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J.

Singh

GLOSSARY OF TERMS
Illustration: Assume there is a property called Blackacre. Assume also there is person A. The State owns the land. A purchases the land from the State. When A does this, he acquires an estate in fee simple. A holds an interest in the land from the State, and that interest is called an estate. The type of estate indicates the duration of the interest. The estate is granted in freehold. If A dies with no will and no descendants, the land goes back to the State. It is said to go back bona vacantia. If A borrows money from a bank, the bank has a mortgage over the land. A is the mortgagor and the bank is the mortgagee. The bank holds a charge of the land to secure the loan, meaning that if A fails to pay the loan, the bank can use the land (e.g. by selling it) to obtain the money owed by A. A further interest that could be created in the land is through a lease. If A granted a third party a lease, A would be the leasor and the tenant the lessee. Further, A could grant a third party an easement. Easements will be studied more in Semester 2. It is clear that regardless of As interest in the land, others may have different, consecutive and concurrent interest in the land. These are all property rights. Glossary of Terms Used: Chattel Real: A lease (in some sense a hybrid between real property (land) and personal property), although historically classified within the latter category. Easement: A right over certain land (the servient tenement for the benefit of certain other land (the dominant tenement), e.g. right of way. Estate: The extent or duration of an interest in land (e.g. estate in fee simple). Fee Simple: The most complete or greatest interest that can be held in land (effectively total ownership). Freehold: A particular type of tenure (way of holding an estate in land) derived from feudal times: to be contrasted with leasehold. Landlord: The owner of land (lessor) who leases or lets it to the lessee (tenant). 1

J.Singh Lease: A transfer by the landlord of a lesser interest than his own estate, for a term of years or other fixed period usually with a rent payable; (classified traditionally as personal property). 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). Title: Persons right to property (sometimes the documents evidencing this). Glossary of Other Terms: Alienation: Transferal of property. Chattels: Goods, personal property, things other than land. Corporeal: Having physical existence. Demise: Transfer, usually by way of lease. Hereditaments: Real property (i.e. that which would go to an heir automatically on intestacy): land (corporeal hereditaments) and intangible rights associated with land (incorporeal hereditaments). Incorporeal: Having no physical existence, intangible. Jus tertii: Rights of a third party in property (i.e. someone other than parties to the case at hand).

Levy distress (distrain): Right of a lessor to seize chattels of a defaulting lessee and hold or sell them against payment of rent; (now obsolete as a procedure but the term appears in some cases). Licence: A permit to do something which would otherwise be wrongful of itself passes no interest in land (though sometimes may be joined to such an interest). Personal property: 2

J.Singh Property other than real property.

Real property: Land and its appurtenant rights. Riparian: Bounded by rivers. Tenure: The manner in which land is held from the Crown (e.g. freehold). Title: Persons right to property (sometimes the documents evidencing this).

J.Singh

CONCEPTS OF PROPERTY WHAT IS PROPERTY?


Introduction: Property law is the law relating to things. Property rights are the legal rights that entitled people to make use of things. Philosophical and Social Foundations of Property: The 19th Century writers and philosophical schools of thought include the following Locke (1960), The Labor Theory: Under this theory, property belonged to the person who made it. Property rights flow from the investment of time and labor into the making of the property. The maxim is one should not reap what they have not shown, a maxim recognized by Evatt J in Victoria Park Racing v Taylor . Lockes theory was reflected in the justifications European countries gave for colonization. The dispossession of indigenous inhabitants of uncivilised countries was depicted as taking possession of land which was desert and uncultivated, hence making it fruitful: see Mabo (No. 2). Bentham, The Social Utility Theory: Bentham considered that rights of property should be based on the utility theory. He therefore rejected Lockes Labor Theory. He wrote that the law protects property, adopting objects in the name of property and protecting them in the name of property, enhancing human happiness by providing security: Property and law are born together and die together. Before laws were made there was no property, take laws away and property ceases. Marxism: Marxist theory is dedicated to abolishing private property and transferring it to the State. The Economic Efficiency Theory: Under this theory private property rights should exist (and be given legal protection) because this provides an incentive for the more efficient use of resources. This theory is rooted in the tragedy of the commons theory, which is that when private rights are not assigned to property, users of the property do not consider the opportunity cost of its use. It highlights the overuse of resources in the absence of property rights. The Meaning of Property/Proprietary Rights: 4

J.Singh Property as a legal concept has two distinct meanings: 1. Property can be an object or thing which is capable of being owned i.e. that which is capable of being owned; and 2. Property can mean a right of ownership i.e. the proprietary rights (rights of ownership) to that object or thing. Property and Value: There is not necessarily a link between property and value. Property may be worthless. Law as a Pre-requisite: Law is necessary for the recognition of property: Bentham; Wily v St George per Sackville J. Multiplicity of Interests: The common law recognizes that a multiplicity of interests may exist in relation to land with the result that a number of people may exercise differing rights over the same property. Each of those interests gives their holders a set of rights over the land. Perpetuity: Property ownership is usually a perpetual right. An exception is a lease, which is for a fixed term. Property as a Relationship/Bundle of Rights: Property is a legally recognized relationship between a thing, its owner and society. Property is not the things, but the rights to or in the things: Yanner v Eaton per Gleeson CJ, Gaudron, Kirby and Hayne JJ; Wily v St George per Finkelstein J. Property is thus not a thing but a bundle of rights which an individual has and is able to enforce in relation to a thing: Army Minister v Dalziel per Rich J; Milirrpum v Nabalco per Blackburn J. In Milirrpum v Nabalco, Blackburn J identified three rights as as evidencing a proprietary interest in property: 1. Right to use and enjoy; 2. Right to exclude others; 3. Right to alienate. Right to use or enjoy: The common law recognized very few restrictions on the landowners right to use and enjoy property. Moreover, the common law provides a cause of action in the tort of nuisance where there has been a substantial interference with the use and enjoyment of the property: Victoria Park Racing v Taylor. 5

J.Singh However, rights are substantially circumscribed today by environmental and planning legislation.

Right of exclusion: This is the right to deny anothers use of the property e.g. refusing permission to enter premises. There is no need for this to be absolute e.g. ownership of an easement. The right of exclusion has implications regarding the classification of public rights as proprietary. See more below. Right to alienate: This was not a feature of the early common law as it was not a part of the English feudal system. However, rights of alienation are now considered as essential to our understanding of property. Consequently, most interests are assignable. However, some may not be. For example, some leases stipulate that the interest may not be assigned. Also, in Re Potter (decd) a beneficiary under a will has held to have acquired a non-assignable right to reside in a certain house as long as he desired. Note: In Mabo v Queensland (No.2) the High Court found that common indigenous rights to native title need not be classified as proprietary to be recognized by the common law. Thus, this category of rights exists independently of the proprietary rights considered in Blackburn Js definition above. The Distinction between Ownership and Possession: Professor Honore in his essay on Ownership in the first (1961) Oxford Essays in Jurisprudence say full ownership as involving eleven elements or legal incidents: 1. The right to possess i.e. to exclusive physical control, literally or metaphorically; 2. The right to use; 3. The right to manage how it will be used; 4. The right to the income from the property; 5. The right to the capital i.e. the power to alienate, consume, waste, modify or destroy; 6. The right to security from interference with the right to the property; 7. The power to transmit, to devise or bequeath; 8. The absence of a term to ones ownership rights i.e. the potential to last indefinitely (but note that there are exceptions e.g. leases); 9. Responsibility for harmful use; 10. Liability to execution; and 11. The existence of rules governing the reversion of lapsed ownership rights. Honore argued that these elements of full ownership are found in all mature legal systems, though each of them is susceptible of varying definitions that affect emphasis and practical consequences. 6

J.Singh Three of these rights will belong to owners but not mere possessors of property: 1. The right to capital will not be possess by someone who is in mere possession of property destruction of the property by a possessor may be an actionable wrong. 2. A possessor of property will ordinarily have possession only temporarily; and 3. A possessor does not benefit from rules governing reversion. An owner will get the rights back when the possessors come to an end. Determining whether a right is proprietary: Generally: Not all rights in respect of property are recognized as proprietary. A number of rights are personal, not proprietary. Similarly, a number of rights are public rights, not proprietary. Personal v Proprietary Rights: Contractual rights, for example through licence agreements, are personal and are therefore not proprietary: King v David Allen. Although the Court in Errington v Errington took a different view, this position was affirmed in Ashburn Anstalt v Arnold. In King v David Allen, a licence, as opposed to a letting of tenancy, was held to be a personal contractual obligation, rather than a proprietary right. A licence creates no estate or interest in the land. The right to see or broadcast a spectacle is not a proprietary interest: Cowell v Rosehill Racecourse; Victoria Park Racing v Taylor per Latham CJ, Dixon and McTiernan JJ. An agreement permitting someone to see a spectacle creates mere contractual rights and obligations: Cowell v Rosehill Racecourse. In Cowell v Rosehill Racecourse, it was held that a right to see a spectacle was not a proprietary interest. It was held that an agreement permitting an individual to see a spectacle create contractual rights and obligations. Victoria Park Racing v Taylor Facts: The plaintiff carried on the business of conducting race meetings at a racecourse owned by it in Sydney The land was surrounded by a fence of overlapping weatherboard which was between six and eleven feet high The defendant Taylor was the owner and occupier of land opposite the street fronting the racecourse On the lawn of Taylors property there had been erected with his permission scaffolding about sixteen feet high with an observation platform Angles, with the permission of Taylor, would broadcast the races through the Commonwealth Broadcasting Corporation Ltd, the second defendant The plaintiff brought an action for nuisance alleging unreasonable and unnatural use of land Held: 3:2 no nuisance 7

J.Singh Latham CJ (majority): The defendants have not interfered in any way with the use and enjoyment of the plaintiffs land. The effect of their actions is to make the business less profitable. Mere competition is not a cause of action. Any person is entitled to look over the plaintiffs fences and see what goes on in his land. If the plaintiff desires to prevent this he can build a higher fence. The expenditure of money does not create a proprietary interest in the spectacle. Dixon J (majority): The essence of the wrong is the detraction from the occupiers enjoyment of the natural rights belonging to, or in the case of easements, of acquired rights annexed to, the occupation of land. There is no right here it is the obtaining a view of the premises which is the foundation of the allegation. An occupier may exclude his neighbours view, but equally the neighbour may look. The right to exclude the defendants from broadcasting a description of the occurrences they can see upon the plaintiffs land is not given by law. McTiernan L (majority): If the number of persons willing to pay for admission drops that is due to the broadcast affecting the goodwill of the racecourse, not damages to the land. It is not shown that the broadcasting interferes with the use and enjoyment of the land Evatt J (dissent) The plaintiffs profitable conduct of its business cannot be dissociated from its occupation of the land, and the damage to the plaintiffs business is necessarily reflected by some diminution in the value of the land Ownership involves the right to full and free enjoyment of the property The defendant broadcasting company has endeavored to reap what it has not sown. Though Evatt J does not say so, he is the only judge who seems to have considered that the right to a spectacle may have been proprietary. Rich J (dissent): An improper or non-natural use or a use in excess of a mans right which curtails or impairs his neighbours legitimate enjoyment of his property constitutes a nuisance. One of the prime purposes of the occupation of land is the pursuit of profitable enterprises Rich J bases his decision on nuisance he does not suggest that there is a proprietary right. However, where an invasion of privacy takes the form of an unlawful intrusion on a persons land, an action in trespass will be available: Emcorp Pty Ltd v ABC; ABC v Lenah Game Meats. Emcorp Pty Ltd v ABC Williams J issued an interlocutory injunction restraining the ABC from televising a film made by ABC employees who trespassed on the plaintiffs business premises to obtain information. ABC v Lenah Game Meats Facts: 8

J.Singh The respondent was a processor of brushtail possums Members of an animal rights group trespassed on land owned by the respondent for the purposes of filming activities conducted in the course of the respondents business The video showed scenes of animals in distress, and caged in close confinement The recording was passed to the ABC, who prepared to use the footage on Four Corners The respondent sought to restrain the showing of the program by injunction, and was successful The ABC appealed to the HC Held (by Gleeson CJ, Gaudron, Gummow, Hayne and Kirby JJ): Appeal allowed There is no tort of invasion of privacy at Australian common law. Thus, there is no legal or equitable right to be enforced. In any event, the activities taking place on the respondents premises were not relevantly private not every act observed by a trespasser is private. Minority: Gummow and Hayne JJ (Gaudron J agreeing) rejected the suggestion that Victoria Park stands in the path of the development of such a cause of action Callinan J expressed a similar opinion, preferring the reasoning of Rich J in Victoria Park, adding that the decision would be decided differently today. It is not a trespass to take a photograph or video of property from the street: Bathurst City Council v Saban. See more in notes on Trespass and Nuisance. Public v Proprietary Rights: Because property typically entails a right to exclude others, it is essentially a private right exercisable against the general public. Proprietary rights do not embrace interests in which the person concerned has no greater claim than any other member of the public: Stow v Mineral Holdings. For example, the common law public right to fish in open sea: Cth v Yarmirr. In Stow v Mineral Holdings, the appellants were not able to object to mining activities on certain land as they did not claim an estate or interest in the land. The fact that some are more disposed than others, derive more benefit therefrom and use the statutory right more often than others does not elevate that which is a public right into a private right capable of being described as an estate of interest in the land Approaches to determining whether rights are proprietary: There have been three main approaches to determining whether rights are proprietary: 1. Categories approach; 2. Characteristics approach; and 3. Functional approach. Categories approach: 9

J.Singh The question asked here is whether the interest falls within an established category of proprietary interests. An example of this can be found in King v David Allen. Here, the Court analyzed the characteristics of ownership and concluded that the interest was a personal, contractual right and not a proprietary right. A further example can be seen in Victoria Park. Latham CJ and Dixon J considered that the right to a spectacle did not fall within an established category of property. Characteristics approach: This approach looks at the commonly identified characteristics of property to determine whether the rights are proprietary. This was the approach taken by Blackburn J in Milirrpum when he considered that it was necessary to analyze the substance of the proprietary interests rather than outward indicia. Blackburn J in Milirrpum identifies three rights in property: 1. The right to use or enjoy; 2. The right to exclude others; and 3. The right to alienate. However, he continued that it is not necessary that these rights co-exist before there can be a proprietary interest or may not be subject to qualification. After examining a number of outward indicia in determining whether Indigenous clans had a proprietary right, he concluded that the problem had to be solved by considering the substance of the proprietary interests rather than their outward indicia. He held that the clan did not have a proprietary interest: 1. The clan does not have the right to use or enjoy the land the clan only has such a right to perform ritual ceremonies; 2. The claims right to exclude others is not apparent; 3. The right to alienate is expressly excluded by the plaintiffs in their statement of claim Functional approach: This balances functional considerations. For example, in Victoria Park, Dixon J referred unfavourably to Lockes theory, that one shall not reap what he has not sown, saying that an investment by a person of labor into land does not give rise to a proprietary right. On the other hand, Evatt J refers to it favourably. Note: Concepts of property are dynamic, changing with social expectations. There are changing subjects of property. For example, women, slaves and indigenous people have previously had no proprietary rights. There are also changing objects of property. For example, is there a right to labor, a right to education or social welfare, or a right to parts of our own body? The Property Law Act 1974 (Qld) recognizes de facto ownership of property, not previously recognized. 10

J.Singh

Enforceability of proprietary rights: It is necessary to distinguish two concepts: 1. Rights in rem: these are proprietary rights i.e. rights of property in the thing (the land). Property rights are enforceable against third parties or the whole world. 2. Rights in personam: these are personal obligations or contracts between the parties. Due to the doctrine of privity, these are enforceable against the person who granted the right only, not third parties. King v David Allen and Cowell (above) provide examples of rights in personam, which are enforceable only against the parties to the contract. The Distinction between Real and Personal Property Classification and Terminology: Property

Real Property (Realty)

Personal Property (Personalty)

Corporeal Hereditaments

Incorporeal Heriditaments

Chattels Real

Chattels in Personam

Intellectual Property

Choses in Possession

Choses in Action

Legal Choses in Action

Equitable Choses in Action

Real property comprises estates or interests in land. It is therefore immovable. Traditionally, property was considered real if a person dispossessed of it could recover it as of right i.e. it was specifically recoverable in a real action. Personal property is all that which is not real property. It is movable. Traditionally, a person dispossessed of such objects had a personal action for damages against the wrongdoer but was not entitled to an order requiring the wrongdoer to deliver the actual object. Real property:

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J.Singh Within real property, a further distinction exists between corporeal heriditaments and incorporeal heriditaments. Corporeal hereditaments are physical, tangible things in land over which ownership is exercised. For example, trees, buildings and minerals. Incorporeal hereditaments are rights of a non-physical, intangible nature. They are the rights of use attaching to the land. For example, easements or profits a prendre (the right to produce from the land of another e.g. a turf farm). Personal property: Chattels Real are the various forms of leaseholds. Leases originally developed as contracts relating to the occupation of land and were a species of personalty. However, they are, of course, also interests in land. This term expresses the concept that leases are a hybrid between contracts and interests in land. Chattels in personam, also called chattels personal, are any form of personal property, whether tangible or intangible, other than a chattel real. Choses in possession are items capable of being the subject of actual possession. This includes tangible moveable personal property such as cars and furniture. Choses in action are items which cannot be physically possessed but are recoverable by an action. This includes intangible movable personal property such as shares in a company. Legal choses in action are those recognized by a court of common law. For example, a debt, shares on a company or a claim under an insurance policy. Equitable choses in action are those not recognized in a court of common law but which are recognized in equity. For example, the beneficiarys interest under a trust of personal property the beneficiary does not have only personal rights of action, but has rights enforceable against third parties. Intellectual property includes copyrights, patents etc.

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J.Singh

CONCEPTS OF PROPERTY WHAT IS LAND?


Introduction: Land is defined in the Acts Interpretation Act 1954 to include: Messuages, tenements and hereditaments, corporeal or incorporeal, of any tenure or description and whatever may be the interest in the land. Messuages includes gardens and courtyards. Tenements include any holding of property, for example a lease. Cuius est solum eius est usque ad coelum et ad inferos: Who owns the land, theirs it is from the centre of the earth to the heaven above. This maxim is far from true today. It must be considered in four senses: 1. Up air space, usque coelum 2. Down to the earths centre 3. Sideways surveyed boundaries 4. Attachments to land Rights to Airspace: Is there a trespass? There are two elements for a trespass: 1. Interference with land; 2. By intentional/direct act(s) Interference with land: At common law, a landowners proprietary rights in respect of the airspace are restricted to a zone capable of reasonable use and enjoyment: Baron Bernstein of Leigh v Skyviews. In Baron Bernstein of Leigh v Skyviews, the plaintiff alleged that the defendant was guilty of trespass for flying over and taking photographs of his house. Where it is established that an owner has rights to the airspace then an action can be brought in trespass. In Davies v Bennison, the defendant was liable in trespass for firing a gun into his neighbours land, killing the neighbours cat. Damages were payable as an injunction would have been ineffective.

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J.Singh In Kelsen v Imperial Tobacco Co, the protrusion of a sign 8 inches into the airspace above the plaintiffs shop was held to be a trespass. It was held that the lease of land includes the lease of the airspace above. In Woollerton & Wilson v Richard Costain, the jib of a crane was left loose such that the crane was left free to swing. It would overhang the plaintiffs land by a maximum of 50 feet, approximately 50 feet above roof level. It was held that the defendant was liable in trespass. In Graham v KD Morris, a crane was left free to rotate so that, on occasion, the jib encroached 62 feet over the plaintiffs land. It was held that this was a trespass. An injunction was granted. In LJP Investments v Howard Chia, the extension of scaffolding from construction into the plaintiffs land was held to be a tresspass. In Bendal v Mirvac Projects, encroachments in the following forms were held to be a trespass: Scaffolding projects beyond the boundary; A tower crane being used would swing loads over the plaintiffs property; Landing platforms with a 3.8m freeboard off the concrete face would be used from time to time during construction. It is not a trespass to take a photograph or video of property from the street: Bathurst City Council v Saban. Damage is not required for success in an action for trespass (strict liability). 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: Woollerton & Wilson; LJP Investments; Bendal v Mirvac. Intentional/direct act: The act must be intentional and direct: Esso Petroleum v Southport Construction. In Esso Petroleum v Southport Construction, an oil spill which was carried to the foreshore by the tied was held not to be a trespass. This means, for example, that if a tree is planted such that it overhangs a boundary, that will be a trespass. However, if it gradually grows over, it will not. Is there a nuisance? Damage is required for actions in nuisance: Woollerton & Wilson; LJP Investments. However, the damage need not be tangible it takes the form of substantial and unreasonable interference with the use and enjoyment of the property: Thompson-Schwab v Costaki; Laws v Florinplace (sign advertising sex shop). 14

J.Singh However, there is no need for an intentional/positive act only a substantial and unreasonable interference with the use and enjoyment of the land. Thus, roots of a tree encroaching under ones land causing damage have been held to amount to a nuisance: Davey v Harrow Corporation.

If yes, what is the appropriate relief? Ordinarily, the plaintiff is prima facie entitled to an injunction: Graham v KD Morris; Bendal v Mirvac; LJP Investments. However, injunctions are an equitable remedy and thus the Court has discretion to determine whether the remedy should be granted: Kelsen v Imperial Tobacco. If the injury to the plaintiff's legal rights is: 1. Small; 2. Adequately compensated by a small money payment; and 3. It would be oppressive to the defendant to grant an injunction the Court may exercise its discretion to award damages in substitution for an injunction: Shelfer v London Electric Lighting Co. The jurisdiction to give damages instead of an injunction is not to be exercised so as to enable the defendant to purchase from the plaintiff against his will his legal right to the easement: LJP Investments. The consideration of oppression on the defendant is not a particularly significant consideration today: Graham v KD Morris, contrast Woollerton v Wilson (suspended injunction until workd completed, criticized in Charrington v Simmons). In particular, if harm arises to the defendant as a result of its own cavalier attitude or failure to seek permission from the plaintiff for the encroachment, this harm will not prevent the grant of an injunction: Graham v KD Morris; Bendal v Mirvac. It does not suffice that the defendant seek permission after the writ is issued. Permission should be sought prior to the commencement of the work: Graham v KD Morris. If on request for permission, the plaintiff requests a large sum of money as consideration and the defendant refuses and commences construction, that will militate against a refusal to grant an injunction: LJP Investments (lump sum payment of around $30,000, plus in addition a rental payment of $570 per week and then $1,140 per week was held not to be unreasonable). A plaintiff may also be disentitled from an injunction by his acts or by laches: LJP Investments. An injunction will not be refused if there is a chance of reoffending: Graham v KD Morris; Bendal v Mirvac. It may be significant that techniques exist for the constructing the building right next to the boundary line with screens and other equipment which do not create long-standing encroachments: Bendal v Mirvac. 15

J.Singh The relevant types of injunctions are: 1. Interim/interlocutory injunctions; 2. Mandatory injunctions (require a particular act); and 3. Prohibitory injunctions (forbid a particular act). Also, there may be a remedy of self-help or abatement e.g. in the case of nuisance by a tree, the victim may cut the branches off: Smith; Lemon v Webb. However, abatement may not cause the tree to die: Gerrard. Also, one may be held liable for trespassing on anothers land when trying to abate the nuisance you must stay on you own land: Gerrard. Rights under the Land: Have any rights been infringed? Has the right to lateral support been infringed? Landowners have a right to lateral support i.e. the right of a landowner to excavate her or his land is limited by the right of his or her neighbour to the lateral support of their land: Dalton v Angus. S179 of the Property Law Act 1974 (Qld) extends this to support of buildings. S179 is not confined to landowners but extends to all persons e.g. engineers: De Pasquale Bros v Cavanagh Biggs. If yes/no, have any rights to substances under the ground been infringed? Statutes have changed the common law which had provided that the landowner had the right to all minerals except gold and silver, which were regarded as the prerogative of the Crown. If minerals: The Mineral Resources Act 1989 (Qld) provides in respect of minerals: S5 defines mineral broadly to mean a substance which normally occurs naturally as part of the earths crust or is dissolved or suspended in water within or upon the earths crust and includes a substance which may be extracted from such a substance. S8(1) gold is the property of the crown S8(2) coal is the property of the crown except where the land on which it was found was alienated in fee simple before 1 March 1910 and the grant did not contain a reservation in respect of coal S8(3) other minerals are the property of the Crown. The exceptions to this are those granted in fee simple pursuant to other acts detailed in s8(3). o Exceptions are land granted in fee simple under 19th century legislation. S9(1) a person is not competent to enter into an agreement or arrangement, (other than an agreement referred to in section 320(2)(a) or (b)) authorising the prospecting or exploring for mineral or the mining of any mineral therefrom notwithstanding that the mineral is not the property of the Crown. The effect of this is the Crown has the right to grant mining licenses.

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J.Singh

S28(1) - the Crown, or an owner is entitled to recover compensation in respect of damage or injury suffered or loss incurred by reason of a person acting or purporting to act under the authority of a prospecting permit

See also ss10, 19, 51 and 236.

If petroleum: The Petroleum Act 1923 (Qld) provides in respect of petroleum: S9 petroleum is property of the Crown S10 all grants, leases, licences, and other instruments of tenure shall contain a reservation of all petroleum on or below the surface of the land comprised therein, and also a reservation of all rights of access for the purpose of searching for and for the operations of obtaining petroleum in any part of the land, and all rights of way for access and for pipelines and other purposes requisite for obtaining and conveying petroleum in the event of petroleum being obtained in any part of the land. If uranium: The Atomic Energy Act 1953 (Cth) provides in respect of uranium. In 2002 the HC determined in WA v Ward that native title does not give indigenous persons rights over the minerals in the land for two main reasons: 1. Ownership of minerals is not connected to indigenous customs; and 2. The rights have been appropriated by the Cth under legislation. Now, the landowner has the right to use and enjoy so much of the soil as is required for the reasonable use and enjoyment of the land. Riparian Rights Is the boundary of the land with tidal or non-tidal waters? Tidal waters refers to the ocean. Non-tidal waters refers to rivers and lakes. If the boundary is with non-tidal waters Boundaries: At common law there is a presumption that the owner of contiguous land owns to the mid-line of the watercourse: Svendsen v Qld. However, s 24(1) of the Water Act provides that a land-owner owns to the waterline. If a land is bounded by water, those boundaries may be ambulatory in the sense that they are subject to a natural process of accretion or erosion: Svendsen v Qld. The doctrine of accretion 17

J.Singh holds that where land is granted with a water boundary, the title of the grantee extends to that land as added to or detracted from by accretion: Southern Centre of Theosophy. There are no provisions in the Water Act for this. Thus, the principles of accretion and erosion at common law apply. At common law, the accretion must be: 1. Gradual and imperceptible; 2. By natural causes. Gradual and imperceptible: At common law, the doctrine of accretion applies only to gradual and imperceptible changes: Southern Centre of Theosophy; John Holt and Co. Imperceptible is expressive only of the manner of accretion, that is the course of its progress, and does not mean imperceptible after a long period of time: Southern Centre of Theosophy; John Holt and Co. In Southern Centre of Theosophy, the recession of the high-water mark due to the deposit of sand by wind and water exposing 20acres of land was held to be accretion. By natural causes: The accretion must occur as a result of natural causes: John Holt and Co. That is not to say that the change must result solely through fluvial action: Southern Centre of Theosophy (wind ok). In John Holt and Co, the construction of a retaining wall, the drilling of stakes into the foreshore, and the leveling of the built-up land was held not to be accretion by natural cases. However, the doctrine may also apply to changes resulting partially from human action, as long as that action was not a deliberate attempt by the claimant to change the boundary: Verall v Nott. In Verall v Nott, assistance by a construction wall was ok. Note: these principles of accretion apply equally to Torrens title land. Usage of Water: The rights to use, flow and control water are vested in the State: s19 Water Act. However, an owner of land adjoining a watercourse may take water for domestic purposes, for watering stock, or grazing stock: ss19-20 Water Act. Where there is a shortage of water, the chief executive can limit the taking of water: s24 Water Act. If the boundary is with tidal waters 18

J.Singh Boundaries: At common law, the boundary is the mean high water mark. The property to the foreshore and the land below the mean high water mark is vested in the Crown: Svendsen v Qld. The position today is contained in s9 of the Land Act 1994 (Qld). S9(2)(a) provides in relation to tidal navigable rivers that the land below the high-water mark is and always has been the property of the State. This applies retrospectively: Qld v Beames. However, if the line of the high-water mark shifts over time by gradual and imperceptible degrees, the boundaries of the parcel shift with the high-water mark: s9(2)(b). Land that becomes raised above the high water mark because of the carrying out of works, belongs to the State and may be dealt with as unallocated State land: s10. This does not apply restrospectively: Qld v Beames. Thus, there are two elements: 1. Shift over time by gradual and imperceptible degrees; 2. Land does not so shift as a consequence of carrying out of works. Shift over time by gradual and imperceptible degrees: At common law, the doctrine of accretion also applied only to gradual and imperceptible changes: Southern Centre of Theosophy; John Holt and Co. Thus, the common law cases provided assistance on this point. Imperceptible is expressive only of the manner of accretion, that is the course of its progress, and does not mean imperceptible after a long period of time: Southern Centre of Theosophy; John Holt and Co. In Southern Centre of Theosophy, the recession of the high-water mark due to the deposit of sand by wind and water exposing 20acres of land was held to be accretion. Land does not so shift as a consequence of carrying out of works: The common law emphasized that the shift had to occur as a result of natural causes: Southern Centre of Theosophy; John Holt and Co. Its principles are thus relevant. In John Holt and Co, the construction of a retaining wall, the drilling of stakes into the foreshore, and the leveling of the built-up land was held not to be accretion by natural cases. However, if the build up of land was predominantly by natural causes and artificial action assisted the accretion only unintentionally, the doctrine still applied: Verrall v Nott. Verrall v Nott Facts: The plaintiff was the owner of four lots bounded by the North Harbour The land built up, assisted by the construction of a rubble wall 19

J.Singh Held: The doctrine of accretion applied The plaintiffs acts were unintentional in that he did not deliberately construct the wall to reclaim the land. Holt was therefore distinguishable. S10 modifies the rule in Verall v Nott, restricting the doctrine of accretion to natural causes only. If either of these elements is not satisfied, the land belongs to the State. Usage of Water: No rights of usage.

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J.Singh

FIXTURES
Introduction: The doctrine of fixtures provides that chattels, by virtue of their circumstances surrounding their annexation to land, may change character from personal to real property. The situations where it becomes relevant to determine whether an item is a fixture include: 1. Dispute between lessor and lessee; 2. Dispute between a vendor and purchaser of land to determine which items have passed with a conveyance of title to the land to the purchaser; 3. Mortgagor and mortgagee to determine what property is the subject of the mortgage; 4. Life tenant and the remainderman a life tenant is a person who has use of the land for their lifetime or the lifetime of a stipulated person. A remainderman is a person entitled to land on the death of the life tenant or that stipulated person. 5. Executors and beneficiaries of wills fixtures will pass to the devisee (i.e. the person who is the beneficiary of the realty under the will) whereas mere chattels will not. 6. Tax calculation of duties on land e.g. good and services tax. Do the Agricultural Tenancy Provisions Apply? These provisions apply to contracts of tenancy only (not to leases or licences from the Crown): s154(1) PLA. This is defined as any part of agricultural land of an area of not less than five acres held by a tenant under a landlord: s153(1) PLA. If yes:At common law, agricultural fixtures were not regarded as falling within the exception of tenants fixtures: Elwes v Maw. This has been changed by Div 6 of Pt 8 of the Property Law Act 1974. Per s155(1), a tenant has a right to remove certain fixtures unless: 1. The fixtures were affixed pursuant to an obligation to do so; 2. The fixture was erected to replace a lessors fixture; or 3. The fixture is a building which the tenant is entitled to compensation for under the Act (see s156). The first question is, are the items fixtures or chattels? Go through common law provisions as outlined below. 21

J.Singh The second question is, can the tenant exercise a right of removal? If the items are chattels: If the items are chattels, they may be removed as they are not part of the realty.

If the items are fixtures: Is there provision in the contract of tenancy? S155 is subject to any agreement to the contrary in the contract of tenancy: s155(5)(b). Has the lessor purchased the fixtures at fair value on giving of notice? Rights of removal are subject to an overriding right in the lessor to purchase the fixtures at fair value on giving notice of the intention to do so: s155(3). If no:Per s155, to exercise a right of removal a tenant must have: 1. performed all lease obligations; and 2. given 1 months notice of intention to remove. If these requirements are met, the fixture may be removed by the tenant at any time during the lease or within 2mths of expiry: s155. If the items are fixtures and are not removable, is the tenant entitled to compensation? Per s156, a tenant has a right to compensation at the end of the tenancy if: 1. The improvement is in Schedule 4 Pt 1 or 2; 2. The tenant gave notice under s157 prior to making the improvement (note: landlords right to object to the proposed improvement and right to refer the matter to arbitration); and 3. Notice of the intended claim was given pursuant to s160. Sch 4 Pt 1 and 2 list the following improvements: 1. drainage of land 2. erection or enlargement of buildings 3. making of fences 4. formation of silos 5. making of water meadows or works of irrigation 6. making of dams for the conservation of water, or wells 7. clearing of land 8. liming of land 9. manuring or fertilising of land with purchased artificial or other purchased manures or fertilizers 22

J.Singh 10. laying down pasture with clover, grass, lucerne, sainfoin, or other seeds sown more than 2 years prior to the determination of the tenancy 11. making of plantations of bananas or pineapples 12. planting of sugarcane 13. planting of orchards with fruit trees permanently set out S158 provides that agreements may be made between the parties regarding notice, improvements, compensation. This is subject to s154(2). S159 provides for arbitration. Ss161,162 provide for recovery and amount of compensation. S164 provides in respect of mortgages. If no:Go to general law below Is the item a fixture or a chattel? Test: The test of whether a chattel has become a fixture is whether, determined objectively, it was intended that the chattels become part of the land or remain as mere chattels: Holland v Hodgson; Hobson v Gorringe; Palumberi v Palumberi; Esanda Corporation. In Holland v Hodgson, looms (devise for spinning wool) were attached to the stone floors of the rooms of the mill by means of nails driven through holes in the feet of the looms. This was necessary to steady the looms and keep them in a true direction. These were held to be fixtures and to pass by the mortgage as part of the realty. In Hobson v Gorringe, an engine installed in a sauna was held to be a fixture. Therefore, Hobsons (hirers) equitable right of removal of the engine was defeated by the legal interest of Gorringe as mortgagee. In Anthony v Cth, telephone polls and powerlines were fixtures as they had been installed by the defense forces and were easily removable. Considerations: There are three tests to determine the intention of the parties. The first two were set out by Blackburn J in Holland v Hodgson: 1. The degree of annexation; and 2. The object and purpose of the annexation.

23

J.Singh The third test looks to community standards: Leigh v Taylor; Reid v Smith; Hawkins v Farley per Fitzgerald P. In Leigh v Taylor, tapestries affixed to walls were held to be chattels. Affixing the tapestries to the walls were the only way they could be enjoyed there was no lighter way that they could have been affixed. In Reid v Smith, a timber dwelling house built to rest solely by its own weight on brick pillars to protect against white ants was held to be a fixture. In particular, the fact that this was a building lease suggested that the intention was that any dwelling house put on the land should be considered annexed to the freehold. Griffith CJ, however, noted that a dwelling house, if unattached to the land, was not necessarily a fixture. In Hawkins v Farley, a dishwasher and a shed were held to be fixtures. With respect to the dishwasher, while the electric connection of the dishwasher was not a secure affixation, the plumbing connections for both the entry of clean water and the exit of dirty water are secure affixations. Although it could easily be removed by the disconnection of the plumbing, the entire fixture into which it was built was intended as an integrated whole. With respect to the shed, common sense dictates that that shed is a fixture. Also the size and permanence of the shed indicates this. Although it has been suggested that certain of these considerations are to be emphasized more than others (see Coroneo per Jordan CJ), the preferred view is that each consideration is to be given equal weight: NAB v Blacker per Conti J. In Coroneo, the switchboard and generating machinery in a theatre were held to be fixtures. However, the chairs were mere chattels. The degree of annexation: There are two questions here: 1. What is the connection with the land? 2. What is the mode or extent of annexation? What is the connection with the land? If an item is fixed by any means other than its own weight, then prima facie it is a fixture and the burden of proof is on anyone who asserts otherwise to establish that it is not a fixture. The same is true in reverse: Coroneo; Kays Leasing; Pan Australia Credits v Kolim. In Pan Australia Credits v Kolim, two air-conditioning units were installed in a well in the roof of a convention centre. The units were fastened by bolts into a fitting in the concrete floor of the well. They were also attached to steel ducting which entered the ceiling of the premises and communicated with vents fitted into 13 holes in the ceiling. The units were held to be fixtures. Thus, they passed to the mortgagee upon default by the mortgagor. In Kays Leasing, items of machinery installed in a factory were held to be fixtures. Thus, upon default, the rights in the machinery passed to the mortgagor and the original 24

J.Singh hirer had no rights in respect of them. However, the original hirer, by virtue of its rights against the mortgagor, was entitled to require the mortgagee to act strictly in accordance with the powers given it by the mortgage. Accordingly, C company should be restrained from selling the fixtures. The hirer maintained an equitable interest in the machinery, but this was not enforceable against the mortgagee due to privity. Nonetheless, this equitable interest gave the hirer sufficient interest to warrant the grant of an injunction.

What is the mode or extent of annexation? If an item is affixed such that it cannot be detached without doing substantial damage to the fixture and/or the thing on which it is affixed, that will evidence that it is a fixture: Coroneo; Wellsmore v Ratford; Kays Leasing. In Wellsmore v Ratford, a fiberglass home at an exhibition of building materials fixed by steel spikes driven into the ground and welded to steel base plates on each of four steel legs which supported the home was held to be a fixture. Removal may cause substantial damage even where that damage is not physical, but is merely to make a part of the land incomplete: Hawkins v Farley per Fitzgerald P. Object and purpose of annexation: There are two considerations: 1. Time; 2. Better use and enjoyment. Time: If the item appears to have been affixed for a permanent or substantial time, being of large size and relative permanence, it is more likely to be a fixture: Belgrave Nominees; Hawkins v Farley per Derrington J. In Belgrave Nominees, two air-conditioning units connected and installed on the roof of a building were held to be fixtures. In the reasoning of the Court, particular reference was made to the connection of the airconditioning and the fact that the plants, when fitted, formed an essential part of the buildings necessary for their use and occupancy as modern office premises. Better use and enjoyment: If an item is affixed for the better use and enjoyment of the chattel as a chattel, it is more likely to be a chattel: AG v RT Co; Leigh v Taylor. The same is true in reverse: Belgrave Nominees; Holland v Hodgson. In AG v RT Co, two printing presses, weighing 45 tons each, attached by bolts to the floor, were held to be chattels. The purpose of holding the presses steady for their more 25

J.Singh efficient use as presses indicated that the intention was not that the presses become part of the land. If an item is affixed only because that is the only way that it can be enjoyed, that may evidence that the item is a chattel: Leigh v Taylor; Spyer v Phillipson. Community standards: Regard should be had to the prevailing community standards as well as to the taste and fashion of the day: Reid v Smith; Leigh v Taylor. Common sense should be used: Hawkins v Farley. What is the significance of the item being a chattel/fixture? Mortgages: Therefore, a mortgage of land includes all fixtures at the date of the mortgage and those attached during the term of the mortgage. If the fixture becomes part of the security, the mortgagor cannot remove it and upon default it passes to the mortgagee: Pan Australia Credits v Kolim; Kays Leasing; Holland v Hodgson; Hobson v Gorringe. Tenants Fixtures: Do the terms of the lease contain provisions regarding a tenants right to remove fixtures? The first step in determining whether a tenant is permitted to remove a fixture is to have regard to the terms of the lease to ascertain any contractual right of removal of fixtures. If yes, apply contractual provisions. If no, look to the general law: Generally, all fixtures attached by the tenant become part of the landlords realty. However, tenants fixtures attached for domestic, trade or ornamental purposes are removable: Leigh v Taylor, Spyer v Phillipson. This exception applies only between lessor and lessee, and a life tenant and remainderman. It does not apply between a vendor and purchaser, a mortgagor and mortgagee, or a devisee of the real estate and a personal representative. Where there is a right to remove the fixtures after the termination of the lease or tenancy, the tenant has the right to go onto the premises for that purpose. The right of removal is enforceable against the owner of the land, not the mortgagee. Are the fixtures tenants fixtures: Tenants fixtures are fixtures annexed to the land for the purposes of trade, domestic convenience or ornament: Holland v Hodgson. 26

J.Singh Domestic or ornamental fixtures include wooden paneling, ornamental chimneypieces and fireplaces: Spyer v Phillipson. In Spyer v Phillipson, the estate of a deceased tenant was permitted to remove valuable oak-panelling and ornamental chimney pieces. This required structural alterations but nothing major. However, items will not be removable as tenants fixtures if, by their size and permanence, the removal cannot be effected without material injury to the land, the essential character or value of the item, or where it was intended that they be permanently affixed: Sebea v Territory of Papua. In Sebea v Territory of Papua, improvements made by the Crown to land of Papua natives such as an aerodome, leveling, draining, runways and buildings were held to be fixtures. However, they were trade fixtures and could therefore not be removed. This includes those fixtures which the tenant fixes into the premises so that they become part of the structure e.g. doors or windows: NZ Government Property Corp v H M & S Ltd. Further examples are shelves and counters: Harding v National Insurance Co. Are the requirements for timing met? A tenant is entitled to remove the fixtures during his term or within a reasonable time after expiration: Holland v Hodgson. However, in DArcy v Burelli Investments Pty Ltd it was held that a tenant for a fixed term could not remove the tenants fixtures after the expiration of the term except: 1. Where the tenant remains in possession as a tenant, whether by holding over, or under an extension of a lease, or pursuant to the grant of a new lease; or 2. Where the tenant remained in possession under a genuine colour of right as a tenant, for example, where there is a genuine dispute as to whether or not a tenancy has been renewed. Further, it appears that a tenant for a lease of uncertain duration, for example, a tenancy at will, has a reasonable time after the termination of the tenancy to remove fixtures: DArcy v Burelli Investments.

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J.Singh

MISTAKE OF TITLE AND ENCROACHMENT


Introduction: Mistake of title occurs where there has been a complete misunderstanding as to the owner of the land. For example, if a house is constructed on the wrong block of land. Encroachments occur where there is a partial extension of an object into anothers land i.e. where part of a building extends across the boundary of the neighbouring land. Mistake of Title: At common law, relief was only provided if the owner, knowing of the mistake and allowing the building to continue, was thereby estopped from asserting title to the land: Ramsden v Dyson; Brand v Chris Building Society. The common law has been modified by statutory provision. Is the plaintiff the appropriate party? Per s198, an application may be made for relief by: 1. Any person in possession of an improvement; 2. Any person having an interest in the land on which the improvement is fixed; 3. Any person claiming to be entitled to any benefit by any interest relating to the land or improvement; 4. The successor to the land; 5. The local government. The Division does not deal with relations between vendor and purchaser. It deals only with the relations between the improver and those claiming under him or perhaps acting on his behalf on the one hand and the true owner and those claiming under him on the other. Newman v Powter per Connolly J. Are the elements of s196 met? Under s196 of the Property Law Act 1974 (Qld), an application for relief can be made where there is: 1. Lasting improvement by a person; a. Duncan and Vann equate lasting with permanence. 28

J.Singh 2. On land owned by another; 3. Under genuine but mistaken belief that: a. Such land is the persons property; or b. Such land is the property of a person on whose behalf the improvement is made or intended to be made. The use of the word genuine connotes that the test is essentially a subjective one in determining the existence of the mistaken belief: Ex parte Karynette. Apply above elements What relief may be granted? A broad range of orders may be made under s197: see, for example, Re Verdugo. In Re Verdugo, the Court gave the owner of land on which a house had been mistakenly built a choice of relief either he could sell the land at market value or keep the land and pay the mistaken party a reasonable amount for the house. S197 provides:
(1) If in the opinion of the court it is just and equitable that relief should be granted to the applicant or to any other person, the court may if it thinks fit make any 1 or more of the following orders (a) vesting in any person or persons specified in the order the whole or any part of the land on which the improvement or any part of the improvement has been made either with or without any surrounding or contiguous or other land; (b) ordering that any person or persons specified in the order shall or may remove the improvement or any part of the improvement from the land or any part of it; (c) ordering that any person or persons specified in the order pay compensation to any other person in respect of (i) any land or part of the land; or (ii) any improvement or part of the improvement; or (iii) any damage or diminution in value caused or likely to be caused by or to result from any improvement or order made under this division; (d) ordering that any person or persons specified in the order have or give possession of the land or improvement or part of the improvement for such period and upon such terms and conditions as the court may specify. (2) An order under this division, and any provision of the order, may (a) include or be made upon and subject to such terms and conditions as the court thinks fit, whether as to payment by any person of any sum or sums of money including costs (to be taxed as between solicitor and client or otherwise), or the execution by any person of any mortgage, lease, easement, contract or other instrument, or otherwise; and (b) declare that any estate or interest in the land or any part of the land on which the improvement has been made to be free of any mortgage, lease, easement or other encumbrance, or may vary, to such extent as may be necessary in the circumstances, any mortgage, lease, easement, contract, or other instrument affecting or relating to such land or any part of the land; and (c) direct that any person or persons execute any instrument or instruments in registrable or other form necessary to give effect to the declaration or order of the court; and

29

J.Singh
(d) order any person to produce to any person specified in the order any title deed or other instrument or document relating to any land; and (e) direct a survey to be made of any land and a plan of survey to be prepared.

Encroachments: The provisions in respect of encroachments are contained in ss182-194 of the Property Law Act 1974 (Qld). Who may make an application? S184 provides that either an adjacent owner or an encroaching owner may apply to the Court for relief. S182 defines the terms as follows: Adjacent owner the owner of land over which an encroachment extends. Encroaching owner the owner of land contiguous to the boundary beyond which an encroachment extends. Encroachment means encroachment by a building, including encroachment by overhang of any part as well as encroachment by intrusion of any part in or upon the soil. Owner means any person entitled to an estate of freehold in possession whether in fee simple or for life or otherwise; whether at law or in equity; whether absolutely or by way of mortgage, and includes a mortgagee under a registered mortgage of a freehold estate in possession in land under the Land Title Act 1994. o Doesnt encompass leasehold estates. Building - means a substantial building of a permanent character, and includes a wall. o Terracotta pavement, pool tiles, pump and swimming pool filter, part of a grass tennis court with wire fence are not buildings of a substantial and permanent character. What relief may be granted? S185 provides:
(1) On an application under section 184 the court may make such order as it may deem just with respect to (a) the payment of compensation to the adjacent owner; and (b) the conveyance, transfer, or lease of the subject land to the encroaching owner, or the grant to the encroaching owner of any estate or interest in the land or of any easement, right, or privilege in relation to the land; and (c) the removal of the encroachment.

s185(1)(b) empowers the Supreme Court to order the transfer only of the land over which an encroachment extends. Accordingly an order that an adjacent owner transfer to the encroaching 30

J.Singh owner such land, together with additional land, is unlawful: Tallon v Proprietors Metropolitan Towers. In exercising its discretion, the Court may consider a broad range of matters: s185(2).

Provision for Compensation: S186 provides for relief in the form of compensation:
(1) The minimum compensation to be paid to the adjacent owner in respect of any conveyance, transfer, lease, or grant under section 185 to the encroaching owner shall, if the encroaching owner satisfies the court that the encroachment was not intentional and did not arise from negligence, be the unimproved capital value of the subject land, and in any other case 3 times such unimproved capital value. (2) In determining whether the compensation shall exceed the minimum and if so by what amount, the court shall have regard to (a) the value, whether improved or unimproved, of the subject land to the adjacent owner; and (b) the loss and damage which has been or will be incurred by the adjacent owner through the encroachment and through the orders proposed to be made in favour of the encroaching owner; and (c) the circumstances in which the encroachment was made.

Disputes over Boundaries: S191 provides for disputes over boundaries:


(1) Where any question arises as to whether an existing building encroaches or a proposed building will encroach beyond the boundary, either of the owners of the contiguous parcels of land may apply to the court for the determination under this division of the true boundary. (2) On the application the court may make such orders as it may deem proper for determining, marking, and recording the true boundary. (3) This section applies to buildings erected either before or after the commencement of this Act.

31

J.Singh

THE DOCTRINE OF TENURE


Introduction: It is an established principle of Australian land law that persons do not owe land absolutely. This is based on two doctrines: 1. Doctrine of tenure this doctrine answers the question, On what terms is the land held? 2. Doctrine of estates this doctrine answers the question, For how long is the land held? The Common Law Theory of Tenure: This theory has provided the historical foundation of title to land in Australia. Tenure expresses the fundamental concept of common law that only the Crown owns land in an absolute sense. No person is the absolute owner of land. All those who own land merely own an interest in the land which is held directly or indirectly by grant from the Crown. The History of Tenure: The doctrine of tenure dates to the time of feudalism in England following the Norman Conquest in 1066. When William the Conquerer came to England, he confiscated the property of the recalcitrant English landowners. Thereafter, he granted land to the English in return for the fulfillment of certain continuing obligations to the King. The law adopted a fiction that presumed that all land titles were held by the Kings subjects as a result of a royal grant. It is a fiction because inferior landowners who did not rebel kept their land, and thus their holdings werent the subject of a royal grant. These interests in land were not granted outright. Instead, complex feudal ties were created between the King and his tenants in chief in the form of services and incidents. A service was an obligation on the part of the tenant owed to the landlord. After the King granted land to a tenant-in-chief, as mesne lord (i.e. lord standing between the King and the tenant actually in occupation), the tenant-in-chief might grant his land or part of it to others. This was known as socage tenure. Through a constant process of granting new tenures (known as subinfeudation) a complicated pyramid of feudal relationships grew up. In relation to a particular piece of land, therefore, it could be said that there were a number of persons with rights: 1. The tenant in demesne with possessory rights; 32

J.Singh 2. A mesne lord to whom the tenant owed services; 3. A tenant in chief to whom the mesne lord owed services; and 4. The Crown who received services directly from the tenant in chief. Today, the doctrine of tenure has little import, but its influence lingers in three areas: 1. No person can, in the technical sense, own land since all land is held by the Crown. By the time Australia was settled, no subinfeudation was possible and thus all land is held directly by the Crown: Mabo v Queensland (No.2) per Deane and Gaudron JJ; 2. The modern tenant-landlord relationship bears some resemblance to the early tenurial relationship; 3. The traditional doctrine of tenure operated until Mabo (No.2) to obstruct recognition of native title. Property Law Act 1974 (Qld) and Tenure: S20(1) confirms that tenures granted by the Crown will be granted in free and common socage i.e. freehold tenure without any incidents or obligations. S20(2) provides that where any quit rent is issued to the Crown out of any land, such land is released from quit rent. S20(3) also abolished escheat, an incident of tenure, involving the reversion of land to the feudal lord from whom it was held when a tenant died without heirs or where the tenant committed a felony. Today, if a person dies intestate and without next of kin their land will pass to the Crown bona vacantia. S21 provides that a fee simple may be transferred without licence or fine and the new owner holds from the Crown in the same manner as the previous tenant held from the Crown. Tenure in Australia: Since Australia was historically regarded as settled not conquered, it was terra nullius and thus the law of England, subject to local conditions, applied on settlement: see Mabo (No.2) per Brennan J. The fundamental aspect of land law imported to Australia was the vesting of lands in the Crown under the doctrine of tenure. Prior to the decision in Mabo (No.2), it was considered that the Crown acquired the full and beneficial title to all land in Australia on the acquisition of sovereignty: Milirrpum v Nabalco Pty Ltd; AG v Brown. If it were correct that the Crown had full beneficial ownership of the land then the recognition of Aboriginal land rights (native title) would be difficult without a grant from the Crown: Milirrpum v Nabalco; Coe v Commonwealth. However, the concept of tenure in Australia has been substantially changed in a few key decisions. Mabo v Queensland Introduction 33

J.Singh Eddie Mabo and four other Murray Islanders instituted proceedings in the original jurisdiction of the HC, seeking a declaration that their rights in the Islands survived the acquisition of Sovereignty by the Crown The HC remitted the case to the Supreme Court of Queensland for a determination of the facts.

Mabo v Queensland (No.1) Facts: The determination of facts by the Qld SC was suspended as the HC had to consider a demurrer on the issues of the Queensland Coast Islands Declaratory Act 1985 (Qld). This Act purported to retrospectively extinguish all rights and interests that the clans of the Murray Islands enjoyed. It left all other holdings on the land in tact (some leases had been granted over certain parts of the islands). Held: The Act is invalid as it is discriminatory S10 of the Racial Discrimination Act (Cth) protected the human rights to own and inherit property, meaning that someone cannot be arbitrarily deprived of the property on the basis of race. S109 of the Constitution provides that in the event that Cth and State law are inconsistent, the State law is invalid to the extent of the inconsistency. Since the Queensland Coast Islands Declaratory Act 1985 (Qld) is inconsistent with the Racial Discrimination Act (Cth), it was invalid. Consequently, the demurrer was allowed, having the effect that the Queensland government cannot rely on this Act as a defense in the action. Mabo v Queensland (No.2) Facts: Three island constituting the Murray Islands, Mer, Dauar and Waier were occupied by the Meriam people long before the first European contact with the Islands The present inhabitants of the Islands are descended from those described in Early European reports In 1879, the Islands were annexed to the Colony of Queensland. In 1882, the Islanders were apparently reserved by proclamation for the native inhabitants of the Colony and part of Mer was leased by the Crown to the London Missionary Society and subsequently was transferred to the Australian Board of Missions, to trustees of the Boad and thence to a church body In 1912, the Governor in Council ordered that the Islands (with the exception of the leased area of Mer) be permanently reserved and set apart for the use of the aboriginal inhabitants of the State. In 1931, the Crown granted a 20-yr lease of the whole of Duaur and Waier for the purpose of establishing a sardine factory. The lease was subsequently forfeited. In 1939, the reserve comprising the Islands was placed under the control of the trustee. Three inhabitants, including Eddie Mabo, brought an action against the State of Queensland for declarations that the Meriam people were entitled to the Islands as owners, possessors, occupiers or as persons entitled to use and enjoy the Islands; 34

J.Singh that the Islands were not and never had been Crown land within the meaning of the Land Act 1962 (Qld) and previous Crown lands legislation; and that the State of Queensland was not entitled to extinguish the title of the Meriam people. Facts regarding Meriam peoples use of land: o Communal life based on group membership was the predominant feature of life o The groups of house are organized in named villages o Gardening was of the most profound importance to the inhabitants of the Murray Island at and prior to European contact o The Meriam society was regulated more by custom than by law o There was no concept of public or general community ownership among the people of the Murray Island, all the land being regarded as belonging to individuals or groups o Land passed from father to son for generations there was a recognized system of inheritance o The people were not nomadic The claim originally made by the plaintiffs was made on their own behalf and on behalf of their family groups. The Statement of Claim, however, was amended to seek a declaration relating to the communal title of the clans.

Held: 6:1 (Dawson J dissenting) the common law of this country recognizes a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands and that, subject to the effect of some particular Crown leases, the land entitlement of the Murray Islanders in accordance with their laws or customs is preserved, as native title, under the law of Queensland. The main difference between the majority is that, subject to the operation of the Racial Discrimination Act 1975 (Cth), Mason CJ, McHugh and Brennan JJ disagree with the conclusion to be drawn from the judgments of Deane, Toohey and Gaudron JJ that, at least in the absence of clear and unambiguous statutory provision to the contrary, extinguishment of native title by the Crown by inconsistent grant is wrongful and gives rise to a claim for compensatory damages. The judgment of Dawson J supports the conclusion of Mason CJ, McHugh and Brennan JJ on that aspect of the case since his Honour considers that native title, where it exists, is a form of permissive occupancy at the will of the Crown. Reasoning of Brennan J (with whom Mason CJ and McHugh J agreed): The theory of universal and absolute Crown ownership: The chief question in this case is whether these transactions had the effect in 1879 of vesting the Crown absolute ownership of, legal possession of and exclusive power to confer title to, all land in the Murray Islands. The defendants argument is that when the territory of a settled colony became part of the Crowns dominions, the law of England so far as applicable to colonial conditions became the law of the colony and by that law the Crown acquired the absolute beneficial ownership of all land in the territory so that the colony became the Crowns demesne and no right or interest in any land in the territory could thereafter be possessed by another other person unless granted by the Crown. According to these cases, the common law itself took from indigenous inhabitants any right to occupy their traditional land, exposed them to deprivation of the 35

J.Singh religious, cultural and economic sustenance which the land provides, vested the land effectively in the control of the Imperial authorities without any right to compensation and made the indigenous inhabitants intruders in their own homes and mendicants for a place to live such a law is unjust and its claim to be part of the common law to be applied in contemporary Australia must be questioned. Although this Court is free to depart from the English precedent which was earlier followed as stating the common law of this country, it cannot do so where the departure would fracture what I have called the skeleton of principle. The proposition that, by the common law, the Sovereign acquired absolute beneficial ownership of all land in the Murray Islands rests in a number of bases. First, it is said that the Crown is the absolute owner because there is no other proprietor. This negative basis is then buttressed by three positive bases: o First, the feudal doctrine of tenure just as the Crown acquired or is deemed to have acquired universal ownership of all land in England, so the Crown became the owner of all land in the Australian colonies; o Second, that all land in a colony is the partrimony of a nation and the Crown acquired partrimony on behalf of the nation; o Third, prerogative basis. The acquisition of sovereignty: The acquisition of sovereignty is an Act of State and cannot be challenged in an Australia court. The British acquisition of sovereignty over the Colony of NSW was regarded as dependant upon the settlement of territory that was terra nullius, and NSW is the source of the law applicable to the Murray Islands Thus, it is necessary to examine the basis on which the common law was received into NSW Reception of the common law: When NSW was settled, the view was taken that, when sovereignty of a territory could be acquired under the enlarged notion of terra nullius, for the purposes of the municipal law that territory could be treated as a desert uninhabited country. The theory which underpins the application of English law to the Colony of NSW is that English settlers brought with them the law of England and that, as the indigenous inhabitants were regarded as barbarous or unsettled and without settled law, the law of England including the common law became part of the law of the Colony The basis of the theory of universal and absolute Crown ownership: The facts as we know them today do not fit the absence of law or barbarian theory underpinning the colonial reception of the common law of England. That being so, there is no warrant for applying in these times the rules of English common law which were the product of that theory. As the basis of the theory is false in fact and unacceptable in our society, there is a choice of legal principle to be made in the present case. This Court can either apply the existing authorities and proceed to inquire whether the Meriam people are higher "in the scale of social organization" than the Australian Aborigines whose claims were "utterly disregarded" by the existing authorities or the Court can overrule the existing authorities, discarding the distinction between inhabited colonies that were terra nullius and those which were not.

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J.Singh It is imperative in todays world that the common law should neither be nor be seen to be frozen in an age of racial discrimination. Whatever the justification advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people. Crown title to colonies and Crown ownership of colonial land distinguished There is a distinction between the Crowns title to a colony and the Crowns ownership of land in the Colony. Territory is the subject-matter of the right of sovereignty or imperium while property is the subject matter of the right of ownership or dominium. Though the rejection of the notion of terra nullius clears away the fictional impediment to the recognition of indigenous rights and interests in colonial land, it would be impossible for the common law to recognize such rights and interests if the basic doctrines of the common law are inconsistent with their recognition. A basic doctrine of the land law is the doctrine of tenure The feudal basis of the proposition of absolute Crown ownership: The land law of England is based on the doctrine of tenure. It is the fiction of royal grants which underlies the English rule. This is now a foundation of the doctrine of tenure and an essential principle of our land law. Accepting the doctrine of tenure, it was an essential postulate that the Crown have such a title to land as would invest the Sovereign with the character of Paramount Lord in respect of a tenure created by grant and would attract the incidents appropriate to the tenure, especially the Crown's right to escheat. Historically, the Crown was treated as having the radical title to all the land in the territory over which the Crown acquired sovereignty. By attributing to the Crown a radical title to all land within a territory over which the Crown has assumed sovereignty, the common law enabled the Crown, in exercise of its sovereign power, to grant an interest in land to be held of the Crown or to acquire land for the Crown's demesne. The notion of radical title enabled the Crown to become Paramount Lord of all who hold a tenure granted by the Crown and to become absolute beneficial owner of unalienated land required for the Crown's purposes. But it is not a corollary of the Crown's acquisition of a radical title to land in an occupied territory that the Crown acquired absolute beneficial ownership of that land to the exclusion of the indigenous inhabitants. If the land were desert and uninhabited, truly a terra nullius, the Crown would take an absolute beneficial title (an allodial title) to the land for the reason given by Stephen CJ in Attorney-General (NSW) v Brown: there would be no other proprietor. But if the land were occupied by the indigenous inhabitants and their rights and interests in the land are recognized by the common law, the radical title which is acquired with the acquisition of sovereignty cannot itself be taken to confer an absolute beneficial title to the occupied land. Recognition of the radical title of the Crown is quite consistent with recognition of native title to land, for the radical title, without more, is merely a logical postulate required to support the doctrine of tenure (when the Crown has exercised its sovereign power to grant an interest in land) and to support the 37

J.Singh plenary title of the Crown (when the Crown has exercised its sovereign power to appropriate to itself ownership of parcels of land within the Crown's territory). Unless the sovereign power is exercised in one or other of those ways, there is no reason why land within the Crown's territory should not continue to be subject to native title. It is only the fallacy of equating sovereignty and beneficial ownership of land that gives rise to the notion that native title is extinguished by the acquisition of sovereignty. Although the individual persons may not have proprietary rights in the land, the community title is proprietary. The patrimony of the nation basis of the proposition of absolute Crown ownership: What the Crown acquired was a radical title to land and a sovereign political power over land, the sum of which is not tantamount to absolute ownership of land. The Royal Prerogative basis of the proposition of absolute Crown ownership: If the Crown's title is merely a radical title -- no more than a postulate to support the exercise of sovereign power within the familiar feudal framework of the common law -- the problem of the vesting of the absolute beneficial ownership of colonial land does not arise: absolute and beneficial Crown ownership can be acquired, if at all, by an exercise of the appropriate sovereign power. The need for recognition by the Crown of native title: The defendant contends that pre-existing customary rights and interests in land are abolished upon colonization of inhabited territory, unless expressly recognized by the new sovereign. However, the preferable rule, supported by authority, is that a mere change in sovereignty does not extinguish native title to land. The preferable rule equates the indigenous inhabitants of a settled colony with the inhabitants of a conquered colony in respect of their rights and interests in land and recognizes in the indigenous inhabitants of a settled colony the rights and interests. Those antecedent rights and interests thus constitute a burden on the radical title of the Crown. The common law of this country would perpetuate injustice if it were to continue to embrace the enlarged notion of terra nullius and to persist in characterizing the indigenous inhabitants of the Australian colonies as people too low in the scale of social organization to be acknowledged as possessing rights and interests in land. Moreover, to reject the theory that the Crown acquired absolute beneficial ownership of land is to bring the law into conformity with Australian history. The nature and incidents of native title: Some general propositions about native title can be made without reference to the evidence. First, unless there are pre-existing laws of a territory over which the Crown acquires sovereignty which provide for the alienation of interests in land to strangers, the rights and interests which constitute a native title can be possessed only by the indigenous inhabitants and their descendants. Native title, though recognized by the common law, is not an institution of the common law and is not alienable by the common law. Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially 38

J.Singh maintained, the traditional community title of that clan or group can be said to remain in existence However, when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. It follows that a right or interest possessed as a native title cannot be acquired from an indigenous people by one who, not being a member of the indigenous people, does not acknowledge their laws and observe their customs; nor can such a right or interest be acquired by a clan, group or member of the indigenous people unless the acquisition is consistent with the laws and customs of that people. Second, native title, being recognized by the common law (though not as a common law tenure), may be protected by such legal or equitable remedies as are appropriate to the particular rights and interests established by the evidence, whether proprietary or personal and usufructuary in nature and whether possessed by a community, a group or an individual. Thirdly, where an indigenous people (including a clan or group), as a community, are in possession or are entitled to possession of land under a proprietary native title, their possession may be protected or their entitlement to possession may be enforced by a representative action brought on behalf of the people or by a subgroup or individual who sues to protect or enforce rights or interests which are dependent on the communal native title. The extinguishing of native title: Sovereignty carries the power to create and to extinguish private rights and interests in land within the Sovereign's territory. the exercise of a power to extinguish native title must reveal a clear and plain intention to do so, whether the action be taken by the Legislature or by the Executive. A clear and plain intention to extinguish native title is not revealed by a law which merely regulates the enjoyment of native title or which creates a regime of control that is consistent with the continued enjoyment of native title. State governments, also, subject to the Constitution and to restrictions imposed by valid laws of the Commonwealth, have the legislative power to extinguish native title. A Crown grant which vests in the grantee an interest in land which is inconsistent with the continued right to enjoy a native title in respect of the same land necessarily extinguishes the native title. A significant part of Australian land has already had native title extinguished from it, but there are certain places where that has not occurred. Thus native title has been extinguished by grants of estates of freehold or of leases but not necessarily by the grant of lesser interests (e.g, authorities to prospect for minerals). The effect of post-acquisition transactions: Leases were granted by the Crown over certain parcels of land in the Murray Islands. In these areas, native title was extinguished Summary of effect of Mabo (No.2) on Tenure:

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J.Singh Although the Crowns sovereignty was unchallengeable, only a modified doctrine of tenure applied in Australia as Australia was not terra nullius. On the acquisition of sovereignty, the Crown acquired a radical title, and not absolute and beneficial ownership of the land. Native title is a burden on the Crowns radical title. Radical title is a bare title to the land, which enables the Crown to grant interests in the land to be held from the Crown. However, it was made clear that the doctrine of tenure is still an essential principle of Australian land law. There is no allodial land in Australia. All land holdings that existed prior to Mabo (No.2) remain. However, Crown land/State unallocated land is different post Mabo (No.2) in that it is land that is held under a radical title subject to the existence of non-extinguished native title. Tenure Post-Mabo (No.2): Another important decision regarding the doctrine of tenure and native title is Wik v Queensland. Wik v Queensland Facts: S6(1) of the Land Act 1910 (Qld) empowered the Governor in Council in the name of His Majesty to grant in fee simple or demise for a term of years any Crown land within Queensland. Part III provided for the grant of pastoral leases and occupation licences for pastoral purposes. The Land Act 1962 (Qld) also empowered the Governor in Council in the name of Her Majesty to grant in fee simple or demise for a term of years or in perpetuity or deal otherwise with any Crown land in Queensland. Part VI authorised the creation of pastoral leases (of three classes, pastoral holdings, pastoral development holdings, and preferential pastoral holdings), stud holdings and occupation licenses. A pastoral lease over 535 square miles (the MPH area) was granted in 1915 under Pt III, 1910 Act. It was for a term of thirty years at a yearly rent and was expressed to be for pastoral purposes only. The lessees never took possession of the holding and it was forfeited in 1918 for failure to pay rent. In 1919 another lease was granted over the MPH area, in similar terms, under Pt III of the 1910 Act. In 1921 it was surrendered under s 122 of that Act. In 1922 the area was reserved by Order in Council for the use of Aboriginal inhabitants of Queensland. Both leases contained "reservations", to the Crown of a right of access to search for or work gold and minerals, and to any person authorised by the Governor in Council of a right to go upon the land for any purpose whatsoever or to make any survey, inspection or examination. A pastoral lease over 1,119 square miles (HRH area) was granted in 1945 under Pt III, of the 1910 Act. It too was for a term of thirty years at a yearly rent and was expressed to be for pastoral purposes only. In 1973, after an application by the lessees for the grant of a new lease under the 1962 Act, the lease was surrendered and in 1975 a new lease was granted under Pt VI of that Act for a term of thirty years at a yearly rent. It was not expressed to be for pastoral purposes only but it was granted on condition that within five years the lessees carry out a number of improvements, sow a seed production area and fence the holding and that they maintain all improvements during the whole term. None of the leases referred to the use of any part of the leased areas by Aboriginals. 40

J.Singh Proceedings were brought by two Aboriginal peoples who claimed to hold native title over the MPH area and the HRH area. They claimed that their title was not extinguished by the granting of pastoral leases but co-existed with the interests of the pastoral lessees. The Aboriginal peoples asserted that the pastoral lessees did not acquire a right to exclusive possession of the two areas and that, even if they did, it was not the right to exclusive possession but only its exercise that excluded the holders of native title. They also contended that native title was suspended, not extinguished, during the term of the lease and that the Crown held the reversion as a fiduciary for the holders of native title.

Held: 4:3 (Toohey, Gaudron, Gummow and Kirby JJ, Brennan CJ, Dawson and McHugh JJ dissenting) that: o That the leases did not confer rights to exclusive possession of the areas on the grantees. o That the grants of the leases did not necessarily extinguish all incidents of native title in respect of the areas. The decision is important for two reasons. Firstly, the majority held that native title was not necessarily extinguished by pastoral leases. The rights and obligations of the grantees of the pastoral leases in question depend upon the terms of the grant of the pastoral lease and upon the statute which authorised it. There was no necessary extinguishment of native title rights by reason of the grant of those pastoral leases. Whether there was extinguishment can only be determined by reference to such particular rights and interests as may be asserted and established. If inconsistency is held to exist between the rights and interests conferred by native title and the rights conferred under the statutory grants, those rights and interests must yield, to that extent, to the rights of the grantees. In so holding, the majority rejected Brennan Js view in Mabo (No.2) that when a Crown lease is granted, the tenant acquires possession and the Crown acquires the reversion expectant on the expiry of the term. On this view, the Crowns title was thus expanded from a mere radical title and on the expiry of the term becomes plenum dominium i.e. absolute ownership. The Wik majority found that there was nothing in the language of the Land Act that required the Crown to have full and beneficial ownership of the land. Secondly, the Wik majority emphasized that the Crowns authority to deal with Crown lands was to be found in Australian statutes, rather than the doctrine of tenure. Crown leases did not grant exclusive possession and were not leases in the common law sense. They were statutory grants. It is thus unlikely that the Crown can ever become the absolute and beneficial owner of the land. Essay Plan: Consider how, if at all, the doctrine of tenure has been modified or altered by the decisions in Mabo (No.2) and Wik. Overview of doctrine of tenure:

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J.Singh The conception of Australia as settled, terra nullius, territory led to the adoption of the law of England in Australia, albeit subject to local conditions: Mabo (No.2) per Brennan J. The fundamental aspect of land law imported to Australia was the vesting of lands in the Crown under the doctrine of tenure. A creature of the legal fiction, arising from feudal law, that all land titles were held by the Kings subjects as a result of a royal grant, the doctrine of tenure expresses the fundamental common law concept that only the Crown owns land in an absolute sense. All those who own land merely own an interest in the land which is held directly or indirectly by grant from the Crown.

Application of doctrine to Australia: Under the doctrine of tenure as it applied to Australia, it was considered that the Crown acquired the full and beneficial title to all land in Australia on the acquisition of sovereignty: Milirrpum v Nabalco; AG v Brown. This made the recognition of Aboriginal land rights (native title) would be difficult without a grant from the Crown: Milirrpum v Nabalco; Coe v Cth. Impact of Mabo: However, the Mabo (No.2) and Wik decisions substantially changed the operation of the doctrine of tenure in Australia. Mabo (No.2) concerned a declaration sought by the Murray Islanders that their rights in the Islands survived the acquisition of sovereignty by the Crown. The HC held (6:1, Dawson J dissenting), in a seminal decision, that the common law of Australia recognizes a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands. In so finding, the Court held that Australia was not terra nullius and thus only a modified doctrine of tenure applied. On the acquisition of sovereignty, the Crown acquired a radical title, not absolute and beneficial ownership of the land. Native title is a burden on the Crowns radical title. However, the majority was clear that the doctrine of tenure remained a fundamental part of Australian land law. There is no allodial land in Australia. All land holdings that existed prior to Mabo (No.2) remain. Impact of Wik: However, in Wik, the Court marked a further shift from the doctrine of tenure. The Wik majority emphasized that the Crowns authority to deal with Crown lands was to be found in Australian statutes, rather than the doctrine of tenure. Crown leases did not grant exclusive possession and were not leases in the common law sense. They were statutory grants. Further, the majority held that native title was not necessarily extinguished by pastoral leases. In so holding, the majority rejected Brennan Js view in Mabo (No.2) that when a Crown lease is granted, the tenant acquires possession and the Crown acquires the reversion expectant on the expiry of the term. The Wik majority found that there was nothing in the language of the Land Act that required the Crown to have full and beneficial ownership of the land.

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J.Singh

CROWN LEASEHOLD
Introduction: The doctrine of tenure and Crown/State ownership of land is the foundation of the Land Act 1994 (Qld). This Act establishes the system of Crown/State leasehold, which is the basic tenure of the major pastoral properties in Queensland. The Crown may grant land in two ways: 1. Grant of a fee simple the Crown may grant, in fee simple, unallocated State land: s14(1). This is a freehold estate and is the closest the law comes to recognizing absolute ownership. About 20% of land in Queensland is held in freehold (that is in fee simple); 2. Grant of a leasehold interest in land the Crown may lease unallocated State land for either a term of years or in perpetuity: s15(1)(a). This land is leased from the Crown. Approximately 70% of the State of Queensland is held under Crown leasehold. This second system of leasehold tenure is administered and managed under the Land Act 1994 (Qld). There is nothing in the history of English law, which equates to the Australian system of Crown leasehold. The Land Act 1994 (Qld): This Act updated the system of management of Crown grants in Queensland. Management policies under this legislation must be in accordance with principles of sustainability of resources, land evaluation, development of community purpose, protection of environmental and cultural values, community consultation and open and accountable administration: s4. The Act requires that land administered under the Act be dealt with in a manner that is not inconsistent with the Native Title (Qld) Act 1993 (Qld): s7. A system of registration and a land registry which includes leasehold land is established by the Act. s276 provides that the Chief Executive must keep a number of registers, one of which is the leasehold land register: s276(a). The chief executive may record in a register anything considered should be recorded to ensure the register is an accurate, comprehensive and useable record of the relevant land and dealings: s280.

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J.Singh The control, sale and letting of the wastelands of the Crown have been vested in the legislature since 1867: s30 Queensland Constitution Act 1867. Title to that land is vested in the Crown under the doctrine of tenure. This land was termed Crown land. The term unallocated State land has been used to replace the term Crown land in the Land Act 1994 (Qld). Unallocated State land is defined in s3 and Sch 6 to mean all land that is not: a) Freehold land, or land contracted to be granted in fee simple by the State; b) A road reserve, including a national park, conservation park, State forest or timber reserve; or c) Subject to a lease, license or permit issued by the State.

Grants/Allocations of Land: Prior to any land being allocated an evaluation must be undertaken to assess the most appropriate tenure and use for the land: s16(2). s14 provides that the Governor in Council may grant in fee simply unallocated State land. s15 provides that the Governor in Council may: lease unallocated State land for a term of years or in perpetuity (s15(1)(a)); and lease land in a reserve for a term of years only (s15(1)(b). Types of Leases: The Act allows for two main types of leases: 1. Perpetual lease; 2. Term lease. Perpetual Lease: A lessee may apply in writing for conversion to freehold by payment of the purchase price: s166(1)(a). This lease was formerly the grazing homestead perpetual lease under the previous legislation. Term Lease: The maximum term permitted is 50 years: s155(1). However, if the lease is for a significant development or timber plantation the lease may be issued for 100 years: s155(2). A term lease issued for pastoral purposes may be converted to a perpetual lease after 80% of the existing term has expired, except where the Minister considers special circumstances exist: s166(2); s167. Freehold leases (which were granted under the previous legislation) are to be phased out. The previous legislation allowed the lessee to purchase a deed of grant from the State where the lease payments were instalments or the purchase price of the land: ss456-458.

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J.Singh The purposes for which leases are issued include grazing, agriculture, farming, residential, commercial, industrial, communication sites, public utilities, tourism, and sporting and recreation: see Land Regulation 1995 (Qld). The lease may be used only for the purpose for which it was issued. Conditions in Leases: Rent: Rent is payable to the State and calculated according to the category in which the lease is allocated: ss181-182. The categories are listed in the Regulations: s182(1). Renewal: A lease may be renewed where the lessee makes an application for renewal except where renewal is prohibited by the lease or the Act: s158. Statutory Conditions: Certain mandatory conditions are imposed by the Act: The lessee has a duty to care for the land: s199; Noxious plants must be controlled: s200; and Any requested or required information must be supplied to the Minister: s201. A lease may also be subject to other conditions about: S203(a)-(f) enumerates certain conditions which may be made; S203(g) allows for the imposition of other conditions as the Minister sees fit; S204 provides that the lease may be made subject to a conditions that the land be surveyed S205 provides that a lease may be subject to a condition that it is tied to other land; S206 provides that a lease may be granted subject to the condition that the lessee personally lives on the land for a period. Dealing with the Land: Leases may be transferred subject to the written approval of the Minister. The Minister may impose conditions on any sale of the lease: s322. Leases may be mortgaged: s340-341. Forfeiture: A lease may be forfeited where a lessee is in breach of the lease conditions: s234. The Nature of Crown Leases: In Wik v Queensland the majority (Gummow, Toohey, Gaudron and Kirby JJ) found that Crown leases granted under the 1910 and 1962 Acts did not grant exclusive possession and were not leases in the common law sense, but were statutory. A Crown lease is a grant of limited interests by the Crown. The tenants rights are thus contractual rights as outlined in the rights of the lease and provided for in statutes governing the lease 45

J.Singh It is not a necessary consequence of this that upon cessation of the lease the Crown re-acquires a full and beneficial ownership which is necessarily inconsistent with subsisting native title. A legal reversionary estate did not vest in the Crown on the grant of the lease. On the expiry of he lease the land becomes Crown land (or unallocated State land) within the meaning of the Land Acts. A minority of Brennan CJ, Dawson and McHugh JJ considered that on the issues of a lease the reversionary interest is held by the Crown.

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