Topic 1 – Title to Land The Meaning of Land
1. The soil and surface layer of the Earth and the physical things attached to the ground (called corporeal hereditaments) 2. The intangible right which can be engaged over ove r the land (called incorporeal hereditaments)
Land includes including airspace, mineral rights, r ights, water rights, boundaries, fixtures. Common Law
The common law does not recognise absolute ownership.
Nature of Real Property Historical Origins of Real Property
The law developed from fuedal tenure. In those times, the economy was largely based on land and agriculture. The Property Law Act 1975 (PLA) was very advanced for its time. It commenced on the 1 st December 1975. It was consolidator c onsolidatoryy – so – so it incorporated many principles from the Quia Qu ia Emptores statute and the states of Uses. Additional Property Interests in Land These include mortgages, easements and restrictive covenants.
Land is Permanent Property
The law can allows for concurrent and consecutive c onsecutive interests. When we talk about an “estate in fee simple”: – relates to duration. Means for lifetime (originally). If the owner dies with no Estate – relates will or family, then the land goes back to the Crown ( bona vacantia) – longest possible duration under the common law Fee Simple – longest
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“A” is the owner of a block of land. If “X” gets an easement, easeme nt, then she has right of way/ access to A’s land, but no other rights. Easement - A right over certain land (the servient tenement for the benefit of certain other land. A might choose to rent/lease out her land to “B”, in which case B is the tenant or lessee, and A is the lessor. B gains the right to exclusive possession and the right to exclude others. Lease - A transfer by the landlord of a lesser interest than his/her own estate, for a term of years or other fixed period usually with a rent payable. pay able. Landlord - the owner of land (lessor) who leases or lets it to the lessee (tenant). If A gets a mortgage, then A is the mortgagor and the bank is the mortgagee. The property (land) is the security for the loan. Mortgage - The transfer of an interest in land by a mortgagor (borrower) to the mortgagee as security for a loan advanced by the mortgagee (lender).
Characteristics Characterist ics of Land Milirrpum v Nabalco Pty Ltd (1971) Blackburn J: J: “I think this problem has to be solved by considering the substance of proprietary interests rather than their outward indicia. I think that property, in its many forms, generally implies:
the right to use or enjoy,
the right to exclude others, and
the right to alienate.
I do not say that all these rights must co-exist before there can be a proprietary interest or deny that each of them may be subject to qualification.” qualification.”
Note: ‘alientate’ means to transfer.
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A chose is a possession like a car, book or o r chair. Choses in action include things like shares, patents or copyrights. Chattels real includes a lease, but the term is rather irrelevant now.
Hereditaments
Corporeal Hereditaments – Hereditaments – These These are tangible real property; physical things over which ownership is exercised (e.g. land, buildings, minerals, trees). Incorporeal Hereditaments – Hereditaments – These These are intangible real property; rights associated with use of the land as opposed to physical things (e.g. easements, rights of way, profits à prendre). Note: profits à prendre means you can take produce from the land like timber or wild game.
Title to Land Physical Limits of Land
Under the Acts Interpretation Act 1954 (Qld) schedule 1:
There was a maxim: “Who owns the land, theirs it is from the centre of the earth to the heaven above.” above.” However, that was dismissed in Lord Bernstein v Skyviews & General (1978) (1978) as a ‘colourful ‘colourful phrase.’ phrase .’ University of Queensland
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In Lord Berstein v Skyviews , it was held that the rights r ights of a landholder in the airspace above her land must be restricted to such height as is necessary for the ordinary use and enjoyment of the land and the structures upon it. And above that height the landowner has no greater rights in the airspace than any other member of the public. pu blic. A new maxim was given in Star Energy Weald Basin v Bacardo (2010) that “land in a legal sense includes the airspace above the surface and the subsoil below .” Trespass is a direct and intentional infringement of boundaries. There is no need to show harm or damage. As for intention, it is assumed that they intended to trespass. Relief for trespass to land – land – damages damages and/or an injunction. Under the Damage by Aircraft Act 1999 (Cth), there is strict liability for trespass – but – but there is no parallel legislation in
Queensland.
Right to Airspace
The right to airspace is limited, and always has been. Temporary Intrusions
Temporary intrusions include items that momentarily pass over land; rather than an object that is permanently situated above land. Griffiths J: J: “I can find no support in authority for the view that a landowner’s rights in the air space above his property extend to an unlimited unli mited height... Bowen LJ described the maxim, usque ad coelum , as a fanciful phrase, to which I would add that if applied literally it is a
fanciful notion leading to the absurdity of a trespass at common law being committed by a satellite every time it passes over a suburban garden.” [ garden.” [Baron Bernstein of Leigh v Skyviews and General ]
Commonwealth legislation creates liability for any actual damage caused by an aircraft in the Damage by Aircraft Act 1999 (Cth). Where it is established that an owner has rights to the airspace, an action can be brought in trespass to protect those rights.
Davies v Bennison (1927)
(1957) Kelsen v Imperial Tobacco Co Ltd (1957)
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Rights of the Public vs. Rights of the Landowner
Griffiths J: J : “The “The problem is to balance the rights of an owner to enjoy the use of his land against the rights of the general public to take advantage of all that science now offers in the use of the airspace. This balance is in my judgment best struck in our present society by restricting the rights of an owner in the airspace above his land to such a height as is necessary for the ordinary use and enjoyment of his land and the structures upon it, and declaring that above that height he has no greater rights in the airspace than any other member of the public.”
[Baron Bernstein of Leigh v Skyviews and General ]
The land includes the airspace capable of enjoyment. If it established that the plaintiff has a right to the airspace intruded upon, it may be found fou nd that there has been a trespass. Nicholls CJ: CJ: “It seems an absurdity to say that if I fire at another’s animal on his land, hit it, kill it, i t, and so leave the bullet in it, I have committed no trespass, and yet, if I miss the animal and so let the bullet fall into the ground, have committed a trespass. Such distinctions have no place in the science s cience of the Common Law … If the hovering h overing aeroplane is perfected the logical outcome of Lord Ellenborough’s dictum would be that a man might hover as long as he pleased at a yard, or foot, or an inch, i nch, above his neighbour’s soil, and not be a trespasser, yet if he should touch it for one second he would be.” [Davies v Bennison ]
In cases where a low-flying low-flying aircraft flies over one’s land, the Court will be reluctant to hold there is trespass if the aircraft operator has not violated height regulations. See Graham v KD Morris & Sons Pty Ltd (1974). (1974).
Permanent Intrusions
Permanent intrusions are items that are permanently, or for an extended period o f time, situated above land (e.g. tree branch, advertising sign, crane jib, etc). In Kelsen v Imperial Tobacco Co (1957), it was held that a lease of a building included the lease of the airspace above. An overhanging sign from the next building amounted to trespass. A mandatory injunction was issued for the removal of the sign.
In Woollerton & Wilson v Richard Costain (1970), it was held that an overhanging crane amounted to trespass. An injunction was issued; however, the injunction was suspended s uspended
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and the development was allowed to proceed on the basis that it would be too inconvenient for the builders (on the balance of convenience). co nvenience). Stamp J: J: “I am conscious that by so doing I am giving with one hand and taking away with the other. But by so doing I give effect to the process by which I have come to my conclusion that in principle there ought to be an injunction but on the particular facts of this case not until the defendants have had a proper opportunity of finishing the job.” job.”
In LJP Investments v Howard Chia Investments (1989), it was held that scaffolding which extended 1.5m into the airspace amounted to a trespass. tres pass. Hodgson J: J: “The relevant test is not whether the incursion actually interferes with the occupier’s actual use of land at the time, but rather whether it is of a nature and at a height which may interfere with any ordinary uses of the land which the occupier may see fit to undertake.”
In Bendal v Mirvac Project (1991), (1991), it was held screens and a crane c rane which encroached upon the airspace amounted to trespass. It had been argued that removing the encroachments would amount to undue hardship. Bryson J: J: “I do not see it as a hardship at all. It is all the defendant’s own doing and the result of their using a construction method which would cause encroachment encroachment and obviously involved them in the need to get permission, yet they did not obtain permission. Their own evidence shows that by adopting the construction method which which they have used they made a saving now quantified at $239,000.00.”
There are statutory rules in the Neighbourhood Disputes Resolution Act 2011 (Qld):
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Statutory Right of User
In the Property Law Act 1974 (Qld):
Thus, under the Property Law Act 1974 (Qld), there is a statutory right of user for permission to encroach upon the airspace, in exchange for f or compensation. In Lang Parade v Peluso (2005), it was held that an overhanging crane amounted to trespass, t respass, but a statutory right of user was granted and small damages (not $230, 000) were awarded to the plaintiff. The Court allowed for an easement. It may be argued that the decision in Lang La ng Parade was influenced by the behaviour of the parties. Peluso had offered money and tried to work wo rk with the plaintiff. The Court noted that “adequate compensation” compensation ” did not allow the plaintiff to hodl the builder to ransom. University of Queensland
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Rights under Land
At common law the precise extent of the landowner’s rights to land below the surface is uncertain. The landowner does have a right to use and enjoy the soil to the extent that this is part of the reasonable use and enjoyment of the land. There is an old assertion that ownership extends to the centre of the earth, but that is not supported anymore. Instead, the landowner has the right to use the soil to suc h a depth as is appropriate for the reasonable use and enjoyment of the land. There is also a right to ‘support’ structures – so excavation excav ation of land is subject to the neighbour’s right to lateral support of their land . See the Property Law Act 1974 (Qld):
See Di Napoli v New Beach Apartments (2004); Bocardo SA v Star Energy UK Onshore (2011). In Bocardo SA v Star Energy UK Onshore (2011), it was held that petroleum pipes at a depth of 900m amounted to trespass to land. The court applied the maxim.
Right to Minerals
At common law, the landowner had right to all minerals (except for fo r gold and silver) found below the surface of their land. Gold and silver are considered the prerogative of the Crown, Cr own, see Wooley v Attorney-General (Vic) (1877). Statute law has now vested ownership of all minerals in the Crown: Mineral Resources Act 1989 (Qld), including coal. The Crown also has be exclusive right to grant mining leases.
Under the Petroleum Act 1923 (Qld), petroleum oil is also the property of the Crown. See also: Atomic Energy Act 1953 (Cth) – (Cth) – the the Crown has the rights to uranium.
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Water Rights (Riparian Rights)
“Riparian” Riparian” means ‘bounded by rivers.’ rivers. ’ At common law, there can be no ownership of water itself. Under the statute, the Water Act 2000 (Qld), all rights to the use, flow and control of all water in Queensland are vested in the State. ‘Water’ includes water in a watercourse, lake or spring; underground water; overland flow water; water that has been collected in a dam; and, in some instance, recycles and desalinated water.
Water Boundaries
Water boundaries are ambulatory: where are body of water (sea, river or lake) defines the boundary of land. These boundaries shift with ordinary movement of the body of water. At common law, where land is bounded by a non-tidal river, there was a presumption that the owner of contiguous land owns to the mid-line of watercourse (the ad medium filum rule). However, this rule has been abolished in Queensland. General Water Rights Despite s 19 Water Act 2000, an owner of land adjoining a watercourse , lake or spring may take water for domestic purposes or for watering stock: stock :
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An owner rights of access over the banks of the watercourse and access over the bed and banks for the purpose of grazing stock. Land Act : s 13A(4). Such owner has a right of action against a trespasser on the bed and banks of the watercourse. The Land Act 1994 (Qld) s 13A also sets out other rights:
Right Line Boundary
A right line boundary is a boundary of the land to which all of the following apply: apply : o
The boundary is represented, or having regard to the source s ource material for the land, would be represented on a land of survey for the land as a straight line or series of straight lines,
o
The boundary’s boundary’s location is fixed,
o
The boundary’s location is marked on the ground, or having regard to the source material for the land, would be marked on the ground by the placement of survey marks that:
Delineate the boundary, or
Allow the location of the boundary boundary to be worked out by reference to them, or
Are a combination of the above.
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Restriction Restrict ion on Land Use
There are very few restrictions on landowners in relation to the right to use their the ir land, as far as the common law is concerned. However, there are several statutes which regulate the activities and uses of privately owned land. Sustainable Planning Act 2009 (Qld)
The act is mainly focused on ecological ec ological sustainability. It requires State and local governments to develop planning schemes which identify and facilitate desired environmental outcomes as well as dealing with core matters such as land use and an d development, infrastructure infrastructure and areas of ecological ec ological and cultural significance. Environmental Protection Act 1994 (Qld)
The Act controls and prohibits unlawful environmental harm and imposes a duty on a person not to carry out any activity that causes or is likely to cause environmental harm unless the person takes all reasonable and practicable measures to prevent such harm. Queensland Heritage Act 1992 (Qld)
The Act establishes the Heritage Register for recording places of significance to Queensland’s cultural heritage. Aboriginal Cultural Heritage Act 2003 (Qld) Torres Strait Islander Cultural Heritage Act 2003 (Qld)
The Acts afford Indigenous cultural heritage “blanket protection” throughout Queensland regardless of whether the sites or objects of cultural heritage have been registered or even identified. A general “duty of care” requires a person to take reasonable and practical measures to avoid damaging or destroying Indigenous cultural heritage. Nature Conservation Act 1992 (Qld)
Under this Act the Minister can stop a landowner from using his or her land in a way that could threaten protected wildlife or wildlife habitat. The Minister also has power to declare private land to be a protected area.
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