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Leases (Other)
Pastoral lease (Topic 6.2)
Unlike a regular lease, a pastoral lease is a generic label for a variety of statutory rights to use land for agricultural purposes.
Mining lease
License
Unlike a lease, a license does not confer an interest in land and is a right in personam which means it can only be enforced against the person who granted the license (David Allen). Whether an agreement uses the word “lease” or “license” is far from conclusive of the property relationship between the parties (King v David Allen).
Analogise to the facts of King v David Allen:
• David Allen did not have exclusive possession of the wall; he only had the permission to stick posters on the wall. In other words, David Allen was only granted rights to use the property (wall) in a limited manner
• Paying rent did not make a difference
• Having a term of years did not make a difference because the license was not for a specific period, but for as long as David Allen was putting up posters
LICENCE IS NOT PROPERTY! CAN STOP ANALYSIS HERE
Licence is not a property right therefore, it cannot take priority over X’s interest, however, it may be enforced contractually through in personam claims, in other words, rights against a person.
Easement
An easement is the right granted to a person to use a portion of another person’s property for a specific reason. There are four conditions to determine if an easement has been created (Re Ellenborough Park).
These will be analysed separately.
These are:
1. There must be a dominant and servient tenement
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Q3 – What is the nature of the conflict between X and Y and who takes priority?
Part IV – Topics 8, 9
As mentioned above, both Kip and SSP have unregistered interests. Further, Kip’s interests precede SSB’s.
Therefore, the conflict between Kip and SSB is that of a prior unregistered interests v a subsequent unregistered interest.
Prior registered interest v subsequent registered interest
X has a prior registered interest and Y has a subsequent registered interest. The general rule is qui prior est tempore potior est jure which loosely translates to prior in time, prior in right (PITPIR). This reinforced with the statute in section 42 stating that the RP is paramount and ‘absolutely free of all encumbrances
whatsoever’ and section 34 stating that the priority of RP is based on the date of registration lodgement.
The general rule is maintained unless it can be found that an exception to indefeasibility exists.
Indefeasibility means that the title has ‘immunity from attack’ in subsequent claims or interests (Frazer). Y may be able to make the title defeasible if there is a claim that indefeasibility has been ‘wrongfully obtained’
(Frazer). Various claims will be explored next.
Tests
Go to indefeasibility tests below
Prior registered interest v subsequent unregistered interest
X has a prior registered interest and Y has a subsequent unregistered interest. The prevailing interest is the registered interest because indefeasibility is attached to registered title (Breskvar). Indefeasibility means that the title has ‘immunity from attack’ in subsequent claims or interests (Frazer). Y may be able to make the title defeasible if there is a claim that indefeasibility has been ‘wrongfully obtained’ (Frazer). Various claims will be explored next.
Tests
Go to indefeasibility tests below
