Private Landholding System and Crown Land - Essay Example

Private landholding system and Crown Land In private landholding system or freehold e the development of interests in land is based on the doctrine of tenures. “Tenure” comes from the Latin word tenere which means to hold, possess or occupy. In the past, the Crown owned all land and granted rights to the individuals. The individuals were considered the tenants of the Crown. These tenants further sub-infeudated the land to others. The statute Quia Emptores in 1290 ( Roger S., 2003, pp 34) stopped the creation of new tenurial relationships other than that by the crown. After the tenures abolition act 1660, most of the valuable rights were abolished and all tenurial relationships lost their significance. In present times the significance of tenures is brought out by the development of estates in land. All the land being held by the Crown means that one does not own land; rather one holds an estate in land. No one is considered as the owner of the land by the common law of property while it permits a wide range of estates. Estate defines how long a right to a land will last. There are two forms of estate namely the life estate and the fee simple. A life estate is a right to the land for life. It can be considered the ownership of land. On the other hand, fee simple is a right which lasts indefinitely and can be passed on death of the holder by will or intestacy. A wide range of interests can be created in land. Leases, easements, mortgages, covenants and licenses are some of the interests in private landholding system. Whereas the common law of property applies to the interests in private landholding system, the statutory authority applies to the Crown land. Crown land is defined in section 3(1) of the Land Administration Act 1997 (“LAA) to include all land other than alienated land. This includes all land within the limits of the State that forms the airspace, seabed and coastal waters of the State. Government department or statutory authority has all the rights and obligations of every landowner. The LAA is the State’s primary statute for dealing with Crown Land. The LAA defines an “interest” (Crown Land Administration and Registration Practice Manual) in relation to Crown land in section 3. "Interest", in relation to Crown land, means, Crown lease, easement, lease, mortgage, profit á prendre or other interest, including such interests as are lawfully granted or entered into by a management body, and their counterparts under the repealed Land Act 1933. The Minister for Lands is a body corporate that was established under the Land Act 1933 and continued in that capacity under the LAA. The Minister makes decisions on Crown land. In order to be effective all dealings creating interests or granting tenure in Crown land are registered under the provisions of the Transfer of Land Act 1893 (“TLA”). Freehold Lease Lease means the use of another’s land, usually for a specific time in return for the payment of rent. According to the law commission it is temporary property ownership. The lease enables one to use land without any commitment involved in owning it. Millions of homes commercial property shops, offices and factories are leased. When the lessee will not have adequate resources to purchase the premises the lease gives added flexibility in moving to different premises later on. Similarly it is common for land to be farmed by tenant farmers, frequently lacking the resources to purchase the freehold. The lease is found in many different forms. Its flexibility makes it suitable for a wide range of circumstances. For instance there is a 999-year lease (Roger S., 2003, pp 349) in return for a substantial capital sum and a nominal rent. Such a lease is identical to a fee simple. In contrast to long leases there are periodic tenancies where lease continues for many years. They may also be monthly, quarterly or yearly. The periodic tenancy is of two types.The first is where the parties do not define a specific period. So there is no need for renewals as required for fixed-term leases. The second type of case is where the courts imply periodic tenancy. The lease is not granted but a person has been allowed into possession and pays rent. In most case the lease is similar to an estate in the land on a par with freehold estates, though with special rules. The tenurial relationship between the landlord and the tenant results in the fact that leases can be considered as relationships as much as estates. However, where estate is enjoyment of time there are two forms of tenancy that are not enjoyed by reference to time. The first is the tenancy at will. If the owner of the land lets another person into possession without specifying any period, then the courts regard the possessor as tenant at will. This means that the possessor is not a trespasser. At the same time the tenant can sue third parties in trespass. The second form is tenancy at sufferance. Herein a tenant holds over on a termination of a lease. If the landlord objects, then the former tenant is a trespasser. If the landlord consents, then there will be a tenancy at will. The tenancy at sufferance therefore operates where consent has neither been given nor refused: it avoids treating a tenant under an expired lease as a trespasser. As with tenancies at will, it can be terminated by either party without prior notice. The lease is one of the two legal estates recognized by s 1 of the law of property act 1925. The reason being the essence of the lease is use of the land. At the same time, tenancies at will and tenancy at sufferance are not estates and outside the limits imposed by s 1. They can therefore continue as legal tenancies. Leases of crown land (state leases) Under the LAA, all leases and subleases of Crown land with a term of twelve (12) months or more can be registered as an interest (by way of a document) against the relevant Crown title in the same way as freehold leases. The Minister for Lands has the power to lease land to people or corporation for a particular use. Under the LAA there are four methods whereby a crown land can be leased. They are by public tender; by offer for lease; by public auction; and by private treaty. (Crown Land Administration and Registration Practice Manual) Other than these there are other types of leases that can be granted by the minister. First is conditional purchase lease. According to this lease the crown land can be conditionally sold into the fee simple for a rent that is agreed upon. Second is general lease. This form provides the option to renew or extend the lease and also the option to purchase the fee simple in the crown land. Next is the lease under and above roads whereby the Minister can grant a lease a land above, on or below a road. There are also leases over submerged lands which include territorial waters as well as land over and under waters. Further there are other leases like pastoral lease, lease over tenure and lease over reserve. Under various sections of the LAA the terms and conditions for leasing the crown land in the above mentioned ways are provided in detail. License Freehold licenses have developed some of the characteristics of proprietary interests. That is some types of licenses are gaining recognition as rights that may bind purchasers. Licenses are considered one of the most fluid areas of property law. They are rights having some of the characteristics of interests. Any right to enter land that does not fit into one of the recognized property categories will be a license. The licensee may be enjoying rights similar to those of lessee or estate owner. Any permission to do something can be a license. In a majority of cases the right is to do something on the licensor’s land. It is also possible for there to be a license to do something on one’s own land. There are many forms of licences like the bare licence, licences coupled with an interest and contractual licence. A bare license is a simple permission to enter land. It can be terminated by telling the licensee to leave. However the licensee must be allowed a reasonable time to leave. This might vary from a matter of seconds, to months. It is only after that time that the licensee becomes a trespasser. However there is no added requirement of reasonable notice. Licences coupled with interest means right to take things from another’s land. The courts agree that there is a right to go on to another’s land to recover property that has been placed or left there with the landowner’s permission. Access on to the land is essential for the profit to have any effect and a licence to enter is implied. The law has always regarded this licence as having the same enforceability as the profit or other right to which it is attached. Contractual licences are those created by a contract. They are split into two parts. First, enforcement against the licensor that is if a licence is to have any chance of being a proprietary interest binding purchasers, it is irrevocable by the licensor. And second, enforcement against purchasers, that is as a matter of contract law, only the parties to it are bound: there is no privity of contract with a purchaser from the licensor. If the purchaser is to be bound it must be through some form of equitable interest. Licences granted over crown land Under the LAA the licence is not considered an interest in land. Rather it is a contractual right. So a caveat cannot be lodged to protect a claim relating to licence. The Minister for Lands has power to grant licences and profits á prendre in respect of Crown land under section 48 and 91 of the LAA (Crown Land Administration and Registration Practice Manual). If a licence or profits á prendre is to be granted over the same area of the crown where a mining or petroleum right already exists there should be an agreement between the ministers for the consent. Howerevr profits á prendre is an interest in land and can be registered under the TLA. It is a right to take natural produce or part of the soil from the land of another person. An example of profits á prendre is the planting of forest on land with a portion of sale proceeds being paid to the landowner. Easements According to the common law, an easement is a right of way over another’s land. A factor that is vitally important for all easements is that the right must benefit the claimant’s adjoining land. It is a right to do something on the servient land or to prevent something from being done on the servient land. The most common easements are rights of way, rights to run drains across the servient land, rights of light (preventing the servient owner from building so as to block light to windows) and rights to support. There is no fixed list of easements. Rights as varied as storage, use of chimney flues, putting up a clothes line and use of a lavatory have been accepted. (Roger S., 2003, pp 490) There are four characteristics of easements. First there must be a dominant and a servient tenement. That is to say there must be a land adversely affected by the right which is the servient land. This requirement is important to stress that there must be land which is benefited by the right which is the dominant land. Second the easement must accommodate the dominant tenement. That is not only must there be a dominant tenement, but that it must be benefited by the easement. The crucial point to stress is that it must be the land that benefits, rather than the individual owner of the land. The nature of the requirement is that the easement must affect the land directly or the manner in which the land is used. It is no objection that the easement relates to a business of the dominant owner. Third, the dominant and servient owners must be different persons. A person cannot have an easement over his or her own land. Fourth the right must be capable of forming the subject matter of a grant. This simply means that a right can only be an easement if recognized as such. The right must be capable of clear definition. Further there are certain principles which operate to limit the range of easements The nature of an easement is that it places no positive obligation on the servient owner. At the same time the dominant owner has a right to do either something directly on the servient land or something that affects the servient land. This is called positive easement. Other easements do not involve any positive conduct on the part of the dominant owner, but simply restrain the servient owner from acting in a certain way. These are negative easements. The best example is the right to light. This easement does not involve the dominant owner doing anything, but rather prevents the servient owner from building so as to block light. The final limit is that any claim to exclusive or joint occupation is inconsistent with an easement. All easements are granted and registered against both Crown land and fee simple land under the TLA. The general law in respect of easements is also taken into consideration. Easements over Crown land are now created under Part 8 of the LAA but can also be created under the general law and by agreement under the same principles as the creation of easements against fee simple land. Under the LAA the easements contain all the necessary characteristics of an easement at common law. The only point is that they are modified by statute. A simple definition of an easement is: “A right attached to a parcel of land which allows the proprietor of the parcel to use the land of another in a particular manner or to restrict its use to a particular extent.” The objective of an easement is to benefit the dominant tenement that is land which has the benefit of the easement attached to it; and burden the servient tenement that is the land which is burdened by the easement. Where crown land is concerned, the LAA provides that a dominant tenement is not required. The Minister for Lands can grant and be the grantee of an easement without a dominant tenement. This type of easement is known as an easement “in gross”. such easements do not attach to land, but to persons and for a specific purpose. Easements are of two types. First is express easements which are created by a deed between the grantor and the grantee. The second is implied easements which are created as a right of carriageway. Types of easements There are various types of easements that may be granted under the LAA. They are rights of carriageway; rights to install and operate drains and drainage works; rights to install, maintain and operate oil, gas or other pipelines; and rights to install, maintain and operate electric power lines, telephone and other cables and supporting pylons (Crown Land Administration and Registration Practice Manual). Only the Minister for Lands has the power to grant easements over Crown land for a specific purpose. These are the provision of pipes, conduits, cables, transmission lines, and other services; the provision of any structure, plant, or equipment; the provision of access for carrying out of any works and the performance of any maintenance that is necessary for, or ancillary or incidental to, giving effect to any of the purposes referred abiove. Easements granted by the Minister for Lands have the following statutory benefits. Such easements do not need to have all the legal characteristics of an easement at common law to be created under that section (section 144(2a) of the LAA). They will exist even after there are changes in tenure to the land. Finally in contrast to an easement in common law, they can be granted by the Minister “in gross” that is without the need for a dominant tenement. Reference List Crown Land Administration and Registration Practice Manual 2007. 10 June 2007. Smith, Roger J. 2003, Property Law. Pearson Education Limited, United Kingdom Read More