LAWS3112 Lecture 1

Introduction and Ownership and Title to Real Property

Course Administration

  • Course Coordinator: Mrs Margaret Stephenson
  • Room: W238 Forgan Smith Building
  • Phone: 3365 8518
  • Email: ua.ude.qu.wal|nosnehpets.m#ua.ude.qu.wal|nosnehpets.m
  • Consultation: Wednesdays 3-4pm. Other times by appointment.
  • Materials on Blackboard
    • Electronic Course Profile (ECP)
    • Learning Guide
    • Tutorial Program


  • Text: Webb & Stephenson, Land Law, Lexis Nexis, 2009.
    • Recommended Readings:
    • Sackville and Neave, Property Law: Cases and Materials (8th ed, 2008).
    • Butt, Land Law, Sydney (6th ed, 2019, LBC).
    • MacDonald, McCrimmon and Wallace, Real Property Law in Queensland (3rd ed, 2010).
  • Legislation:
    • Property Law Act 1974 (Qld)
    • Land Title Act 1994 (Qld)
  • Reading Lists:
    • ECP – Learning Resources.
    • Law Library Home Page – type in course code (Laws3112) and this will link to all materials in the course.
    • Assessment Property B 2009

1. Tutorial Assessment: 10% of the total marks.
2. Optional Assignment: 20% of the total marks.
3. End of semester exam:

  • Exam paper - 90% of the total marks (if you did not submit an assignment).
  • Exam paper - 70% of the total marks (if you did submit an assignment).
  • Exam paper duration same for all - 2 hours, plus 10 minutes perusal.
    • Exam – 90% or 70%

Exam is closed book.

  • Any legislation/statute will be allowed provided it is un-annotated other than by highlighting and/or underlining and/or tabbing.
  • NB: Download copies of all sections of legislation referred to in class or in the Learning Guide.
  • The format of the exam will be discussed with students during the semester.
    • Look at past papers for Property B (and Property A prior to 2007).
    • NB: Property A and B were new courses in 2008.
    • The exam questions could comprise some or all of the following:
    • Problem questions, short answer questions, case notes and/or essay questions.
  • Tutorial Assessment: ‘Peer Reviewed Preparation’
    • Marks: 1 ½ per tutorial (maximum 10 marks per semester)
    • Therefore students will need to attend 7 out of 10 tutorials to obtain 10 marks. Therefore students can be absent for 3 tutorials and still obtain 10 marks. Do not send a medical certificate until you have been absent for 3 tutorials.
    • To obtain a mark each week students must:
      • Attend the tutorial in which you are enrolled,
      • And have written ‘preparation’.
      • ‘Preparation’ is defined as:
        • Writing a one page answer to the problems or questions scheduled for that week’s tutorial, &
      • ‘Preparation’ must be typed and on a single A4 page.
    • To identify the tutorial questions for any week:
      • Read the ECP (Learning Activities) to identify the Topic scheduled for the tutorial for that week.
      • Read the Tutorial Program (on Blackboard) and see the Tutorial questions for that Topic.
      • ‘Preparation’ will be ‘peer reviewed’ and marked during the tutorial class.
      • Any student who is unhappy with the mark allocated must refer the matter to the tutor at the end of that class.
      • It is the responsibility of students to ensure that the tutor has noted their preparation mark at the particular tutorial.
      • ‘Preparation’ cannot be submitted before or after class or by email.
      • Exception: Inability to attend a class due to illness. Then submit your ‘preparation’ and your medical certificate to your tutor (not the course co-ordinator).
      • NB: ‘Tutorial assessment’ marks are a matter for the respective tutors. The course co-ordinator will NOT ex post facto make an assessment in this regard.
    • Criteria and Marking of Tutorial Assessment:
      • 1 ½ marks will be allocated for the identification and treatment of the issues relevant to the tutorial problems each week.
      • Students must attempt to:
        • Identify the issues;
        • Identify the rules and/or principles relevant to the issues;
        • Identify and relate to the issues the relevant facts and/or factual assumptions.

Mapping the Course

  • Law of Property B focuses on Real Property
  • What follows is an overview of the syllabus and topics.
    • Refer to the Learning Guide.

Topic 1: Ownership and Title to Real Property

  • Title to Land
    • What is land?
    • Fixtures
    • Mistake of title and Encroachments
  • Doctrine of Tenure
    • The crown owns the underlying rights to the land
  • “Crown Lands”: State lands under the Land Act 1994 (Qld)
  • Native Title

Topic 2: Types of Interests in Land

  • Doctrine of Estates.
  • Future Interests.
  • Legal and Equitable Interests in Land.
  • Concurrent Interests (Co-ownership).

Topic 3: Leasehold Interests in Land

  • Commercial Leases
  • Retail Shop Leases
  • Residential Tenancies (Not examinable- included in the Learning Guide for reference purposes only.)

Topic 4: The Torrens System

  • The Background and History of the Torrens System of Registration
  • Concept of Indefeasibility of Title
  • Exceptions to Indefeasibility
  • Unregistered Interests and Priorities under Torrens
  • Remedies and Compensation under Torrens

Topic 5: Proprietary Interests

  • Easements
  • Restrictive Covenants
  • Mortgages

The Nature of Property Law in Australia

  • Factors that add to complexity of real property law in Australia:
  1. Historical origins of Real Property Law.
  2. Land is permanent property.

Property Law Act came into law 1 December 1979

Terminology: Interests in Land - (See Glossary of Terms)

  • An Estate in Fee Simple
    • Estate - the extent of, or duration of, an interest in land.
    • Fee simple - the most complete or greatest interest that can be held in land (effectively total ownership).
  • Lease
    • A transfer by the landlord of a lesser interest than his/her own estate, for a term of years or other fixed period usually with a rent payable.
    • Landlord - the owner of land (lessor) who leases or lets it to the lessee (tenant).
  • Mortgage
    • The transfer of an interest in land by a mortgagor (borrower) to the mortgagee as security for a loan advanced by the mortgagee (lender)
  • Easement
    • A right over certain land (the servient tenement for the benefit of certain other land (the dominant tenement) e.g. right of way.

What is Property?

  • Revision:
    • Dealt with in Property A.
    • Reflect on the characteristics of proprietary interests in land.
  • Consider in relation to identifying the characteristics/rights associated with property interests in land:
    • Milirrpum v Nabalco Pty Ltd
      • Blackburn J in analysing the nature of property interests in land stated:

“I think this problem has to be solved by considering the substance of proprietary interests rather than their outward indicia. I think that property, in its many forms, generally implies the right to use or enjoy, the right to exclude others, and the right to alienate. I do not say that all these rights must co-exist before there can be a proprietary interest or deny that each of them may be subject to qualification.”



  • Corporeal Hereditaments:
    • Tangible real property.
    • Physical things over which ownership is exercised.
    • For example, land, buildings, minerals, trees.
  • Incorporeal Hereditaments:
    • Intangible real property.
    • Rights associated with the use of the land as opposed to physical things.
    • eg. easements, rights of way, profits a prendre.

Topic 1: Ownership and Title to Real Property

  1. What is land?
  2. Fixtures
  3. Mistake of title and Encroachments

What is Land?

  • Acts Interpretation Act 1954
    • “Land” is defined to include:

“Messuages(a house, gardens, anything around the house), tenements(property held on tenure) and hereditaments, corporeal or incorporeal, of any tenure or description and whatever may be the interest in land.”

Legal Concept of Land

  • “Cuius est solum eius est usque ad coelum et ad inferos”
    • This concept comprehends that the surface of the earth includes everything attached to it whether natural or man made as well as the whole interior substance of the earth and the sky above to some indeterminate point.©

What are the landowner’s rights in the airspace?

  • Bernstein v Skyviews

The rights of a landholder in the airspace above his/her land must be restricted to such height as is necessary for the ordinary use and enjoyment of the land and the structures upon it. And above that height the landowner has no greater rights in the airspace than any other member of the public.

  • Damage By Aircraft Act 1999 (Cth).

What are the landowner’s remedies where his/her rights in the airspace are infringed?

  • Trespass or Nuisance?
    • Trespass - Direct and intentional act – don’t need to show damage
    • See:
      • Davies v Bennison
        • Early decision in Tas. Guy shoots a gun over neighbour’s land and kills the neighbour’s cat. Clearly trespass.
        • No injunction – no likelihood of the action continuing.
      • Kelson v Imperial Tobacco
        • Kelson was a retail tobacconist. Sold tobacco in shop. An advertising sign goes on an adjacent building above his shop (for a different tobacco). Projects about 8 inches above the shop.
        • Trespass. Damages not appropriate. Injunction (mandatory – forces someone to do something)
      • Wollerton & Wilson v Richard Costain
        • Crane case. The defendants were building contractors and used a crane that swung 50 feet over the land. The defendants accepted that they were trespassing and offered to pay 250 pounds a week. Plaintiff goes to court for an injunction.
        • Trespass. Award an injunction and suspend it and allow the defendant to build the building. Contractor offered money.
      • Jaggard v Sawyer [1995] 1 WLR 269, 278
        • Now in QLD: Section 180 – statutory right of user – a crane can be used over property.
      • Graham v KD Morris
        • QLD case – the telephone exchange at kangaroo point – the contractors didn’t offer any money to plaintiff. Court says trespass and awarded an injunction.
      • LJP Investments Pty Ltd v Howard Chia (1989) 24 NSWLR 490
        • Scaffolding that protruded 1.5 metres over airspace – trespass.
      • Bendal Pty Ltd v Mirvac Projects (1991) 23 NSWLR 464.
        • Scaffolding - trespass
    • See also s 180 Property Law Act –statutory rights of user easement.

Section 180 PLA

(1) Where it is reasonably necessary in the interests of effective use in any reasonable manner of any land (the dominant tenement) that such land, or the owner for the time being of such land, should in respect of any land (the servient tenement) have a statutory right of user in respect of that other land, the court may, on the application of the owner of the dominant land but subject to the section, impose upon the servient land or upon the owner for the time being of such land, an obligation of user or an obligation to permit such user in accordance with the order.

(7) Defines statutory right of user to include:
Any right of, or in the nature of, a right of way over, or access to, or of entry upon land, and any right to carry and place any utility upon, over, across, through, under or into land.

What are the landowner’s rights under the land?

  • At common law the landowner had the right to all minerals except gold and silver which were regarded as the prerogative of the Crown.
    • See Mineral Resources Act 1989 (Qld).
    • See Petroleum Act 1923 (Qld).
    • See Atomic Energy Act 1953 (Cth).

Mineral Resources Act 1989

  • Ownership of minerals is vested in the Crown.
  • s 6 - wide definition of mineral.
  • s 8 - gold, coal and other minerals are the property of the Crown. (Some exceptions.)
  • s 9 - Crown has the exclusive rights to grant mining leases.

What are the landowner’s rights in relation to water? (Riparian Rights)

  • Consider in relation to:
    • Boundaries - e.g. where the land is bounded by a river or sea,
    • Rights to water usage.
      • For the above purposes distinguish tidal and non-tidal waters.
  • See Glossary: Riparian - means bounded by rivers.

Non-Tidal Waters: Rivers and Lakes

(i) Boundaries

  • Common law rule: ad medium filum rule.
    • Where land is bounded by a non-tidal river, there is a presumption that the owner of contiguous land owns to the mid-line of the watercourse.
  • See Water Act 2000 (Qld)
    • Common law rule abolished.
    • s 21(1): The bed and banks of the watercourse are the property of the State.
    • See Schedule 4 definitions
      • Watercourse is defined as a river creek or stream in which water flows permanently or intermittently.
      • Bed and banks are defined as the land over which the water of a watercourse or lake normally flows but do not include floodwaters.

(ii) Re: Usage of water

  • Water Act 2000 (Qld):
    • s 19 provides that all rights to the use, flow and control of all water are vested in the State.
    • s 20 (despite s19) allows an owner of land adjoining a watercourse to take water for domestic purposes or for watering stock.
    • s 21(3) grants such an owner rights of access over the banks of the watercourse and access over the bed and banks for the purpose of grazing stock. Such owner has a right of action against a trespasser on the bed and banks of the watercourse.
    • s 24 provides where there is a shortage of water the chief executive can limit the taking of water.

Tidal Waters

(i) Re Usage

  • At common law no private riparian rights existed in relation to tidal waters.

(ii) Re Boundaries

  • Tidal boundaries include land bounded by the seashore, tidal lakes and tidal rivers.
  • s 9 Land Act 1994 (Qld) provides that:
    • (1) All land below the high-water mark, including the bed and banks of tidal navigable rivers, is deemed to be the property of the State.
    • (2) If a tidal navigable river forms the boundary of a parcel of land or a person owns land on both sides of a tidal navigable river the land below high water mark is and always has been the property of the State.
    • Thus the boundary of the land is the high water mark (i.e. normal mark at spring tides).

The Doctrine of Accretion or Erosion

  • Common law rule:
    • If one boundary of the land is a river or the sea or a lake and there is a gradual and imperceptible shifting of the river or shoreline and this is caused by the operation of natural causes, then this results in a corresponding shift in the boundary of the land.

Non-Tidal Waters and Accretion

  • Common law rule is presumed to apply.

Tidal Waters and Accretion

  • Land Act 1994 (Qld) applies.
    • S9 (2) (b) confirms the common law rule in relation to tidal navigable rivers.
    • S10 provides that where the land is raised above the high-water mark because of the carrying out of works that land belongs to the State.
  • See generally re Accretion:
    • AG of Southern Nigeria v John Holt
    • The Southern Centre of Theosophy v SA.
      • Crown lease granted in perpetuity – the boundary is an inland lake and the accretion is caused solely by wind blown sand.
      • The court said the increase was gradual and imperceptible over 20 years and the leaseholder was entitled to the 20 acres of land previously covered by water.
    • Verrall v Nott (1939) 39 SR (NSW) 89.
      • If accretion result of artificial means boundary will change if accretion unintentionally assisted by the artificial works
      • Doesn’t apply in Qld re tidal waters because of s10 of Land Act 1994 (Qld)
      • The principle of accretion applies to Torrens title land.

Restrictions on Land Use

  • Few restrictions were imposed by the common law on a landowner.
  • However, laws regulate activities and uses on privately owned land and impact on the rights of a private landowner in Queensland.
  • These laws include the:
    • Sustainable Planning Act 2009 (Qld).
    • Environmental Protection Act 1994 (Qld).
    • Queensland Heritage Act 1992 (Qld).
    • Aboriginal Cultural Heritage Act 2003 (Qld) and Torres Strait Islander Cultural Heritage Act 2003 (Qld)
    • Nature Conservation Act 1992 (Qld).
  • NB: no detailed study will be undertaken of these laws in Property B.

Next week – Lecture 2

  • Continue Topic 1: Ownership and Title to Real Property
  • What is land?
    • Fixtures:
      • “Quicquid plantatur solo, solo credit”
        • Whatever is attached to the land becomes part of the land.
      • Read Holland v Hodgson (1872) LR 7 CP 328
    • Encroachment and Mistake
  • Doctrine of Tenure.