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Part B: Trespass/Fixtures/Buying and Selling Land/Leases Licenses

Terms in this set (63)

Unjustified direct intereference with land in possession of another (Matchitt) or in otherwords the unlawful entry by one person onto land that is in the possession of another
Trespass Definition
1. Unlawful Entry/Defendants actions
2. Plaintiff in possession
3. Remedies
3 Elements to Trespass
Moved tenants stuff out of the house and left on lawn after saying that they had 2 months to get out.
Matchitt
The person holding title is deemed to be in possession.
If there is a dispute about possession
Intention to possess the land, to the exclusion of others. Proof of ownership is prima facie proof of possesion
Possession is...
Drilling under plaintiffs land...
Held that owner has possession of strata below land subject to alienation, if none else claims possession then owner has best claim
Extent of possession - Bacardo
There can be trespass with NO DAMAGE
Sign hanging over onto space...court said that it is not concerned with possession but owners property rights

Same buzz - Rights above and below land are absolute (conflicts slightly with Bernistien)
De Richamount/Kelsen v Imperial Tabacoo
Ariel photos...possession only extends so far up as not to interefere with ordinary use and enjoyment of the land
Bernstein
A person can apply for a court order who wishes to enter into neighbouring land to errect, repair something
Section 319 PLA
Injunction - If no damage
General/Vindicatory Damages - To recognise rights
Nominal - No physical damage but to compensate rights

Loss without Damage - Appleby
Remedies for Trespass
Trespass by Relation - If owner out of possession at the time, taken back possession, he may sue for trespass (i.e leasing land)

Damage to Reversionary - If person was not in possession at the time, but the damage caused has decreased the value of their inheritance, person may sue for present injury without waiting to come into possession

Action for recovery - Requires actual possession at the time
If not in possession but owner what can you get?
Deciding whether a chattel has fixed to the land deeming it part of the realty, or whether it remains a chattel and can be removed
What is fixtures law
A house that is constructed in such a way that it is removeable, may well remain a chattel even if its connected temporarily. However if it is constructed in such a way that It cannot be easily removable save by destruction then it cannot have been intended to be a chattel and form part of the realty. - also held Greenhouse held not a fixture
EliteStone
Depends on circumstances but consider degree of annexation and the object of annexation. Purpose of annexation whether enjoyment of a chattel or improvement to the realty
Holland v Hodgson
Equipment attached to the land in such a manner that to all outward appearance, it formed part of the land was intended to do so
Melluish
Method and Degree of annexation, object and purpose of annexation.
- Sculpture resting on its own weight can be easily removed - look at way which its attached, is it intended to stay there
London Borough
Here the home was completely attached, nailed down, water and electricity.
Lockwood
1. Contract for sale and purchase
2. Title passes (settlement occurs) upon registration and payment
BUYING and SELLING LAND - Two step process
Contract for sale and purchase are:

Section 24 Property Law Act - Not enforceable unless in writing (terms written down) and signed by the party to contracts enforced on

Section 26 PLA - s 24/25 do not effect part performance where steps have been taken to perform contractural right where it would be unconscionable for the defendant to rely on s 24. - Payment
Stage 1
Registration under Land Transfer Act s 41 - Instruments not effectual till entry in register
Stage 2
Re Richards - Unconditional contract, house sold to Eade, Mrs Richards says the house is hers, however no longer in the estate as Mr Eade held on sort of trust (legal ownership) but equitable ownership passed to Mr Eade - House Adeemed
Problems 1. Vendor dies after contract but before settlement
Default Rules - Equitable ownership passes on contract - risk lies with the purchaser - Vendor is holding it on sort of trust and has obligation of reasonable care to the property - Must keep reasonable state of preservation (Clarke)
2. Property suffers damage after contract but before settlement
Seller of property under a specifically enforceable contract holds the property on trust - Limited trustee duties, may still profit from rent, but must not abandon the property and scrap all duties
Englewood
Squatters - Vendor did not take reasonable care in evicting them - Depends on the circumstances
Davron Estates
Didnt drain the taps, water froze and exploded
Lucie
Paper Roads - Imposing duty to preserve the property
Bevin v Smith
Guy gets payout from acquisition of his land during war time, purchaser claims that money is for him. However held that money is only avaliable where the land is effected in the fee simple.
Hamilton Snowball
Section 13 - Purchaser of land entitled to benefits of insurance between dates of sale and possession
- Vendor may insure - If able because may not with equitable title passing
- Purchaser has access to this payout
- If risk materialises (payment goes to whoever bares the risk)
Insurance Law Reform Act
4.1 Property and chattels remain at the risk of the vendor until possession is given/taken
4.2 If prior to giving/taking possession property is destroyed the purchaser has these rights:

1. If property Untenantable - purchaser may
a) Cancel Contract
b) Complete the purchase minus insurance costs
or
If property tenantable
a) purchase complete purchase minus diminution in value

- If rural property held untenantable if damaged 20% or more
If ADLS Contract
Southland DC
- Test for untenantable
Subjective - Prevents the purchasers purpose for land
Objective - Damage prevents this purchase
Even if not 20% threshold up to the purchaser to show untenantable

- Must relate to the WHOLE PROPERTY
What classifys Untenantable
- A purchaser obtains equitable interest out of a conditional contract where the vendor puts the condition to be fulfilled outside his or her control.

- where the condition is the sole benefit of the purchaser (i.e. waiting for them to sell their other house) - Nicholson v Fowler
3. Contract conditional when vendor dies
- Will be no equitable interest if this is the case. We have agreed to the terms of the contract but the contract will only come into effect if....
Condition Precedent
We have a contract but if X then the contract is void
Condition Subsequent
1. If completely in vendors control - Then no Equitable interest

2. If in purchasers control - Equitable interest
3. If in third parties control - Equitable interest
Dependant on the intentions of parties - Whether they intended to be bound
Waiting for approval from landboard, vendor changed his mind...condition subsequent, held equitable interest did pass
Bevin v Smith - In regards to conditional contract
Right of First refusal - No equitable interest just from that right but equitable interest will arise where there is an offer made to person with right of first refusal
Motor Works
The legal freedom of the developer to develop or not to develop held that there was no equitable interest. If the parties are not intending to be bound by the contract equitable interest can not be said to have been intended to pass
Palm Gardens
If clause 4 ADLS - Risk on Vendors and they can sue

If no ADLS - Risk on purchaser and may not be able to sue as not in possession - however rule extended
Problem with TRESPASSERS
Trees felled - Purchaser couldnt sue in Trespass as not in possession, not continuing trespass as trees removed and no damage to the reversionary as the land still holds the same value

Vendor can sue in trespass but will not get much as there is no actual loss to them, selling the land anyway - Nominal damages for infringement on right and exemplary damages - For wrongdoing \

Based on old clause 4 however if property not untenantable then purchase property but get diminution of value
Cousins v Wilsons
Elderly couple memorial garden - no actual damage but court extended principle to aminety damage
Scutt
reasonable cost of reinstatement
Byrant
...
There may also be a risk of resale where you should apply the off register, caveat bullshit rules
A lease is an estate interest for a fixed period of time...exclusive occupation
LEASES
Must be in writing form of a lease deed and be registered
A legal Lease
Must be in writing or terms recorded in writing, or if oral part performance must occur
Equitable Lease
Property Law Act Schedule 3 Clause 12
Cancelling A Lease
A lessor may cancel a lease if rent is unpaid for more than 15 working days
or any other covenant has been failed to be observed for 15 working days or more
Clause 12 Schedule 3
1. Do they have a power to cancel
2. Is there a breach of covenant
Two questions to ask yourself
Serve notice stipulating the breach, how to remedy the breach, and stipulated time to remedy the breach
Lessor cancelling they must - MANDATORY
(a) apply to the court for an order for possession of the land
(b) reenter the land peaceably
S 244 - If lessor wishes to exercise power of cancellation they may
Court may grant relief against cancellation, refusal to renew, refusal to enter into a new lease etc
S 243 - Is a code Relief against Cancellation
Tenant may go to court and be granted relief discretion is wide
S 253 - Relief against Cancellation
Mullholland - If rent is paid by the time of the trial date relief is almost always granted - unless hopelessly insolvent
1. Breach of paying Rent
Studio X listed things to consider
- Gravity of the breach
- Actions of the landlord
- Lasting damage
- Personal qualifications of the tenant
- Breach immoral/illegal
2. Breach of other covenants
Edged on proportionality argument - although breach significant, important and deliberate - granting relief would proportionalitely outweight not granting relief
Strong v Hurunui
Gravity of all the breaches combined made it so that relief was not granted. Cannot expect landlord to live next to bad tenant with his children.
Sibrad
Street v Mountford - Labels are not decisive

Fatac - A license is mere permission to be on the land, Tenant has right to possession - look at the substance of what is conferred

A lease is a grant of exclusive possession with restrictions (Fish and Game) and licensee is a series of allowances (Sealink)
Lease vs Licenses
Fact: Pastoral lease
Held: That there wouldnt be such extensive obligations put on them if it was a mere licensee - however did not conflict with the idea of exclusive possession. Fish and Game significant rights normally exercised by the crown could only be done so with their consent
Fish and Game
Held that although sealink controlled the management of the plant...ARTA still maintained ultimate control
- Held licensee could not sue in Trespass (exception in Dutton)
Sealink
Dock on the foreshore and seabed owned by crown - Held occupation and use not possession. Licensee cannot sue in trespass
Georgeski
Manchester Airport v Dutton - Held yes they can: New Zealand courts uncertain...factual or lawful possession - Where it is necessary to vindicate rights, law is extending in NZ in regards to rights of licensee's can now seek relief, and anolmolies where a squatter would have more of a right to sue in trespass than licensees

however counter to that
- If you confer on a licensee a right of possession not just mere occupation you may as well be giving them a lease
- Breaching privity of contract binding unknowing 3rd parties
Licensee Sue in Trespass argument
Gives someone a positive right to do something on someones land
Easements
...
Characteristics of an easement
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