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961 results in Property Law

Page 32 of 49

  • An Assessment of Theoretical Proposals to Deal with Heterogeneous Small Samples

  • from Part III - Measuring Legal Certainty
  • Edited by Bertrand du Marais, David Marrani
  • Book:
    Legal Certainty in Real Estate Transactions
    Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    16 August 2016, pp 109-120

  • Summary

    The studies we conducted rapidly faced a big issue. Was it possible to make reliable quantified comparisons of differences in performance between notaries and non notaries legal systems using heterogeneous small samples? The underlying issues at stake concern different levels.

    The first one is related with the cost of data collection. Indeed, to be relevant the traditional quantitative methods would work on panel data but require collecting detailed data for at least thirty individuals per country. This means having sufficiently standardized the methodology, but the previous chapters of this book show that this approach may be too simplistic and that it requires a very important preliminary work to comprehensively understand the legal systems. It is time and money consuming. In addition, standardizing data collection is not an easy task. Hence, it is necessary to achieve a trade-off between two conflicting objectives: defining sufficiently harmonised data to enable comparisons to be meaningful – comparability criterion – and defining data that are sufficiently representative of local conditions – representativeness criterion –. Then comes the actual step of collecting a sample whose size is sufficient enough.

    The second issue is a practical one and relates to the statistical treatment of data. Indeed, working on small samples implies that the statistical properties necessary for using the usual estimators that are based on the central limit theorem are not satisfied. Traditional inferences used to assess the magnitude of the observed effects cannot be performed rigorously. We must therefore implement alternative methodologies.

    We were not the only researchers facing these challenges. They oft en arise in public policy analysis when defining targeted measures is required. Fine tuning supposes to dispose of disaggregated information at an appropriate level. The institution which has developed the most such approach is the World Bank, particularly in the context of programs destined to diminish poverty. Notably, the Millennium Declaration adopted by the member countries of the United Nations in 2000 that called for the reduction of poverty by half in a worldwide scale by the year 2015.

    The methodology developed by researchers at the World Bank belongs to the so-called small area estimations methodologies. It consists in fitting statistical models in order to be able to conduct statistical analysis for areas where the sample size of the survey data is not sufficient for generating accurate estimates.

  • Introductory Remarks on Legal Security: the Approach of French and European Law

  • from Part III - Measuring Legal Certainty
  • Edited by Bertrand du Marais, David Marrani
  • Book:
    Legal Certainty in Real Estate Transactions
    Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    16 August 2016, pp 105-108

  • Summary

    In everyday language, “legal security” refers to the supposed stability and predictability of legal solutions. Law is there to steer or, more modestly, to accompany the action of institutions and individuals functioning or living in society. Among its objectives is the definition of a general framework that is strong enough to allow actors to know in advance what they are allowed or not allowed to do.

    In law, and in particular in French law, which is strongly influenced by European integration (COE – UE), legal security can have two major benefits:

  • – It can have the value of a “legal principle”, in which case we talk of the “principle of legal security”; here, legal security plays an extremely prominent prescriptive role: as we shall see, it serves to maintain existing legal systems and encourages the development of new ones;

  • – It is also a description tool (naturally, one that is not without a prescriptive dimension even if, in this case, its role is less prominent), in the sense that it sets out to examine the content of the rule of law with regard to the security that it is likely, or unlikely, to offer to those to whom it applies.

    • These two meanings of legal security, which are mutually complementary, deserve closer attention if they are likely to apply to the working hypothesis chosen by this research programme: real estate transactions.

    Legal security: a prescription tool

    Prescribing to establish the basis for the development of new legal systems: the European example

    Here, the example of the European Union can be taken, showing how the “framework principle” of legal security – which covers a very large number of sub-principles (acquired rights, predictability of solutions, non-retroactivity, public nature of acts, legitimate confidence, etc.) – has been used from a very early stage by the Court of Justice (ECJ, April 6, 1962, Bosch, no. 13/61) to oversee the EU's standard-setting activity.

    In a comparable manner, see also the jurisprudence of the ECHR (ECHR, June 13, 1979, Marckx v. Belgium).

    Here, legal security plays a cardinal role. It supports the emergence of a European legal model (EU or COE) which, very early on, sought to establish itself based on a principle of legality or “community of law”.

  • Chapter 7 - Co-ownership: The interplay of common law, equity and the Torrens system

  • Hossein Esmaeili, Flinders University of South Australia, Brendan Grigg, Flinders University of South Australia
  • Book:
    The Boundaries of Australian Property Law
    Published online:
    21 June 2018
    Print publication:
    05 July 2016, pp 140-159

  • Summary

    Introduction

    Central to property law (especially land law) in all jurisdictions derived from the common law is the concept of fragmentation or division of proprietary interests between different people. Elsewhere in this book we encounter fragmentation in terms of time (life estates and remainders), the nature or type of the interest (freehold and leasehold) and the source of the interest (legal and equitable). Co-ownership is another instance of fragmentation but this time it is about the rights of people to own and use the same interest in property at the same time – ‘the sharing of a single proprietary right’. This concurrent and simultaneous enjoyment of the same present interest extends to both real and personal property. In Australia today, large tracts of land, especially residential ones, are co-owned rather than solely owned. This makes co-ownership an important facet of real property law. The Torrens system in all jurisdictions recognises the notion of co-ownership and the application of principles derived from common law and from equity to co-ownership of Torrens title land. But, as the authors of Sackville and Neave observe, its importance should not be overstated. Co-ownership is relatively unsophisticated, under-developed and unable to deal with the myriad rights and duties required by people in the 21st century who favour communal living and the use of shared facilities in property. More elaborate legislative schemes have been introduced to meet this demand. A full appreciation of and the ability to understand such legislative schemes depend on a sound grasp of the general law principles of co-ownership and it is to this that we now turn.

    The essence of co-ownership is unity of possession. This means that where A, B and C co-own a 30 acre block of land each is simultaneously entitled to possess and enjoy the entire property without any restriction. The consequence of this is that, absent voluntary agreement with the other co-owners, none is entitled to claim exclusive possession of any particular acreage or part of the land. In other words, it is fundamental to the co-ownership concept that the interest of each co-owner is diffused throughout the entire property. There can be no physical division of the property into separate shares for each co-owner. If there is physical division, then there is separate ownership, not co-ownership.

    Co-ownership is recognised both at common law and in equity.

  • Chapter 4 - Torrens title: Registered and unregistered interests

  • Hossein Esmaeili, Flinders University of South Australia, Brendan Grigg, Flinders University of South Australia
  • Book:
    The Boundaries of Australian Property Law
    Published online:
    21 June 2018
    Print publication:
    05 July 2016, pp 63-94

  • Summary

    Indefeasibility of title is the most fundamental feature of the land registration system in Australia. Under it, the State guarantees the title of those with a registered interest in land, to the extent of that interest. The foregoing is trite. But the principle is so important, and adherence to it so essential that registered title is able to be challenged, under the legislative provisions in each of the States, only in the most exceptional circumstances. The Torrens system has enabled conveyance with certainty in Australia and, even though there may be occasions where notions of comparative justice may seem to have been transgressed, it is essential that indefeasibility of title is not undermined.

    Introduction

    Rothman J's statement, above, provides the context for and the focus of this chapter's examination of registered and unregistered interests under the Torrens title system. What is indefeasibility? Why is it essential that indefeasibility of title is not undermined? How do the Torrens title systems that operate in Australia ensure that it is not undermined?

    The answers to these questions require a consideration not only of specific provisions of Australian Torrens title statutes, but also of general principles of land law that were, in large part, responsible for the birth of the Torrens title system. This chapter assesses the extent to which the Torrens title system either replaces, incorporates or has affected and altered the general law in relation to registered interests and unregistered interests in land. Torrens title legislation is unavoidably ‘situated in and deeply affected by’ the general law principles, as illustrated in the body of Torrens title case law. The extensive case law that has developed by the courts reflects the need to deal with what have been termed ‘bijural inaccurac[ies]’ that are inherent in a system of registered title. Bijural ambiguity is, in O'Connor's view, ‘an underlying cause of instability and incoherence in the rules of registered title systems’. An understanding of this instability and incoherence is therefore important in understanding registered and unregistered interests under the Torrens title system in Australia.

    In terms of registered interests, this chapter considers the origins, definitions, scope and boundaries of the key foundational Torrens title principle: indefeasibility of title. It considers its exceptions and focuses, primarily, on the fraud exception and the in personam exception.

  • Chapter 3 - Fundamental concepts for Australian real property law: Tenure, estates, possession and adverse possession

  • Hossein Esmaeili, Flinders University of South Australia, Brendan Grigg, Flinders University of South Australia
  • Book:
    The Boundaries of Australian Property Law
    Published online:
    21 June 2018
    Print publication:
    05 July 2016, pp 41-62

  • Summary

    Introduction

    This chapter explores some of the ‘basic, if largely unnoticed, premises of Anglo-Australian land law’. The focus of the chapter is on the fundamental property law doctrine of tenure, the doctrine of estates and the concept of possession, however, its analysis highlights other significant aspects of law such as the developments in land law that led to the development and recognition of the trust. An understanding of the origins and development of these concepts together with an understanding of their implementation in Australia is crucial, notwithstanding that their origins lie in centuries long-gone and a hemisphere away.

    The chapter begins with an exploration of the origins of the doctrine of tenure and traces its development in England. The historical focus of this aspect of the chapter draws on Peter Butt's detailed historical account of the intricacies of the feudal system. It then considers its arrival and use in Australia and the impact of the High Court's Mabo v Queensland (No 2) decision (‘Mabo’).

    The chapter also examines the relevance and the function, in land law, of the concept of possession and how that concept has influenced the development of the doctrine of estates and its recognition that interests in land can be fragmented by reference to time. Consideration of the important foundational principles associated with the lease is given over to Chapter 9 of this book.

    The chapter concludes with an examination of another aspect of the common law's focus on possession: the law of adverse possession.

    Doctrine of tenure

    The decline of the Roman Empire led Europe into a period of cultural and economic decay. This weakened the concept of government to such an extent that generations, over the course of a number of centuries, lost any expectation of law and order as the ‘subconscious basis of daily life and expectation for the future.’ In these so-called Dark Ages in Europe, the political or financial strength of a neighbour rather than the state or the government provided the shelter, personal safety and protection that was required in the face of physical threats to peace and security. This led to the practice of commendation: people placing themselves under the care and protection of a more powerful neighbour. They thus became the ‘vassal’ of a ‘lord’ and cemented mutual relationships of support and protection.

  • Chapter 8 - Strata title, community title and residential tenancies: Changing how we live

  • Hossein Esmaeili, Flinders University of South Australia, Brendan Grigg, Flinders University of South Australia
  • Book:
    The Boundaries of Australian Property Law
    Published online:
    21 June 2018
    Print publication:
    05 July 2016, pp 160-179

  • Summary

    All change is not growth, as all movement is not forward.

    ~Ellen Glasgow

    Introduction

    While Ellen Glasgow described in her novels and writings the ever-changing nature of problems faced by those living in the South of America between the late 1800s and the early part of the 1900s, her uncompromising position on the necessity, and inevitability, of change still stands today. The above quote comfortably sits in this chapter on housing. The ever changing explosion of legislation concerned with property development in Australia can only lead to a question of whether such voracious change is making where we live, how we live and how we choose to do so, easier or even more complicated and confusing than it ever was in past decades. Or perhaps, it is a mere reflection of the times in which we live. How Australians live, the changing nature of our population and the pluralistic nature of society has resulted in a vast change to property schemes, legislation relevant to ownership and moves towards reform of the relevant laws. A large percentage of Australia's population lives on the east coast of Australia and high-density responses to housing are now a common feature of our property law, and urban landscape. At this time our population is moving towards nearly 24 million people. Most of this growth is in the major capital cities. Since 2013 there has been an increase in the population in the major cities of 289,000 people from 2013 up to 2014. Putting aside possible immigration figures, we are also moving towards greater life expectancy and thus a growing and aging population. This growth of an aging population has implications on an economically sustainable property market. The increasing development in capital cities of high density, trendy lifestyle choices, the growth in over 50s community-style living and the further necessity for more retirement villages in the next decades, have all helped alter the traditional way Australians have lived for decades. Part of the economic imperatives that are driving these changes and choices obviously require a greater focus on building communities which reflect the preferences of millions of people.

  • Chapter 1 - Property: Concept, rationale, contexts

  • Hossein Esmaeili, Flinders University of South Australia, Brendan Grigg, Flinders University of South Australia
  • Book:
    The Boundaries of Australian Property Law
    Published online:
    21 June 2018
    Print publication:
    05 July 2016, pp 6-21

  • Summary

    There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.

    Introduction

    Property is both a concept and a legal institution. A lot of what is explored in this book concerns the latter – property as invoked in law and the property that relates to relations in Australian society. But in order to understand what is happening in property law it is necessary to understand a bit about the concept of property. Indeed, the two dimensions of property are inseparable and the concept is continually informing, justifying and reinforcing the institution.

    This chapter contains two parts. The first presents a legal–philosophical analysis into the question: what is property? Here, property is described as an indeterminate concept that escapes ridged or fixed definition. Focusing predominately on real property, the part contends that property is about things; legal rights; evolves with respect to social relationships; and has a spatial dimension.

    Following this, it is noted that property can be organised in three distinct ways: public property, common property and private property. While all societies promote a mixed property system, the most important in Western society is private property. However, despite the ubiquity of private property, it is rare for lawyers to consider the extra-legal or moral justifications for our possessions. For this reason, the second part of the chapter outlines four prominent justifications for private property. Those justifications relate to property derived from labour; human development and flourishing; economic efficiency; and natural or environmental use. While each has merits, this chapter also seeks to problematise and unsettle the theoretical basis for each justification.

    What is property?

    Property is how people envision it – that is, what concept they have of it and also a social, political and legal institution, implemented to resolve particular conflicts in society.

  • Introduction - The distinctive path of Australian real property law

  • Hossein Esmaeili, Flinders University of South Australia, Brendan Grigg, Flinders University of South Australia
  • Book:
    The Boundaries of Australian Property Law
    Published online:
    21 June 2018
    Print publication:
    05 July 2016, pp 1-5

  • Summary

    Real property has played a crucial role in the economic development of Australia and, with it, Australian common law. Professor Milsom has stated that, ‘[l]and was wealth, livelihood, family provision, and the principal subject matter of the law.’ While it might be argued that intellectual property has overtaken the significance of real property as a driver of economic wealth, property law continues to play a significant role in the allocation and protection of property interests, wealth and power. It deserves its place as one of the most fundamental and traditional areas of legal education in Australia. As Kevin Gray states:

    The teaching of property law has a particularly important – perhaps even central – role in forming the mind-set not just of the law student, but also of the lawyer, and, in some degree, of the thoughtful and responsible citizen.

    This book has been prepared with this audience in mind in its attempt to examine and explain the distinctive path and the peculiar complexities of Australian real property law. This book's approach to real property law reflects this distinctively Australian focus. It is written specifically for students, academics, practitioners and scholars of property law in Australian and other common law jurisdictions.

    This book emphasises the operation of the Torrens title system of land ownership which, from its birthplace in South Australia, was exported widely and adopted in a range of jurisdictions around the world. In this regard this book differs from those works which address the Torrens system only having comprehensively dealt with the general law system of land ownership as a primary focus. While many of the general law principles are historically important and may be relevant when interests in land are not registered, they are unlikely to be of much significant practical use now that almost all land in Australia is under the Torrens title system.

    The first three chapters of this book are introductory in nature. Chapter 1 concerns the concept, rationale and contexts of property law in Australia. This chapter has two parts: one contains a legal–philosophical analysis of the meaning of property, while the second is concerned with the ways that property can be categorised. In this chapter Peter Burdon highlights property's indeterminacy and its connection to politics, philosophy and to social and environmental issues.

  • Preface

  • Hossein Esmaeili, Flinders University of South Australia, Brendan Grigg, Flinders University of South Australia
  • Book:
    The Boundaries of Australian Property Law
    Published online:
    21 June 2018
    Print publication:
    05 July 2016, pp xvii-xviii

  • Summary

    Kevin Gray has suggested that the teaching of property law has a ‘peculiarly important – perhaps even central – role’ in forming the mindset not just of the law student, but also of the lawyer, and in some degree, of the thoughtful and responsible citizen’. This is due to the ‘tremendously structural features’ that it implants in the mind of the student, including ‘rigour of thought and analysis, the capacity for abstract manipulation of complex ideas and some sense of the workability of entire bodies of statutory machinery’. It is thus unsurprising that Gray asserts that ‘[i]t is in property law that consciously or unconsciously the student learns a basic competence in a number of skills which are of immense importance in later life’.

    A project to research and write a new book on property law that is relevant to students, scholars, legal practitioners and to Gray's ‘thoughtful and responsible citizen’ is, therefore, a significant undertaking. This is even more so in light of the significant changes that property and real property have undergone in relatively recent times. In Australia, developments ranging from the common law recognition of native title to the digitisation of land title systems, from water resources law reform and the advent of carbon sequestration schemes, have all challenged traditional concepts of property.

    While mindful of the origins and history of real property law, this book approaches real property law by focusing on Australian aspects of real property first and drawing on old system principles where necessary. This approach necessarily places considerable emphasis on the Torrens title system. The book covers the concept, theory and practical aspects of property law in Australia in areas such as easements, restrictive covenants, leases, housing, native title and mortgages.

    We are grateful for the assistance of our colleagues from the Law School at the University of Adelaide and at the University of South Australia for their assistance in developing the concepts that this book analyses. Although the genesis of this book is largely South Australian in origin, it covers the law of all Australian jurisdictions.

    We thank the Flinders University Faculty of Education, Humanities and Law for providing invaluable research funding for this project. We thank our colleagues from around Australia who contributed to this book.

  • Chapter 2 - The emergence of the Torrens system in Australia

  • Hossein Esmaeili, Flinders University of South Australia, Brendan Grigg, Flinders University of South Australia
  • Book:
    The Boundaries of Australian Property Law
    Published online:
    21 June 2018
    Print publication:
    05 July 2016, pp 22-40

  • Summary

    Introduction

    ‘In its beginnings South Australia was a land job.’ Thus the towering figure of South Australian history, Professor Douglas Pike, began his brief account of the introduction of the Torrens system over 50 years ago – the topic to which this chapter is dedicated. Professor Pike's memorable epigram contained, as he himself would be the first to admit, merely a large portion of the truth, not its entirety. It omits the substantial element of idealism that also motivated many of the founders of the Province of South Australia. But it cannot be gainsaid that even among the idealists there was hunger for private gain, often to be satiated in part by dealings in land (a lucrative government appointment was another favourite objective). Indeed, it was of the very nature of the colonial/Imperial enterprise in general and the British Empire's version of it in particular that large amounts of land suddenly became available for profitable trading. Few people had such lofty motivations for proceeding to a distant colony – with all the consequent inconvenience and severing of familial and friendship bonds in those days of slow travel – that they would turn their backs on the opportunity to make a swift profit by trading in land (or anything else).

    Land titles had a particularly central role in the establishment of South Australia because of the Wakefield theory on which the founders built their colony. The Wakefield theory (developed by Edward Gibbon Wakefield while in prison for child abduction; his name is commemorated in the street that bisects central Adelaide) was, in brief, to the effect that access to land and distribution of settlement were the vital determinants of the character of a colony. In order to ensure the most advantageous development of a colony, the theory continued, land should be sold at a specially high price to the gentry and the proceeds invested in a fund which would be used to finance the settlement of labourers in the colony. The shortage of a labour force and the consequent high price of labour had proved to be significant problems encountered in other colonies, and one aim of the theory was to ensure that the poor could not purchase land too quickly and extricate themselves from the ranks of the paid labour force.

  • Chapter 10 - The power of subsidiary interests in land to shape our world: The Australian law of easements

  • Hossein Esmaeili, Flinders University of South Australia, Brendan Grigg, Flinders University of South Australia
  • Book:
    The Boundaries of Australian Property Law
    Published online:
    21 June 2018
    Print publication:
    05 July 2016, pp 211-236

  • Summary

    Introduction

    In the Royal Courts of Justice in the Strand, London, hang two large portraits on either side of the cavernous entrance hall: one is of Sir John Archer (1598–1682) and the other that of Sir William Ellys (1609–1680). Who were these judges? On the wall beneath their portraits one finds a very small, framed, type-written card that simply reads ‘The Fire Judges’ and goes on to explain that Sir John and Sir William were two of 22 judges who had served on the special Fire Court established following the Great Fire of London in 1666. These judges settled property disputes over who had owned what land when the entire structure of the city had vanished in that conflagration which started at the bakery of Thomas Farriner (or Farynor) on Pudding Lane on Sunday, 2 September 1666, and which raged through London until Wednesday, 5 September 1666. Only a few markers remained of the city that had previously stood there. And from these scant reminders, the Fire Judges had reconstructed the city, as far as ownership was concerned.

    Not many of us would have stopped to consider what a fire of that size might mean for determining the ownership of land and the rebuilding of a destroyed city. No doubt similar issues arose after the Great Chicago Fire of 1871, the San Francisco earthquake of 1906, Cyclone Tracy in Darwin in 1974, and countless other human and natural disasters that have levelled or reduced entire cities to smouldering rubble and ruin. And so, in the immediate aftermath of the Great Fire of London, the English Parliament hurriedly considered a group of bills, collectively known as the Rebuilding Bills, which sought to reconstruct the city where it had once been. It rapidly became clear that one of the most vexing issues that would stand in the way of rebuilding would be the issue of land ownership – who owned what and under what form of tenure. This issue became the focus of the Rebuilding Bills; of that entire package of legislation:

    the … most revolutionary – and at the same time most important – was a special bill providing for the settling of lawsuit and disputes between landlords and tenants of the burned-out houses.

Page 32 of 49