Topic 1: Introduction to Land and Land Law What is Real Property? A collection of rights Real property vs personal property Similarities ... Rights in rem v rights in personam Interests in land 7 ·Ownership (title) · Individual ·Co-ownership ·Lease ·Mortgage ·Easement What is land? land includes messuages, tenements and hereditaments, corporeal or incorporeal, of any tenure or description, and whatever may be the interest in the land. Acts Interpretation Act 1954 (Qld) Acts Interpretation Act 1901 (Cth) How far do rights extend below the surface? ·Generally, only what is necessary for reasonable use and enjoyment ... ·Di Napoli v new Beach Apartments Pty Ltd (2004) ATR 81-728 (NSW case) Doctrine of tenure in Australia On assuming sovereignty over Australia, the 'whole of the lands of Australia became the property of the King of England'. Williams v AG for NSW (1913) 16 CLR 404, 439. Unallocated land was 'waste lands of the Crown'. 'It is far too late in the day to contemplate an allodial or other system of land ownership. Land in Australia which has been granted by the Crown is held on a tenure of some kind and the titles acquired under the accepted land law cannot be disturbed.' Mabo v Queensland (No 2) 1992 HCA 23 [49] per Brennan J As a sovereign enjoys supreme legal authority in and over a territory, the sovereign has power to prescribe what parcels of land and what interests in those parcels should be enjoyed by others and what parcels of land should be kept as the sovereign's beneficial demesne.' Mabo v Queensland (No 2) 1992 HCA 23 [50] per Brennan J Fee simple 'to grant a fee simple estate in land is to confer the largest interest in land that is known to the common law, and one which is said to invest in the grantee "the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination, including the right to commit unlimited waste' Commonwealth v. New South Wales (1923) 33 CLR 1, 42 (Isaacs J.) Topic 3: Co-ownership
Joint Tenants · No separated shares in the property · As a group they own the entire property · 'Right of survivorship' applies - meaning the surviving JT inherit · Requires four unities Creation of Co-ownership Joint Tenants - by express words (eg "to A and B as joint tenants") Tenants in common -by express words (eg "to A and B as tenants in common in equal shares") Presumption: · Common law = Joint Tenants · Equity = Tenants in Common Problems? · Re Rose [1962]: "In equal shares as joint tenants" · Re Barbour [1967]: "Share and share alike as joint tenants" Statutory tests Property Law Act 1974 (Qld) s 35 35 Construction of Dispositions of Property to 2 or More Persons Together (1) A disposition of the beneficial interest in any property, whether with or without the legal interest, to or for 2 or more persons together