Land Law Flashcards
Central problem of Conveyancing?
Whether Pre existing interests will bind new interests
the 3 Questions to tackle central problem
What is the nature of the right? ie is right capable of being property right
Has it been correctly created? ie deed or registration
is it enforceable against new interests? ie priority and registration
what does terra nulliius mean?
Nobody’s land
Where does Terra Nullius come from?
Related to lands possessed by first nations people such as Canada and Australia
There is an assumption that a person has a property interest if
they are in possession
How did colonisers steal aboriginal land if possession key?
Aboriginals not using land in the right way so deemed to be less than human so land is terra nullius
Milirrpum v Nabalco 1971 Australian case FACTS
First time aboriginals took action over issues of land ownership
Concerned mining rights to private company Nabalco on lands which were asserted to be those of yolnu people
question whether Australia would recognise Communal native title.
Milirrpum v Nabalco 1971 Australian case JUDGEMENT
Australia does not recognise communal native title so Yolnu people had no interest in the land
key reason was no ability to sell defined plot with communal native title therefore cannot exclude- wasteland
Mabo v Queensland no2 1992 Australian case FACTS
Concerns annexation of Mer Island to colony Queensland
Merian people occupied Mer long before colonisation
Subject to common law subsequent to colonisation so did Britain have absoloute right over land or subject to merian peoples rights
Mabo v Queensland 1992 Australian case JUDGMENT
Britain did have sovereignty over Australia meaning they had underlying title
however burdened by traditional interests of first nation Australians
meant first nation Australians entitled to possession, occupation, use and enjoyment of land against everybody
win for aboriginals compared to Milirrpum
Dorsett criticisms of Mabo v Queensland no2 judgment
Means grant of freehold interest would surplant native title
expect aboriginals to fight for their rights yet illegal order imposed upon them
Merian people using land for agriculture which is easily identifiable as a proper use of land
Ktunaxa Nation v British Columbia 2017 Canada case FACTS
Ktunaxa appealing against ski resort building in important spiritual area
after ktunaxa consulted numerous times decided would not be posssible
Ktunaxa Nation v British Columbia 2017 Judgment
Court said consultation was properly undertaken and building of ski resort did not prevent belief in grizzly bear spirit even though significance removed perhaps
what does Ktunaxa Nation v British Columbia judgment mean?
Failure to understand relationships to land that fall outside of what is considered normal
value of money and economy > spiritual values of first nations
what is manji, there is nothing past about historical land injustices reading about?
happens in Present day Kenya
indigenous people failed by post independent state because they are deprived of access to most vital means of production ie grazing cattle
similarly, courts fail to recognise their claims
decolonisation period led to Kenya’s leaders cooperating in preservation of European interest’s and could be relied upon to check any more militant demands
what is Bhandar, the colonial lives of property reading about?
Property law being a crucial mechanism for the colonial accumulation of capital
property laws and racial subjectivity developed in relation to one another
central argument that modern day property laws emerged along with and through colonial modes of appropriation
Slaves was creation of new forms of property
Uses Cheryl haris article whiteness as property —- property an analogue of whiteness? Whiteness shares critical characteristics with property ie the right to use and enjoyment, the reputational value, the power to exclude… all characteristics of whiteness shares by various forms of property.
Racial regimes of ownership - slave trade
Not just possession that is characteristic of white settlement but possession of land that justified ownership also determined by ideology of improvement
Link to John Locke
Land registration act 1862 negatives
complicated and uneven observance of transfer registrations
prospect of fraud or mistake high
ultimately ineffective
land transfer acts 1875 and 1897 fix 1862 act?
no, simplified but still dependant on voluntary registration
very few people bothered
parallel existence of registers under 1862 act
Land registration act 1925 progress but also still failures ?
interests in land generally need to be registered in order to bind future purchasers
creeping compulsory nature
problems with overriding interests … too many etc
registered and unregistered land not equivalent
land registration act 2002 fix?
met criticisms of 1925 land registration act ie limited overriding interests and harder to acquire land through adverse possession
principles of LRA 2002
marketability - conveyancing process much simpler, greater transparency etc
compulsory registration- to see off unregistered land
title by registration?
conveyancing process
pre contract
contract exchange
completion
Registration
what does contract stage mean for purchaser and seller?
purchaser has equitable interest and access to specific performance remedy
seller holds the property on trust and can enforce the contract and have contract enforced against them
what does com completion mean for purchaser and seller?
purchaser pays purchase price and equitable right falls away
what does registration stage mean for purchaser and seller?
Disposition only complete by registration but registration gap can be 1 month
purchaser has new equitable interest tom prevent seller taking advantage of title
what is Sarah Keenan, smoke, curtains and mirrors: the production of race through time and title registration about?
argues Torrens title produces temporal order (arrangement of events in time) which enables land market coordination by rendering some relationships with land temporary and making others indefeasible
what does sarah keenan say about categories produces by Torrens system?
categories materialise as race
title registries in settler colonies understood as process that demarcated populations
those demarcated as inhabiting a historical period that has now ended are rendered temporary and treated as waste to be removed from the land while those demarcated to be the lands future are made indefeasible and given right to ignore and exclude what came before them.
therefore, demarcated populations materialise as race.
what does Sarah Keenan say happens when there are disputes about title
courts do not declare anybody the owner but instead decide which party has better title at the time
therefore, title is relative rather than absolute and ultimately based on physical possession.
eg squatter has better title than rest of world except owner and even owner can lose possession through adverse possession.
how does registry make conveyance process less risky?
produces new fresh title
produce at faster rate that solicitors could make existing rights marketable under old conveyance system
