Real Property Real Property Lecture 2Lecture 2

Associate ProfessorAssociate Professor

Cameron StewartCameron Stewart

Property in CLProperty in CL Universalized, reified, fetishized – the Universalized, reified, fetishized – the

materialization of the common lawmaterialization of the common law FormalityFormality CreationCreation TransferTransfer Rights recognised in contract and tort – breach Rights recognised in contract and tort – breach

of contract, trespass, negligenceof contract, trespass, negligence Remedies for breach of property rights – Remedies for breach of property rights –

damagesdamages CL makes orders about the property not the CL makes orders about the property not the

peoplepeople

Types of legal estateTypes of legal estate

Freehold estates Freehold estates Fee Simple – closest to absolute Fee Simple – closest to absolute

ownership - rules of primogenture – ownership - rules of primogenture – escheatescheat

1540 Statute of Wills - later 1540 Statute of Wills - later recognition that can be passed by recognition that can be passed by will – “simple” meant that it could will – “simple” meant that it could pass to any heir unlike the fee tail pass to any heir unlike the fee tail which must pass to particular heirswhich must pass to particular heirs

FreeholdFreehold

Absolute interestAbsolute interest Determinable interests – the occasion Determinable interests – the occasion

of some event will cause the fee of some event will cause the fee simple to revert eg “to y and his heirs simple to revert eg “to y and his heirs so long as St Paul’s Cathedral shall so long as St Paul’s Cathedral shall stand”stand”

- a possible or latent reverter interest- a possible or latent reverter interest - words used “while”, “during”, “so - words used “while”, “during”, “so

long as”, “ until”long as”, “ until”

FreeholdFreehold

Conditional – a subsequent condition on Conditional – a subsequent condition on the devise which states that the the devise which states that the occurrence of some event will allow the occurrence of some event will allow the grantor to take back the interest eg “to grantor to take back the interest eg “to Y and his heirs on the condition that the Y and his heirs on the condition that the property is not used to sell liquor” – property is not used to sell liquor” – only exercised by right of entryonly exercised by right of entry

words used “on the condition” , “but words used “on the condition” , “but if”, “provided that”if”, “provided that”

FreeholdFreehold

Fee tail- a disposition that would last only Fee tail- a disposition that would last only while the heirs of that person would last – while the heirs of that person would last – if they died out the interest would revert if they died out the interest would revert back to the heir of the original owner – back to the heir of the original owner – way of keeping land in the family and way of keeping land in the family and restraining any dispositionrestraining any disposition

Tail male – male descendents specifiedTail male – male descendents specified Tail female – female descendentsTail female – female descendents Special tail – the descendants of a Special tail – the descendants of a

particular wifeparticular wife

Free TailFree Tail

Made possible in De Donis Made possible in De Donis Conditionalibus – lords wanted control Conditionalibus – lords wanted control over who would get estate – so that over who would get estate – so that despite any attempt to alienate the despite any attempt to alienate the interest the interest would past to the interest the interest would past to the designated heir on deathdesignated heir on death

Barring the entail - Common Barring the entail - Common recovery/fine = collusive court actionsrecovery/fine = collusive court actions

Now abolished Cact 19Now abolished Cact 19

FreeholdFreehold

Life estate – granted to a person for Life estate – granted to a person for life – life –

Pur autre vie – for the life of Pur autre vie – for the life of another – “to A for the life of B” or another – “to A for the life of B” or where A has a life interest (“to A where A has a life interest (“to A for life”) and A alienates that for life”) and A alienates that interest during his life timeinterest during his life time

In either case when the life tenant In either case when the life tenant died the interest terminateddied the interest terminated

Future interestsFuture interests

Already apparent that estates allow in Already apparent that estates allow in to be granted for the future eg “to A to be granted for the future eg “to A for life and then to B in fee simple”for life and then to B in fee simple”

B’s estate is a future estate – it doesn’t B’s estate is a future estate – it doesn’t come into being until the death of Acome into being until the death of A

Reversions –Reversions – a grant of an estate in a grant of an estate in possession which returns to the possession which returns to the grantor eg X grants and life estate to grantor eg X grants and life estate to Z hence X is the reversionerZ hence X is the reversioner

Future interestsFuture interests

Remainders -Remainders - a grant of a future a grant of a future interest to some one who did not interest to some one who did not have a previous interest – eg to W have a previous interest – eg to W for life and then to Y in fee simple – for life and then to Y in fee simple – Y is the “remainderman” or Y is the “remainderman” or “remainder”“remainder”

Vested and Contingent Vested and Contingent RemaindersRemainders

the rules concerning future interests the rules concerning future interests require the interest to vest or “fructify” by a require the interest to vest or “fructify” by a certain time – if it does not then the interest certain time – if it does not then the interest will fail will fail

An interest vests when the identity of the An interest vests when the identity of the interest holder is ascertained and when interest holder is ascertained and when there is no condition precedent other than there is no condition precedent other than the normal determination of prior estates the normal determination of prior estates

““to A for life and then to B in fee simple” - to A for life and then to B in fee simple” - Vested Vested

To A for life remainder to B in fee simple if To A for life remainder to B in fee simple if B attains 25 years - Not vestedB attains 25 years - Not vested

Vested and Contingent Vested and Contingent RemaindersRemainders

To A for life remainder to B in fee To A for life remainder to B in fee simple if B attains 25 years - Not simple if B attains 25 years - Not vestedvested

Why? B’s interest is contingent Why? B’s interest is contingent unless he has already achieved the unless he has already achieved the age of 25 when the clause was age of 25 when the clause was written – that is the fact that he written – that is the fact that he must be 25 is a contingency which must be 25 is a contingency which must be satisfied for the property must be satisfied for the property to vest in himto vest in him

Property in EqProperty in Eq SubstanceSubstance ConscienceConscience PowerPower Responsibility – lunacy, infants, married womanResponsibility – lunacy, infants, married woman Trust and confidenceTrust and confidence BUT through the logic of precedent not unfettered BUT through the logic of precedent not unfettered

discretiondiscretion Rights recognised through doctrines of equity – Rights recognised through doctrines of equity –

misrepresentation, undue influence, duress, misrepresentation, undue influence, duress, unconscionability, fiduciary relationships, part unconscionability, fiduciary relationships, part performance, equitable estoppel, breach of performance, equitable estoppel, breach of confidenceconfidence

Remedies – injunctions, specific performance, Remedies – injunctions, specific performance, constructive trusts, personal ordersconstructive trusts, personal orders

Equity makes orders about the people not the Equity makes orders about the people not the propertyproperty

Property in EqProperty in Eq

Equitable property or interest Equitable property or interest (equitable fee simple, mortgages, (equitable fee simple, mortgages, covenants etc)covenants etc)

Personal Equities (Personal Equities (Gill v Gill)Gill v Gill) Mere Equities (Mere Equities (Latec)Latec)

Case study 1: When Case study 1: When contracts go badcontracts go bad

A (vendor) exchanges contracts with B A (vendor) exchanges contracts with B (purchaser)(purchaser)

A gets a better offer from C (he knows A gets a better offer from C (he knows about B’s offer) and completes the sale to about B’s offer) and completes the sale to C before B knowsC before B knows

Common law approach? Breach and Common law approach? Breach and damages – no property held by Bdamages – no property held by B

Equitable approach: breach and specific Equitable approach: breach and specific performanceperformance

But what about the property interests?But what about the property interests?

Case study 1: When Case study 1: When contracts go badcontracts go bad

In common law B is not the owner as the In common law B is not the owner as the contract has not been completed so the contract has not been completed so the property cannot be returnedproperty cannot be returned

In equity, the rule in In equity, the rule in Lysaght v EdwardsLysaght v Edwards says that B gets an equitable interest says that B gets an equitable interest from the exchange and that it is a form from the exchange and that it is a form of constructive trust, which can be of constructive trust, which can be enforced against C (when he knows enforced against C (when he knows about B)about B)

Case Study 2: Fat Henry Case Study 2: Fat Henry and the problem of trustsand the problem of trusts

Henry and the Henry and the purse stringspurse strings

Taxation in Tudor Taxation in Tudor England – feudal England – feudal tenurestenures

PrimogeniturePrimogeniture Devising land by Devising land by

willwill The legal The legal

remainder rulesremainder rules

The useThe use

A --------------------------B --------------------CA --------------------------B --------------------C

(Landowner)(Landowner) ((feoffee to usefeoffee to use ) )((cestui que usecestui que use))

Legal estate Legal estate Beneficial estateBeneficial estate

CLCL EquitableEquitable

The Statute of Uses 1535The Statute of Uses 1535

Collapse the useCollapse the use Springing usesSpringing uses The use on the useThe use on the use Equity creates property where there Equity creates property where there

was none before……was none before……

Case study 2: Part Case study 2: Part performance and the performance and the

equitable ‘impersonation’equitable ‘impersonation’

A Lease for a factory – an A Lease for a factory – an agreement to create a deedagreement to create a deed

Or a mortgage created by deposit of Or a mortgage created by deposit of title deedstitle deeds

Or a promise to give a life interest if Or a promise to give a life interest if cared for in dotage…cared for in dotage…

The requirements for The requirements for writingwriting

23B23B Assurances of land to be by deedAssurances of land to be by deed(1)(1) No assurance of land shall be valid to pass an No assurance of land shall be valid to pass an

interest at law unless made by deed.interest at law unless made by deed.

23C23C Instruments required to be in writingInstruments required to be in writing(1)(1) Subject to the provisions of this Act with Subject to the provisions of this Act with

respect to the creation of interests in land by respect to the creation of interests in land by parol: (a)  no interest in land can be created or parol: (a)  no interest in land can be created or disposed of except by writing signed by the disposed of except by writing signed by the person creating or conveying the same, or by person creating or conveying the same, or by the person’s agent thereunto lawfully the person’s agent thereunto lawfully authorised in writing, or by will, or by authorised in writing, or by will, or by operation of law, ….operation of law, ….

The requirements for The requirements for writingwriting

54A54A Contracts for sale etc of land to be Contracts for sale etc of land to be in writingin writing

(1)(1) No action or proceedings may be brought No action or proceedings may be brought upon any contract for the sale or other upon any contract for the sale or other disposition of land or any interest in land, disposition of land or any interest in land, unless the agreement upon which such unless the agreement upon which such action or proceedings is brought, or some action or proceedings is brought, or some memorandum or note thereof, is in writing, memorandum or note thereof, is in writing, and signed by the party to be charged or by and signed by the party to be charged or by some other person thereunto lawfully some other person thereunto lawfully authorised by the party to be charged…authorised by the party to be charged…

CL says no dealCL says no deal

Colonial AustraliaColonial Australia

The status of the The status of the local laws of a local laws of a colony depended colony depended upon whether it upon whether it was:was:

a conquered a conquered colony; orcolony; or

a settled colony a settled colony (terra nullius- an (terra nullius- an empty land)empty land)

Colonial AustraliaColonial Australia

Australia was treated as being Australia was treated as being settled as it was considered to be settled as it was considered to be unoccupied, that is, as terra nulliusunoccupied, that is, as terra nullius

No recognition of Aboriginal laws or No recognition of Aboriginal laws or customscustoms

Aboriginal land rights not Aboriginal land rights not recognisedrecognised

Terra nulliusTerra nullius

International law of conquest, International law of conquest, cessation or settlementcessation or settlement

Effect of law of inhabitantsEffect of law of inhabitants Imperial authorities assumed Imperial authorities assumed

settlement theorysettlement theory Respect for native inhabitantsRespect for native inhabitants Ambiguous positionAmbiguous position

Murrell’s caseMurrell’s case

1836 – definition of murder – 1836 – definition of murder – arguments that Murrell not subject arguments that Murrell not subject to law of colony – not settled – no to law of colony – not settled – no protection afforded – no recognition protection afforded – no recognition of independent power in a British of independent power in a British colony – no law but only lewd colony – no law but only lewd practices and superstitionspractices and superstitions

Attorney General v BrownAttorney General v Brown

1847 – challenge by coal 1847 – challenge by coal miner of ownership in the miner of ownership in the Crown – absolute title in the Crown – absolute title in the Crown from 1788Crown from 1788

Cooper v StuartCooper v Stuart

1889 - PC – NSW was a “…tract of 1889 - PC – NSW was a “…tract of territory practically unoccupied, territory practically unoccupied, without settled inhabitants or settled without settled inhabitants or settled law, at the time it was peacefully law, at the time it was peacefully annexed to the British dominions…”annexed to the British dominions…”

Mirrilpum v NabalcoMirrilpum v Nabalco

1970 – first land rights action – 1970 – first land rights action – restraint of mining without consent – restraint of mining without consent – Blackburn J – there was a system of Blackburn J – there was a system of law but the issue was one of law and law but the issue was one of law and not of fact – not a property holding not of fact – not a property holding in any sense of the common law in any sense of the common law hence not enforceablehence not enforceable

Mabo No’s 1 and 2Mabo No’s 1 and 2

No 1 – interlocutory – preliminary issue No 1 – interlocutory – preliminary issue concerning validity of a declaratory Act by the concerning validity of a declaratory Act by the Queensland government to extinguish the title Queensland government to extinguish the title of the Murray islanders – held to be in breach of the Murray islanders – held to be in breach of the RDAof the RDA

No 2 – instituted 1982 decided 1992 – original No 2 – instituted 1982 decided 1992 – original jurisdiction of the High Courtjurisdiction of the High Court

Moynihan J of SC QLD for facts – found Moynihan J of SC QLD for facts – found complex land ownership – plots and gardenscomplex land ownership – plots and gardens

Decision (6:1) in favour of a concept of native Decision (6:1) in favour of a concept of native titletitle

Mabo No’s 1 and 2Mabo No’s 1 and 2

Terra NulliusTerra Nullius Found to not be a common law principle but Found to not be a common law principle but

of international law – the true common law of international law – the true common law principle is that of the law of settlements – principle is that of the law of settlements – Australia is regarded as such a territory – all Australia is regarded as such a territory – all judges agreed that Australia was settled, judges agreed that Australia was settled, despite the fact of prior occupation of despite the fact of prior occupation of Aboriginal people – hence the real issue was Aboriginal people – hence the real issue was the relevance of terra nullius to Australian law the relevance of terra nullius to Australian law – settlement is not a bar itself to recognizing – settlement is not a bar itself to recognizing native title – sovereignty could not be native title – sovereignty could not be questionedquestioned

Mabo No’s 1 and 2Mabo No’s 1 and 2

Sovereignty Sovereignty The sovereignty of Australia was not The sovereignty of Australia was not

challenged in the proceedings – challenged in the proceedings – indeed it could not be so challenged indeed it could not be so challenged by an Australian municipal courtby an Australian municipal court

The original sovereignty of the native The original sovereignty of the native Australians was not discussed – there Australians was not discussed – there was a recognition that Aborigines was a recognition that Aborigines had settled law (hence that aspect of had settled law (hence that aspect of terra nullius was rejected)terra nullius was rejected)

Mabo No’s 1 and 2Mabo No’s 1 and 2 What is native title?What is native title? The conquering or the settlement of as colony The conquering or the settlement of as colony

does not automatically extinguish the rights of does not automatically extinguish the rights of the original inhabitants to landthe original inhabitants to land

Traditional Aboriginal occupancy of and Traditional Aboriginal occupancy of and connection with the land by a people, in accord connection with the land by a people, in accord with a system of laws and customswith a system of laws and customs

Content of rights determined by those laws and Content of rights determined by those laws and customs – includes rights to fish hunt and gather customs – includes rights to fish hunt and gather (usufructory rights) – but is varied by particular (usufructory rights) – but is varied by particular laws and customs – can evolve over timelaws and customs – can evolve over time

Inalienable (except in accordance with the Inalienable (except in accordance with the traditional laws and customs)– can be traditional laws and customs)– can be surrendered to Crownsurrendered to Crown

Mabo No’s 1 and 2Mabo No’s 1 and 2 How do you prove native title?How do you prove native title? Existence of identifiable groupExistence of identifiable group Traditional connection with or Traditional connection with or

occupation of land under laws and occupation of land under laws and customs – spiritual more than customs – spiritual more than occupation – special and exclusive ( 4 occupation – special and exclusive ( 4 judges) – Toohey various interestsjudges) – Toohey various interests

Substantial maintenance of Substantial maintenance of connection - physical occupation not connection - physical occupation not necessary necessary

Mabo No’s 1 and 2Mabo No’s 1 and 2 How is it extinguished?How is it extinguished? Crown did not take an absolute title but a Crown did not take an absolute title but a

radical title, which gave sovereignty but not radical title, which gave sovereignty but not ownership – native title is a burdenownership – native title is a burden

Radical title grants power to extinguish Radical title grants power to extinguish without consent - clear and plain intention to without consent - clear and plain intention to extinguish – freehold, leasehold extinguishes – extinguish – freehold, leasehold extinguishes – pastoral leases?pastoral leases?

No duty to pay compensation (3:3 split in No duty to pay compensation (3:3 split in majority and Dawson J also in favour of no majority and Dawson J also in favour of no compensation) – nt not accorded full respectcompensation) – nt not accorded full respect

Constitution S 51(xxi)? – Only Deane and Constitution S 51(xxi)? – Only Deane and Gaudron JJGaudron JJ

Mabo No’s 1 and 2Mabo No’s 1 and 2 How then can native title be How then can native title be

protected?protected? RDA – immunity from RDA – immunity from

wrongful deprivationwrongful deprivation

Mabo No’s 1 and 2Mabo No’s 1 and 2 Fiduciary dutyFiduciary duty General obligation to protect General obligation to protect

welfare – Toohey J – limitation welfare – Toohey J – limitation on Parliamentary on Parliamentary omnicompetenceomnicompetence

Specific obligation to protect Specific obligation to protect property - no clear decision – property - no clear decision – Hints in Brennan, Dean and Hints in Brennan, Dean and Gaudron JJGaudron JJ

Native Title Act 1993Native Title Act 1993 Categorises acts – past acts after RDA and Categorises acts – past acts after RDA and

before NTA – before NTA – A – extinguish native title – grant of A – extinguish native title – grant of

freehold, commerical lease, public worksfreehold, commerical lease, public works B – extinguish to inconsistency – not A acts B – extinguish to inconsistency – not A acts

or mining leases – not a commercial leaseor mining leases – not a commercial lease C – non-extinguishment – mining leasesC – non-extinguishment – mining leases D – any act not A,B,C - easements licenses D – any act not A,B,C - easements licenses

and permits – non extinguishmentand permits – non extinguishment

Native Title Act 1993Native Title Act 1993

Compensation on just terms for Compensation on just terms for extinguishmentextinguishment

Future acts – passing legislation after 1 Future acts – passing legislation after 1 July 1993 or the doing of some other act July 1993 or the doing of some other act after 1 January 1994 – Permissible future after 1 January 1994 – Permissible future acts – treat the same – compensation acts – treat the same – compensation payable for extinguishmentpayable for extinguishment

Right to negotiate concerning future acts Right to negotiate concerning future acts of government – agreements accepted by of government – agreements accepted by NTT and registered with FCNTT and registered with FC

Wik and Thayorre People’s Wik and Thayorre People’s case (“Wik”)case (“Wik”)

Issue concerned the effect of pastorals Issue concerned the effect of pastorals leases on land claimed by two clan leases on land claimed by two clan groups – question of extinguishmentgroups – question of extinguishment

Wik peoples – pastoral leases do not Wik peoples – pastoral leases do not confer exclusive possession - are confer exclusive possession - are statutory creatures and must be statutory creatures and must be interpreted as such – no language of interpreted as such – no language of extinguishment – look to the facts of extinguishment – look to the facts of the grantthe grant

Wik and Thayorre People’s Wik and Thayorre People’s case (“Wik”)case (“Wik”)

Decision 4:3 in favour of the Wik and ThayorreDecision 4:3 in favour of the Wik and Thayorre Statutory Interpretation Statutory Interpretation - clear and - clear and

unambiguous language – majority said that unambiguous language – majority said that language of statute and practical exercise of language of statute and practical exercise of the lease the keythe lease the key

History of Pastoral LeasesHistory of Pastoral Leases – sui generis – sui generis statutory land holdings – not leasehold tenures statutory land holdings – not leasehold tenures and as such no automatic right to exclusive and as such no automatic right to exclusive possessionpossession

Brennan CJ (minority) – ordinary technical use Brennan CJ (minority) – ordinary technical use of leasehold terms indicates intention for of leasehold terms indicates intention for exclusive possessionexclusive possession

Wik and Thayorre People’s Wik and Thayorre People’s case (“Wik”)case (“Wik”)

Extinguishment – Majority said that no clear Extinguishment – Majority said that no clear intention in words of grant mean that no intention in words of grant mean that no extinguishment – Toohey, Gaudron and extinguishment – Toohey, Gaudron and Gummow JJ specific focus on exercise of rights Gummow JJ specific focus on exercise of rights and conflict with actual Aboriginal custom – and conflict with actual Aboriginal custom – Kirby J only the grant itselfKirby J only the grant itself

Radical Title and reversion – even if the grant Radical Title and reversion – even if the grant did not extinguish did the reversion back to the did not extinguish did the reversion back to the Crown extinguish? – Brennan CJ no way Crown extinguish? – Brennan CJ no way doctrine of estates says that a reversion gets fill doctrine of estates says that a reversion gets fill beneficial interest hence extinguish – majority beneficial interest hence extinguish – majority said look to the statute – too much to said look to the statute – too much to automatically presume that doctrine of estates automatically presume that doctrine of estates appliesapplies

Suspension and revival - fiduciary duty - not Suspension and revival - fiduciary duty - not answeredanswered

Since Since WikWik 10 point plan10 point plan Yanner v Eaton Yanner v Eaton [1999] HCA 53 – native [1999] HCA 53 – native

title includes the right to hunt fauna title includes the right to hunt fauna including crocodiles for food and including crocodiles for food and ceremony. The native title protection ceremony. The native title protection overrules State law prohibiting hunting overrules State law prohibiting hunting because of s 109 conflictbecause of s 109 conflict

Commonwealth v Yarmirr (the Croker Commonwealth v Yarmirr (the Croker Island case) Island case) - native title rights over the - native title rights over the sea exist but limited to traditional usessea exist but limited to traditional uses

Since Since WikWik

Western Australia v Ward [Western Australia v Ward [2002] 2002] HCA 28 – evidence of native titleHCA 28 – evidence of native title

Wilson v Anderson Wilson v Anderson [2002] HCA 29 – [2002] HCA 29 – no native title in NSW Western lands no native title in NSW Western lands divisiondivision

Yorta Yorta v Yorta Yorta v