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Introduction To Land Law Notes

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This is an extract of our Introduction To Land Law document, which we sell as part of our Property Law Notes collection written by the top tier of University Of Otago students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Property Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Introduction to Land Law

Practice Questions
Q: Imagine a big modern shopping mall. It is owned by a Pension Fund. You occupy a prime site in it: the restaurant. You have invested heavily in kitchen equipment. You have got a 15-year lease. Now the Pension Fund has sold the mall to a new owner.
Does that mean that you must now renegotiate your lease?
A: No, you do not need to renegotiate because your lease is a property right and as such, binds the rest of the world (including the third party owner).
Q: Suppose instead that you have a 5-year agreement to provide the electrical maintenance for the mall. Same assumptions as above. Any different?
A: Yes. Because your agreement to provide maintenance is a personal contract, it only binds the parties to the contract, not the third party owner. Therefore you will have to renegotiate with the new owner. But could potentially sue the old owner for breaking contract depending on its terms.

Theory
Property interests have objective definitions - even if the edges are sometimes fuzzy

You cannot create new types of property interests - can only follow the rules of pre-existing categories.
Doctrine of Tenures (relationship between crown and tenant) - History

1066 - William I conquers England and becomes supreme overlord.
o The King owns all land - grants bits of it to followers who become tenants.
o This is done on the basis that services will be owed by the tenants to the
King.
o Land was sub-leased from the barons to military to craftsmen to peasants creating the feudalism pyramid

Land was never granted by way of an actual transfer of property - only the right to live on the land.
o Absolute ownership remained with the Crown thus separating ownership from possession

The 'doctrine of tenures' outlined the terms and conditions on which the tenant enjoyed occupation of the land.
In Present Day

The only tenure of relevance is a freehold tenure (where the buyer of property gains property rights without owing any service to the crown)
Doctrine of Tenures Upon Colonisation of NZ
o The process of settlement and conquest led to the export and adoption of
English land law into the new country.
o The Crown owned the land and could make grants of interests in it to whomever it chose (usually settlers).
o However, Māori Customary Title remained (where it was not extinguished).
o

 

o R v Symonds
- Maori customary title does exist
- Maori land can only be brought in the first instance from the crown

Ngati Apa v AG
- Recognition of common law native title is consistent with the crown's radical title
Doctrine of Estates (relationship between tenant and the land)
o Because land is owned by the crown, tenants don't own the land itself instead, tenants own an estate in the land

An estate itself is an abstract thing, entailing certain rights in the 'bundle of property rights'
o Therefore, different estates can be held in the same piece of land

The differences between estates were driven by differences in duration

Estate in Fee Simple
- Achieved when one buys property
- Includes the right to possession for an unlimited amount of time
- Can be inherited by anyone

Life Estate
- Achieved when person A gives land to person X for life and then to Y
- X gets the right to possession for the rest of their life but not to sell or give away or leave to someone else
- Y gets a fee simple (in remainder) - they cannot possess the land but they can sell it, mortgage it, or leave it in their will to someone else
- When X dies, Y gets the estate in fee simple

Leasehold Estate (residential tenancy)
- Achieved when a residential tenancy agreement is signed with the person who has a fee simple estate in the land
- Included the right to possession and use for a fixed amount of time - but not the right to sell or mortgage
Interests in Land - Examples

Mortgage
- Gives bank a property interest in the land as well as the tenant who is borrowing money from them
- No right to ownership or possession, but the right to sell land if the mortgage is not paid back - a security interest

Easement - a 'right of way' to pass over someone's land, but no ownership or possession

Mortgage and easement are both legal interests
Legal Interests in Land

Creations of the common law courts - therefore 'legal' interests

The nemo dat principle used to apply (no one gives what they don't have)
o People had to prove they had legal interest in land (through a deed)

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