The Queensland Water Act - Assignment Example

Land Law Question 1 The Queensland Water Act (2000) was amended to replace the previous Water Resources Act 1989 to avoid the ambiguity that was experienced with the previous one. However Queensland water resources legal and planning was by far the most elaborate as compared to other states. The main objective of the Water was to separate water bodies from the surrounding land entitlements with the aim of implementing a water trading framework. It is therefore important that anybody who owns land near a water body be conversant with the Water Act regime especially pertaining to issues such as mining, irrigation, energy and other industrial projects. The Water Act 2000 clearly states that the Act has the mandate to ensure the sustainable management of water and resources and the establishment and operation of water authorities and for other purposes. The Act binds all people including the state as provided for by the legislative power, the commonwealth and other states. However under sub-section 1 of the Act it does not apply to the operation of State Developments and Public Works Organization Act 1971 or the powers of the coordinator general under the State Development and Public Works Organization Act 1971. The land owner of a property with a non-tidal river does not own the water from the river although it passes through his property. According to the sub-section 1 of the Act, the state promotes sustainable development by allowing the sustainable use of water resources by the residents of Queensland for their economical, physical and social well being and by protecting biological biodiversity and the health of natural systems. With the aim of achieving the sustainable management, the Water Act gives the state the power to own all water bodies and their surrounding banks regardless of whether they pass through private property. As a result all rights to use, flow and control water in Queensland rests with the state. The provision is clearly stated in section 24(1) that, “beds and banks of all water courses and lakes forming all or part of the boundary of land are and always have been the property of the state.” The major provision in the Water Act is section 20(6) which allows a person to take or interfere with the flow of water for domestic or stock purposes unless the state has issued a notice regarding sustainable management which restricts such actions. The act is generally limited in terms or restrictions. However the most important thing to note is that the resource planning regime requires that one obtains a permit before taking water from a river or a spring. There are also limitations as to the maximum volume of water that can be drawn per year. Therefore the best thing that the land owner would have done to avoid prosecution was to obtain a permit before beginning to use the water for domestic and for stock purposes. However, the Act does not impose the limitations by itself but the limitations are provided for by the water resource plans that vary from state. Question 2 Traditionally land systems have always provided for that in the event that a land owner wants to sell his land the history of the land must be properly analyzed to ensure that the seller transfers a good and authentic title deed to the purchaser. Therefore whenever a property is sold, the title deed should be filed and recorded with the lands office. The basic components to be updated include: both names of the seller and the buyer, the owner relationships of both the sellers and the buyers in case there are more than one buyer or more than one seller and a legal account of the property being sold. The information from each title deed is subsequently summarized in an abstract of title. In a situation where a vendor unintentionally signs two formal contracts of sale for a land parcel the case falls under the Torrens system. The Torrens system of land registration is applicable in all the states of Australia and other countries such as Canada and New Zealand. The Torrens system ensures that there is an assurance by the state concerning registered parcels; furthermore the Torrens ensures that there is a guarantee fund for legitimate land owners who loose court cases as a result of mistakes concerning registration made at the land Titles Offices. The most fundamental provision of the Torrens system is that the register at the lands office provides the ultimate proof. The law continues to elaborate that apart from instances where there has been fraud on the person dealing with the registered owner, the registered owner upon registration of the title taken from the registered owner, has an unlimited and indefeasible title. The major assumption in the law is that no registration can take place without the authority of the state, therefore any piece of land that can be registered in the absence of fraud, automatically obtains indefeasible title upon registration. There is always a general procedure required for the verification of the authenticity of title deeds. Any interested purchaser of land is required to perform a search going several years backwards for instance 30 years in Victoria to ensure that all previous transactions were legal and well documented. For certainty purposes every deed from the time the land first transferred ownership need to be verified. The verification should be done by an experienced lawyer or lands officer who will examine every transactions relating to the land. The essence of the Torrens system of land is to make the process of land registration much easier and more dependable. Usually the process involves the land registration office, an examiner and the registrar. For instance when someone wants to register a piece of land all they have to do is to file a petition with the registrar to have the land registered. Afterwards the examiner will determine whether the title of the land is good by looking at the history of the land. If the title is good the office of the registrar issues certificate of ownership that cannot be revoked by any court of law unless the examiner did a mistake during the process of examining the land. Registered title refers to a parcel of land that managed under the Transfer of Land Act and which is held under the Torrens land system. Each piece of land is registered with its own certificate of title numbered by volume and folio. The Original certificate of the title is subsequently kept in the registrar books at the Registrar of Titles. Therefore contract 2 which has already been registered has the strongest claim under the Torrens land parcel because the registrar’s office has already been notified of the contract as opposed to the first contract which is still in the process of being registered. In Victor v Andrew Qld, 1994 a disputed arose between the two after they were apparently lay claim for the same piece of land. Victor had sued Andrew for occupying a piece of land that according to the Torrens system was classified as registered, Andrew on the other hand had bought the piece of land from a fraudulent seller and in ignorance failed to seek the services of a lawyer or a lands officer. The court found that although the defendant had paid for the land, the land was not sold to him by a legal owner and therefore he could not lay claim. The court ruled in favor of the plaintiff because the certificates at the Registrar’s office provided evidence in favor of the plaintiff. There are instances when a party may be denied title to an interest land by the lands registrar’s office and may result in the party suffering loss. Such instances arrive when there are errors or omissions committed by a state official. In these instances the Torrens system provides compensation as a way of bringing integrity to the otherwise harsh provision. Question 3 Equitable mortgage applies to property in the sense that the lender secured by the acquiring possession of the original documents pertaining to a given property or land. The borrower is also required to sign a document which underlines the legal agreement between the borrower and the lender. According to the document the borrower is under obligation to surrender the documents before obtaining the financial assistance and will only get the documents back after the debt is cleared. In legal terms an equitable mortgage is a mortgage that lacks one or more of the official procedure common with legal requirements such as stamping or registration. Therefore equitable mortgages are considered under most common laws to protect the rights and obligations of the conventional mortgages but are not completed in law. In the instance that both an equitable mortgage and the normal mortgage are present the normal mortgage enjoys legal priority over the equitable mortgage. In the case of land equitable mortgage is created because the property is equitable, this prevents the mortgage from being a legal mortgage. Although the mortgagee is left with the title deed, this does not mean that he holds the legal ownership of the land. This is because the conditions of the equitable mortgage clearly state that possession is restricted to nine- tenths of land. The transaction requirements of Torrens law which dictate that during the transfer of ownership from one person to another the buyer of the land first examines the history of the land being purchased and verifying whether they are all legal and the documentations are in order. However in the instance when the certificate issued under the Torrens system is being used as an equitable mortgage to obtain financial assistance the office of the registrar of lands is not informed about the transfer of ownership and therefore no records will be available. Therefore under the Torrens system the mortgagee cannot acquire ownership of the land. Essentially the Torrens system dictates that the transfer to title of land can only be done by the state. Most mortgage agreements under the Torrens system are more close to equitable mortgage than to the conventional legal mortgage. All of the laws pertaining to the relationship between the mortgagor and the mortgagee are always applied under the new system. This means that the mortgagee is left at a legally precarious position because the Torrens system dictates that the mortgagee cannot obtain legal ownership by virtue of being a mortgagee alone but that the due process required by the Torrens system pertaining to transfer of ownership must be followed. However special provisions may be inserted in the mortgage agreement to protect the interests of the mortgagee in such instances provided that the inserted provisions do not conflict or contradict the customary and conventional provisions pertaining to mortgage. Some provision that can be inserted include the ones that dictate that the mortgagor have a good title to the referred land, the mortgagor holds absolute rights to mortgage the land, the mortgagor has agreed legally that in case there is a default in payments, the mortgagee can obtain a quite possession of the land, free from all the impediments relating to any other law and that the mortgagor will be under the obligation to ensure that such ownership occurs without any hindrances. Considering a case of Westpac Banking corp V Moore 1997, where Moore had obtained an equity mortgage from the bank but was later unable to pay due to financial constrains as a result of terminal illness, Westpac Banking corp. which was the plaintiff wanted to take control of the defendant’s ranch to offset the debt. The court ruled in favor of the defendant because there were no special statutes indicated in the mortgage agreement that could have allowed the bank to take possession. Question 4 Joint tenancy and tenancy in common are among the many types of existing co-ownership forms of tenancy. Tenancy in common refers to a type of tenancy characterized by unity of possession. In this case two or more people enjoy undivided interest over a single piece of land. This means that each party has the right of possession to the whole piece of land and not just a portion of it. The joint tenancy provides that both tenants may have equal or unequal rights. For instance in the event that three people own a piece of lane under common tenancy, all of them may have a third of the interest in the land or one of them may have half interest while the other two have a quarter each. However the most important emphasis is that however small a party’s interest in the common tenancy the party still owns a share of the property. A tenant in common also enjoys some form of independence in issues pertaining to the sale of the interest where the party can sell his or her interests without obtaining consent from the other owners in common. This condition also applies to mortgaging. The tenancy in common of a party can also be transferred according to the will in the event that the party dies or to the next of kin in the absence of a will. Tenancy in common can be terminated by a legal action known as partition suit which subsequently divides the property according to the interests owned and ends the unity of possession. In the event that the property cannot be divided among the tenants equally the court can order the property to be sold and the proceeds divided among the tenants according to their respective fractions of interest. Joint tenancy is another form of concurrent ownership; in this case two or more parties are equal and joint owners of a property. The major difference between joint ownership and common ownership is the issue of survivorship. In joint tenancy, in the event that one of the tenants dies the interests of the dead tenants are automatically by law passed to the other tenants. During the creation of joint tenancy according to Kathryn, J (2006), the “four unities of title” must be included. The four unities are: Unity if interest. Unity of title. Unity of time and Unity of possession. These four unities mean that both the tenants enjoys equal interest in the property defined by unity of interest, each tenants obtained the same title as defined by unity of title, and the titles were both implemented at the same time as defined by unity of time and that each tenant enjoys equal possession of the property as defined by unity of possession. On the other hand in common tenancy it is not mandatory that all these uniformities exists for the concurrent ownership to take place. For instance unity of possession is applicable to common ownership because tenants can own unequal portions of the property as stated earlier. It is not also mandatory that the tenants share equal interests for the concurrent ownership to occur. (Kurtz, Sheldon F., and Herbert Hovenkamp. 2003). For instance Ralph Warner, Toni Lynne Ihara, Frederick Hertz in the book “A Legal Guide to Unmarried Couples.” Emphasize on the need for couples to really consider various situations before considering tenancy in common or joint tenancy when taking title for real property. They emphasize that considering joint tenancy is the same as legally transferring the ownership of the joint property to the other party in case of death without any legal procedures or without having to include it in the will. For instance if one of the couples owns a home he or she may decide to transfer it to joint tenancy in order to automatically transfer the ownership to the other person in case he or she dies without having to write a will. However this move is legally unwise because once the joint tenancy is executed the other partner automatically owns one half of the property, this may lead to tax complications and even legal tussles in case the couple breaks up. Furthermore if the other partner incurs debts the creditors have the right to offset the debt using the property. Common tenancy allows for a more flexible concurrent ownership because one can specify whoever receives the rights of ownership in case of death. (Ralph Warner, Toni Lynne Ihara, Frederick Hertz, 2008). Question 5 In Queensland a substantial number of authorities can forcefully acquire land for public purposes under the Acquisition of Land Act 1967 (Qld). It is also important to note that the Common Wealth Government also enjoys the same powers mandated to it by the Land Acquisition Act 1989 (Cth). The Acquisition of Land Act 1967 (Qld) however requires that the authorities intending to acquire the land must serve the person entitled to compensation with a notice of intention to resume before the resumption, this notice gives the person to be compensated the chance to object. This gives some protection to the person entitled to compensation. The notice should therefore be issued before the contract date because when it is issued after the contract date the clause is no longer applicable. Under the contract law in the event that the seller substantiates good title of the land and subsequently agrees to sell the land, then form the date the contract is agreed upon by both parties, the buyer obtains full ownership of the land and is therefore forced to suffer any depreciation that the land might incur after the said date. The only exception to this rule is where the land is resumed before settlement. (S. A. Christensen, W. M. Dixon, and W. D. Duncan, 2007) Since the Acquisition Land Act took effect in 1967, the most substantial amendment to be effected on the Act was the 2009 amendment which changed the resumption and compensation law. The major amendments were the ones concerning who could claim for compensation and the issue of individual rights in issues pertaining to land with multiple owners. The issue of subsequent losses was also changed. The driving force behind the amendments was the inconsistencies realized pertaining to the recent Queensland Court of Appeal decision in the case of Sorrento Medical Service Pty Ltd v Chief Executive, Department of Main Road. The contentious issue was the meaning of the term ‘interest’ in regards to who would be compensated. The initial assumption was that since Sorrento did not own direct interest to the land it could not be compensated. However the court of appeal reversed this assumption. The issue of who could claim for compensation was explained as to refer to the ‘services of contract’ as ‘a contract merely for the provision of services on to, or in relation to the land.’ However the amendment also explained that any person under the contract to provide services on the land in question was entitled to compensation and could not be denied the compensation. This right however does not exclude or affect the person with the contractual right to enter the land and use it. The amendment also allows for the owner of a land within a community titles scheme is entitled for compensation under separate claim. This gives the individual owners of the communal land to claim for compensations separately rather than depending on a corporate or a union or a single body to lay claim for compensation. In the previous Act only corporate bodies received notice of intention to resume on behalf of the respective owners. However the current Act requires that all the owners be notified individually. One course of action that can be taken by the client is to demand a notice of intention and then subsequently refuse to sell the land. The client can also file a petition to inform the court on acquisition the land will be destroyed and the left piece of and will not be economically viable. This petition should be under the disturbance cost and consequential loss. The client can also take advantage of the three year limit after which the consequences of the acquisition will be felt and the seller can reclaim the land. References Actions Property Solutions, New Qld Resumption Compensation Laws - Biggest Changes in 40yrs, 2009. Retrieved on 31st August, 2009 from www.actionproperty.net S. A. Christensen, W. M. Dixon, and W. D. Duncan, 2007 Queensland Land Acquisition Act. Kurtz, Sheldon F., and Herbert Hovenkamp. 2003. Cases and Materials on American Property Law. 4th ed. St. Paul, Minn.: West. Ralph Warner, Toni Lynne Ihara, Frederick Hertz, 2008, A Legal Guide to Unmarried Couples. Read More