Property Law - Western Australia - Case Study Example

PROPERTY LAW-WESTERN AUSTRALIA. Name: Student NO: Lecturer: Course: Assignment: Date of Submission: PROPERTY LAW- WESTERN AUSTRALIA Introduction. Ownership of land can be illustrated to be a bundle of rights which includes the right to construct buildings, harvest timber or crops, subdivide the land or to limit the access. Anyone who owns a land (landowner) may donate or sell the complete bundle of rights or just a portion of these rights. By either donating or selling easement, the owner of the land exchanges the rights for either tax or cash for the reason of protecting the parcel land. Normally the state always has interest to acquire fee when acquiring land. In some situations for example a case where by the acquisition fee is deemed impractical, impossible or undesirable and therefore obtaining limited interest in land is ideal. A conservation easement are typically based on a voluntary contracts between a willing seller and a willing buyer, the contract underlines what developments, applications and uses that will be permitted under the easement and the contact holds all the present and the future users or parties. The easements are flexible and can be personalized or tailored to accommodate the demands for both the party that will hold the easement and the present land owner. The common barriers and restrictions comprise the limitation to construct a building, subdividing the land, developing the property for commercial purposes or even limitations on timber production. Broadly speaking, easements are ‘non-possessory interest in land of another’. Its also a desire for land that still in the possession of another. The traditional easement would allow the right to use the land for a particular reason, while the conservation easements impose restrictions on the applications on the land and that the latter of the conservation easement merely cannot apply the rights passed over to him but to authenticate that the rights are in his custody to the entire period of the easement. The body with the statutory mandate is the DNR (A.S.38.05.035 (a)(11) to obtain land property on behalf of the state. Under this umbrella DNR has the obligation to minimize the States exposure to the future unprecedented risks. ( The Uniform Conservation Easement Act, Chapter A.S. 34.17). Property. Property refers to something that belongs to another and has a legal relationship with the owner and is treated as a bundle of rights.(Wily v St George Partnership Banking Ltd (1999) 84 FCR 423 at 426 per Sackville J)- Statutory Regulations of Interest in Land Deeds and Torrens Registration. The key objective of the Torrens system is to enhance the process of proving of the title to estate in land. The program proves title and facilitates the registration to protect the interests and the estates from biased operation. And ensures that there is proper documentation and its accessible at various government regional offices so that both the parties who have interest in the easement can obtain the legal documentation on the same. Australia is one of the countries of common law, hence the people as far as the property they own is concerned have very distinct and outstanding rights on decision regarding their rightfully owned property including land and at law. In fact through the ruling of the high court which was delivered by Mr. Justice Kirby in September of 1998.people who own property and whose land is held under the authority of Deeds in Fee Simple have all the right to refuse to consent a takeover of their land for any development or any other given purpose regardless of its benefits. Putting this piece of legislation in perspective and n accordance with Harrie’s problem, we can see that through the law and the subsequent high court ruling he can sufficiently lodge a legal claim to have his piece of land and can lawfully recover his land from each of Lucinda, William, the environmentalists, and SRT. See (Wilson, “Indefeasibility of Title under Torrens: Leros Pty Ltd v Terara Pty Ltd” (1992) 22 UWALR) Private Property Owners and Rights: People, organizations and entities who own property in Australia are guaranteed rights by three different instruments legally in three different ways, as under: 1. Fee –Simple Deeds. 2. 1215 Magna Carta. 3. 1688/9 The Bill of Rights. Rights under Fee Simple, particularly paying attention to Mr. Justice Kirby’s ruling in the High Court ruling, in September of1998, when he made a decision by referring to an earlier casein the High Court (1923) when a dispute was settled by Mr. Justice Isaacs by confirming and emphasizing to the person whose owns property in the case where the rights conferred and referred on all property-owners under their Fee Simple Freehold Deeds. As to the current laws which are applicable in Australia, both Federal and State, it is absolutely very illegal and unwarranted for the Government or any other outside entity ,be it fundamentalists, action groups or private bodies “to take or do what it wants", or indeed to force or dictate in any way what the property-owners must do and exercise or not warranted to do in regard to their property and in this case lands held under Deeds in Fee Simple so long our Common Law status is always retained and I don’t see that going away any soon under our legally unchangeable and can’t be rewritten Holly Monarchical Constitutions, which apply both federally and state wise. Since no entity or action group can legally claim to take over Harry’s property or dictate to harry what to do with it, the environmentalists have no legal claim whatsoever to venture into harries land under any circumstances so long as he has any clause that can give him a lease of life under Deeds Fee simple. Harry therefore can pursue the avenue of using the past High Court ruling by Mr. Justice Kirby to try get back his property. Though certain politicians are trying to illegally change our very unchangeable Federal constitution through other ways other than referendum, because of their want and greed to deny people the right to hold and enjoy private property under our tidy Monarchical laws. Present protection of property rights through "Fee Simple"   In the Australian high court, in a decision in the case New South Wales vs. The Commonwealth, Justice Isaacs talked of "fee simple" as stated below:  "In the English law language, the word fee largely signifies an estate of the inheritance as distinguishable from a less estate fee simple is one the most and very extensive in quantum, and the almost absolute as far as respect to the rights, which it confers, of all the entire estates known clearly to the law. It confers, and as long as since the beginning of the current legal history it has always conferred, the eventful lawful right to exercise on and over, upon, in the respect to, the property land, entire act of ownership which can brought into the current imagination, including the less glamorous right to commit some waste; for all practical and real existing purposes of ownership, it meaningfully differs from the absolute structure of dominion of a chattel, not in any way except the physical indestructibility and defeat of its entire subject. Besides ownership rights, a fee simple as applicable as at of today confers and gives some absolute right, both of and of devise by will and the alienation inter vivos ." Mostly non-leased properties mainly in Shannon Western Australia are "Fee Simple", and this therefore means that the majority of property-owners have multiple rights that override any private sector, action groups like environmentalists or Government Department. Unfortunately many landowners like Mr. Harry are not aware of their rights. There are also some other court rulings given [such as Dillon v. Plenty made in 1991] and legislative chapter further confirms the fact that property-owners in this part of country have the ultimate law entirely on their side and Mr. Harry should take this as an avenue of throwing in a court case against his tormentors so that he can lawfully recover his land from each of Lucinda, William, the environmentalists, and SRT. (DILLON v.PLENTY (1991) 171 CLR 635 F.C. 91/004 – THE HIGH COURT OF AUSTRALIA) a) The person occupying any house dwelling gives extends a license to all members or any member of public coming to his rightful business to get access through the gate, use the steps until the entrance of the premise and knock the door. The license also holds the driveway. Nevertheless, withdrawal of the license may be permitted when a notice of withdrawal is given to that effect. This means that if anyone chooses to remain or enter the property when the withdrawal is in effect will be regarded as a trespasser. In (Lisle v. Davis (1936) 2 KB 635) the law enforcing officers who had lawfully gained access to a garage for reasons of lodging an inquiry became trespassers simply by extending their stay in the garage when the business owner had requested them to leave the premise.  b)      The law is very clear and is against officials of state agency or government officials possessing the rights of access or entry on privately owned property without the authority of the occupier and by extension it does not matter whether the officer has some warrant of summon or not, the point is this is no exception and permission has to be given by the occupier. The occupier must have a clear consent. In view of this, it therefore by law for the current occupiers of the property that Harry is claiming to still administer the ownership of the land and may deny Harry entry into the property or otherwise face legal consequences of trespassing. Alternatively is Harry still interested in obtaining a legal redress on the matter, he may go to the supreme court to challenge the order of the rights currently being enjoyed the occupier of the property. Harrys’ case should be an example many Australians and to know that when entering an easement with one you should done legitimately and where possible, deeds are issued to support their cases and to avoid future eventualities. Had Potter obtained the bundle of rights of the property of pass it over the claimant, the case would have much simplified due to proper and adequate evidence to stand for him. In many cases persons in the name of friends have brought a lot of troubles to the fellows who had trusted them with their possessions. This case is complex and the parties should agree to get solution which is not from court because its expensive and justice may not prevail. . Refernces: 1.Bradbrook C Ch 5Butt, Land Law, 6th ed, Ch 19, 20Chambers R, An Introduction to Property Law in Australia, Ch 30, 31, 32 2. G.Moore, Essential Real Property, 3. Price, R & L, Griggs, Property Law in Principle 4. Tan, P, Butterworth’s Tutorial Series Land Law/ 5. Course work material Read More