Land, equitable interests, trespass, and Maori land disposition

Question 1

What regulates land interests

Answer 1

Regulated by torrens system, best title being an indefeasible title, and best interest is fee simple

Question 2

different interests

Answer 2

Mortgage: SI over land
Leasehold: right to possess for period of time
Freehold estate: life interest on estate; fee simple
Easement: interest in land

Question 3

Equitable interests

Answer 3

Property interests don’t have full effect until registered

Question 3

types of equitable interests

Answer 3

Land held on trust
Proprietary estoppel
Restrictive covenants

Question 4

Property interests that have not yet been registered

Answer 4

Equitable leases
Mortgages

Question 5

Trespass

Answer 5

Every unlawful entry onto land

Question 5

Difference between contract to transfer interest, and actually transferring that interest (registration)

Answer 5

Parties with equitable interest can lodge a caveat against a person with legal estate or interest in the land
Caveat will freeze the register and block further transactions

Question 6

Elements

Answer 6

1. Unjustified direct interference with land
   - Usually unauthorised
   - Cannot be an accidental trespass
2. Plaintiff is in possession of land
   - Actual possession, does not need to be legal owner of land

Question 7

Remedies

Answer 7

• Call cops for ongoing trespass
• Injunction to prevent it happening again
• Monetary damages

Question 8

Cases

Answer 8

Matchitt - Even if the trespasser honestly thought they could be there still trespass

De Richamount - possession extends to above land to wall with ad on it

Bocardo - could not drill under land - owner owns everything above and below land - displaced by practical considerations for planes etc.

Question 9

Owner not in possession (landlord)

Answer 9

• trespass by relation - if the have R2IP they can sue
• Damage to reversionary interest - they have right to get something back so can sue for damage to that
• Action for recovery - when the defendant is denying person with R2IP entry to their land - cops will enforce

Question 10

Disposition of Maori Land

Answer 10

Alienation of Maori Freehold Land is regulated by Te Ture Whenua Maori Act. Basically says Maori can only give MFL to certain people (preferred class of alienees). Purpose is to keep Maori retention and utilisation of land.

Question 11

ROFR

Answer 11

PCA’s get ROFR
After receiving notice of sale, PCA’s get reasonable opportunity to exercise their ROFR

Question 12

Who is PCA’s

Answer 12

Children and issue of owner
Whanaungatanga of the land
Members of hapu
If owned by more than one person, as usually happens, there must be a hui to decide what share people will get (must be ¾ of owners present)

Question 13

what is a reasonable period (case)

Answer 13

Logan v Logan
Reasonable period to exercise ROFR is 15 days provided the alienees have been informed (or a best effort to inform them has been given)

Question 14

Applications to change status of land

Answer 14

Te Whata – Maori land is cultural heritage not a commodity

Meha - high bar for changing status (even here where it would be a better the use of the land, it could not be changed) as it is fundamentally inconsistent with purpose of Te Ture Whenua Act