LAND LAW 2 Flashcards
Re Richards (1987) HC Timaru CR43/85
(Vendor dies after contract but before transfer)
Agt for sale amd purchase executed =
Vendor, who ahs legal estate holds the land as trustee
Burnett’s Trustee v Grainger [2004] S.CL.R. 433 (Scottish case)
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.”
Clarke v Ramuz [1891] 2 QB 456, CA (Property suffers damage after contract but before transfer)
Seller owed duty (reasonable care) as a trustee
vendor duties as a trustee?
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)
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
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.
Batchelar Centre Ltd v Westpac New Zealand [2014] NZHC 272
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
ADLS provision?
Standard contract, clause 5 (“at this stage risk will pass”)
Southland District Council v McClean (1999)
example of ADLS provision, determining if the land was ‘untenantable’ to determine if they could cancel
Bevin v Smith [1994] 3 NZLR 648 (CA)
equitible interest (in conditional contracts) = you can have an equitable interest as long as you do x
conditions precedent
no interest unless condition is met eg “if you reach the age of 21 you get x”
conditions subsequent
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”
rights to first refusal, what does it need?
triggering event (eg deciding to sell) + essential terms of sale (eg price)
who has a R2FR?
Palm Gardens Consolidated Pty Ltd v PG Properties Pty Ltd [2009] SASC 311
Did they have a cavetable interest?
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
Remedies for trespass against third parties
“diminution in value of land”
“reasonable cost of reasonable reinstatement”
Te Ture Whenua Māori Act 1993
Need approval of Māori LC to make a sale to someone not in the class of alienees
Taueki – Horowhenua X1B41 North A3A and 3B1 MB 30 (16 WGAP 30) (2008)
Court only gave … 7 days to exercise R2FR, “the time allowed…was unreasonably short.” = need to keep land with Maori ownership
Meha v Haggerty – Tapairu A8X (2022) 94 Tākitimu MB 111
“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”
Gross easement
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
Appurtenant easement
attaches to a particular area of land which is the dominant tenement. It runs with both the dominant and servient tenement
elements of an easement
- “There must be a dominant and a servient tenement, [but in NZ s291 PLA]
- An easement must accommodate the dominant tenement,
- 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.”
Street v Fountaine [2018] NZCA 55
were stock water rights a licence or an easement?
- essential elements of an easement?
- The language used by the parties
- An intention to bind successors in title indicates that the arrangement is to grant an easement and not a licence
- “absence of a time limit or right to revoke the arrangement point to an easement”
- 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”
New types of property rights? why does it have to be an easement OR a licence?
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
The owners of East Fremantle Shopping Centre v Action Supermarkets Pty Ltd 2008 WASCA 180
Novel easement:
Car park was subject to reasonable use of the easement, the owner still has control = easement
Multiplex Bluewater Marina Village Pty Ltd v Harbour Tropics Pty Ltd [2017] QCA 202
“exclusion” threshold - is it too much?
- proportionality between whole serviant tenement and specifiic part given
- extent of exclusivity claimed
- practicalities
Moncreiff
Other test for exclusiveness
ouster possession and control by dominant owner
Freehold covenant
promise by an owner of land to do or not to do something in relaiton to that land
Proprietary estoppel
to enforce a right against someone who has made a promise.
Guest v Guest
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
Harvey v Prangley (2009) (High Court)
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.
