Australian property law

Answer

The requirements of a right to light were met during 1996 and the right constitutes a valid easement (s.121 of Property Law Act (PLA) 1969). Notably, the Transfer of Land Act (TLA) 1893 holds that easements may be registered against either freehold of Crown land. However, s.195 of the Land Administration Act 1997 (LAA) provides that easements may be registered without a dominant tenement.  The requirements for the grant of easement were provided by the Court in Re Ellenborough Park [1955] relating to dominant and servient tenement, dominant and servient tenements not owned by one person, easements must accommodate the dominant tenement, and it must be capable of forming the subject matter of a grant. The right to light, in the present case, is a valid easement satisfies the requirement that it must be dominant land and servient land (Stanley has the dominant tenement and Patrick the servient). Additionally, the dominant and servient owners are different (Stanley and Patrick). The easement accommodates the dominant easement as opposed to the personal rights of the owner of the dominant tenement. Also, the right to light is capable of forming a subject matter of a grant because it was created with clarity and the interests are ascertainable. As such, the requirements of the right to light were met.

Question 1.2. 

The easement; in the form of the right to light, could be extinguished through various possible ways. One of those is implied conduct such as the erection of a wall by Patrick. It could also be extinguished by express agreement between the parties to the easement (s.52 of PLA). Specifically, the easement holder may; through an express consent, agree to give up the burden to the servient tenement. In the present case, Stanley may expressly release the burden (right of light) on Patrick’s tenement. Unity of ownership can also be a possible way of extinguishing the right to light. If Stanley comes to own both the dominant and the servient tenement, then the easement will be released automatically because the elements provided for under Re Ellenborough Park [1955] will not be met. Also, subdivision of the dominant tenements or increase in burden are changes in circumstances, which may lead to the extinguishment of the right to land as an easement. A change of use is also a possible way that the right to light may be extinguished. For instance, the erection of the wall is a change in the circumstances, which makes the right to light obsolete and the original purpose of the easement cannot be achieved because the wall will block light from entering into Stanley’s tenement. In  Odey v Barber [2008] the Court held that easements may also be extinguished via abandonment.  In the case of abandonment, no-use of easement and an intention are required to be proven. Since, owners of 168 were not making use of their easement, they can be deemed to have abandoned it. However, an intention to abandon should be proved.

Question 1.3.

Stanley is entitled to demolish the brick wall because it encroaches on his property. The wall is against the terms of the restrictive covenant entered between the parties. Specifically, the wall is not consistent with Stanley’s right of light because it blocks light from entering into his land. However, he would only claim the ownership of the wall because it lies on his property and has exclusive possession of property in his land. The doctrine of fixture holds that the land owner can claim chattels that have become affixed to his land. However, to claim ownership of the wall, Stanley must demonstrate that the wall is annexed to his land. Two tests can be used to determine whether a chattel is annexed to the land (Holland v Hodgson [1872]). These include both the degree of annexation (Reid v Smith [1905]) as well as the intention of the annexation (Palumberi v Palumberi [1986]). In the present case, Stanley must show that the wall has been integrated into his land and the intention was for the wall to become part of his property. Also, Stanley will have to prove that the wall was for the better enjoyment of his land that it has become a vital feature of his land. However, as stated in NAB v Blacker [2000], whether the wall is an annexure to Stanley’s property will be based on a wide range of factors and a holistic approach will be used.

Question 1.4.

Stanley would be entitled to prevent Patrick from building the boutique shop because such a shop would be inconsistent with his (Stanley’s) use and enjoyment of his land. Additionally, the terms of the restrictive covenant do not allow the building of the boutique shop. Notably, a restrictive covenant is an encumbrance because it limits the use/development of land for the benefit of the other’s land. In the present case, the restrictive covenant apply to both titles (167 and 168) and thus, they are both burdened land. Additionally, the restrictions are designed to protect other’s land by limiting the type of structures that can be erected on the land. Although there is a rule against passing the burden of a restrictive covenant, Stanley can demonstrate that the restrictive covenant which barred the construction of certain structures in the land satisfied the “touch and concern” test (Congleton v Pattison [1808]). Specifically, he can demonstrate that the restrictive covenant in place has a direct effect on the enjoyment of his land as well as the quality/nature of the benefited land and its value (Tulk v Moxhay [1848]). These grounds make Stanley have the right to prevent Patrick from building the boutique shop.

Question 1.5. 

Stanley can claim the ownership of the disputed land because he possesses the proprietary title to such land. Notably, although the land has been in the possession of Patrick, Stanley holds the title to the land and thus, can still claim its ownership. A prior possessory holder of a title will always defeat that of a person who is in possession of the land. However, the doctrine of adverse possession might work in favor of Patrick who has been using the land for a long time. Principally when squatters prove all the grounds of adverse possession, they may be able to get ownership of a land (Asher v Whitlock [1865]). Also, in Perry v Clissold PC [1907], the Court held that an adverse possessor who has satisfied the conditions set out for adverse possession; such as the length of time they have been possessing the land in question, then they can acquire title and bring actions against others. In the present case, Patrick has been possessing the disputed parcel of land for many years and although Stanley can claim the ownership of the land in question, Patrick may acquire title to the land through the principle of adverse possession. However, to claim adverse possession, Patrick has to show that factual and exclusive possession (s.138T of LTA). In the present case, Patrick was in exclusive possession of the land for many years and thus, satisfies adverse possession requirements.

Question 2

Question 2.1.

(a).

Upon the death of Harry Taylor, Mary Taylor is granted a freehold estate in the form of a life estate because she is given the right to exclusively possess and use the land for the “rest of her life” (s.4 of the Wills Act 1997 (Vic)). Notably, a life estate is conveyed to a person and with the statement to the appropriate words of limitation set out (Zapletal V Wright [1957]). In the current case, Harry Taylor is clear that Mary will have the farm Daisy Hill for the rest of her life and as long as she does not remarry. In this case, Mary has both the proprietary rights that include the right to possession and the right to deal with the property in question (farm Daisy Hill). Moreover, as provided for under the doctrine of  Life estate pur autre vie, a life estate is given by the grantor to a party for only the duration of their life and then transfer to a third party. However, for Wendy, she has a reversionary interest because if Mary remarries, the interests will revert to her.

(b).

Upon the death of Mary Taylor, both Tony and Angela will get some future interests from the land in question. Tony Taylor gets the land in the form of vested remainder interests. Specifically, the grantor of the estate states in his will that Tony will get the farm on the land for at least five years after the death of Mary Taylor. Such an interests is futuristic. However, Angela Taylor gets the exclusive possession and proprietary title to the land through resulting trust. Notably, a resulting trust is inferred in a situation whereby one person holds the proprietary for the benefit of another person. In the current case, the interest on farm Daisy Hill will go to Harry’s daughter Angela when she reaches the age of 21. As such, she has a resulting interest in the land.

Question 2.2.

 Both Tony and Angela can still prevent the registration of the land to in the name of Pauli Tarantino on the basis that such a registration is in breach of trust. Notably, in his will, Harry put some restrictions on alienation of the land. Specifically, he states that nether Toby nor Angela could alienate or dispose of their interests in the land in question without offering each other the land for sale. Notably, in Nitschke Nominees Pty Ltd v Hahndorf Golf Club [2004], and Warren v Lawton [2016], it was held that co-owners of a legitimate entitlement can control the identity of the person with who they co-own property. In the present case, the wording of the will is that both Tony and Angela become the co-owners of farm Daisy Hill. As such, as long as the alienation is not contrary to public policy, then it should be enforceable (Hall v Busst [1960]). However, any clause that has the effect of fully restraining the right to alienate is void because its contrary to public policy and private property should always be fully alienable. As such, Tony and Angela can stop the registration of the land in the name of Pauli Tarantino on the basis that it goes against the restriction on the alienation imposed by the attachment of a condition. However, restrictions on alienability in the grant of an estate will most likely be struck down, whether in the form of a conditional estate of by the use of a covenant in deed.

Question 2.3.

Angela cannot rely on clause 2 of the will to acquire interests of Tony in respect of the farm because the breach of the trust is not by the fault of any party and specific performance is not available. Clause 2 provides that neither Tony or her sister (Angela) are allowed to alienate or dispose of their interest in the land without offering the interests for sale to one another. Even if Tony and Angela were successful in the claim to prevent the registration of the farm in the name of Tarantino, Angela Taylor cannot rely on clause 2 because other circumstances have changed the dynamics of the clause. Specifically, the right of Agrico Bank, especially on the power of sale supersedes those of Angela and Tony. Additionally, in the circumstances, specific performance is unavailable because the land has already been encumbered by the loan that Tony advanced from the Bank. The interests that Agrico Bank has on the land are legal one whereas both Angela and Tony only have equitable. As it was held in Latec Investments v Hotel Terrigal [1965], a legal right, such as the power of sale, will always prevail over mere equity. Additionally, in Ruthol Pty Ltd v Mills [2004], the Court decided that where third parties are involved, the enforceability of mere equity on a wrongdoing cannot be accepted.  The current case provides such a scenario where the Bank is a third party that has gained interests because of the wrongdoing of Tony and thus, Angela cannot acquire the interests of Tony.