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property law

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Ethics and Social Issues (COIT11223)

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Central Queensland University

Academic year: 2020/2021

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Central Queensland University

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Property Law: Assessment Task 2

Student: Baileigh Wright

Student number: 1114745

Word limit: 1650 words +or-10%=

Issue

Does Bernard have a right to the Heavenscent property over Suzie’s children?

Rule

In proving adverse possession, the dispossessed owner has 12 years to recover land, if the identity of the true owner is unknown then the limitation period is 30 years. 1 Time starts to run when the documented owner has been dispossessed or discontinues possession and the land must be in adverse possession. 2 Time starts to run against future interest when the interest is vested. 3 If an individual who has been left property in a will does not take ownership, time will start to run on the date that their interest vests in that possession. 4

To prove adverse possession 3 elements must be satisfied

Factual possession
Intention to possess
Expiration of limitations of actions. 5

Factual possession means that the possession of the land must be open, not secret, not by force, and an appropriate degree of physical control of the land is required. 6 The nature of the land, its normal mode of use and the circumstances of the case must be considered. 7 It is important to consider that the nature and size of the land may only require occasional acts of possession. 8

The element of intention to possess requires the consideration of looking at what the conduct and words of the possessor tell us about the possessors use of the land, this requires intention to exclude the world at large and not just the rightful owner. 9 The case of Mulcahy v Curramore illustrates that intention to possess the land can be through occupation by residence, building upon the property, leasing the property, planting crops or livestock, fencing, maintenance and visiting the property. 10 An important element to intention to possess is intention. The possessor must have the intention to make that property and or land theirs, this can be evident through the use of the property for entertainment, functions, payment of rates, taxes and excluding others from the property. 11 Expiration of limitations of actions is the limitation period in which an individual has to prove or disprove adverse possession. In Queensland the limitation period if 12 years. If the documented owner is unknown, then the limitation period will be 30 years. 12

Application

1 Limitation of Actions Act 1974 (Cth) s 29. 2 Ibid. 3 Ibid. 4 Limitation Act (n1) s 15. 5 Mulcahy v Curramore (2) (1974) 464 NSWLR 193. 6 Ibid. 7 Shaw v Garbut (1996) 49 NSWLR 400. 8 West Bank Estates ltd v Arthur PC (1967) Ac 665. 9 Mulcahy v Curramore (n5). 10 Ibid. 11 Ibid. 12 Limitation Act (n1) s 15.

Issue

Is the condition of the will valid?

Rule

A condition within a will be invalid if the condition is uncertain. 13 In the case of Clayton v Ramsden, property was left to a daughter but would be invalid if she married a man that was not of Jewish faith. 14 The will was found to be void due to uncertainty. 15 Uncertainty is found in a will when it goes against public policy, a will that includes unreasonable restrictions on marriage is not within the public interest to enforce. 16 The courts will also not enforce a condition that is uncertain, a condition is uncertain when

a) If it is too vague (it will be impossible to know what was intended) b) It would be difficult for the courts to enforce in practice. 17

Application

The condition in Ella’s will for Bernard is invalid on the grounds of uncertainty and public interest. If a will is found to be uncertain that means that the property or assets will fall into intestacy, which means that the courts will treat the property as if no will existed. 18 The property distribution will follow family relation.

Conclusion

The will is invalid, which means that the courts will follow intestate distribution.

Issue

Encroachment

13 Angela Harvey, ‘Ruling from the grave: what conditions can you place on gifts in your will?’ (2015) Swaab Journal Review 194. 14 Clayton v Ramsdon (1943) AC 320. 15 Ibid. 16 Hickin v Carroll & Ors (No 2) (2014) NSWSC 1059. 17 Ibid. 18 Weston v Donaldson (2018) VSC 405.

Rule

Encroachment will occur when a constructed building encroaches onto an individual’s land. 19 The part of the building which is encroaches onto the land of another, becomes their property. 20 The part of the building that encroaches becomes a continuing trespass or if damages occur it will be a continuing nuisance. 21 The owner of the land can obtain a mandatory injunction to order the encroachments removal or damages where necessary. 22

Application

The cottage from Heavenscent has encroached upon the neighbour’s land, it can not be removed without the risk of collapsing. The shed must be removed, or Pete has the right to an injunction or if damage occurs then it will be a continuing nuisance and compensatory damages will be awarded.

Issue

Does Bernard have a right to the Cubby house, shed, pump and model train track.

Rule

When physical objects are attached to the land they are regarded as being part of the land, which means the owner of the property in fee simple will automatically acquire title to those objects. 23 The maxim that is relevant is whatever is attached to the soil becomes part of it and will become a fixture. 24 A chattel is an object or goods that are not attached to the land or property by anything but their own weight. 25 A chattel can become a fixture where it has been affixed to the home and can not be removed without causing damage. 26 A chattel can become a fixture, two things must be considered

a) The object of annexation (objectively, was it attached for the benefit of the property, or the benefit only of the person/s attaching it?)

b) The degree of annexation (how is the item attached to the land?). 27

In Nab vs Blacker, if an object is resting on the and with its own weight then it’s a chattel and if the object is attached to the land then it’s a fixture. 28 These presumptions are rebuttable.

Application

19 Anne Wallace, Michael Weir and Les McCrimmon, Real Property Law in Queensland (Lawbook, 2015) 310- 63. 20 Ibid. 21 Pamela O’connor, ‘The private taking of land: adverse possession, encroachment by building and improvement under mistake’ (2006) 33 Austli Law review 32. 22 Ibid. 23 Holland v Hodgson (1872) LR 7 CP 328. 24 Minshall v Lloyd (1837) 150 ER 834. 25 Reid v Smith (1905) 3 CLR 656. 26 National Australian Bank Ltd v Blacker (2000) FCA 1458. 27 Ibid. 28 Ibid.

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