Estates and Interests in Land: Estates and Interests in Land Part 5 Continued …


Recap from Last Lecture: Recap from Last Lecture An estate or interest in land is a legal right with respect to that land. An estate or interest (right) to land can be registered on the Certificate of Title The estate or interest to land need not be an actual right. A person who simply claims an estate or interest can lodge a caveat to protect that claimed right The caveat will then appear on the Certificate of Title Chattels are fixtures – moveable property that are annexed to the land In Victoria, all minerals and petroleum are vested in the Crown (beyond depth of 50 feet) However, stone still belongs to the landowner


Water Boundaries: Water Boundaries Traditionally at common law – land owners own the bed of the stream (non-navigable waterway) to a line at the middle point – ad medium filum aquae However, in Victoria, most stream banks are reserved to the crown and so traditional common law principle does not apply Where the bank is not reserved to the Crown, it is common practice to survey the edge of the stream, and declare this the boundary. Question: think about accretion, alluvion, dereliction avulsion, accession etc of waterways


Riparian Land: Riparian Land Riparian land – land situated beside water (sea, stream or lake) Riparian land is usually the land between the low water mark and the high water mark of a waterway


Accretion Alluvion and Dereliction: Accretion Alluvion and Dereliction Legal doctrines (not merely geographic/geologic descriptions) Common law practice is that private property commences at the high water mark In practice, few properties in Australia have the high water mark as their boundary Below the low water mark, waterbed is vested in the Crown This leaves the land between the low and high water marks – this land is also vested in the crown


Accretion Alluvion and Dereliction: Accretion Alluvion and Dereliction Determining the physical extent of riparian land is complex governed by the legal doctrines of: accretion - Legally it deals with ownership of land ‘created’ by water receding alluvion - gradual increase in the area of land due to sedimentation/siltation or other processes dereliction – loss of land through rising water (eg rising sea water or changes in a river’s course)


Title Boundaries not necessarily static over time: Title Boundaries not necessarily static over time Certificates of Title in Victoria detail the intended boundary: eg ‘as bounded by the high water mark’ This is generally accepted way to indicate a boundary to a waterway It is inferred that the precise line (which happened to be the high water mark at the time the title was created) is not static


Water Boundaries – requires interpretation of circumstances: Water Boundaries – requires interpretation of circumstances What if a property boundary was surveyed, with reference to other points, but which happened to also be the high water mark of a stream at that time? The original boundary might remain – regardless of what the water does over time? There is Common Law authority against this in Attorney General of Southern Nigeria v John Holt & Co (Liverpool) Ltd: ‘…properties scheduled or specifically measured but in fact abutting on the seashore are not excluded from the operation of the rule which adds to riparian lands the increment which is caused by natural and gradual accretion …’


Victorian Legislative Provisions: Victorian Legislative Provisions Land Act 1958 s385 retains the bed and banks of the stream in the Crown (1) If— (a) land is bounded in whole or in part by a watercourse; and (b) the land was alienated by the Crown before, or is so alienated on or after, the commencement of section 327 of the Water Act 1989— the bed and banks of the watercourse remain, and must be taken always to have remained, the property of the Crown despite the alienation of the land and despite the fact that the same person owned or owns, or holds or obtains a consolidated certificate of title for, the land adjacent to both banks. * * * * * * (3) This section does not affect any right of any person in the bed and banks of a watercourse that does not form the boundary or part of the boundary of land that was alienated by the Crown before, or is so alienated on or after, the commencement of section 327 of the Water Act 1989.


Do bed and banks move?: Do bed and banks move? It is possible to read s385 of the Land Act in a way that supports the argument that bed and banks (Crown Reserve) move Common Law favours minimising loss of private property Matter of interpretation, but in Victoria, generally the riparian land (Crown) and freehold land move according to accretion, alluvion and dereliction


Water Act 1989: Water Act 1989 s3(1)(g)‘waterway includes’: …any land … [that] … forms part of a slope rising from the waterway to a definite lip, the land up to that lip land sloping to a definite lip from land which is regularly covered by water’ In other words, the bank According to s7(1) the crown has ‘ … the right to the use, flow and control of all water in a waterway …’


… gradual natural process: … gradual natural process Accretion, alluvion and dereliction must be a slow and natural process. Some room for interpretation – not entirely settled. In A-G of S.Nigeria . John Holt and Co the Privy council said: ‘ … the accretion should be natural, and should be slow and gradual – so slow and gradual as to be in a practical sense imperceptible in its course and progress as it occurs.’ Decided in 1915. What is imperceptible in a practical sense. It would be different in 2007 to 1915 Slow?? In 1982 the Privy Council determined that accretion of seven meters in one year was accretion (Southern Centre of Theosophy Inc v South Australia)


…natural: …natural In A-G of Southern Nigeria v John Holt & Co the owner of land erected ‘cabbage posts’ and other works on the foreshore to encourage siltation. Because this was not a natural creation, the land did not pass to the landholder by accretion


The situation in Victoria: The situation in Victoria In summary, Victorian law has applied the following regarding accretion alluvion and dereliction: Sudden and considerable alluvion or accretion belongs to the Crown If accretion or alluvion happens ‘gradually’ the boundary between Crown and Freehold land moves If the processes are faster rather than slow/imperceptible, title does not change At Common Law, private works can be constructed to improve or recover the land


A Right to Water: A Right to Water The Crown, therefore owns the water in the waterway What about a right to take the water (in reasonable volumes) from a water body? A complex system of water (riparian) rights have emerged in Victoria Water Act 1989 - establishes systems of water entitlements Policy initiative: Our Water Future Together – Our Water Our Future (commonly referred to as Our Water Our Future) (DSE, 2004).


Bulk Water Entitlements: Bulk Water Entitlements Issued to urban and rural water authorities Defines the amount of water in the consumptive pool and Contains rules for sharing the available water within the system. Under a bulk entitlement, Victoria also provides water rights to individuals within a water supply area. These rights are tradable. Include bundled-up entitlements to water shares, delivery of water through an irrigation system, and implied entitlements to use water on land. A legal right for a water authority to harvest water subject to volumetric limits and flow sharing rules


Licences: Licences A water licence is required for all commercial and irrigation uses. Licence conditions specify the volume, rate and time of diversions, and the provision of passing flows (for licensed works on waterways). The Water Act 1989 sets out licence conditions including: the protection of a waterway the purpose for which the water may be used the protection of the environment a range of other matters.


Separation of Entitlement: Separation of Entitlement Under the Water Act 1989, although water licences and water entitlements are separate from land title, the right to take water remains tied to land. Water rights can be traded by detaching them from the seller’s land and then re-attaching them to the buyer’s land. This arrangement prevents the leasing of water and severely limits opportunities for more sophisticated water products to develop. Our Water Our Future, the Victorian Government: policy to separate some water access entitlements from land (consistent with the NWI).


Separation of Entitlement: Separation of Entitlement Unbundling of entitlements is provided for in the new Water (Resource Management) Act 2005. Despite the amendments made to the Water Act 1989, only ten per cent of water shares in a system can be owned by a non-water user. A Barrier to trade - continues to link water entitlements to land for the remaining 90 per cent of entitlements.


The Doctrine of Estates: The Doctrine of Estates Fee Simple Fee Tail Life Estates


What do we mean by ‘Ownership’?: What do we mean by ‘Ownership’? We already saw that virtually all private land in Victoria is Freehold Under the old law system it was necessary to search back in time to establish the nature of the freehold land It is more helpful to think about freehold tenure as land parcels alienated by the Crown into the private title system Description of ownership on Certificate of Title ‘proprietor of an estate in fee simple’ Fee simple – the estate in land that allows the proprietor to exercise greatest control


Other estates and interests in land: Other estates and interests in land There are a range of other estates or interests. Interests may be held in the same land Look at a Certificate of Title: xxx is the proprietor of an estate in fee simple subject to the encumberances notified hereunder … Common other interests – easements caveats etc are all registered under the Torrens System This range of interests in one parcel of land is called the fragmentation of property interests in land


Other Estates in Land: Other Estates in Land Fee simple Fee tail Life estate These may be contrasted to the position of leases (which are an interest in land rather than an estate in land)


How to distinguish between the different estates in land: How to distinguish between the different estates in land Estates and interests may be compared on the basis of the following issues: The time for which the relevant tenure is held Who is entitled to hold the relevant estate Entitlement to possession Rights to the profits of the land Whether the rights are immediate or deferred The status of future interests Relationships between the different rights which can be held at the same time


Fee Simple : Fee Simple Allows the proprietor of it to exercise the greatest control The traditional Common Law view is that an estate in fee simple is as close to absolute ownership as is possible Note that there might be legislation restricting the owners absolute ownership and powers such as a planning scheme under the Victorian Planning Provisions Because of the common law heritage, an Australian fee simple proprietor if Torrens land has a great deal of power more so perhaps than a German ‘absolute’ owner as German property law has a notion of favouring the ‘common good


Fee Simple: Fee Simple Fee simple proprietor has the right to alienate, that is, to pass it to someone else (by will or transfer) ‘fee’ – indicates that the estate is one capable of inheritance ‘simple’ – indicates that the land is capable of passing onto heirs generally, and not just to heirs of a specified class (fee tail) Fee simple is divided into: Fee simple absolute Limited fee simple


Fee Simple Absolute: Fee Simple Absolute Exists as long as the owner has successors (whether related or not) Intended to be for unlimited duration If fee simple proprietor dies without leaving a will and with no next of kin, the land passes as ownerless property to the Crown Practical matter – virtually all land in Victoria is fee simple absolute


Limited Fee Simple : Limited Fee Simple It is possible to allocate land conditionally In fee simple absolute, the assignor of the land retains no interest in the land However, it is possible to specify the circumstances or events in which the proprietor is entitled to keep the land If the assignor imposes such conditions, he or she retains a contingent reversionary interest The assignee will receive a limited fee simple in this case


Limited Fee Simple – an example: Limited Fee Simple – an example Andrea transfers her flat ‘to Beatrice and her heirs so long as the block of flats stands’ The contingency can be unrelated to the transaction: ‘so long as Queen Elizabeth is alive’ ‘until Mt. Ruapehu on the North Island of New Zealand erupts again


Beneficial Use: Beneficial Use Rights of Neighbours – traditionally not considered Property law, but the law of Torts (nuisance, trespass, negligence) Not a limitation on ownership, but rather a protection for the use and enjoyment of land Part of broader social obligation rather than relating to the narrow concept of property itself Beneficial use can e considered a right to ownership and possession as freedom for quiet enjoyment rather than a restriction in favour of others


Limitation of traditional Property Law: Limitation of traditional Property Law Property law was formulated in a historical and cultural climate that is at odds with today’s contemporary issues and technologies Blackstone in the late 18th century is the foundation of common law property law. The essence of property is that the property is the: ‘sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe’ Subject to environmental, health and planning laws and restrictions, the proprietor in fee simple may waste, despoil and neglect land to his or her heart’s content


Traditional concept of Property is out of date: Traditional concept of Property is out of date Today we have developed technical means to alter our environment that would have astonished Blackstone Capacity for damage and destruction is of a scale not originally envisaged International policy holds a more progressive view of property. In 1999 a meeting of the International Federation of Surveyors in Bathurst concluded that: ‘[t]he property rights in land do not in principle carry with them a right to neglect or destroy land. The concept of property … embraces social and environmental responsibility as well as the relevant rights to benefit from property.’


Fee Tail: Fee Tail A fee tail estate can only pass to members of a specified class of people (rather than being inheritable by heirs generally) Generally limited in descent to the direct descendants of the grantee Original aim was to keep the land within the family A fee tail estate will contain words such as: ‘to xxx and the heirs of his/her body’ When the grantee and all familial descendants disappear, the land revets to the grantor or another nominated person


Fee Tail: Fee Tail Tail male: restricted to male decendants Tail female: (in theory at least) restricted to female decendants The possibility of creating fee tail was closed in 1886 in Victoria Note that the Torrens System began in 1862, and it is likely that there are registered fee tail estates in Victoria Sections 251 and 252 of the Property Law Act 1858 provide the option for a a tenant in fee tail to convert to fee simple absolute


Life Estates: Life Estates Three possible methods of creating a life estate: An estate to for the life of the grantee – ‘to xxx for his life’ An estate for the life of another person, an estate pur autre vie – ‘to xxx for the life of yyy’ An assignment by the holder of a life estate to another person, remaining current for the duration of the original life Limited life estates can also be created. For example ‘to xxx while he remains a widower’. If this person remarries, the estate will revert to the grantor


Doctrine of Waste: Doctrine of Waste Originated from the possibility that the value of the estate could be depreciated in the course of the life estate to the detriment of those who follow Ameliorating waste: conduct by a life tenant that enhances the value of the estate Permissive waste: a failure to repair. A life tenant is not liable to repair the property unless the instrument creating the life estate imposes a positive obligation to repair Voluntary waste: a positive act injuring the land, such as demolition of a building. A life tenant is liable for voluntary waste unless the instrument creating the life estate makes him or her ‘unimpeachable for waste’


Doctrine of Waste Cont …: Doctrine of Waste Cont … Equitable waste: Even if the life tenant is unimpeachable for waste at common law, this doctrine retrains the unconscionable exercises of legal rights to the prejudice of those entitled to the land after the life tenant, that is, wanton destruction. Also a legislative restriction: s133 Property Law Act: an estate for life, without impeachment of waste, shall not confer upon the tenant for life any legal right to commit waste of the description known as equitable waste, unless an intention to confer such right expressly appears by the instrument creating such estate.