Real Property Lecture 2

1. Real Property Lecture 2 Associate Professor Cameron Stewart

2. Property in CL • Universalized, reified, fetishized – the materialization of the common law • Formality • Creation • Transfer • Rights recognised in contract and tort – breach of contract, trespass, negligence • Remedies for breach of property rights – damages • CL makes orders about the property not the people

3. Types of legal estate • Freehold estates • Fee Simple – closest to absolute ownership - rules of primogenture – escheat • 1540 Statute of Wills - later recognition that can be passed by will – “simple” meant that it could pass to any heir unlike the fee tail which must pass to particular heirs

4. Freehold • Absolute interest • Determinable interests – the occasion of some event will cause the fee simple to revert eg “to y and his heirs so long as St Paul’s Cathedral shall stand” • - a possible or latent reverter interest • - words used “while”, “during”, “so long as”, “ until”

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

6. Freehold • Fee tail- a disposition that would last only while the heirs of that person would last – if they died out the interest would revert back to the heir of the original owner – way of keeping land in the family and restraining any disposition • Tail male – male descendents specified • Tail female – female descendents • Special tail – the descendants of a particular wife

7. Free Tail • Made possible in De Donis Conditionalibus – lords wanted control over who would get estate – so that despite any attempt to alienate the interest the interest would past to the designated heir on death • Barring the entail - Common recovery/fine = collusive court actions • Now abolished Cact 19

8. Freehold • Life estate – granted to a person for life – • Pur autre vie – for the life of another – “to A for the life of B” or where A has a life interest (“to A for life”) and A alienates that interest during his life time • In either case when the life tenant died the interest terminated

9. Future interests • Already apparent that estates allow in to be granted for the future eg “to A for life and then to B in fee simple” • B’s estate is a future estate – it doesn’t come into being until the death of A • Reversions – a grant of an estate in possession which returns to the grantor eg X grants and life estate to Z hence X is the reversioner

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

11. Vested and Contingent Remainders • the rules concerning future interests require the interest to vest or “fructify” by a certain time – if it does not then the interest will fail • An interest vests when the identity of the interest holder is ascertained and when there is no condition precedent other than the normal determination of prior estates • “to A for life and then to B in fee simple” - Vested • To A for life remainder to B in fee simple if B attains 25 years - Not vested

12. Vested and Contingent Remainders • To A for life remainder to B in fee simple if B attains 25 years - Not vested • Why? B’s interest is contingent unless he has already achieved the age of 25 when the clause was written – that is the fact that he must be 25 is a contingency which must be satisfied for the property to vest in him

13. Property in Eq • Substance • Conscience • Power • Responsibility – lunacy, infants, married woman • Trust and confidence • BUT through the logic of precedent not unfettered discretion • Rights recognised through doctrines of equity – misrepresentation, undue influence, duress, unconscionability, fiduciary relationships, part performance, equitable estoppel, breach of confidence • Remedies – injunctions, specific performance, constructive trusts, personal orders • Equity makes orders about the people not the property

14. Property in Eq • Equitable property or interest (equitable fee simple, mortgages, covenants etc) • Personal Equities (Gill v Gill) • Mere Equities (Latec)

15. Case study 1: When contracts go bad • A (vendor) exchanges contracts with B (purchaser) • A gets a better offer from C (he knows about B’s offer) and completes the sale to C before B knows • Common law approach? Breach and damages – no property held by B • Equitable approach: breach and specific performance • But what about the property interests?

16. Case study 1: When contracts go bad In common law B is not the owner as the contract has not been completed so the property cannot be returned In equity, the rule in Lysaght v Edwards says that B gets an equitable interest from the exchange and that it is a form of constructive trust, which can be enforced against C (when he knows about B)

17. Henry and the purse strings Taxation in Tudor England – feudal tenures Primogeniture Devising land by will The legal remainder rules Case Study 2: Fat Henry and the problem of trusts

18. The use A --------------------------B --------------------C (Landowner) (feoffee to use ) (cestui que use) Legal estate Beneficial estate CL Equitable

19. The Statute of Uses 1535 • Collapse the use • Springing uses • The use on the use • Equity creates property where there was none before……

20. Case study 2: Part performance and the equitable ‘impersonation’ • A Lease for a factory – an agreement to create a deed • Or a mortgage created by deposit of title deeds • Or a promise to give a life interest if cared for in dotage…

21. The requirements for writing 23BAssurances of land to be by deed • No assurance of land shall be valid to pass an interest at law unless made by deed. 23CInstruments required to be in writing • Subject to the provisions of this Act with respect to the creation of interests in land by parol: (a)  no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by the person’s agent thereunto lawfully authorised in writing, or by will, or by operation of law, ….

22. The requirements for writing 54AContracts for sale etc of land to be in writing • No action or proceedings may be brought upon any contract for the sale or other disposition of land or any interest in land, unless the agreement upon which such action or proceedings is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged or by some other person thereunto lawfully authorised by the party to be charged… CL says no deal

23. The status of the local laws of a colony depended upon whether it was: a conquered colony; or a settled colony (terra nullius- an empty land) Colonial Australia

24. Colonial Australia • Australia was treated as being settled as it was considered to be unoccupied, that is, as terra nullius • No recognition of Aboriginal laws or customs • Aboriginal land rights not recognised

25. Terra nullius • International law of conquest, cessation or settlement • Effect of law of inhabitants • Imperial authorities assumed settlement theory • Respect for native inhabitants • Ambiguous position

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

27. Attorney General v Brown • 1847 – challenge by coal miner of ownership in the Crown – absolute title in the Crown from 1788

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

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

30. Mabo No’s 1 and 2 • No 1 – interlocutory – preliminary issue concerning validity of a declaratory Act by the Queensland government to extinguish the title of the Murray islanders – held to be in breach of the RDA • No 2 – instituted 1982 decided 1992 – original jurisdiction of the High Court • Moynihan J of SC QLD for facts – found complex land ownership – plots and gardens • Decision (6:1) in favour of a concept of native title

31. Mabo No’s 1 and 2 • Terra Nullius • Found to not be a common law principle but of international law – the true common law principle is that of the law of settlements – Australia is regarded as such a territory – all judges agreed that Australia was settled, despite the fact of prior occupation of Aboriginal people – hence the real issue was the relevance of terra nullius to Australian law – settlement is not a bar itself to recognizing native title – sovereignty could not be questioned

32. Mabo No’s 1 and 2 • Sovereignty • The sovereignty of Australia was not challenged in the proceedings – indeed it could not be so challenged by an Australian municipal court • The original sovereignty of the native Australians was not discussed – there was a recognition that Aborigines had settled law (hence that aspect of terra nullius was rejected)

33. Mabo No’s 1 and 2 • What is native title? • The conquering or the settlement of as colony does not automatically extinguish the rights of the original inhabitants to land • Traditional Aboriginal occupancy of and connection with the land by a people, in accord with a system of laws and customs • Content of rights determined by those laws and customs – includes rights to fish hunt and gather (usufructory rights) – but is varied by particular laws and customs – can evolve over time • Inalienable (except in accordance with the traditional laws and customs)– can be surrendered to Crown

34. Mabo No’s 1 and 2 • How do you prove native title? • Existence of identifiable group • Traditional connection with or occupation of land under laws and customs – spiritual more than occupation – special and exclusive ( 4 judges) – Toohey various interests • Substantial maintenance of connection - physical occupation not necessary

35. Mabo No’s 1 and 2 • How is it extinguished? • Crown did not take an absolute title but a radical title, which gave sovereignty but not ownership – native title is a burden • Radical title grants power to extinguish without consent - clear and plain intention to extinguish – freehold, leasehold extinguishes – pastoral leases? • No duty to pay compensation (3:3 split in majority and Dawson J also in favour of no compensation) – nt not accorded full respect • Constitution S 51(xxi)? – Only Deane and Gaudron JJ

36. Mabo No’s 1 and 2 • How then can native title be protected? • RDA – immunity from wrongful deprivation

37. Mabo No’s 1 and 2 • Fiduciary duty • General obligation to protect welfare – Toohey J – limitation on Parliamentary omnicompetence • Specific obligation to protect property - no clear decision – Hints in Brennan, Dean and Gaudron JJ

38. Native Title Act 1993 • Categorises acts – past acts after RDA and before NTA – • A – extinguish native title – grant of freehold, commerical lease, public works • B – extinguish to inconsistency – not A acts or mining leases – not a commercial lease • C – non-extinguishment – mining leases • D – any act not A,B,C - easements licenses and permits – non extinguishment

39. Native Title Act 1993 • Compensation on just terms for extinguishment • Future acts – passing legislation after 1 July 1993 or the doing of some other act after 1 January 1994 – Permissible future acts – treat the same – compensation payable for extinguishment • Right to negotiate concerning future acts of government – agreements accepted by NTT and registered with FC

40. Wik and Thayorre People’s case (“Wik”) • Issue concerned the effect of pastorals leases on land claimed by two clan groups – question of extinguishment • Wik peoples – pastoral leases do not confer exclusive possession - are statutory creatures and must be interpreted as such – no language of extinguishment – look to the facts of the grant

41. Wik and Thayorre People’s case (“Wik”) • Decision 4:3 in favour of the Wik and Thayorre • Statutory Interpretation - clear and unambiguous language – majority said that language of statute and practical exercise of the lease the key • History of Pastoral Leases – sui generis statutory land holdings – not leasehold tenures and as such no automatic right to exclusive possession • Brennan CJ (minority) – ordinary technical use of leasehold terms indicates intention for exclusive possession

42. Wik and Thayorre People’s case (“Wik”) • Extinguishment – Majority said that no clear intention in words of grant mean that no extinguishment – Toohey, Gaudron and Gummow JJ specific focus on exercise of rights and conflict with actual Aboriginal custom – Kirby J only the grant itself • Radical Title and reversion – even if the grant did not extinguish did the reversion back to the Crown extinguish? – Brennan CJ no way doctrine of estates says that a reversion gets fill beneficial interest hence extinguish – majority said look to the statute – too much to automatically presume that doctrine of estates applies • Suspension and revival - fiduciary duty - not answered

43. Since Wik • 10 point plan • Yanner v Eaton [1999] HCA 53 – native title includes the right to hunt fauna including crocodiles for food and ceremony. The native title protection overrules State law prohibiting hunting because of s 109 conflict • Commonwealth v Yarmirr (the Croker Island case) ­ - native title rights over the sea exist but limited to traditional uses

44. Since Wik • Western Australia v Ward [2002] HCA 28 – evidence of native title • Wilson v Anderson [2002] HCA 29 – no native title in NSW Western lands division • Yorta Yorta v