Property Law as Applied to Rural Retreats - Essay Example

Property Law as Applied to Rural Retreats In his essay “Dialogue on Private Property,” Felix S. Cohen defined property stating, "To the world: keepoff X unless you have my permission, which I may grant or withhold; Signed: Private citizen; Endorsed: The state" (Cohen 1954, p. 374). This definition indicates a relationship among people characterized by the ability to exclude others by virtue of the rights accorded to individuals by law. The case of Nohrain and his purchase of Lot 9 in Rural Retreats is no different. A number of legal issues arise from the. With regard to Easy Access: (1) do lot owners in the estate have registrable interests to Easy Access, and (2) were the registrar’s actions of not registering any details about the status of Easy Access as a car park correct? In the first issue, because Easy Access is a private property owned by Rural Retreats as the estates’ developers, its purchasers have no registrable interest in the property. However, an agreement was reached between Rural Retreats and its purchasers, where owners of the lots, together with their families, guests, and successors in title can park two cars within Easy Access from time to time. Rural Retreats also agreed that Easy Access will remain as a car park and will not be used for any other purpose. This agreement, together with the deeds that purchasers received upon payment for the lot legally binds Rural Retreats in a covenant with its purchasers. This agreement restricting Rural Retreats’ use of Easy Access constitutes a significant instrument that crucially affects the proper use of the lot, where its abandonment in the part of Rural Retreats will negatively affect the well-being of its purchasers and successors in title. The importance Easy Access holds as a car park for the estate constitutes what Sec. 29 of the Land Title Act of 1994 as crucial to “ensure that the register is an accurate, comprehensive and useable record of freehold land in the State.” Thus, although no registrable interest exists for Nohrain in this case, the registrar should have registered details about ­Easy Access being a car park, which cannot be used for other purposes or sold, without the lot owners’ consent (Land Title Act 1994 Sec. 32). In order to protect his interests to the parking lot, Nohrain, preferably with the cooperation of the other lot owners in the estate, has two options: (1) he can make an appeal by virtue of the Land Title Act for the registrar to correct the register to Easy Access and include the provisions included in the sale of the lots regarding Easy Access (s 15), or (2) Nohrain can lodge a caveat on Easy Access to prevent the property from being sold or modified in its terms of use. Second, with regard to the pipeline easement in Lot 9, the following legal issues arise: (1) as a new owner for the lot, can Nohrain claim the free water supply outlined in the provisions of the agreement between Olga and the Weewah Local Council, and (2) if Nohrain does have a claim, was the Council correct in extinguishing the agreement? First, Nohrain has rights to the easement because as the agreement between Olga and the Council provides, Olga, together with her family, occupiers of her lot, and successors in title, which includes Nohrain, are included among those who will benefit from the free water supply. It is important to understand that the agreement between Olga and the Council in 2003 and Olga’s death in 2004 happened before the State Government granted freehold titles to the estate. Thus, by virtue of the Property Law Act of 1974, stating: In a conveyance of land a reservation of any easement, right, liberty, or privilege not exceeding in duration the estate conveyed in the land, shall operate without any execution of the conveyance by the grantee of the land out of which the reservation is made, or any regrant by the grantee, so as to create the easement, right, liberty or privilege, and so as to vest the same in possession in the person (whether or not the person be the grantor) for whose benefit the reservation was made. (s 9) Nohrain, therefore, has rights to the easement if the property was bought before freehold titles were granted, or in the case that it was bought after freehold titles were granted, he can have the easement registered to secure his entitlement for the free water supply. This brings about the second issue of whether or not the Council was correct in refusing to follow the provisions in their agreement. In this case, unless the agreement regarding the pipeline easement was extinguished, amended, or modified by the courts, the Council has no right to refuse the benefits of the easement to Nohrain as the new registered owner of the lot. Furthermore, according to the Property Law Act of 1974 regarding the “power to modify or extinguish easements and restrictive covenants”, the pipeline easement for Lot 9 does not satisfy any of the conditions mentioned in Sec. 181 to justify its extinguishment or modification. The only condition, which may be satisfied, requires that: that the persons of full age and capacity for the time being or from time to time entitled to the easement or to the benefit of the restriction, whether in respect of estates in fee simple or any lesser estates or interests in the land to which the easement or the benefit of the restriction is annexed, have agreed to the easement or restriction being modified or wholly or partially extinguished, or by their acts or omissions may reasonably be considered to have abandoned the easement wholly or in part or waived the benefit of the restriction wholly or in part (s 181.1.c) In this case, however, Nohrain clearly does not want to extinguish the easement. Thus, to secure his rights to the benefits of the easement, the following legal actions can be followed: first, Nohrain must ensure that the easement over Lot 9 is properly registered. Upon securing the registration of the easement, Nohrain can ask the agreement regarding free water supply for his lot to be properly enforced by authorities (Property Law Act of 1974 s 181.5). If in case the Council is still adamant in extinguishing the easement, Nohrain can ask for compensation regarding the extinguishment of the easement (Property Law Act of 1974, s 181.4). Lastly, with regard to the further subdivision of Lot 9, Nohrain, by virtue of the encouragement from the East Queensland Regional Plan’s encouragement for sub-division of lots in the Weewah area, has legal rights to subdivide his lot by virtue of the Local Government Act which states that “a local authority could approve an application to subdivide land subject to conditions” (Pine Rivers Shire Council v. Dorfler [1993] QCA 167). However, it is important for Nohrain to be comprehensive and detailed in determining what he would like to do with his lot after the subdivision and how he would like to go about sub-dividing it. The issues he would have to consider include: (1) the number of subdivisions. It is important for Nohrain to understand that by dividing Lot 9 into 6 separate lots, he will have to comply with the requirements regarding large transactions (Land Sales Act, s 8.a.). Second, whether he is considering selling the subdivided land or giving it to family. Each of which will require different documents and requirements to proceed with ease. Last, whether developing the land and placing structures upon it are part of his plans. Nohrain’s answers to these questions are important in order to determine the proper course of action and produce the requirements needed to successfully subdivide the property, and even profit from it. References Cohen, F. S. 1954, ‘Dialogue on Private Property’, Rutgers Law Review, p. 374 Pine Rivers Shire Council v. Dorfler [1993] QCA 167, Appeal No. 223 of 1992 Brisbane. Land Sales Act 1984 (QLD). Land Title Act 1994 (QLD). Local Government Act 1990 (QLD). Property Law Act 1974 (QLD). Read More