. The grantee owns the property to which the licence is incident, and this ownership with its incidental licence, is unaffected by what purports to be a revocation of the licence. The revocation of licence is ineffectual.

The High Court continued by stating that the decision in Hurst's Case modified, but did not reject, Wood v Leadbitter by holding that the right to see an event (or spectacle) was an interest that, when given for value, was a licence coupled with an interest (at 615). Further, the High Court held (at 616) that the Hurst decision 'ignores the distinction between a proprietary right and a contractual right'. Latham CJ went on to add (at 622): [A] more realistic approach .. . is provided by Wood v Leadbitter ... that no grant of proprietary right ... has been made to the plaintiff. He has simply obtained a contractual right which is enforceable in personam by an action for damages.

So the law is that a right to see an event is not a proprietary interest. We need then to make a distinction between this situation and those where a proprietary interest in land has been created where persons can contract to enjoy possession of land subject to conditions, and the owner of that land still retains rights over it. A contract allowing admission to an event confers no equitable title on the holder, entitling them to deny a subsequent revocation of the admission right. A lease is, therefore, a proprietary right in property, while a licence transfers no such right. Property rights are in rem while contractual rights are in personam. Property confers different rights to contract. To distinguish between a lease and a licence, note that a licence will only grant permission to enter, while a lease will grant the right to exclude all others, including the owner. 9

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

CHAPTER 1 • THE CONCEPT OF PROPERTY

THIRD PARTIES AND PROPRIETARY INTERESTS 1.9

Only proprietary rights are enforceable against third parties, as a licence

It is important to note then that only proprietary rights are enforceable against third parties. A licence revocable against a licensor may attract

per se does not create enough rights over land to constitute a proprietary

the remedies of injunction and specific performance, but will not be

right. To determine if something is a proprietary right, it may be helpful to

enforceable against third parties.

look at King v David Allen & Sons, Bil/posting Ltd [1916] 2 AC 54.

OWNERSHIP OF EVENTS AND SPECTACLES Can it be said that a person can have a property relationship over a KING v DAVID ALLEN & SONS, BILLPOSTING LTD [1916] 2 AC 54 HOUSE OF LORDS FACTS: The appellant (the licensor), who held the fee simple estate on premises, by agreement with the respondents (the licensees), permitted the latter to put up posters and bills on their premises. The agreement was for a period of four years with a six-month termination notice by either party. The agreement also included that the respondents would pay a sum annually, and as long as the licence was in force no other person could put up any posters or bills.

The appellant then agreed with the trustee of a company about to be formed to grant that company a lease for 40 years and to assign his interest in the agreement that he had made with the respondent. It was agreed that when the company was registered and the lease executed, it would include the agreement between the respondent and the appellant. This did not occur so the benefit was not assigned to the company. The respondents were forcibly prevented from posting their bills. The appellant did everything in his power to have the agreement honoured but was unsuccessful. The respondents then commenced action against the appellant, claiming damages. The appellant tried to bring in the company as a third party but was refused.

10

1.10

view? The Australian position on whether a spectacle, view or event can be owned is discussed in Victoria Park Racing and Recreation

Grounds Co Ltd v Taylor (1937) 58 CLR 479 where it is clear that it is not feasible to determine the ownership of a view.

fM

>

CASE SUMMARY .

--

~-~-~

VICTORIA PARK RACING AND RECREATION GROUNDS CO LTD v TAYLOR (1937) 58 CLR 479 HIGH COURT OF AUSTRALIA FACTS: The plaintiffs conducted races in Victoria Park. The defendant owned a house near the racecourse and built a platform on his land so he could see the races and the noticeboards on which were written the scratchings and winners. He then rang through this information to the radio station 2UW who then broadcast it to the public. The plaintiffs brought an action in nuisance for unlawful interference with the use and enjoyment of the racecourse. ISSUE: Did the plaintiff own the spectacle they created on their land?

ISSUE: Does a licence confer a sufficient interest over land to constitute a proprietary interest? Is a licence irrevocable against a licensor to attract remedies of specific performance and injunction?

DECISION: The High Court held the defendant could look over the plaintiff's land to see what went on, and there was no wrongdoing on his part when he told others what he could see. Nuisance could not be founded, as Dixon J held (at 507):

DECISION: Per Lord Buckmaster LC: the contract between the appellant and the respondent only gave rise to a personal obligation. Earl Loreborn stated: '[B]ut we must look to the document itself, and it seems to me that it does not create any interest in land at all ... '

... [as] the essence of the wrong is the detraction from the occupier's enjoyment of the natural rights belonging to ... the occupation of land ... The existence or the use of a microphone upon neighbouring land is, of course, no nuisance. ""

11

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

Further, he said (at 510): . . . [t]he right to exclude the defendants from broadcasting a description of the occurrences they can see upon the plaintiff's land is not given by law. It is not an interest falling within any category which is protected by law.

CONCLUSION

1.11

It seems the concept of property is very much tied to the relationship of property and the ownership of it. Ownership implies rights of use, rights of possession and rights of transfer. It is possession that includes the ability to enforce those rights legally against the world at large. Just what rights of property can be enforced and upheld by the courts will be determined by examination of the common law cases. The importance of the identification of these rights often lies in the remedies available to rectify or compensate the interference with those rights. By adopting a relational approach to property interests, we allow a more sophisticated and useful view of the exact nature of the property and the rights that are or may be attached to that property. The rights of exclusion found in 'in rem ' relationships are distinguished from those 'in personam'. Proprietary rights are complicated and can be categorised or explained as a 'bu ndle of rights' (see J Penner, 111 The Bundle of Rights" Picture of Property' (1966) 43 UCLA Law Review 711 at 712) which in turn facilitate a grasp on the conceptual foundations of property law.

12

13

CHAPTER 2 • THE DOCTRINE OF FIXTURES

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

OVERVIEW 2.1

the question, when does a chattel become a fixture? What seems to be clear from current law is that the focus has shifted to the

Fixtures, Ian and chattels are classified with respect to their individual characteristics. The importance of the classification is by reference to the nature of the object and the rights held over that object. Fixtures,

objective, or purpose, of the attachment, rather than the degree of annexation: Palumberi v Palumberi (1986) NSW ConvR , 55-287;

land and chattels can all be classed as a category of property, such as real or realty, and personal or personalty. Rights over land, or real

LGERA 345.

Vicgrain Assets Pty Ltd v Yarriambiack Shire Council (1999) 102

property, may include anything that is fixed to that land. It may also

This chapter will examine the law relating to goods that have

include particular rights to airspace above the land. Realty can be further subdivided into two categories: corporeal or hereditaments, which are rights to land; and incorporeal, which refers to rights over land.

become fixed to the land so as to lose their separate classification from

A definition of land would include the land itself, the airspace above, and any item or thing that is fixed to it. Depending on the various rules that relate to fixtures, chattels that have become a part of the land are said to belong to it (quicquid plantatur solo, solo cedit). Disputes about whether a chattel has become a fixture may arise between landlord and tenant; mortgagees and owners of chattels; a devisee and a deceased's personal representative; and life tenants of land and people with an interest in the remainder.

Diagram 2.1: Chattels affixed to the land become part of the land

the land.

FIXTURES AND CHATTELS AND ANNEXATION The common law has taken the view focused on the degree of annexation of the chattel to the land, so that if it is firmly annexed

2.2

it is a fixture, but if not it is a chattel. It appears that the stronger the annexation, the more likely it will be held to be a fixture.

Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 at 712-13 decided that rows of seats bolted to the floor and fastened together in a theatre were not fixtures but chattels, because, as the court said: 'A fixture is a thing once a chattel which has become in law land through having been fixed to land'. Further, it was held that the extent of annexation is not the decisive test, and the degree of

Is a caravan a fixture?

Is a wooden building which rests on concrete pillars a fixture?

annexation must be considered by examining the intention. Jordan CJ pointed out that the test of whether or not a chattel, which has been to some extent fixed to the land, is a fixture, is actually based on an

Is a water tank a fixture?

intention that the chattel become permanent or fixed, which may be contrasted with the intention that it stays in position Q/lly for some temporary purpose. Contrast this decision with Vaudeville Electric Cinema Ltd v Muriset (1923] 2 Ch 74, where the premises were used

There are many factors that must be taken into account when deciding whether something is a chattel or a fixture. It is not always such a clear-cut decision and may arguably be a somewhat artificial test. The complexities that can occur in certain situations, such as with large equipment used in long-term mining enterprises, may beg

14

exclusively for a cinema and the chairs were bolted in place. Here it was held that the chairs were fixtures because they were bolted in place to provide a permanent benefit. A clear analysis of the doctrine of fixtures is found in Belgrave Nominees Pty Ltd v Bar/in-Scott Airconditioning (Aust) Pty Ltd (1984] VR 947.

15

CHAPTER 2 • THE DOCTRINE OF FIXTURES

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

"

fill;» CASE SUMMARY

~

---~---

BELGRAVE NOMINEES PTV LTD v BARLIN-SCOTT AIRCONDITIONING (AUST) PTV LTD [1984] VA 947 SUPREME COURT OF VICTORIA FACTS: The plaintiffs owned a building and contracted with a builder to renovate some adjoining buildings. The builder then

subcontracted with the defendant for the supply and installation of air conditioning units, two of which were installed on the roofs of the plaintiff's buildings. A platform was built on each roof to hold a chiller that stood on its own weight on the platforms. Each platform had pads to act as shock absorbers between the base of the chiller legs and the platforms. In turn each chiller was connected to a reticulated water system, and electrical lines which were part of the structure of the building were connected to the electrical junction box fitted to the chiller. The electrical power was not connected. When the builder failed to make progress payments and went into liquidation the plaintiffs entered a contract with another builder to complete the work. The defendant agreed with the builder to complete the installation of the system. The defendant resumed installation of the air conditioner but later removed the air conditioning plants which incorporated the chillers and compressors. The plaintiffs sought a mandatory injunction to compel the defendant to deliver up two air conditioning units or damages in detention, trespass and conversion.

The importance of determining whether an item is a fixture or a chattel lies in the fact that, dependent upon differing circumstances, a chattel annexed to land may change its nature from personal to real property. This question is one of law. The current situation is that to determine whether an item is a fixture we look to the intention with which the item was affixed. In situations where it is unclear whether the item was affixed to further the use and enjoyment of the land or to further enjoy the use of the thing affixed, it is more helpful to focus on the dominant intention. It is important to examine all the surrounding circumstances to determine if an item will be a chattel or not. In May v Ceedive Pty

Ltd (2006) 13 BPR 24, 147 (see below), Santow JA makes clear the importance of looking at the surrounding circumstances and not just the degree of annexation. And in Anthony v Commonwealth (19 73) 47 ALJR 83 at 89, Walsh J held: .. . the question is not one of ascertaining the actual intention, but one of determining from the circumstances of the case, and in particular from the degree of annexation and the object of annexation, what is the intention that ought to be presumed.

This 'object of annexation' test was not the approach to the chattel/ fixture dilemma until the nineteenth century. The object of annexation is intrinsically related to the objective intention of the parties.

ISSUE: Were the air conditioning units at the time of removal a

fixture? DECISION: While the defendant contended insufficient annexation of the chillers to be labelled fixtures, he failed to discharge that onus. To discharge that onus he should have been able to show from the surrounding circumstances that his intention was to leave the articles as a chattel. This intention must be determined objectively and the defendant failed to discharge this onus. The court held the correct inference to be drawn was that the air conditioning units were intended to be permanently

fixed to each building and were therefore fixtures.

16

MAY v CEEDIVE PTV LTD (2006) 13 BPR 24,147 NEW SOUTH WALES COURT OF APPEAL FACTS: This case concerned the sale of land under a contract for sale whereby the house was sold and bought, but the land on which it stood was leased.

In this case the appellant lived on land owned by the respondent. When the appellant commenced residence there he and the respondent's predecessor in title signed a contract that specifically stated that the subject matter of the contract was ~

17

CHAPTER 2 • THE DOCTRINE OF FIXTURES

LEXISNEXIS STUDY GUIDE• PROPERTY LAW

the house, not the land on which the house stood. The contract also d5'ntained a section stating that the appellant could lease the land in return for rent. In effect this meant the house could be sold but not the land on which it stood. So the respondent sought to evict the tenant because of rent arrears. The question became, was the tenant protected by the security of the Landlord and Tenant (Amendment) Act 1984 (NSW) so that his house was a 'prescribed' premise under the Act? ISSUE: What is the position at law of the situation where an object has become affixed to land and a part of that land? DECISION: The fact that the appellant thought he was buying a house and the opinion of the real estate agent that he was selling one would not prevail over law. This indicates that if the house is a fixture it will be leased with the land. The test to determine if something has become affixed to the land is the objective intention of the person who brings an object onto land and affixes it. If an object rests on land or is affixed to the land, it is presumed to be a fixture. The burden of proof will lie on those asserting that the object resting on land is not a fixture. Santow JA went on to say that the removal of the house was not the same as putting a portable house on the back of a truck and taking it somewhere else, and that to remove it would mean a significant deterioration for the house. He further stated that while in Australia the law recognises the importance of the affixer's objective intention, it allows the possibility that the affixer's intention may have limited bearing. In this case the appellant's intention was not relevant to the issue of whether the house was a chattel or fixture because the house had been put on the land some 50 years prior to the appellant's purchase. The house as at law would be the property of the original owner of the land. The house was not built there to be a temporary dwelling and to be severable, therefore it was a fixture.

In Holland v Hodgson (1872) LR7CP 328, Blackburn J stated (at 335): Perhaps the true rule is, that articles not otherwise attached to the land by their own weight are not to be considered part of the land, unless the circumstances are such to show that they were 18

intended to be part of the land, the onus of showing that they were so intended lying on those who assert they have ceased to be chattels. And that, on the contrary, an article which is affixed to the land even slightly is to be considered part of the land, unless the circumstances are such to show that it was intended all along to continue as a chattel, the onus lying on those who contend it is a chattel.

CHATTELS Chattels are movable personal properties, such as clothes, furniture

2.3

and appliances, as opposed to permanent fixtures, like homes and buildings. Specifically, they refer to items that you can either include in the sale of your home or take with you when you move. In some cases, a chattel that has become a fixture can be removed by a third party who holds title to the chattel. However, the issue can arise as to whether an item is a chattel at law or a fixture at law (for example, see Leigh v Taylor [1902] AC 157, and compare this with the decision in Re Whaley [1908] 1 Ch 615); for example, where a chattel is hired under a hire-purchase agreement and the hirer, who has possessory title, affixes the chattel to land, the item is usually seen as a fixture. The possible injustice of this situation occurs when the hirer wants to reclaim the goods, but those goods are now seen as fixtures. There will be an equitable right to reclaim the property: see Kay's Leasing Corp Pty Ltd v CSR Provident Fund Nominees Pty Ltd [1962] VR 429.

Thus, what needs to be discovered is the intention of the affixer, the object of the annexation, and the purpose of annexation. It appears that one of the main issues is whether removal of an item will cause damage to the land or property on which the item stands or is affixed. If removal is a simple process it may be argued that the item is a chattel. If removal is difficult without causing damage then an interpretation that the item is a fixture may be more appropriate. Although the degree of annexation is not necessarily determinative, it may be persuasive to a great extent. In Palumberi v Palumberi [1986] ANZ ConvR 593, Kearny J made it clear that the degree of annexation is treated as the starting point, after which the surrounding circumstances of the attachment are examined by reference to intention . 19

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

NATURE OF THE CHATTEL

2.4

The nature

(M

:»

CASE SUMMARY

.

the chattel is another factor in determining whether

the item is to be classified as a chattel or a fixture. The cases of Leigh v Taylor [1902] AC 157 and Re Whaley [1908] 1 Ch 615 show the difference between a fixture attached to land to enhance the land, and a fixture attached to land in order to enhance a building (in both cases the fixture was a tapestry). In the former case the affixer was a tenant, while in the latter the affixer was owner in fee simple. In Leigh v Taylor, Lord Halsbsury LC said (at 159-61 ): Here we have objects (tapestries) of ornamentation of very great value. Undoubtedly their only function in life ... is the decoration of a room . Suppose the person had intended to remove them next month or next year or what not, I do not know, notwithstanding the ingenious effort that has been made ... in what other way could they have been fastened than they were ... It never was intended to remain part of the house; the contrary is evident from the very nature of the attachment, the extent and degree of which was as slight as the nature of the thing would admit of.

Contrast this comment with those of Neville J in Re Whaley, where the tapestry was clearly intended to become a part of the house because it was part of an Elizabethan theme throughout the house, so it could be said that it was a fixture (at 619-20): I think it is clear here that the decoration originally was intended to give the whole room an appearance of an Elizabethan room, that the whole decoration was in unison, and objects inserted primarily for the purpose of creating a beautiful room as a whole, and not intended for the mere display and enjoyment of the chattels themselves.

THE STRENGTH OF ANNEXATION

2.5

CHAPTER 2 •THE DOCTRINE OF FIXTURES

As already mentioned, the stronger the annexation, the more likely an object will be held to be a fixture. Lord Lloyd in Elitestone Ltd v Morris [1997] 1 WLR 687 used a threefold classification to determine this issue.

ELITESTONE LTD [1997] 1 WLR 687 HOUSE OF LORDS

v MORRIS

FACTS: This case concerned a group of bungalows resting on concrete pillars attached to the ground. The Court of Appeal held the buildings were chattels based on the finding that there was a common intention between the landowners and occupants that the occupants retained possession while the landowners retained the freehold. ISSUE: Did the bungalows become part of the land or were they chattels? DECISION: The House of Lords held the buildings were fixtures. his Honour made the comment that he was trying to avoid using the term 'fixtures' as it held a different meaning in law to that of everyday use. The question he went on further to ask was, when the bungalow was built, did it become part of the land? The answer depends on the circumstances of each case, but mainly on two factors: the degree of annexation and the purpose of annexation. In relation to the degree of annexation, he held it depends on the object and as such can vary, but houses are usually not fixtures but rather a part of the land. As to the purpose of annexation, His Honour said (at 692-3): Many different tests have been suggested, such as whether the object which has been fixed to the property has been so fixed for the better enjoyment of the object as a chattel, or whether it has been fixed with a view to effecting a permanent improvement of the freehold. This and similar tests are useful when one is coni>idering an object such as a tapestry, which may or may not be fixed to a house so as to become part of the freehold: see Leigh v Taylor [1902] AC 157. These tests are less useful when one is considering the house itself. In the case of the house the answer is as much a matter of common sense as precise analysis. A house which is constructed in such a way so as to be removable, whether as a unit, or in sections, may well remain a chattel, even though it is connected temporarily to mains services such as water and electricity. But a house which is constructed in such a way that it cannot be removed at all, save by destruction, cannot have been intended to remain as a chattel.

20

21

CHAPTER 2 • THE DOCTRINE OF FIXTURES

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

In this case a formal approach to interpretation was taken focusing on the degr

and object of annexation, with one aspect being whether

the removal of the object would cause a degree of damage. So it appears the starting point may well be the degree of annexation and then the circumstances and intention of the parties.

INTENTION OF AFFIXATION

2.6

The intention of the affixer of the object is important to consider. In

Pegasus Cold Australia v Mesta Minerals (Australia) Ltd [2003] NTCA 3, the court considered whether equipment used to repair mineral processing materials were fixtures or chattels. It was held that where there is a common intention between the parties, subjective intention

fixed except by its own weight. Upon sale of the business the appellant agreed to purchase the dairy business's land, factory premises and plant equipment. ISSUE: The question was whether various items of equipment and plant were 'goods, wares and merchandise' that were exempt from stamp duty and whether any or all of these items were fixtures. When does a chattel become a fixture? DECISION: Whether a chattel has become a fixture and therefore part of the land to which it is affixed is a question offact to be determined in light of the relevant circumstances which include the purpose of the annexation and the mode or degree of annexation: Lee v Taylor [1902] AC 157. Malcolm CJ, referring to Blackburn Jin Holland v Hodgson [1872] LR 7 CP 328, stated:

becomes important. If such intention is not apparent, or there is not

... [it] is a question which must depend on the circumstances of each case, and mainly on two circumstances, as indicating the

enough information available to determine it, then the court has to

intention, viz, the degree of annexation and the object of the annexation. When the article in question is no further attached to

apply an objective intention. This includes examining whether the chattel can be removed without damage, and any possible economic

the land than by its own weight it is generally considered a mere chattel. But even in such a case, if the intention is apparent to make the articles part of the land, they do become part of the land ... On the other hand, an article may be very firmly fixed to the land and yet the circumstances may be such as to show that it was never intended to be part of the land ...

consequences that would follow. The subjective intention, however, is not enough to determine whether a chattel has become a fixture. It is also necessary to determine the objective intention.

lW :a

CASE SUMMARY

NATIONAL DAIRIES WA LTD v COMMISSIONER OF STATE REVENUE (2001) WASCA 112 SUPREME COURT OF WESTERN AUSTRALIA FACTS: The case involved a payment of stamp duty on a transfer of dairy processing equipment in a factory. Section 33 of the relevant legislation, the Stamp Act 1921 (WA), meantthat if equipment was found to be a fixture, stamp duty was payable on the equipment value. The equipment included vats, tanks, boilers, cooling towers, hot water softeners and machines making glass bottles and containers. Apart from the water cooling towers which were attached to water pipes and the pumps which were on frames outside the building, all the equipment was not

22

Although, in Palumberi v Palumberi (1986) NSW ConvR ~ 55-287, Kearney

J

held, 'It is now further recognised that although both these

factors are relevant, neither is conclusive'. It appears then that it is not just a matter of subjective intention but also a matter of viewing the intention objectively taking into account all the surrounding circumstances. In Pegasus Cold Australia Ltd v Metso Minerals (Australia ) Ltd, the Northern Territory Court of Appeal, per Martin

CJ,

Mildren and

Thomas JJ, held on allowing the appeal that the relevant equipment had been annexed to the land in such a way as to give rise to a presumption that it had become a fixture and therefore the burden of proving otherwise lay on the appellant. 23

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

(f!il lit

CASE SUMMARY

PEGASUS GOLD AUSTRALIA LTD v METSO MINERALS (AUSTRALIA) LTD 2003 NTCA3 NORTHERN TERRITORY COURT OF APPEAL FACTS: The respondent manufactured and supplied spare parts used in the repair and maintenance of mineral processing

equipment located on the appellant's mineral lease. The leased equipment was very heavy with some items weighing over 123 tonnes, affixed on frames which in turn were also attached to larger structures. After billing the appellant for an amount totalling $264,042.36, the amount remained unpaid. The respondent then lodged a notice with the Registrar-General of the Northern Territory against the appellant's estate and interest in the mineral lease to reclaim the unpaid money. At first instance the trial judge held that the spare parts had become fixtures, albeit removable fixtures, of the land. This allowed the respondent a lien over the mineral lease interest. The trial judge also found that all the equipment items were intended to form a part of the mine and were installed and used for those purposes. ISSUE: Was the equipment annexed to the land in such a way as to give rise to a presumption that the equipment had become a fixture and that the burden therefore lay on the appellant to prove otherwise? DECISION: Mildren J, with whom Martin CJ and Thomas J concurred, held that the equipment was indeed annexed in such a way as to give rise to the presumption that the equipment had become a fixture. Further, his Honour said that while it was sometimes appropriate to take into account a party's subjective intention in fixing a chattel to a property, the relevant test is to determine objectively this intention from the facts and circumstances surrounding the issue. In this case the court held that the function served by annexing the equipment to the land was to stabilise it so it could be used for its designed purpose. The question the court needed to also answer was whether it was the objective intention of the appellant to affix the equipment in such a way that it became a part of the land and therefore a fixture.

24

CHAPTER 2 • THE DOCTRINE OF FIXTURES

RECENT DECISIONS Two recent decisions indicate the current position of the courts on issues of intention and annexation of chattels.

2.7

IN THE MATTER OF CANCER CARE INSTITUTE OF AUSTRALIA PTV LTD (ADMINISTRATOR APPOINTED) 2013 NSWSC 37 SUPREME COURT OF NEW SOUTH WALES FACTS: The plaintiffs (the administrator of Cancer Care Institute of Australia (CCIA)) sought declarations as to the title on certain property in Hurstville in which the defendants had interest. The plaintiffs sought orders that CCIA had title to the property which formed part of its assets. The defendants (Cortez, SuncorpMetway and Strategic Nominees Australia Ltd) also filed appearances. Cortez owned a medical centre which was subject to a first-ranking mortgage to Suncorp-Metway and a second mortgage to Strategic Nominees (the second defendant). Medical equipment used in the treatment of cancer patients was purchased under contract by CCIA from Varian Medical Systems. CCIA owed Varian money. Claims were made by Cortez and Suncorp-Metway that the equipment was a fixture; therefore title had passed to Cortez and thus subject to mortgages. ISSUE: What are the considerations taken into account to determine whether the equipment was a chattel or a fixture? DECISION: Black J said: Whether chattels have become affixed to the land, sv that they are to be regarded as fixtures and as part of the land, is to be determined by reference to the objective intention of the chattel's owner, with relevant factors including the degree of affixation to the land and the object or purpose for which it was affixed.

Further, his Honour stated that the considerations identified by Emmett J in Metal Manufacturers Ltd v Commissioner for Taxation (1999) FCA 1712 at 165, are relevant. These include whether the removal of the chattel would destroy it, whether ~

25

CHAPTER 2 • THE DOCTRINE OF FIXTURES

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

the cost of removal exceeds the value of the chattel, whether its removal would cause significant damage to the property and whether attachment was for the better enjoyment of the chattel of the property. Other considerations are the period of time the chattel was in position and the purpose or function served by the annexation. In the matter before his Honour, the decision was that the property in issue (medical equipment) was not a fixture; therefore the defendants held no title, right or interest in respect to the property. Another decision extrapolates upon the principles discussed in the above case. In Agripower Barraba pty Ltd v Blomfield (2013) NSWSC 1598, Black J held that various items of plant and equipment were indeed fixtures.

(e ;a

CASE SUMMARY

AGRIPOWER BARRASA PTV LTD v BLOMFIELD (20'13) NSWSC '1598 SUPREME COURT OF NEW SOUTH WALES FACTS: The plaintiff, Agripower Barraba Pty Ltd, sought a declaration of ownership of various items of plant and equipment and that the defendants grant access to the plaintiffs to remove the disputed items. ISSUE: Were the items of plant and equipment in question fixtures? What was the intention of the parties in relation to the annexation? Would certain items partly welded in place on structures that would need demolishing upon removal destroy the items? Would the cost of removal of the items exceed the items' value and would removal damage the property? The defendants argued that the items were fixtures or at least tenants' fixtures. DECISION: Black J stated in the judgment that earlier cases, such as Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 at 712 and Commissioner of Stamps (WA) v L Whiteman (1940) HCA 30, should be approached with a degree of caution since developments in commercial practice mean that what was once considered a fixture may now be decided as a chattel. The extent to which items are annexed is a strong

26

indicator of whether they are fixtures or chattels along with the determination of the parties' intentions. Further, his Honour referred to the considerations identified by Emmett J in Metal Manufacturers v Commissioner for Taxation (1999) FCA 1712 at 165. He noted that in National Dairies WA Ltd v Commissioner of State Revenue (2001) WASCA 112, the milking plant equipment in that case were for the better enjoyment and use of the land, and a party seeking to displace a presumption those items were fixtures must take into account the mode of annexation at the time they were placed there. While Agripower relied on Pegasus Gold Australia Ltd v Metso Minerals (Australia) Ltd [2003] NTCA 3, where the Court of Appeal held the relevant equipment not a fixture because of a finding based on the objective facts of the case, in the present case the real issue was the extent of damage on removal to the fixture and the land. Whether an item becomes affixed to land does not mean that it is a 'fixture' in the technical sense. This must be determined by reference to the objective intention decided with regard to the degree and object of annexation. His Honour further noted that the nature and function of the items in dispute, and the manner in which they were annexed, provided strong evidence of the parties' objective intention. Also, his Honour stated that the cost of removal was high relative to the value of the items, and their removal would effect significant damage to the property. The disputed items were held to be fixtures.

TENANTS AND FIXTURES

Domestic fixtures Fixtures of a domestic, trade or ornamental nature can be removed if the

2.8

tenant did not intend to make permanent improvements to the property: Spyer v Phillipson [1931 J 2 Ch 183. To determine the tenant's intention in affixing an object, matters such as whether any damage to the premises would occur if the object was removed are taken into account. More permanent things, such as new windows or doors, would result in the interpretation that those items would then belong to a landlord (see Conveyancing Act 1919 (NSW) s 1338(2)). The rule has been that at 27

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

common law tenants have a right to remove certain fixtures known as 'tenants' fixtt:ltes'. Usually they can remove a fixture at any time prior to the expiration of a lease or it will be in favour of the landlord (Lyde v Russell (1830) 1 B&D Ad 394 at 395) and relinquished. For example, trade, ornamental and domestic fixtures can be removed by a tenant upon expiry of the lease held. Most leases will expressly provide for a tenant's

C HAPTER 2 • THE DOCTRINE OF FIXTURES

Table 2.1: Examples of statutory exceptions for the removal and/ or compensation for fixtures

Agricultural Tenancies Act 1990 (NSW)s6

(1) It is a term of a tenancy that the tenant may carry out any improvement on the farm with the consent of the owner. (2) If an amount of compensation to the tenant for the improvement is fixed by agreement, the owner must pay the tenant the fixed amount, unless the agreed amount is unfair. (3) If compensation is not fixed by agreement at a fair amount, or is not fixed at all, the owner must pay fair compensation to the tenant. (4) Compensation payable under this section is payable at the end of the tenancy or at such earlier time as may be agreed or determined by arbitration.

Property Law Act 1958 (Vic) s 154A

(1) A tenant who at his or her own cost or expense has installed fixtures on, or renovated, altered or added to, a rented premises owns those fixtures, renovations, alterations or additions and may remove them before the relevant agreement terminates or during any extended period of possession of the premises, but not afterwards. (2) A tenant who removes any fixtures, renovations, alterations or additions under subsection (1) must(a) restore the premises to the condition they were in immediately before the installation, renovation , alteration or addition, fair wear and tear excepted; or (b) pay the landlord an amount equal to the reasonable cost of restoring the premises to that condition. (3) This section does not apply to the extent that (a) the lease otherwise provides; or (b) the landlord and the tenant otherwise agree.

Property Law Act 1974(Old)s155

(1) Subject to this section (a) any engine, machinery, fencing or other fixture affixed to a holding by the tenant of the holding; and (b) any building (other than one in respect of which the tenant is entitled to compensation under this Act or otherwise) erected by the tenant on the holding; not being a fixture

right to remove certain objects.

Exceptions 2.9

In some jurisdictions, agricultural fixtures are an exception to the common law rule and are now subject to legislation which grants a tenant of agricultural land the right to remove or claim compensation for certain fixtures: Agricultural Tenancies Act 1990 (NSW) s 10(4); Property Law Act 1974 (Qld) ss 153-167; Landlord and Tenant Act 1935 (Tas) s 26; Property Law Act 1958 (Vic) s 154A; Land Administration Act 1997 (WA) s 114. In the Australian Capital Territory and the Northern Territory there is no specific protection; the general law still applies. The general rule with regard to chattels affixed without permission is that without an agreement to the contrary, the person who annexes chattels to an owner's land has no right of removal. For example, in Chateau Douglas Hunter Valley Vineyards

Ltd v Chateau Douglas Hunter Valley Winery and Cellars Ltd (Receivers Appt) [1978) ACLD 258, the court held that where a company built a winery on land owned by the vineyard company adjacent to its land, the winery and equipment were fixtures, not chattels. Even more interesting is the decision in Sunstar Fruit Pty Ltd v Cosmo [1995) 2 Qd R 214, where the purchaser under a contract for sale entered possession prior to completion and effected certain improvements without the vendor's permission and contrary to the agreement. When the contract fell through due to the vendor's rescission for failure to complete, the plaintiff sought restitution for the improvements. The plaintiff was unable to get restitution because the court was not able to find any unjust enrichment due to the plaintiff's breach of the contract. So the purchaser's attempt at compensation for unauthorised work by the vendor was unsuccessful. Table 2.1 below indicates various statutory exceptions for fixture removal.

28

Cont'd

29

CHAPTER 2 •THE DOCTRINE OF FIXTURES

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

Table 2.1: Examples of statutory exceptions for the removal and/ or compensation for fixtures - Cont'd affixed or, as the case may be, a building erected under some obligation in that behalf or instead of some fixture or building belonging to the landlord , as the case may be, shall be removable by the tenant at any time during the continuance of the tenancy or before the expiration of 2 months from the termination of the tenancy, and shall remain the tenant's property so long as the tenant may remove it because of this subsection.

Property Law Act 1974(Old)s155 -cont'd

.. . (b) has, at least 1 month before both the exercise of the right and the termination of the tenancy, given to the landlord notice in writing of the tenant 's intention to remove the fixture or building. (3) If, before the expiration of the notice given under subsection (2) , the landlord gives to the tenant a counter-notice in writing electing to purchase a fixture or building comprised in the notice, subsection (1) shall cease to apply to that fixture or building, but the landlord shall be liable to pay to the tenant the fair value of that fixture or building to an incoming tenant of the holding. (4) In the removal of a fixture or building because of subsection (1), the tenant shall not do to any other building or other part of the holding any avoidable damage, and immediately after the removal shall make good all damage so done that is occasioned by the removal. (5) This section applies (a) to a contract of tenancy entered into after the commencement of this Act; and (b) subject to any agreement to the contrary contained in the contract of tenancy. Landlord and Tenant Act 1935 (Tas) s 26

30

Landlord and Tenant Act 1935 (Tas) s 26 -cont'd

shall be the property of the tenant and shall be removable by him, notwithstanding the same may consist of separate buildings, or that the same or any part thereof may be built in or permanently fixed to the soil, so as the tenant making any such removal do not in anywise injure the land or buildings belonging to the landlord, or otherwise put the same in like plight and condition, or in as good plight and condition as the same were in before the erection of anything so removed. (2) No tenant shall, under the provisions of this section, be entitled to remove any such matter or thing as aforesaid without first giving to the landlord or his agent one month's previous notice in writing of his intentions so to do; and thereupon it shall be lawful for the landlord, or his agent on his authority, to elect to purchase the matters and things so proposed to be removed or any of them; and the right to remove the same shall thereby cease, and the same shall belong to the landlord; and the value thereof shall be ascertained and determined by 2 referees, one to be chosen by each party, or by an umpire to be named by such referees, and shall be paid or allowed in account by the landlord who has so elected to purchase the same.

(1) If any tenant of a farm or lands at his own cost and expense erects, with the consent in writing of the landlord for the time being, any farmbuilding, either detached or otherwise, or puts up any other building, engine, or machinery, either for agricultural purposes or for the purposes of trade and agriculture (which are not erected or put up in pursuance of some covenant or obligation in that behalf) , then all such buildings, engines, and machinery 31

33

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

OVERVIEW 3.1

In order to 'l'nlly appreciate property law theory it is necessary to understand the concepts of possession, title and ownership. Due to the doctrines of tenure and estates, it cannot be said that an individual obtains 'absolute ownership' of real property. Consequently, a person has 'title' to real property. Title represents 'ownership' to the degree that ownership is recognised by the law, given that the Crown is the ultimate holder of real property. An individual with title will have a right to possession at the present point in time or at a point in time in the future. Title may be acquired through Crown grant, through sale, through gift or through transference under the laws of succession. Moreover, while it may seem contradictory at first glance, possession itself may give rise to title. Possession itself establishes a

The feudal system is the basis for the proposition that the Crown is the ultimate holder of all land.

The doctrines of tenure and estates The property law of England is based on the doctrine of tenure. In

services by those below. The term 'tenure' is used to denote the relationship between tenant and lord, not between the tenant and the land: Mabo v Queensland (No 2) (1992) 175 CLR 1. Interests in real

sense that it may be enforced against the whole world; it is relative in

mesne lord had the right to take back the granted interest. It is implicit

the sense that it can be enforced against an inferior title, but, in turn,

in the relationship of tenure that both the grantor and the tenant have

may be overturned by a superior title. Given the rise of Torrens title, possession plays a lesser role than it once did, but it is still a highly important concept.

interests in the real property at the same time: Western Australia v Ward (2000) 170 ALR 159.

Origins After the Norman Conquest of England in 1066, William I claimed the power to grant land holdings to any person he deemed worthy of the right. The king did not transfer absolute ownership, but instead granted rights over the land subject to the person fulfilling particular duties, such as the payment of money or the provision of services, such as providing knights for the protection of the realm. The person who held the land

Clearly, the tenant does not own the land, but it cannot be said that the tenant holds an interest of no consequence. The law calls the interest an 'estate'; each tenant owns an estate in land. The estate is a bundle of rights which fall short of absolute ownership. By allowing several persons to hold proprietary interests in the one piece of land, the doctrine of tenure laid the foundation for dividing real property on bases other than the tenurial relationship. In particular, with the evolution of the doctrine of estates, property interests came to be fragmented on the basis of time. In brief, the doctrine of estates reflects the notion that a person can have a present right to possession, while, at the same time, other persons can also have interests in the same land, giving them future rights to possession. The holder of a future interest does not hold a present right to possession, but the interest is still a full interest in the

immediately from the king was known as the 'tenant-in-chief'. The tenant-in-chief could then grant parts of the land to other individuals in

sense that it is capable of alienation. The estate is separate from the land,

return for the performance of duties; those persons could then repeat

and by viewing it as such, it is simpler to accept, for example, the notion of the alienation of a future right to possession.

the process. The feudal system was complicated, as the same piece

3.3

the past, through the process of subinfeudation, each person in the hierarcht__9wed services to the mesne lord above, and was also owed

property were not granted outright to tenants, as the property interests were based on the proper execution of duties and the provision of services. If the tenant failed in the performance of their duties, the

OWNERSHIP

34

of land could be fragmented many times. The subinfeudation process can be visualised as a tenurial pyramid, with the Crown at the top, where every parcel of land is held directly or indirectly by the Crown.

right to possession against any individual who cannot prove a superior title. Title may be absolute or it may be relative . It is absolute in the

The doctrines of tenure and estates are discussed in greater detail in Chapter 5.

3.2

CHAPTER 3 • POSSESSION , TITLE AND OWNERSHIP

35

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

The doctrine of estates outlines the entitlements which may be enjoyed by alil.Y particular tenant within the tenurial system. The nature of the estate is graded by its temporal duration and by the attachment of various conditions. The fee simple is the most extensive estate in duration. It is only the doctrine of tenure that prevents the holder of such an estate from being classed as an absolute owner. The English position may be contrasted with ancient Roman law. Under Roman law the doctrine of dominium meant that a landholder was granted full, absolute and complete ownership of land. An individual who was granted a right of possession held a personal right but it could not be concluded that this was in any shape or form a proprietary interest under Roman law. Holding land in absolute ownership is referred to as the 'allodial' system. An allodial system is the opposite of the feudal

The above quote raises the issue of 'seisin', which is discussed in more detail below. For present purposes it is enough to note that under early legal doctrine the terms 'seisin' and 'possession' were synonymous. A person was in seisin of land when they were in a position to control the land. Seisin was prima facie evidence of title to l'and. Seisin and, subsequently, possession were protected by the courts. The term 'possession' encompasses a number of property law concepts: • Possession of land for any period of time is prima facie evidence of a right to hold the land. • Possession may itself confer a right which is good against anyone who cannot show a better right to possession.

In summary, the doctrine of tenure is incompatible with the concept of absolute ownership in real property. Historically, the tenant in

• Possession, for a period of time as dictated by law, may confer an interest in land upon the possessor.

possession could not be regarded as having ownership, as a failure to perform the requisite services resulted in the mesne lord being able to recover the granted interest. The mesne lord did not have absolute

law and the Statute of Limitations, it has long been recognised that the rights of the documentary title holder may be lost through acts of

duties and services were performed by the tenant.

POSSESSION

With regard to this last point, through the interaction of property

adverse possession. Adverse possession may create an estate of fee simple in the person who possesses property if their possessory acts conflict with the interests of the documentary title holder. Adverse possession is discussed more fully in Chapter 4 .

As discussed above, English real property law developed in such a

The term 'possession' may be contrasted with the term 'occupation'.

manner that there was no concept of absolute ownership. In disputes between parties over land the courts focused on who had the better

Occupation means being physically present and utilising the property,

right to possession, rather than on ownership. In Mabo v Queensland (No 2) (1992) 1 75 CLR 1 at 209, Toohey J highlighted the importance

but it does not entai1I an intention to possess. Thus, '! friend of a documentary title holder may occupy the documentary title holder's house while he or she is overseas, but it cannot be said that the

of possession when he stated:

occupier possesses the property. Possession is established by a series

So long as it is enjoyed, possession gives rise to rights, including the right to defend possession or to sell or to devise the interest. A defendant in possession acquires seisin even if possession is tortiously acquired. That is, a person in possession has an estate in fee simple in the land; it is this interest on which a defendant in an action for ejectment could rely. The disseisee loses seisin and acquires a right of entry in its stead. A possessor acquires

36

a fee simple estate because the fullest estate known to the law is presumed until a lesser estate is proved.

system and the holder of land is not subject to the rights of any lord.

ownership, as he had no right to possession of the land provided the

3.4

CHAPTER 3 • POSSESSION, TITLE AND OWNERSHIP

of acts that demonstrate control, along with an intention to possess the land to the exclusion of all others. Thus, a person may be in possession of a property without actually physically occupying the property. For example, a person who buys a property sight unseen as an investment, appoints an agent and then rents the property, would possess the property even though they have not physically set foot on the property.

37

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

CHAPTER 3 • POSSESSION, TITLE AND OWNERSHIP

~

Possession is a question of law. The acts that will demonstrably prove posses~n vary from case to case. As noted by Lord O'Hagan in Lord Advocate v Lord Lovat [1880) 5 AC 273 at 286: The acts implying possession in one case may be wholly inadequate to prove it in another. The character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with due regard to his own interests - al I these things, greatly varying as they must under various conditions, are to be taken into account.

The courts approach land disputes by considering whether the plaintiff or the defendant has a relatively better title to the land. A plaintiff who is dispossessed will succeed in recovering the land unless the defendant can prove a superior right to possession. A superior right is demonstrated where the defendant is the documentary title holder or has a prior right to possession.

Seisin versus possession Origins

3.5

38

the writs of entry. Under this system, even though the disseisor gained seisin, the person disseised had a right of re-entry. The person disseised could thus attempt to rega in possession of the land and was not subject to any action by the disseisor for doing so. Only a person seised of a freehold estate in land was able to obtain the old real actions (the writ of right, the possessory assizes and the writs of entry) for the recovery of land. A leasehold interest was viewed as a personal contract between the lessor and the lessee. A lessee who was dispossessed of the land had no right to recover possession of the land under the old real actions. This situation was remedied by the development of the action of ejectment (a personal action based on the writ of trespass). This permitted the lessee to recover possession of the land. As the action of ejectment provided a simpler means of recovering land than did the old real actions, freeholders wished to utilise it too. By a clever device of fiction, freeholders soon gained access to the action of ejectment. Over a period of time the action became the preferred method for the recovery of land. Despite its abolition in 1852, the modern actions for the recovery of land are

In early times, it appears that no distinction was drawn between 'seisin' and 'possession'. However, property law developed in such a manner

based on the action of ejectment.

that a distinction between the two terms evolved. Simply stated, seisin means the possession of land by a person holding a freehold estate in

Terminology

In modern times, theoretically, a dichotomy still exists between the terms 'seisin' and 'possession', but with little practical effect given that

land. A person holding a leasehold estate has possession of the land but is not 'seised' of the land. During the term of the lease, seisin remains in the lessor.

the action of ejectment is the basis for the modern actions for recovery of land. In Asher v Whitlock (1865) LR 1 QB 1, the court had to decide

The concept of relativity of title rather than absolute ownership was a component of English land law from very early times. The writ

between two competing possessory interests. The court held in favour of the plaintiff. Although Cockburn CJ and Mellor J reached the same

of right - the ancient remedy for recovery of land - focused upon whether the plaintiff or the defendant had a better right to seisin. The

decision, they utilised different terminology in their judgments. Mellor J retained the distinction between seisin and possession in holding (at 6)

process for obtaining a writ of right was complex and lengthy. In an attempt to simplify property disputes the possessory assizes were introduced. An estate holder who was disseised and failed to regain

that possession is 'prima facie evidence of seisin in fee'. Cockburn CJ

possession within four days lost seisin. The disseisor could then use the

discarded the distinction between seisin and possession, and simply stated that possession itself gives rise to an interest which is enforceable against the entire world, except the title holder. Most modern textbooks

possessory assizes to protect their newly acquired seisin (even against

now describe the concept of possession in the same terms as seisin: Re

the previous estate holder). The possessory assizes were replaced by

North Sydney Council (1997) 8 BPR 15,677, 15,679.

3.6

39

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

TITLE 3.7

Relatively rec'mitly there has been a move away from possession as a concept giving rise to entitlement and a movement towards entitlement based upon registration. Nonetheless, possession remains a central concept in real property law. As mentioned above, title to land may be acquired through possession. Generally, title denotes ownership to the extent that ownership of real property is possible under the doctrine of tenure. Private estates are usually held under either old system title or Torrens title. Under old system title, the landholder is ascertained by

the documentary owner. Titles in English law were not absolute, they were relatively good or relatively bad. Accordingly, if a person had a relatively good title as against all the world except the true owner, and then the true owner was deprived of his or her title by limitation, the person in possession had the best right to seisin.

The onus of proof in an action to recover land, with certain exceptions, rests upon the plaintiff. Where this occurs, the plaintiff must establish a better right to possession than the defendant, as by proof of a good documentary title, or by proof of possession earlier than the defendant's.

reference to a chain of title with a good root of title. Under Torrens title, the

Jus tertii

landholder is ascertained by reviewing the register. Under the doctrine of adverse possession, trespass may amount

The holder of a possessory title over chattels may raise the jus tertii (the right of a third party) defence where a prior possessory title holder

to dispossession of the documentary title holder. Although wrongful, the law recognises such dispossession as a title to land, and calls it

seeks possession of those goods. This defence generally indicates that a plaintiff will be defeated by a defendant where it can be demonstrated

'possessory title'. Possessory title is an alternative to documentary title,

that a third party has a better title.

and is fundamentally different to documentary title. The main difference lies in the scope of enforceability. Possessory title is a relative concept which may be defeated by a better claim to the property. Thus, the right of a prior possessor over land will defeat those of a subsequent, physical possessor: Asher v Whitlock (1865) LR 1 QB 1. Furthermore, in any conflict between a possessor and a documentary title holder, the documentary title holder will always defeat the possessor unless the documentary title holder's actions are blocked by the Statute of Limitations. In such circumstances, the possessory title is effectively transformed through the doctrine of adverse possession. As noted by Young J in Shaw v Garbutt (1996) 7 BPR 14,816, 14,832, who correctly applies the concept of seisin: It also must be remembered that the process of extinguishing title by limitation can only be successful because of the English doctrine of seisin which has been carried over into Australian law. For technical reasons, English law never concerned itself with ownership or absolute rights to possession, but merely with who, between a plaintiff and a defendant in a particular action had the better right to seisin? Thus a person in possession of the land had a better right to seisin to the whole of the world except

40

CHAPTER 3 • POSSESSION, TITLE AND OWNERSHIP

3.8

The jus tertii defence, with limited exceptions, does not apply in a conflict over real property where the claimant has a present entitlement to possession. If the defence did apply, it would overturn the accepted principle of relativity of titles with regard to possessory title. The Privy Council, in Perry v Clissold [1907] AC 73, rejected the use of jus tertii in a real property action. It noted that the defence was contrary to the common law orthodoxy of real property. The position is different where the plaintiff has leased, or has abandoned, the land. Consequently, the plaintiff does not hold an immediate right to possession. In such circumstances, evidence that right of possession is held by a third party is relevant if it demonstrates that the.claimant has no immediate right to possession: Oxford Meat Co Pty Ltd v McDonald [1963] SR (NSW) 423.

41

43

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

OVERVIEW 4.1

Under old sy~m title, ownership is not an absolute requirement for

Nonetheless, there is no obligation for the documentary title holder to utilise their land, but their proprietary rights are at risk when another

transfer of real property and, as a consequence, a purchaser may take title on the basis that there has not been any challenge to title within

individual takes possession of that land.

a period of time as set by law. As discussed in Chapter 3, possessionbased title, an important component of old system title, specifies that

enforceable right against the entire world, except for the documentary title holder. Once the limitation period has expired, the documentary

possession of real property may be protected against all individuals

title holder is prevented from seeking legal recourse. However, until the adverse possession rights are transferred into a proprietary title, the

except those who can prove a better right by virtue of an earlier

While the land is adversely possessed, the possessor has an

possessor does not have full ownership of the property and must rely on the mix of the common law doctrine and the Statutes of Limitation

possession or by virtue of documentary title. The doctrine of adverse possession denotes the instances in which possession may override the rights of the documentary title holder.

to enforce their rights.

Adverse possession produces a higher status than ordinary possessory title and is enforceable against all individuals, including the

It should be noted that the doctrine of adverse possession does not distinguish between those individuals who deliberately take possession

documentary title holder. The doctrine of adverse possession is a fusion of common law and the Statutes of Limitation . Where the possessor

of someone else's land and those who possess land in the mistaken belief that it belongs to them. Furthermore, adverse possession may be

can establish that they have held the property for a period of time as

claimed with regards to the whole of the land or a piece of the land .

required by the law, and the characteristic of that possession is adverse

Moreover, a claim of a piece of the land can be based on a horizontal or vertical basis: Rains v Buxton (1880) 14 Ch D 53 7; Quach v Marrickville

to the interests of the documentary title holder, then the documentary title holder will be precluded from taking action for repossession of the

Municipal Council (No 2) (1990) 22 NSWLR 55.

property. What must be kept in mind is that adverse possession must be established on the facts of each individual case. As such, there are no

The majority of this chapter discusses adverse possession in relation to old system title, but a brief outline of the approaches to Torrens title

all-encompassing general rules that will establish adverse possession. The onus of proof lies on the possessor seeking to establish adverse

land, which varies from jurisdiction to jurisdiction, is given below.

possession, and it must be established on the balance of probabilities.

AGAINST WHICH TITLE?

There are a number of contentious policy reasons for upholding

Adverse possession only applies against the documentary title owner.

adverse possession and, as a result, for extinguishing a documentary holder's interest. These include:

This means that the limitation period will not apply unti I a tutu re interest vests. For example, if X is a I ife tenant and Y is the remainderman, and Z

• to discourage a documentary holder from 'sleeping on their rights', and thus encourage the productive utilisation of land;

dispossesses X, then generally, the limitation period will not commence

• to reflect the actual situation of possession; • to reduce the risks associated with the conveyance of land; and • to justly recognise the adverse possessor's possession and improvement of the land.

44

CHAPTER 4 • ADVERSE POSSESSION

4.2

to run against Y until X dies. The reasoning behind this is that adverse possession only applies against documentary title holders who fail to enforce possession, rather than those who are prevented from doing so because they hold a future interest. Similarly, if a tenant (leasee) is dispossessed by an adverse possessor, the limitation period will commence against the landlord (leasor) when

45

CHAPTER 4 • ADVERSE POSSESSION

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

the lease has expired and the landlord consequently has the right to take possessi€Wjl of the property.

Where no inconsistency could be shown, the documentary title holder was deemed to have granted an implied licence to the possessor to use the land.

WHAT CONSTITUTES ADVERSE POSSESSION? 4.3

Adverse possession must be established on the facts of each individual case. Thus, when the limitation period has expired, it must be demonstrated that for the full period and over the entire claimed parcel of land, the possession has been adverse in nature. The acts that successfully demonstrate adverse possession in one case may be wholly insufficient to prove it in another. There is no need to demonstrate that the owner in fee simple has been affected or inconvenienced by the adverse possession. The foundation of factual adverse possession is embodied in three aphorisms (see Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464): • open possession; • peaceful possession; and • possession without consent. 'Open possession' means possession in such a way that it would be noticed by a careful and reasonable documentary title holder (for example, fencing the property). 'Peaceful possession' means possession without violence, which is referable to the concepts that the documentary title holder should not be removed from the land by physical force or prevented from repossessing the land because of a threat of violence. However, in Shaw v Garbutt (1996) 7 BPR 14,816, using a rifle to warn off the documentary title holder and others did not prevent a finding of adverse possession. With regard to 'possession without consent', the general principle is that if the documentary title holder provides permission for the utilisation and possession of the property then the possession cannot be said to be adverse. Past decisions, such as Leigh v Jacks (1879) 5 Ex D 264, held that a person's possession of land would not amount to adverse possession unless the use of the land and the acts of possession were inconsistent with how the documentary title holder intended to use the land.

46

The modern view is that the implied licence doctrine has now been overturned: Buckinghamshire County Council v Moran [1990] Ch 623. Thus, the acts of possession will not be invalidated merely because the documentary title holder has an intention to develop the property in the future. Facts that may be taken into account by the court in determining an adverse possession claim may include: • fencing or enclosure of the land; • occupation and improvement; • ~rection of buildings; • surveying the land; • paying rates; • maintaining trees and gardens; • agriculture usage; and • abandonment of possession by the documentary title holder. Examples of successful cases include:

• Rains v Buxton (1880) 14 Ch D 53 7: the 60-year occupation of a cellar under the ground of the title holder who was unaware of the occupation; and

• Treloar v Nute (1977) 1 All ER 230: levelling of land, grazing cattle, fencing and dumping earth. Examples of unsuccessful cases include:

• Wallis' Cayton Bay Holiday Camp Ltd v Shell-Mex" & BP Ltd (1974) 3 All ER 575: farming of the land, repairing of fences, hedge cutting, ditch cleaning and grazing cattle; and • Riley v Penttila [1974] VR 547: enclosing land and using it first as a tennis court and then as a garden.

Consequently, if the documentary title holder had no present use for

Once factual possession is established, it must be demonstrated that the individual had the intention to possess the land (animus possidendi)

the land, but rather held an intention to develop the property in the

or, to state it another way, to exclude the world at large, including

future, then adverse possession could not be shown, as the acts would not be inconsistent with the documentary title holder's intended use.

the documentary title holder. The intention of the possessor can be inferred from the conduct of the possessor. If the facts of possession 47

CHAPTER 4 • ADVERSE POSSESSION

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

are ambiguous, then more focus will be placed on evidence presented to demonstr~ intention to possess. Retrospective statements as to the possessor's intentions at the time will be given little weight, as they can be easily fabricated.

POWELL v McFARLANE (1979) 38 P & Cr 452 HIGH COURT OF ENGLAND AND WALES

FACTS: McFarlane was the documentary title holder of a threeacre field, which he had bougl1t in 1952. Powell claimed to have been in adverse possession of the field since 1956 when, at the age of 14, he started to graze the family cow there. At the time, Powell lived with his grandparents on a property near the field. At one stage his grandfather had farmed the field as a tenant, but had given the tenancy up because of ill-health.

In 1956, Powell decided that the field would be useful for grazing and he persuaded his grandmother to write to McFarlane to ask permission to use the field. There was no evidence before the court that McFarlane had replied to the letter or even received the letter. Against his grandparents' wishes, Powell began to graze on the field. He also cut and took hay off the field , cleared brambles and cut trees, made the boundary fence and hedges stock proof and installed a water supply. He also shot pigeons and rabbits on the field. The grazing activities ceased in 1968 when the cow died. In 1962, Powell went into business as a tree surgeon and erected a doublefronted sign board in the field to advertise his business, which remained in the field from 1962to1970. In connection with the tree surgeon business, Powell used the field for storing timber and parking vehicles. During the period of possession, McFarlane was unaware that anyone was using the land. It was not until 1972 that McFarlane and his wife, on a visit to the area, saw a new fence and realised that something was amiss. Powell then sought a declaration that he had been in adverse possession of the land for longer than the prescribed limitation period.

48

ISSUE: Did Powell's acts demonstrate animus possidend!? DECISION: Slade J held that on the facts of this case, the acts did not go far enough to prove an animus possidendi. Slade J particularly noted that in 1956 Powell was a 14-year-old boy, and none of the authorities that were presented to him during the case had demonstrated a successful claim by a minor. The acts of someone so young were not necessarily a substantiation of an intention to possess.

Of significance in the above case is the fact that Slade J summarised the principles of adverse possession: 1. Unless evidence to the contrary is presented, possession will be ascribed to the documentary title holder or to a person claiming through the documentary title holder (that is, a lessee). 2. If a person, other than the documentary title holder, seeks to claim the land then they must show that they had factual possession and animus possidendi. 3. Factual possession entails an appropriate amount of physical control. The question of what acts will demonstrate adverse possession depends on the circumstances of each case. 4. ' ... the animus possidendi involves the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow' (at 471-2). W )It

CASE SUMMARY

.

JA PYE (OXFORD) LTD v GRAHAM [2003] 1AC419 HOUSE OF LORDS

FACTS: In 1983, the Grahams entered into a written grazing agreement with respect to 25 hectares of land that adjoined their rural property. The land was fully enclosed by hedges and the gate was kept locked by the Grahams. At the end of 1983, the grazing agreement came to an end and the documentary title II>-

49

CHAPTER 4 • ADVERSE POSSESSION

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

holder asked the Grahams to vacate the land, as the company wished to develop the land and did not want the land to be grazed while it applied for planning permission. The Grahams failed to vacate and they held the land for the entire limitation period. During the limitation period the Grahams grazed the land, cut hay and ploughed the land. The Grahams requested the renewal of the grazing licence on several occasions, but

Table 4.1: Adverse possession periods: excluding adverse possession against the Crown Jurisdiction

Legislation

Adverse possession period required

ACT

Land Trtles Act 1925(ACT)s169

No title by adverse possession

The Australian Capital Territory has a leasehold system . Typically, leases are granted by the Crown for a period of 99 years.

their requests went unanswered. In 1999, the documentary title holder sought to regain possession.

ISSUE: Did the Grahams have the requisite intention to possess the land?

DECISION: The House of Lords held that the Grahams had the requisite intention and, moreover, adverse possession was

NSW

Limitation Act 1969 (NSW) 27(2), 65

12 years

SS

established on the facts.

NT

Land 'Title Act (NT) s 198

Lord Hope of Craighead stated that it was not necessary to demonstrate an intention to exclude the documentary title holder, but rather what was required was an intention to occupy

No title by adverse possession

Old

Limitation of Actions Act 1974 (Old) SS 13, 24

12 years

and use the land as if it was one's own.

SA

Limitation of Actions Act 1936 (SA)s4

15 years

Limitation Act 1974 (Tas) 10(2), 21

12 years

Vic

Limitation of Actions Act 1958 (Vic) SS 8, 18

15 years

WA

Limitation Act 2005(WA)s19

12 years

Thus, the requisite intention is the intention to possess rather than an intention to own. Moreover, the relevant intention is that of the possessor and, as such, there is no requirement that the acts of possession must be

Tas

SS

in conflict with the documentary title holder's intended use of the land. An interesting aside. issue is that Lord Hutton suggested that if the actions of the possessor made it clear that the documentary title holder had been excluded, then the possessor did not have to provide additional evidence that they had an intention to possess. In such a situation, the onus of disproving the intention to possess would shift to

ADVERSE POSSESSION BY A CO-OWNER

the documentary title holder.

Adverse possession can also app ly to co-ownership, as discussed in Chapter 11 . The general rule is that the limitation period begins to run

LIMITATION PERIOD: EXCLUDING ADVERSE POSSESSION AGAINST THE CROWN 4.4

50

where one or more co-owners take more than their legitimate share of the land, rents or profits. For examp le, where X, Y and Z are devised a

The legislation in each state prescribes a period of time for which land must be adversely possessed, after which the documentary title holder

rural property under a will as tenants in common, Z shows no interest

will be statute-barred from taking legal action to recover the land. The

the profits and carry on other activiti es that demonstrate possession, Z's title will be extinguished after the relevant limitation period has

relevant information is summarised in Table 4.1 .

4.5

in the property, and only X and Y work the rural property, take all

51

LEXISNEXIS STUDY GUIDE • PROPERTY I.AW

CHAPTER 4 • ADVERSE POSSESSION

passed: see further Paradise Beach and Transportation Co Ltd v Price-

Table 4.3: Adverse possession against the Crown

Robinson [1968] AC 1072. The position with regard to the jurisdiction is summarised in Table 4.2 .

Jurisdiction

Legislation

Adverse possession against the Crown

Table 4.2: Adverse possession by a co-owner

ACT

Land Titles Act 1925(ACT)s169

No title by adverse possession

Jurisdiction

Legislation

Adverse possession period required

ACT

Land 1itles Act 1925(ACT)s169

No title by adverse possession

The Australian Capital Territory has a leasehold system. Typically, leases are granted by the Crown for a period of 99 years. NSW

The Australian Capital Territory has a leasehold system. Typically, leases are granted by the Crown for a period of 99 years.

Yes: 30 years

Crown Lands Act 1989 (NSW) s 170 (limits placed upon adverse possession against the Crown)

NSW

Limitation Act 1969 (NSW) s 38

12 years

NT

Land 1itle Act (NT) s 198

No title by adverse possession

Old

Limitation of Actions Act 197 4 (Old) s 22

12 years

SA

Limitation of Actions Act 1936 (SA) s 20

15 years

Tas

Limitation Act 1974(Tas)s16(4)

12 years

Vic

Limitation of Actions Act 1958 (Vic) s 14(4)

15 years

Limitation Act 2005 (WA) s3(6)(d)

12 years

WA

Limitation Act 1969 (NSW) s 27

NT

Land 1itle Act (NT) s 198

No title by adverse possession

Old

Limitation of Actions Act 1974 (Old)s6

No title by adverse possession against the Crown

SA

Crown Suits Act 1769 (Imp)

Yes: 60 years

Tas

Limitation Act 1974(Tas)s10(1)

Yes: 30 years

Vic

Limitation of Actions Act 1958 (Vic) s7

No title by adverse possession against the Crown

WA

Limitation Act 2005(WA)s12

No title by adverse possession against the Crown

COMMENCEMENT OF LIMITATION PERIOD THE CROWN 4.6

52

The approach and the ability to claim land adversely against the Crown

The limitation period commences when the documentary title holder has been dispossessed, or discontinues possession of the land, and

varies from jurisdiction to jurisdiction. The rationale for imposing an extended period of adverse possession or a complete denial of adverse

another individual has taken possession which is adverse in nature. As noted above, time does not commence to run against a documentary

possession against the Crown is that the public administrators oversee vast tracts of land and it would be unfair to apply the same rules that

title holder u nti I he or she has a present entitlement. The Statutes of Limitation do not define what 'dispossessed' or 'discontinuance' mean

are applied to private owners. The relevant information is summarised in Table 4.3 .

and, consequently, it is a question of fact to be determined by the courts.

4.7

53

CHAPTER 4 • ADVERSE POSSESSION

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

The documentary title holder will be dispossessed from the land when tA€ adverse possessor 'drives off' the documentary title holder: Buckinghamshire Council v Moran [1990] Ch 623. For example, a dividing fence is intentionally moved to acquire a piece of the neighbour's property. In this case, the limitation period would

Jurisdiction

Dispossession or discontinuance

Adverse possessor must take possession

Failure to pursue entitlement

SA

Limitation of Actions Act 1936 (SA)s6

-

Limitation of Actions Act 1936 (SA) ss7, 8

Tas

Limitation Act 1974(Tas)s11

Limitation Act 1974(Tas)s16

Limitation Act 1974(Tas)s11

Vic

Limitation of Actions Act 1958 (Vic) s 9

Limitation of Actions Act 1958 (Vic) s 14

Limitation of Actions Act 1958 (Vic) s9

WA

Limitation Act 2005 (WA) s 66

Limitation Act 2005 (WA) s 65

Limitation Act 2005 (WA) SS 67, 68

commence from the date the dividing fence was moved. Discontinuance of possession occurs where the documentary title holder leaves possession and an adverse possessor takes control of the land. Thus, if the documentary title holder abandons their land, and five years later an individual takes possession of the land, the limitation period will commence when the adverse possessor takes possession and as such does not commence when the land is abandoned. A cause of action may also arise where there has been no dispossession or discontinuance but, rather, there has never been any possession, as where an entitlement to possess the property has been granted under a Will, the rules of intestacy or a deed, but the individual

RUNNING OF THE LIMITATION PERIOD

fails to take possession and an adverse possessor is in possession of

For a possessor to be successful in a claim of adverse possession it must be established that there was a continuous and uninterrupted period of

the property at the date of the event. In this situation the limitation period will commence at the date of death or the date of the grant of the instrument. The relevant sections of the legislation are summarised in Table 4.4 .

ACT NSW

NT Old

54

Dispossession or discontinuance

Adverse possessor must take possession

Failure to pursue entitlement

No title by adverse possession Limitation Act 1969 (NSW) s 28

Limitation Act 1969 (NSW) s 38

Limitation Act 1969 (NSW) SS 29, 30

No title by adverse possession Limitation of Actions Act 197 4 (Old) s 14

Limitation of Actions Act 197 4 (Old) s 19

adverse possession equal to the limitation period. Adverse possession may be established where there are multiple and consecutive periods of adverse possession that are independently less than the limitation period, but taken together they equal the limitation period. To emphasise the point, the multiple possessions must be continuous and

Table 4.4: Commencement of the limitation period Jurisdiction

4.8

Limitation of Actions Act 1974 (Old) s 14

uninterrupted. Different periods of adverse possession cannot be added together if there is a gap between the periods of possession. If there is a continuous series of multiple possessions, the documentary title holder will be statute-barred from seeking legal redress. The last-in line of the possessors would have a good title against the whole of the world except those possessors earlier in time: Allen v Rough!ey (1955) 94 CLR 98. For example, X has been in possession of the property 'Purple Acre' for five years and she is dispossessed by Y, who takes possession of the property for a further five years. Y is then dispossessed by Z, who possesses the property until the end of the limitation period. Z would acquire title in fee simple, which would be good against the entire world except X and Y who are earlier in time and therefore have better title.

55

CHAPTER 4 • ADVERSE POSSESSION

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

If the adverse possessor abandons the land, which is a question of fact to be def!!tmined by the court, the limitation period stops running. However, there will be no effect on the claim of adverse possession where the land is abandoned after the limitation period has expired: Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464.

The limitation period stops running when the documentary title holder brings legal action against the possessor, or peacefully re-enters the land to assert their title to the land. Furthermore, if the adverse possessor acknowledges the superior title of the documentary title holder in a signed written document, then this will stop the limitation period from running: Edginton v Clark [1964] 1 QB 367. A mere statement by the documentary title holder to the possessory of their superior title is not good enough to stop the limitation period running: Mount Carmel In vestments Ltd v Peter Thurlow Ltd [1988] 3 All ER 129.

• ,

S'.~.5 SUMMARY, •

the documentary title owner's rights would be extinguished by a continuous period of adverse possession of 20 years. Mulcahy appealed Helsham J's decision.

ISSUE: Can the periods of adverse possession of several adverse possessors be added together to extinguish the title of the documentary title holder? If the documentary title holder's rights are extinguished, who then has best title to the land? DECISION: Hope JA and Bowen CJ affirmed the trial judge's decision and held that it was permissible to aggregate successive periods of adverse possession, and the trial judge was correct in holding Hurley had not continued in possession after 1964. Moffit P also held that the trial judge was correct to aggregate successive periods of adverse possession, but held the trial judge was incorrect to hold that adverse possession had ceased in 1964. In relation to who has the best title after the documentary title holder's rights are extinguished, Bowen CJ stated (at 478): Upon the extinguishment of the true owner's title by successive

MULCAHY v CURRAMORE PTV LTD [1974] 2 NSWLR 464 NEW SOUTH WALES COURT OF APPEAL

FACTS: In 1968, Curramore Pty Ltd obtained documentary title to some old system title land, including a small area of rural land, triangular in shape, which was less than two acres and seemed to have little value ('the disputed land'). The disputed land lay alongside a rectangular block of land of over 33 acres ('the rectangular block of land'). In 1970, John Patrick Mulcahy bought the rectangular block of land from Hurley and also bought Hurley's rights to the disputed land. As far back as 1935, the disputed block of land was fenced in with the rectangular block. In 1972, Mulcahy sought a declaration that he was the owner of the disputed land by virtue of adverse possession. The judge in first instance, Helsham J, held that two or more successive periods of adverse possession could be added together, but, in this case, he held that Hurley had abandoned adverse possession of the disputed land in 1964 and, therefore, Mulcahy could not access the benefit of adverse possession. The relevant legislation was the Real Property Limitation Act 1833 (Imp), where s 34 provided that

56

trespassers, say A, B, C, D and E, who have been in adverse possession continuously for the necessary period, the question arises as to the person in whom the title in fee simple exists at that time. The better view appears to be that it exists in the first of the successive trespassers ... the final trespasser, who is in possession at the time when the true owner's title is extinguished, would, by virtue of his possession, have a title in fee simple good against all the world except A, B, C and D. The last statement needs qualification. If A brought proceedings to eject E, and E could prove that A had abandoned possession, then, in my view, E could successfully resist A. On the same ground he might be able to resist B, C and D. Accordingly, if the departure of A, B, C and D in each case took place in circumstances constituting an abandonment by each of them, E would indeed have a title in fee simple good against all the world ... It is, perhaps, unlikely this would occur without a break in possession, which would restore the true owner's title and prevent aggregation.

EXTENSION OF TIME The relevant legislation allows an extension of the limitation period in

4.9

certa in situations, such as disability of the documentary title holder, 57

CHAPTER 4 • ADVERSE POSSESSION

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

of action is fr CASE SUMMARY -~-

----~-~ -

PERMANENT TRUSTEE CO OF NEW SOUTH WALES LTD v D'APICE (1968) 118 CLR 105 HIGH COURT OF AUSTRALIA FACTS: Maud Harper died in 1965 leaving no children surviving her. Her three sisters had predeceased her, Ruby having died in 1927, Frederica in 1934 and Lillian in 1937. Maud's will

reversion interest arises where the grantor has not set out exactly where the remainder of the estate will go. The reversion, by presumption, goes

upon the termination of the life estate. Street J, as judge of first

back to the grantor.

instance, earlier decided that there was an intestacy and from

Vested and contingent interests

Court.

The remainder interest is one to be taken by the grantee in the future.

ISSUE: The issue, on the one hand, was whether or not Lillian took under the deceased estate, upon the death of Frederica, a vested estate in remainder expectant upon the death of Maud Harper. Thus, it was argued that upon Maud Harper's death Lillian's legal personal representative became absolutely entitled in possession to the house property and consequently to the residuary estate. On the other hand, it was argued that Frederica and Lillian took, upon the death of Ruby, a remainder

devised a life estate followed by a remainder in fee simple

his declaration to that effect an appeal was brought to the High

5.10

Such interests can be vested 'in interest' or 'in possession'. A vesting in both is a present interest. A contingent interest is one where there will be no interest until particular conditions are fulfilled. To have a future interest considered as vested, and not contingent, then a tenant in remainder must be identifiable. In other words, the contingency must be met before the vesting can occur. For this to happen there has to be a person who is ascertained, and, additionally, no condition precedents.

for their joint lives expectant upon the death of Maud Harper and

For example, a gift by B to 'C for life and then Din fee simple' gives

contingent upon their both surviving her, and each of them took

D a vested remainder, because at the outset D's identity is determinable

also a remainder in fee simple expectant upon the death of the

and the only precondition to taking possession is the death of C. In contrast, a gift by E to 'F for life and then to Gin fee simple if G reaches

taken effect in possession in which case there was an intestacy

the age of 18', assuming G has not already reached 18, !?ives G a contingent remainder. The importance of the distinction between vested and contingent interests lies in the fact that legal remainder rules required legal contingent remainders to vest within a particular time frame. At common law, if a contingent remainder does not vest, then it fails: see further

other of them and contingent upon their joint life estate having in respect of the house property and the residuary estate.

DECISION: The majority of the High Court held thatthe remainder was vested and the fee simple estate fell into possession on the death of the life tenant, so that on the death of the remainderman the person entitled was the devisee under the remainderman's will. The majority held that the will envisaged that the fee simple

73 72

CHAPTER 5 •THE DOCTRINES OF TENURE AND ESTATES

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

IJl>would not fall into the hands of the remainderman man until the death of the life tenant, but when the life tenant predeceased Maud there was no contingency and the remainderman's interest was vested from the outset.

Determinable or conditional interests

5.11

Limiting factors may be placed upon a fee simple estate by a determinable interest or a conditional interest. A determinable interest may be brought to an end by a specified event; for example, a grant from Mr X to MrY and his heirs until Mr Z graduates with a law degree. Mr Y has a determinable estate as long as there is the possibility that Mr Z will graduate. If Mr Z graduates, the land reverts back to Mr X, but if Mr Z dies without graduating then Mr Y acquires an absolute interest, and the reversion is extinguished. A condition precedent and a condition subsequent will prevent an estate from vesting until the relevant event is satisfied. A condition precedent will prevent the estate from vesting until the condition is met. A condition subsequent will allow the grantor to re-enter if the condition is not complied with. As a determinable limit is part of the grant itself, where a determinable event is found void by a court, the entire grant is void. As a condition is an independent clause, where the limiting event is found void and severed, the grant becomes absolute, free of all limiting factors. It is the nature of a condition that will determine whether an estate is vested or contingent. Thus, to determine if there is a condition attached, look to the intention of the grantor. The decision in the following case discusses the law of conditional and determinable interests and their complexities.

from his wife and lived with the plaintiff for 15 years, and had two children with the plaintiff. The land was purchased in 1951 by the defendant, who agreed to put it in both their names. The defendant was worried that the plaintiff might leave him, so he attached a condition to the grant that if she left him her interest would terminate. The plaintiff subsequently left the defendant and wanted the property sold to obtain some of the proceeds. ISSUE: The issues before the court were (1) whether the condition was determinable or not; and (2) what was the consequence on the plaintiff's title if the condition were to be struck down. If the limitation was void for being against public policy, that is, it encouraged her to stay in a de facto relationship rather than marry, then the nature of the limitation would be important. If the interest was held to be determinable the grant would fail, while if it was a condition subsequent, the limitation clause could be removed and the grant would become absolute. DECISION: After constructing the term of the limiting event, the court held that the limiting factor was a condition subsequent. As the limiting event promoted an illicit relationship (that is, a de facto relationship rather than marriage) the condition was struck down and the grant became absolute.

The steps to be taken when identifying issues relating to the doctrine of estates can include the following: 1. What type of estate or interest is it? This requires examination of the intention of the creation of the estate. If it is freehold then it is an interest that exists for an indefinite .time and carries seisin. If it is freehold then there are two types possible: the life estate or the fee simple. Fee simple does not have to be created and does not need specific words for

ZAPLETAL v WRIGHT [1957] TAS SR 211 SUPREME COURT OF TASMANIA FACTS:

The plaintiff and the defendant were registered

proprietors of land as joint tenants. The defendant had separated

74

its creation, but can also arise presumptively under a deed given the right circumstances. 2. Is it a freehold lease? Again, intention is an important part of the estate creation and must be in the required form of writing. 3. Is it a future interest being either a remainder or a reversion?

75

LEXISNEXIS STUDY GUIDE• PROPERTY LAW

4. Have the legal formalities for creation of an estate or interest been coii'iplied with? 5. Is the estate vested in title or possession? 6. Are there any reasons why a condition attached to an estate may be invalidated? (See S Hepburn, Australian Property Law: Cases, Materials and Analysis, LexisNexis Butterworths, Sydney, 2014, Ch 5.)

76

77

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

OVERVIEW 6.1

An essential e-re"ment of a proprietary system that allows private ownership is the ability to prove 'ownership' by some authorised means. The term 'title' fundamentally means the extent of ownership

CHAPTER 6 • THE TORRENS SYSTEM

• curtain principle: the purchaser need only search the title and need not make inquiries regarding interests which are not disclosed on the title; and • insurance principle: a person deprived of interests or incurring loss through the operation of the legislation should be compensated.

that is allowed under the doctrine of tenure. However, the term also encompasses the various acts that are required to demonstrate ownership. The two main systems of title to land which exist

The mirror principle and the curtain principle suggest that the register

contemporaneously in Australia are old system title (also known as the

is complete and accurate, and the purchaser need not concern themselves

'general law system') and Torrens title. By virtue of British settlement, old system title became part of

+~h

bey~nd

registe~.

inve.stigating the However, in practice, interests exist outside of the register. As to the insurance principle, a system that confers indefeasibility of title needs to include some remedy for innocent

Australia's legal system. The inherent problems with the system gave rise to many critics. Foremost of these critics was Sir Robert Richard Torrens, who immigrated to South Australia in 1840 and became

persons who may have suffered loss through the operation of that title system. Nonetheless, in reality, compensation payable under the Torrens

Registrar-General of South Australia in 1852. Primarily motivated by

Assurance Funds is subject to various limitations and qualifications.

the inadequacies of old system title, he sought to develop a more efficient and secure system. Torrens was principally responsible for the

The provisions of the various Torrens statutes are subtly different in operation, but each incorporates the central notions of title by

development of a new system of registration and conveyance, which was encapsulated in the Real Property Act 1858 (SA). Now known

registration and indefeasibility of title. The currentTorrens statutes are:

as the 'Torrens system', it was eventually adopted in all Australian jurisdictions and has influenced many overseas jurisdictions. The Torrens statutes provide for a system of title by registration.

• Land Titles Act 1925 (ACT); • Real Property Act 1900 (NSW); • Land Title Act (NT); • Land Title Act 1994 (Qld);

Subject to certain exceptions, the register provides indefeasibility of title; that is, the register is conclusive as to the identity of the

• Real Property Act 1886 (SA); • Land Titles Act 1980 (Tas);

title holder. The creation and disposal of interests in land is effected by registration, not by the execution of documents. Three types of interests may

• Transfer of Land Act 1958 (Vic); and • Transfer of Land Act 1893 (WA).

exist in land under the Torrens legislation:

1. registered interests; 2. unregistered paramount interests; and 3. unregistered interests. The principles underpinning the Torrens system are: • mirror principle: the register reflects accurately and completely all facts and matters relevant to the title to a parcel of land;

78

OLD SYSTEM TITLE ~r:rrer:r · •fffit'e Jro:rneJn Iata:te:s,, ae.d ~Le:b::has ni..fili.y~~grate'd iot:tl bi · Ncr.en.s s,y~ n taln:s rr cb:cin1 ite:rnf.o lrcl rs11·slie.L!J · I . Table 6.1 summarises the early

tan .-grctnt.e.d:b:y.:th· Down

6.2

Torrens legislation, along with the corresponding commencement date.

79

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

CHAPTER 6 • THE TORRENS SYSTEM

Table 6.1: Commencement date of the Torrens system -

Jurisdiction

ACT

Legislation

Commencement date

Real Property Act 1925 (ACT): No practical relevance given that the Australian Capital Territory has a leasehold system. Typically, leases are granted by the Crown for a period of 99 years.

21 May/ 925

NSW

Real Property Act 1862 (NSW)

1January1863

NT

No old system title land in the Northern Territory

Old

Real Property Act 1861 (Old)

1January1862

SA

Real Property Act 1858 (SA)

1July1858

Tas

Real Property Act 1862 (Tas)

30June1862

Vic

Real Property Act 1862 (Vic)

2October1862

WA

Transfer of Land Act 1874 (WA)

1July1875

being offered for sale, the purchaser has to search each individual document in the chain of title to verify that title remains 'unbroken' from the original Crown grant to the vendor. If the chain of title was broken, such as by a fraudulent conveyance, the vendor would be unable to show good title to a purchaser. The common practice of English conveyancers before statutory intervention was to review documents dating back at least 60 years before the proposed sale. In most jurisdictions, the vendor obligation to prove a good title has been reduced to 30 years: Conveyancing Act 1919 (NSW) s 53(1 ); Property Law Act 1974 (Qld) s 237(1); Property Law Act 1958 (Vic) s 44(1 ); Sale of Land Act (WA) s 22. In Tasmania, the period of commencement has been reduced to 20 years: Conveyancing and Law of Property Act 1884 (Tas) s 35(1 ). In South Australia, the legislation has not addressed this issue, so it is presumed that the 60-year obligation is still applicable: Law of Property Act 1936 (SA). In England, the period has been reduced to 15 years: Law of Property Act 1969 (UK) s 23. In searching a chain of title, problems may arise where: • there is a fraudulent conveyance. For example, where Mr X

During the nineteenth century in England, the deed became the primary method for the conveyance of freehold estates. In this context a deed is an instrument passing an interest in land which is signed, sealed

conveyed land to Mrs Y but Mr X retained the title deeds. Mr X then purports to convey to Mr Z, but Mr Z will not take an interest as the legal interest has already passed to Mrs Y: nemo

and delivered. Similarly, in most jurisdictions in Australia, other than under the Torrens system, a legal interest in land must be created or

• a proprietary interest has been created other than by means of

Law of Property Act 1936 (SA) ss 8, 28(1 ), 30; Conveyancing and

a document. For example, adverse possession, an easement created by long use;

Law of Property Act 1884 (Tas) ss 59, 60; Property Law Act 1958 (Vic) ss 51, 52(1 ), 54; Property Law Act 1969 (WA) ss 32, 33(1 ), 35. In some

• a document in the chain is void because of forgery; a signing party lacked capacity or non est factum (not his or her deed)-

jurisdictions a written instrument is sufficient: Civi I Law (Property) Act 2006 (ACT) ss 201, 202, 223, 224; Law of Property Act (NT) ss 7, 9;

signed mistakenly, but not negligently, without knowledge of the document's meaning;

assigned by deed: Conveyancing Act 1919 (NSW) ss 14, 23B, 230;

Property Law Act 1974 (Qld) ss 8, 10(1 ). The basis of the general law conveyancing system is the chain of title comprising the documents affecting the estate. In order to satisfy themse lves that the vendor is the lawful holder of the estate

80

dat quad non habet (no one gives who does not possess);

• there are incorrect words of limitation on an earlier document. For example, words of limitation which create a life estate rather than a fee simple. Subsequent documents are ineffective as the earlier document did not pass on a fee simple; and

81

CHAPTER 6 • THE TORRENS SYSTEM

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

• a document is deliberately removed from the chain, for example, t~ removal of an instrument creating an easement. The subsequent purchaser would be bound by the instrument, even though they were unaware of its existence at the time of purchase. The search of a chain of title is a time-consuming and expensive process. Registration of deeds legislation was introduced in order to simplify the searching process. The current provisions can be found in: • Registration of Deeds Act 1957 (ACT): allows for the registration of deeds but it is of no practical relevance given that all land in the Australian Capital Territory is leasehold land; • Conveyancing Act 1919 (NSW) ss 184A-184J; • Property Law Act 197 4 (Qld) ss 241-249;

the land, and the name of any person holding an interest in the land. Generally, the Torrens system is administered in line with the doctrine of estates, and recognises the same proprietary interests that exist at common law. Once the estate is registered, the registered proprietor of that interest may deal with it in any way that is allowed by law (for example, assign, mortgage, lease, sub-lease). Specific forms are required in each jurisdiction for each type of dealing and these, when appropriately executed and witnessed, may be registered. In recent times, there has been a move towards computerised automated title systems. Potentially, the systems will provide economic

• Registration of Deeds Act 1935 (Tas); • Property Law Act 1958 (Vic) Pt 1 (the Transfer of Land (Single

efficiencies, decrease transaction costs and overcome the problems caused by a manual system, where there is a delay between the creation

deeds); and • Registration of Deeds Act 1856 (WA). The effect of registration is to give priority to the instrument over unregistered instruments. However, certainty of title cannot be assured under the general law registration system as title is still dependent on the internal consistency of the documents. Furthermore, due to the doctrine of notice, purchasers may be subject to proprietary interests which were not evident on the face of the chain of title. Moreover, registration does not cure any defects in the deed registered.

THE TORRENS REGISTER

82

must allocate to the folio a distinctive identifying reference. The folio records the names of the registered proprietors, the boundaries of

• Registration of Deeds Act 1935 (SA);

Register) Act 1998 (Vic) prevents the registration of any further

6.3

land falling under the Torrens system. Generally, each separate lot of land is recorded in a separate folio in the register. Land becomes part of the Torrens system when the Registrar creates the folio. The Registrar

The Registrar/Registrar-General/Recorder (hereafter 'the Registrar') is required to keep a register in which he or she records all portions of

of a proprietary interest, lodgment and registration.

THE CERTIFICATE OF TITLE The certificate of title is an extract of the contents of a particular folio;

6.4

it is accepted as an accurate statement of the folio. Each certificate of title displays the land's unique volume and folio number. In the Australian Capital Territory, South Australia, Tasmania and Victoria, upon the creation of a folio or the registration of an in$1:rument, the Registrar must deliver a certificate of title to the entitled individual. In New South Wales, the Registrar must issue a certificate of title if requested to do so by the registered proprietor or a registered mortgagee. In the Northern Territory and Queensland, the Registrar must issue a certificate of title at the written request of the registered proprietor, but if the land is subject to a mortgage, the Registrar may on ly do so with the mortgagee's consent. In Western Australia, the

83

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

Registrar must issue a duplicate certificate of title unless requested not to do so by the registered proprietor.

TORRENS TITLE LAND 6.5

CHAPTER 6 • THE TORRENS SYSTEM

PARAMOUNT INTERESTS The Torrens statutes recognise that some interests remain unaffected by registration of a subsequent interest. These interests are listed in the legislative provisions and may include easements, rights acquired

Land is Torrens title land if it was originally granted as such under the Torrens statutes (see 6.1 above) or has subsequently been converted

under adverse possession, leases less than three years in duration and rates. These rights are 'paramount', as they remain enforceab le against

from old system title to Torrens title. Certain authorised individuals

subsequent registered interest holders despite their unregistered status.

(for example, the proprietor, trustees for sale) can voluntarily apply

For example, s 42(2) of the Transfer of Land Act 1958 (Vic) states:

to convert old system title land. There are also various schemes to encourage conversion. For example, in Victoria, the Transfer of Land

-

(Single Register) Act 1998 (Vic) prevents the registration of any further general law deeds. Any person wishing to register a dealing with land According to Bradbrook, Macca llum and Moore (A ustralian Real Property Law, 4th ed, Lawbook Co, Sydney, 2007, p 216), there is no land in Western Australia is held under old system title, and there is very little old system title land left in South Australia and Tasmania. However, a number of parcels of old system title land still exist in New South Wales and Vi ctoria . As noted above, the Australian Capital Territory has adopted a leasehold system, and there is no old system title land in the Northern Territory.

-

LEGISLATION

---

(2) Notwithstanding anything in the foregoing (Estate of registered proprietor paramount - indefeasibility of title] the land which is included in any folio of the Register or registered instrument shall be subject to-

may only do so under the Torrens system.

old system title land left in Queensland, less than 1 per cent of freehold

•

6.7

\ I

(a) the reservations exceptions conditions and powers (if any) contained in the Crown grant of the land; (b) any rights subsisting under any adverse possession of the land; (c) any public rights of way; (d) any easements howsoever acquired subsisting over or upon or affecting the land; (e) the interest (but excluding any option to purchase) of a tenant in possession of the land; (f) any unpaid land tax, and also any unpaid rates and other

REGISTRABLE INTEREST

6.6

Mos e

to it, on the condition that he never sells it out of the family.

132

133

CHAPTER 8 • RESTRAINTS ON ALIENATION AND THE RULE AGAINST PERPETUITIES

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

At the time qt.the testator's death: •the market value ofTrewyn Manor was £15,000 and upwards; •the market letting value of Trewyn House was £100 per annum and upwards; and • the market letting value of Lower Trewyn was £100 per annum and upwards.

ISSUE: Were the conditions equivalent to a general prohibition

against selling or letting? DECISION: The court held that the proviso amounted to an absolute restraint on alienation during the life of the testator's widow and, as a consequence, it was void for repugnancy. As such, Jeremiah Lilburn Rosher could sell the property or let it as he thought fit, and was under no obligation to comply with the terms of the will in relation to the testator's widow.

RESTRAINTS ON ALIENABILITY: AGREEMENTS 8.4

Restraints on alienation may also be covenants in agreements . The requirement of free alienabi lity is the overall gu iding principle, but whether or not a covenant restraining alienation is valid is dependent on the facts of each individual case: Wollondilly Shire Council v Picton Power Lines Pty Ltd (1994) 33 NSWLR 551. In Elton v Cavill (No 7) (1994) NSW ConvR , 55-701, a covenant restraining the sale of an interest in a building, without the written consent of the other owners, was held to be a valid col lateral object. Mclelland CJ held that where several individuals hold property as tenants in common, they each hold a valid interest to prevent the other owners from disposing of their interests without consent. However, it was subsequently held, on facts not available at the first hearing, invalid, as the plaintiffs had drafted and relied upon the relevant covenant in order to acquire the whole building for redevelopment purposes: Elton v Cavill (No 2) (1994) 34 NSWLR 289. Although appearing to be a valid col lateral purpose, it was utilised to achieve a pre-emptive right in order to dictate the terms of sale.

134

tiiil

»

CASE SUMMARY

HALLv BUSST (1960) 104 CLR 206 HIGH COURT OF AUSTRALIA FACTS: In 1949, John Horatio Busst sold a small island off the Queensland coast to Harriett Elizabeth Hall. The parties entered into a collateral agreement with several important covenants: • Hall agreed that she would not at any time transfer, assign, set over or lease any part of the land (apart by way of mortgage) without Busst's consent in writing (clause 3). • For the purpose of obtaining consent, Hall would give Busst one calendar month's notice of her intention to deal with the land, and Busst would have an option to purchase the fee simple of the land or any part of it (clause 4). • The purchase price under the option was a set amount which took into account all the improvements and depreciation, but made no allowance for an increase in market value (clause 5). • Busst could exercise the option within the calendar month by giving notice to Hall or Hall's solicitors (clause 6).

In 1957, Hall sold the land to the Druitts. She did not give notice to Busst of the dealing and did not obtain his permission for the sale. Busst instituted an action for breach of contract in the Supreme Court of Queensland. The decision went in favour of Busst. Hall appealed to the High Court. Her main argument was that clause 5 was too uncertain for the option to be enforceable. She asserted that clause 3 was an introductory clause, and clauses 4 and 6 were dependent on clause 5. The question as ta.freedom of alienabilrty was first raised in the High Court when an argument was considered as to whether or not clause 3, if it was held to be an independent clause, was void as a general restriction to alienabilrty. ISSUE: Is clause 5 unenforceable for uncertainty? Is clause 3 void for being repugnant to alienability? DECISION: There was no clear majority on the enforcement of each individual clause, but it was clear that there is no conceptual

difference between a covenant restraining free alienation and a conditional limitation designed to achieve the same ends.

135

CHAPTER 8 •RESTRAINTS ON ALIENATION AND THE RULE AGAINST PERPETUITIES

LEXISNEXIS STUDY GUIDE • PROPERTY JAW

The majority (Dixon CJ, Menzies and Fullagar JJ) held that clause 5 was unenforceable forT:rncertainty. Kitto and Windeyer JJ held that clause 3

DECISION: The court held that the clause was not a restraint on alienation. It distinguished the decision in Ha// v Busst, Handley JA stated (at 554-5):

was a right of first refusal and therefore valid; Dixon CJ and Menzies J held that clause 3 was an unlawful restraint upon alienation (if Busst did not give permission then Hall could not sell). Fullagar J held that

The clauses in the present contract stand in marked contrast to those in Hall v Busst. The relevant restraint imposed by subcl (a) only continued until the company had built industrial buildings on the land which subcl (b) contemplated would occur within two years of the sale. Once that condition was fulfilled the restraint came to

clause 3 was a right of first refusal but, if clause 5 was held fully capable and effective, the agreement effectively operated as a restraint upon alienation, as Busst had the right to buy back the land at a price fixed under the contract, which disregarded an increase in the value of the

an end. Subclause (a) to this extent was neither independent nor unlimited in duration. Moreover the contract for resale came into existence because the respondent failed to perform its promise to build which was one of the terms on which it obtained the land from the Council. The contract did not come into existence because the respondent wished to alienate the land.

property.

-

•

It cannot be doubted that any contract for sale or option or right of pre-emption binds the grantor not to alienate the land to a third party in a manner which would be inconsistent with the rights of the purchaser or grantee. This negative stipulation, if not expressed,

CASE SUMMARY

WOLLONDILLV SHIRE COUNCIL v PICTON POWER LINES PTY LTD (1994) 33 NSWLR 551 NEW SOUTH WALES COURT OF APPEAL

is necessarily implied: see Woodroffe v Box (1954) 92 CLR 245 especially at 257-259, Oliver v Oliver (1958) 99 CLR 20 and Bahr v Nicolay [No 2] (1988) 164 CLR 604 at 629, 647. Restraints of this kind, arising as incidents of a personal contract for the sale or other disposition of land stand right outside any legal doctrine which invalidates contractual restraints on alienation. In my opinion neither subcl (b) nor the relevant part of subcl (a) are invalid as unlawful restraints on alienation.

FACTS: In 1984, Wollondilly Shire Council agreed to sell vacant industrial land to Picton Power Lines Pty Ltd (PPL) for $35,000. Special condition 10 of the contract provided that under sub-clause (a) PPL was not to transfer the land prior to the construction of industrial premises, and under sub-clause (b), if the premises were not completed within 24 months after the date of settlement, the land was to be sold back to council for the original purchase price. The council from time to time extended the time limits in the special condition and covenant, but PPL did not construct an industrial building on the land. In 1991, the council sued for specific performance for PPL to resell the land. Among other defences, PPL defended the proceedings on the ground that the obligation to resell was an invalid restraint on alienation. ISSUE: Was the special condition requiring resale to the council upon failure to construct the industrial premises repugnant to

alienation?

136

Ml 319

CASE SUMMARY

BONDI BEACH ASTRA RETIREMENT VILLAGE PTY LTDvGORA (2011) 82 NSWLR 665 NEW SOUTH WALES COURT OF APPEAL FACTS: Mr and Mrs Evans, as joint tenants, bought a strata title unit on a site administered as a retirement village. Mr and Mrs Evans were required to enter into two agreements with Bondi Beach Astra Retirement Village Pty Ltd (BBA). The occupancy agreement contained an option entitling SBA to acquire the ..,.

137

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

strata unit f~ a price similar to that which Mr and Mrs Evans had paid for it in events such as the death of the proprietor. The buyback agreement conferred a put and call option on both BBA and the proprietor, entitling BBA to require the proprietor to sell the strata unit to BBA, and entitling the proprietor to require BBA to purchase the strata unit from the proprietor. Under the buyback agreement, the exercise price was similar to that which the Evans had paid for the strata unit. Upon Mrs Evanss' death Mr Evans became the sole proprietor of the strata unit under the right of survivorship. After Mr Evanss' death, BBA sent out various notices to the executrices, Mr and Mrs Evans's daughters, that BBA required the strata unit to be transferred back to the company. The executrices refused the request.

CHAPTER 8 • RESTRAINTS ON ALIENATION AND THE RULE AGAINST PERPETUITIES

SEITLED LAND LEGISLATION In the fifteenth century, because the courts allowed the entails to be barred in order to convert a fee tail estate into a fee simple estate, more imaginative techniques were developed to restrict the alienability of land. Among these techniques was the strict settlement and resettlement. The strict settlement utilised features of the life estate and the fee tail estate. The major aim of the technique was to prevent the estate of the tenant in tail from falling into possession, as the tenant in tail in possession could bar the entail by common recovery, and thereby transform the estate into a fee simple. A rudimentary example is X1 settles a life estate on his eldest son, X2, with a remainder in fee tail to X2 's eldest son and various other

ISSUE: Were the options in the agreements void as general restraints on alienability?

backup remainders. The settlement ensures that the property remains in the family until X2's eldest son, X3, obtains his majority, and thereupon

DECISION: There is a public interest in the proprietor of a fee simple estate being free to alienate the estate. However, the free alienability of property is not the only public policy consideration that may be relevant to a particular situation. In some instances, in weighing the various public policy issues, on the balance it may be in the public interest to permit a restraint on alienability. Consideration extends to the 'social utility' of permitting the restraint (at 669). Consequently, restraints on alienability of strata title units 'in the provision and operation of retirement villages serves sound purposes' (at 669). Campbell JA stated (at 741-2):

has the opportunity to bar the entail. At this point, X3 can be persuaded by X2 to resettle the land and repeat the process, to ensure that the land

Because the law concerning permissible restraints on alienation imposed by a contract is based on public policy, it should operate by reference to the substance of an arrangement, not its form. There are many ways in which substantially the same commercial objectives can be achieved, for both a retirement village operator and a retirement village resident, by the grant of a fee simple subject to an option to repurchase, and by other conveyancing devices not involving a fee simple plus an option to repurchase. This very fact is Itself reason for doubting that there is a public policy objection to a retirement village being run on the basis that a resident acquires a fee simple, but subject to an option to repurchase. In all these circumstances, I am not persuaded that public policy requires the invalidity of the contract that Mr and Mrs Evans freely entered.

8.5

passes down the lineage line for at least another two generations. The creation of such settlements restricted the alienability of the land and, moreover, the efficient usage of the land. Unless otherwise provided by the terms of a will or a deed of settlement, a tenant for life could not sell, subdivide the land, develop the property or make major alterations to the buildings on the property. A life tenant could not lease the property for long periods of time, as there was no guarantee that the life estate would endure for the required period. It was also unlikely that a lender would supply money on the basis of the limited security that a life estate provided. Thus, if the surrounding area re~uired further building sites, the limitations on the life tenant's powers meant they would be prevented from developing the property. In Australia, strict settlement was not common, but asimilar outcome could be achieved by utilising a trust; for example, a testamentary trust set up to hold land for life for the testator's spouse, with a remainder for the testator's children, created problems similar to that caused by strict settlement. In modern times, the majority of limited ownership is created behind trusts. The restrictions on the development of land in England caused by strict settlement led to the enactment of the Settled Land Act

138

139

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

1882 (UK). The legislation altered the nature of limited ownership and the developmentef I imited estates. The Act gave the I ife tenant extensive management powers and the ability to subdivide, lease for extensive periods of time, and charge the land for capital improvements. Despite the limited nature of the estate, the Act also provided the life tenant with the ability to sell the fee simple. Settled land legislation exists in some jurisdictions, but varies significantly from jurisdiction to jurisdiction. In Victoria and Tasmania, the life tenant is given wide powers: Settled Land Act 1958 (Vic); Settled Land Act 1884 (Tas); Settled Land Act 1911 (Tas). In New South Wales and South Australia, the powers are very limited: Conveyancing and Law of Property Act 1898 (NSW) Pt IV; Settled Estates Act 1880 (SA). In those jurisdictions that retain settled land legislation, there may be a wide overlap with trust legislation. In Queensland and Western Australia, the settled land legislation has been repealed, and power has been vested in trustees: Trust Act 1973 (Qld) Pt IV; Trustees Act 1962 (WA) Pt IV. In Queensland, all future interests are equitable interests and the statutory powers override any settlement powers.

THE RULE AGAINST PERPETUITIES 8.6

The general law favours freedom of alienation, but this conflicted with the desire of some landholders (those with dynastic desires) to maintain control of land after their death. As indicated above, landholders have utilised various devices to curtail alienability. With the enactment of the Statute of Uses 1535 (UK) and the Statute of Wills 1540 (UK), it became possible for landholders to create an elaborate web of future interests to control and bind land after their death; for example, a grant 'to X for life, remainder to X's eldest son, Y, for life, remainder to Y's eldest son', and so forth into the distant future. Eventually, the courts adopted the position that freedom of alienation could only be secured by placing restrictions on the ability to create future interests. The main counter-attack was the creation of the rule against perpetuities. The rule is designed to prevent the indefinite postponement of the vesting of an interest in property. It ensures that an interest will vest in an individual within a certain period of time after the creation of an

140

CHAPTER 8 • RESTRAINTS ON ALIENATION AND THE RULE AGAINST PERPETUITIES

interest. Historically, there have been two separate and quite distinct common law rules against perpetuities; they have little in common except their ultimate aim.

The rule in Whitby v Mitchell The old rule against perpetuities grew as a counter to landholders'

8.7

attempts to restrain alienation by creating an infinite succession of contingent remainders that only provided a life estate. The old rule prevented this by holding that where an interest in land was conveyed to a person not yet born, any remainder to the issue of that person was void; for example, a grant 'to Z for life, remainder to Z's son for life, remainder to Z's grandson in fee simple'. If Z had a son at the time of the grant, then the rule was not infringed, but if Z had no son at the time, the grant to the son would be valid, but the remainder to the grandson would be void. The rule originated prior to Whitby v Mitchell (1890) 44 Ch 85, but the rule is named after this case, as it was definitely elucidated by this judgment. The effect of the rule was narrow, and its scope was decreased by subsequent judicial interpretation. The rule in Whitby v Mitchell has been abolished in all Australian jurisdictions except the Australian Capital Territory and South Australia: Conveyancing Act 1919 (NSW) s 23A; Law of Property Act 2000 (NT) s 201; Perpetuities and Accumulation Act 1992 (Tas) s 21; Property Law Act 197 4 (Qld) s 216; Perpetuities and Accumulation Act 1968 (Vic) s 12; Property Law Act 1969(WA)s114.

The modern rule against perpetuities

.

The modern rule against perpetuities was formulated in Duke of Norfolk Case (1682) 22 ER 931 and its structure was fleshed out in Cade/I

8.8

v Palmer (1833) 6 ER 956. Basically, the common law rule invalidates any grant of a contingent remainder if it vests outside the perpetuity period as enunciated by the courts. The modern rule, as modified by statute, applies to all jurisdictions except South Australia. The rule has been extended to all forms of property, and prevents trusts, for example, from holding company shares outside of the perpetuity period .

141

CHAPTER 8 • RESTRAINTS ON ALIENATION AND THE RULE AGAINST PERPETUITIES

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

The modern common law rule was stated by J C Gray in The Rule Against Perpetuittf!r, 2nd ed, Little Brown, Boston, 1906, p 166:

interest arises can be utilised to mark the perpetuity period. The specific requirements for a life in being are:

No interest is good unless it must vest, if at all , not later than twenty-one years after some life in being at the creation of the interest.

• It must be a human life or lives that exist at the time the

Thus, the criteria of the modern rule are:

interest arises. It cannot be a corporation, a mythical creature, long-lived animals or plants: Re Kelly [1932] IR 255. A child conceived but not yet born (en ventre sa mere)

• vest;

at the commencement of the perpetuity period is treated as

• 21 years; • life in being; and • at the creation of the interest.

875; Blackburn v Stables (1814) 35 ER 358; Re Stern [1962)

the same as one already born: Long v Blackall (1797) 101 ER Ch 732. Gestation time is added to the perpetuity period:

Cade!! v Palmer (1833) 6 ER 956.

Vest

8.9

• The lives in being must be incapable of increasing in number

An interest vests if the precise identity of the individual who takes an interest is known, and there is no condition precedent, other than the

after the commencement of the perpetuity period: Thellusson

determination of the prior estate. A vested interest is one that is certain to take effect in possession, whereas a contingent interest may never

• The life or lives in being must be capable of ascertainment

v Woodford (1805) 32 ER 1030. at the date the interest comes into effect. The Iife or I ives

fall into possession. For example, a grant by X to 'Y for life and then to Z in fee simple if Z marries', assuming Z has not already married,

in being may be expressly stated or may be implied; for example, 'to my first niece', necessarily implies that the child is the life in being. In Re Moore [1901) 1 Ch 936, a

gives Z a contingent remainder. The condition precedent is that Z must marry, and upon marrying, Z's interest will vest. However, if Z dies a

devise until '21 years from the death of the last survivor of al I persons who shall be living at my death' was held to be void

bachelor then the fee simple estate will not pass under a will or the rules of intestacy to Z's beneficiaries. A grant by X to 'Y for life and then

for uncertainty. However, royal lives clauses which state that an interest is not to vest until the expiration of 21 years from

to Zin fee simple' gives Z a vested remainder, because at the outset, Z's identity is certain and the only precondition to taking possession is the death of Y. Even if Z predeceases Y, the vested interest wi 11 pass to Z's

the death of the last survivor of all the lineal descendants of a named monarch are valid: Pownall v Graham (1863)

beneficiaries under a will or the rules of intestacy.

55 ER 360; Re Leverhulme (No 2) [1943) 2 All ER 274. In Re Villar [1929) 1 Ch 243, the court upheld such a disposition

21 years

8.10

despite the fact it would be difficult to trace all descendants

At common law, the perpetuity period is a 'life in being' plus 21 years. The 21 years is based on the age of majority at the time the rule was created. A significant issue for assessment under the rule is a

of Queen Victoria (approximately 120 in number in 1922), who were spread all over Europe. If a life or lives in being is not expressly stated, or is incapable of implication, then the life in being is the person who creates the interest; for

determination of who is the relevant life in being. Life in being

8.11

example, 21 years from the testator's death: Re Mervin [1891) 3 Ch 197.

The 'life in being' is an essential component for determining the perpetuity period. Any individual life or lives that exist at the time the

142

J

143

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

•

At the creation of the interest

8.12

At common law,1Tie perpetuity period commences when the interest comes into effect by: • the gift of real property by wi 11: death of the testator; • contract, deed, settlement etc: when the instrument creating the instrument is effective; and • revocable disposition: when the right to revoke determines. The common law rule focuses on possibilities rather than on actual eventualities or probabilities. It must be absolutely certain ('initial certainty rule') at the commencement of the interest that the contingent remainder will vest within the perpetuity period. If there is a possibility of events occurring outside the perpetuity period, then the interest is void. Thus, a grant of a life estate to X, then a life estate to X's eldest child, and then to Zin fee simple, creates the possibility that the interest to Z will vest outside the perpetuity period. It is because of this stance that, as noted below, many absurd results have arisen at common law.

The fertile octogenarian principle The common law presumes that females and males are capable of producing children at any stage of their life. It makes no difference that a woman may be in her seventies (fertile octogenarian principle): Jee v Audley (1787) 29 ER 1186; Teague v Trustees, Executors and Agency Co Ltd (1923) 32 CLR 253. Thus, it may be presumed that a grantor is capable of having more children despite being beyond herfertile years and, therefore, a class of individuals will be excluded from lives in being because it is capable of increase.

The precocious toddler principle Similarly, the law presumes that a child of any age is capable of conceiving a child (precocious toddler principle). Thus, in Re Caite's Will Trusts; Banks v Caite [1949] 1 All ER 459, the testator granted a life estate to his widow and a fee simple remainder to any of his grandchildren living at the date of his death or born within five years after his death, who reached the age of 21 years. It was theoretically possible for the testator's widow (65 years of age at the time) to have another child, and then that child have a child within five years after the testator's death.

144

CHAPTER 8 • RESTRAINTS ON ALIENATION AND THE RULE AGAINST PERPETUITIES

Magic gravel pits In Re Wood [1894] 3 Ch 381, the testator held some gravel pits that were nearly empty of gravel at the time of his death. In his will he directed his trustees to continue to mine the gravel pits until they were exhausted, and then to sell them, with the proceeds to go to his children. The pits were exhausted within six years after the testator's death, but the English Court of Appeal held that because it was not absolutely certain at the commencement of the interest when the land would vest, it was possible that the land would vest outside the perpetuity period. Therefore, the gift to the testator's children failed. The court's presumption was that the pits could magically refill with gravel, no matter how much the pits were worked.

Class gifts A 'class gift' is a gift to a group of individuals whose size is uncertain after the interest is created; for example, a gift 'to all my nieces who attain the age of 21 years'. The general rule is the 'all or nothing' rule, and as a consequence, if there is the possibility that the required proportional share will be unknown at the end of the perpetuity period, then the class gift wi 11 fa i I. The rule in Andrews v Partington (1 791) 29 ER 610 allows the class to be closed to all members born after the date when the first person of the class becomes entitled to take their proportional share, despite the fact that there is the possibi Iity that the class will still increase.

STATUTORY MODIFICATION OF THE MODERN RULE The common law modern rule against perpetuities has been altered by

8.13

statute in all Australian jurisdictions. The rule against perpetuities has been abolished in South Australia; the position is that if after 80 years there remain interests that have not yet vested, the court may, on application, vary the terms of the instrument, so that the interests vest immediately: Law of Property Act 1936 (SA) s 62. In other jurisdictions, the perpetuities legislation applies to instruments and wills taking effect after the operation date: Australian Capital Territory: 19 December 1985; New South Wales: 31 October 1984; Northern Territory: 1 August

1994; Queensland: 1 December 1975; Tasmania: 1 December 1992; Victoria: 10 December 1968; Western Australia: 6 December 1962.

145

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

CHAPTER 8 • RESTRAINTS ON ALIENATION AND THE RULE AGAINST PERPETUITIES

The common law's 'initial certainty' rule has been replaced in each jurisdictren, except South Australia, with a 'wait and see' rule: Perpetuities and Accumulations Act 1985 (ACT) s 9; Perpetuities Act 1984 (NSW) s 8; Law of Property Act 2000 (NT) s 190; Property Law Act 1974 (Qld) s 212; Perpetuities and Accumulations Act 1992 (Tas) s 1O; Perpetuities and Accumulations Act 1968 (Vic) s 8; Property Law Act 1969 (WA) s 102. Unlike the common law, under the legislative provisions

The age restriction is to be reduced to allow potential class members to take a share if they are only prevented from doing so by the age restriction: Perpetuities and Accumulations Act 1985 (ACT) s 10(1 ); Perpetuities Act 1984 (NSW) s 9(1 ); Law of Property Act2000 (NT) s 191; Property Law Act 1974 (Qld) s 213; Perpetuities and Accumulations Act 1992 (Tas) s 11 (1 ), (2); Perpetuities and Accumulations Act 1968 (Vic) s 9; Property Law Act 1969 (WA) s 105.

no decision concerning validity can be made at the commencement of

If some members of the class may not attain a vested interest then

the perpetuity period; one must wait and see if the interest vests inside

they may be excluded where that is necessary to avoid breaching the rule against perpetuities: Perpetuities and Accumulations Act 1985 (ACT) s 11 (3); Perpetuities Act 1984 (NSW) s 9(4); Law of Property

or outside the perpetuity period. In all jurisdictions, except South Australia, a statutory perpetuity period exists as either a compulsory replacement of, or an alternative to, the common law perpetuity period. Table 8.1 summarises the position.

Act 2000 (NT) s 191; Property Law Act 1974 (Qld) s 213; Perpetuities and Accumulations Act 1992 (Tas) s 11 (3), (4); Perpetuities and Accumulations Act 1968 (Vic) s 9; Property Law Act 1969 (WA) s 105.

Table 8.1: Statutory perpetuity periods

CONSEQUENCES OF INFRINGING THE RULE AGAINST PERPETUITIES

Jurisdiction

Legislation

Perpetuity period

ACT

Perpetuities and Accumulations Act 1985 (ACT) s 8(1)

80years

NSW

Perpetuities Act 1984 (NSW) s 7 (1)

80years

NT

Law of Property Act 2000 (NT) s187

80 years or life in being plus 21 years

Old

Property Law Act 1974 (Old) s 209(1)

80 years or life in being plus 21 years

upon a prior invalid interest ('dependent limitation' rule). An interest that is prior to a void interest is not affected. If a subsequent interest is

Tas

Perpetuities and Accumulations Act 1992 (Tas) s 6(1)

80 years or life in being plus 21 years

independent of a prior void interest, then it is valid.

Vic

Perpetuities and Accumulations Act 1968 (Vic) s 5(1)

80 years or life in being plus 21 years

In all jurisdictions, except South Australia, the legislation provides that

Property Law Act 1969 (WA) s 101

80 years or life in being plus 21 years

each interest in a series is to be considered separately for the purposes of the rule against perpetuities. The relevant jurisdictions have abolished

Common law The consequence of infringing the rule against perpetuities is determined by whether the interests that do not violate the rule are independent of

8.14

the interests that do. An interest will become invalid if it is dependent

Statute

WA

With regard to class gifts, the 'all or nothing' rule has been replaced in all jurisdictions, except South Australia, with provisions that

146

8.15

the dependent limitation rule: Perpetuities and Accumulations Act 1985 (ACT) s 18; Perpetuities Act 1984 (NSW) s 17; Law of Property

attempt to avoid a class gift being declared void under the rule against

Act 2000 (NT) s 199; Property Law Act 1974 (Qld) s 215; Perpetuities and Accumulations Act 1992 (Tas) s 12; Perpetuities and Accumulations

perpetuities.

Act 1968 (Vic) s 11; Property Law Act 1969 (WA) s 109.

147

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

(1!!1

'Jiii

CASE SUMMARY

PUBLIC TRUSTEE v BENNETT [2004] NSWSC 955 (15 October 2004) SUPREME COURT OF NEW SOUTH WALES FACTS: George Brian Campbell's will provided that: ... 3. NO BENEFICIARIES SHALL take under this Will unless they shall survive me for a period of 30 days. 4. I GIVE DIVISE (sic) AND BEQUEATH the whole of my estate both real and personal of whatsoever nature and wheresoever situated unto my grandchildren in equal shares. 5. [Paragraph appointing substitute executor] 6. I DIRECT THAT no minor Beneficiary shall take under this will until they have reached the age of thirty-two (32) years. 7. I DECLARE that my Trustee may in his/her absolute discretion apply either the whole or any part or parts of the income and/ or capital of the vested contingent or presumptive share of any infant under this my Will for or towards his or her maintenance, education, benefit or advancement in life.

Cheirdyn Lee Bennett and Shami Jade Bennett were the only living grandchildren of the deceased at the time of the proceedings. It was submitted on their behalf that paragraph 6 was void for ambiguity or in the alternative was void for infringing the rule against perpetuities. If paragraph 6 was held to be void then paragraph 4 would grant an absolute gift of the estate to the grandchildren. ISSUE: Does paragraph 6 of the will infringe the rule against perpetuities?

CHAPTER 8 •RESTRAINTS ON ALIENATION AND THE RULE AGAINST PERPETUITIES

ADDRESSING A PERPETUITIES PROBLEM Les A McCimmon, in ' Understanding the Rule against Perpetuities: Adopting a Five Step Approach ' (1997) 5 Australian Property Law

8.16

journal 130, suggests taking the following approach in 'tackling a perpetuities problem ': • Consider whether or not the limitation contained in the instrument creates a contingent remainder or vested interest. If it is a vested interest then the rule against perpetuities is inappli cab le. • Determine the date the instrument comes into effect as this signifies the commencement of the perpetuity period. • Consider the various conditions that apply to the life or lives in being. These include the requirements that the life or lives in being must be human, the life or lives in being must be in existence at the commencement of the perpetuities period, if lives in being are utilised then the group must be incapable of increasing after the date the instrument comes into effect, and the life or lives in being must be ascertainable. • Consider whether or not it is theoretically possible for the contingent remainder to vest outside the perpetuity period. If it is possible, even if it is improbable, then the interest is invalid. • Consider, evaluate and apply the statutory modifications to the common law position.

DECISION: The court held that s 3(1) of the Perpetuities Act 1984 (NSW) (the Act) defined the rule to mean the common law rule that invalidates a trust for a purpose which is not charitable where the duration of the trust will or may exceed the perpetuity period. It was noted that under s 7 of the Act the perpetuity period applicable to an interest created by settlement was 80 years from the date on which the settlement took effect. Paragraph 6 of the will did infringe the rule against perpetuities; however, the wait and see provision under s 8 of the Act and the ability to reduce the age restriction under s 9 of the Act meant that the paragraph would be treated as it did not infringe that rule.

148

149

151

LEXISNEXIS STUDY GUIDE • PROPERTY LAW

CHAPTER 9 • CO-OWNERSHIP

OVERVIEW 9.1

The rights and c::fLT!ies of co-ownership at common law are known as 'tenancy in common' and 'joint tenancy'. Another form of ownership that has developed in more recent times is the strata title model, which provides for owners to purchase and possess their fee simple as unitholders. This chapter discusses the two well-known forms of coownership at common law, and then the more recent strata title. The

If a joint tenant wishes to transfer an interest in the property, he or she

first two types of ownership fundamentally allow owners to possess

does so ~~y of release;:aard: 1J · b~ln Wright v Gibbons (1949) 78 CLR 313, the High Court held (at 323):

an interest in the same property at the same time. There are certain features, or hallmarks, of each, which will be discussed further in this chapter.

JOINT TENANCY

9.2

Joint tenancy allows two or more people to hold an interest in the same piece of land or item of personalty. With a joint tenancy, each party owns the whole interest in its entirety, not just an aspect or part of the property in question. Under joint tenancy there is also the right of survivorship (jus accrescendi); that is, if one joint tenant dies then the other joint tenant automati~ally receives the other's interest. Thus, if Mr X and Mrs Y were joint tenants in a property and Mr X died, then Mr X's interest would automatically pass to Mrs Y; X's will, if he had one, would have no effect on this transfer, nor would the rules of intestacy. There are certain indicia of a joint tenancy which must all be present to find for a joint tenancy:

• unity. a.f possessio.o.: - .eb

-0.Y.ifJ_eJ i eJillitl.€.d o poss.ess:ie.e

to be e.TJ~ }(@d g)jcl!l.d_tegetber. w ith ~ otbeJi j;eril'l' eniar:its amd ra®t..:exf: l wSii1~cel y.by.._one. 10 · t te""""""""""" h . IEl~ h.e-i 111 terests p.er.Jifil y. eb cou~web i~Fi !'fl-etl. rl'S .1