Introduction and Doctrine of Tenure Introductory Concepts Real Property Real property is land and everything attached (fixtures) - including: . the surface layer of the earth and all attached physical things (corporeal hereditaments) · rights to airspace above the land · intangible rights over land (incorporeal hereditaments) - eg a right of way over land, a right to cut and take trees Right to Airspace Only as much as the requisite for the proper use and enjoyment of that land Graham v KD Morris and Sons · Crane overhung 20m above property · Agreed trespass Introduction and Doctrine of Tenure 1
Bernstein of Leigh v Skyviews and General · Plane flying over land - taking photos . Not trespass as every satellite would be held in the same . Ordinary use of the land - only the amount to which is required to enjoy the land Rights to below the surface Only what is necessary for reasonable use and enjoyment · Di Napoli v New Beach . Bocardo SA v Star Energy Do not have a right to the minerals on the land Property Rights Property is a bundle of rights. Proprietary rights are exercisable by the owner against the world; can exclude any third party (Rights in rem) 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. · Corporeal (permanent) Hereditaments - eg fixtures · Incorporeal (intangible) Hereditaments - eg easements, profits, mortgages Hereditaments are property interests that can be inherited Introduction and Doctrine of Tenure 2
Doctrine of Tenure The Crown has the absolute beneficial interest in land AG v Brown Mabo v Queensland · As a sovereign enjoys supreme legal authority in and over aterritory, the sovereign has power to prescribe what parcels of land and what interests in those parcels should be enjoyed by others Any person in possession of land is there by virtue of a grant from the Crown and is merely a tenant of the monarch - and holds an interest of the Crown AG v Brown; Mabo v Queensland (No 2) Tenure: Relationship between person occupying and the 'ward' . Tenured land - land falling under the doctrine of tenure (Hold the land that was the Crown's) · Allodial land - where someone other than sovereign can be absolute beneficial owner Introduction and Doctrine of Tenure 3