LAND LAW 2

Question 1

Re Richards (1987) HC Timaru CR43/85
(Vendor dies after contract but before transfer)

Answer 1

Agt for sale amd purchase executed =
Vendor, who ahs legal estate holds the land as trustee

Question 1

Burnett’s Trustee v Grainger [2004] S.CL.R. 433 (Scottish case)

Answer 1

Illustrates problems of pure registration system.
Solution = from the moment of specifically enforceable contractual commitment, the purchaser of a land interest acquires not merely a contractual right against the vendor but also a proprietary right in the vendor’s land, a right which is necessarily equitable.”

Question 2

Clarke v Ramuz [1891] 2 QB 456, CA (Property suffers damage after contract but before transfer)

Answer 2

Seller owed duty (reasonable care) as a trustee

Question 3

vendor duties as a trustee?

Answer 3

Normal trustee duties BUT “within those limits he is entitled to the ordinary rents and profits” (different to normal trustee as they are not allowed conflict of interest)

Question 4

New view of trustee = maybe the Trusts Act shouldn’t inc these vendors unless payment has passed

Chang v Registrar of Titles [1976] HCA 1

Answer 4

If there is only the property to transfer and everything else is done, then the vendor will be acting as a trustee, otherwise it is merely contractual, and not trustee-like.

Question 5

Batchelar Centre Ltd v Westpac New Zealand [2014] NZHC 272

Answer 5

Two large commercial parties, no reason for equity to intervene.
AND
There was a cl removing liability for accepting alternative offer - removing equity’s intervention

Question 6

ADLS provision?

Answer 6

Standard contract, clause 5 (“at this stage risk will pass”)

Question 7

Southland District Council v McClean (1999)

Answer 7

example of ADLS provision, determining if the land was ‘untenantable’ to determine if they could cancel

Question 8

Bevin v Smith [1994] 3 NZLR 648 (CA)

Answer 8

equitible interest (in conditional contracts) = you can have an equitable interest as long as you do x

Question 9

conditions precedent

Answer 9

no interest unless condition is met eg “if you reach the age of 21 you get x”

Question 10

conditions subsequent

Answer 10

you have a right but if you subsequently stop meeting the condition you will loose what you have eg “I give all my land to x on condition they maintain a particular faith”

Question 11

rights to first refusal, what does it need?

Answer 11

triggering event (eg deciding to sell) + essential terms of sale (eg price)

Question 12

who has a R2FR?

Question 13

Palm Gardens Consolidated Pty Ltd v PG Properties Pty Ltd [2009] SASC 311
Did they have a cavetable interest?

Answer 13

What is it that ought to have been done? Nothing.
“in this case the legal freedom to develop or not develop the land, which in my view is so clearly given by the Option Deed, precludes a finding that an equitable interest in the land has been acquired under it”
= equitable interest moulded by conditions

Question 14

Remedies for trespass against third parties

Answer 14

“diminution in value of land”
“reasonable cost of reasonable reinstatement”

Question 15

Te Ture Whenua Māori Act 1993

Answer 15

Need approval of Māori LC to make a sale to someone not in the class of alienees

Question 16

Taueki – Horowhenua X1B41 North A3A and 3B1 MB 30 (16 WGAP 30) (2008)

Answer 16

Court only gave … 7 days to exercise R2FR, “the time allowed…was unreasonably short.” = need to keep land with Maori ownership

Question 17

Meha v Haggerty – Tapairu A8X (2022) 94 Tākitimu MB 111

Answer 17

“Decision as to whether or not to allow Māori freehold to be converted into ‘general land’ depends on whether it “can be managed or utilised more effectively as general land”

Question 18

Gross easement

Answer 18

An easement in gross is not tied to a specific piece of land (dominant tenement) but is personal to the individuals (grantees) who hold it. Even if the land is sold by the original owner (grantor), the easement continues to apply to the land. In other words, the easement remains in effect regardless of who owns the land, but it is a personal right for the grantees, not directly linked to the land itself

Question 18

Appurtenant easement

Answer 18

attaches to a particular area of land which is the dominant tenement. It runs with both the dominant and servient tenement

Question 19

elements of an easement

Answer 19

1. “There must be a dominant and a servient tenement, [but in NZ s291 PLA]
   
   2. An easement must accommodate the dominant tenement,
   3. Dominant and servient owners must be different persons, [but in NZ s108 LTA] and
      A right over land cannot amount to an easement unless it is capable of forming the subject-matter of a grant.”

Question 20

Street v Fountaine [2018] NZCA 55
were stock water rights a licence or an easement?

Answer 20

1. essential elements of an easement?
   
   2. The language used by the parties
   3. An intention to bind successors in title indicates that the arrangement is to grant an easement and not a licence
   4. “absence of a time limit or right to revoke the arrangement point to an easement”
   5. common-sense assessment of the arrangements. Eg, the installation of expensive infrastructure in reliance upon the arrangement may tend to prove an easement”

“Certain arrangements represent the classic subject matter of easements, such as rights of way, storm water systems, utilities and water supply…they are rights important to the use of the dominant land and are likely to be intended to pass with title to the land”

Question 21

New types of property rights? why does it have to be an easement OR a licence?

Answer 21

POLICY ARGUMENT:
The PLA has a closed list of property rights. Have to meet the conditions for an easement rather than just saying it is an easement. Great detriment would arise, and much confusion of right, if parties were allowed to invent new modes of holding and enjoying real property

Question 22

The owners of East Fremantle Shopping Centre v Action Supermarkets Pty Ltd 2008 WASCA 180

Answer 22

Novel easement:
Car park was subject to reasonable use of the easement, the owner still has control = easement

Question 23

Multiplex Bluewater Marina Village Pty Ltd v Harbour Tropics Pty Ltd [2017] QCA 202
“exclusion” threshold - is it too much?

Answer 23

1. proportionality between whole serviant tenement and specifiic part given
2. extent of exclusivity claimed
3. practicalities

Question 24

Moncreiff
Other test for exclusiveness

Answer 24

ouster possession and control by dominant owner

Question 25

Freehold covenant

Answer 25

promise by an owner of land to do or not to do something in relaiton to that land

Question 26

Proprietary estoppel

Answer 26

to enforce a right against someone who has made a promise.

Question 27

Guest v Guest

Answer 27

Option A (majority)= The aim of which was to prevent the unconscionable repudiation of promises or assurances about property (usually land) upon which the promisee had relied to his detriment. Focus on enforcing promise rather than compensating deprived person

Option B (minority) = all about fixing the detriment not the expectation of the person. Ensuring you are not worse off because this person didn’t keep their promise

Question 28

Harvey v Prangley (2009) (High Court)

Answer 28

A personal right (lisence) can bind a third party in this exception though, because the trustees ect were family and well aware of situation and purchase price was subject to it.