The decision of the House of Lords in City of London Building Society v Flegg marks a key stage in how the balance is drawn between occupiers and creditors in priority disputes; the seeds of which were originally planted in the Law of Property Act 1925. It posed a serious challenge to the conventional understanding of overreaching and the machinery of conveyancing.Ref ? The importance of social context in Land Law and the reforms which have occurred as a result cannot be ignored or their significance understated. In particular is the impact of the shift in the twentieth century to ‘emergence of a property owning, particularly a real-property-mortgaged-to-a-building-society-owning-democracy’. Such growth could hardly have been anticipated when the LPA 1925 was drafted and subsequently became statute. As a consequence of this growth the doctrine of the resulting trust and to a greater extent, the constructive trust became a robust mechanism by which non legal owners could establish beneficial interests in the home. Swadling comments on the ‘complete change in attitude’ between the emphasis on security of ownership of the home in Boland and the free marketability of land which we see in Flegg. He states ‘one wonders what has happened to the demands of social justice which justified their Lordships decision in 1980 (in Boland) over such a brief passage of time’. Did the House of Lords fail to resolve the very practical issue with which they were presented that had evolved over the passage of social change since the drafting of the 1925 legislation? A primary aim of the LPA 1925 was to effect a ‘compromise between on the one hand the interests of the public in securing that land in trust is freely marketable and on the othe... ... middle of paper ... ...o the purchaser of unregistered land should the disposition be ultra vires, assuming that there is no actual notice of such then overreaching can take place. This has now evolved into their being no requirement for absence of notice. In addition Section 70 (1) (g) of the LRA 1925 protected as an overriding interest the property rights of those in actual occupation of the land as described by Lord Denning MR: Fundamentally its object is to protect a person in actual occupation of land from having his rights lost in the welter of registration. He can stay there and do nothing. Yet he will be protected. No one can buy the land over his head and thereby take away or diminish his rights. It is up to every purchaser before he buys to make inquiry on the premises. If he fails to do so, it is at his own risk. He must take subject to whatever rights the occupier may have.
Compensation must be provided to the person whose property is being bought. Each country should work to set a standard for what is a fair market price, to prevent any people from inadequate compensation. The value of the property must be taken into account, and the effect this will have on their way of life. If a person is, for example, losing their home, the government must provide enough money to ensure that individual is able to relocate comfortably.
This statement shows Aboriginals are inferior and have no rights or sovereignty over the land. Therefore the Europeans are superior by law to them. Lambert (2012. pg12) writes that Europeans regarded Torres Islanders and Aboriginals way of life and land use was “not being used in a fashion that European legal and property systems approved”. The information from both sources shows Europeans confirmed that land is not owned by anyone, unless there is a legal document to prove ownership therefore Europeans believed Aboriginals and Torres Islanders did not own the land even though they live there. Lambert (2012) suggests Europeans were “very liberal” compared to the Torres Islander and Aboriginals. The Proclamation 1835 was written after the Batman Deed however shows no evidence there was a treaty previously between John Batman and Dutigalla people. This also demonstrates Torres Islanders sovereignty is not regarded by the Europeans. (WC: 196). Jeff Lambert states the land was perceived as “unoccupied land” as “Aborigines demonstrated their affinity with the land in sustainability, cultural and spiritual terms” (Lambert 2012.pg 13), these actions were not
This essay is about the land rights of of Australia and how Eddie Marbo was not happy about his land been taken away from him. In May 1982 Eddie Marbo and four other people of the Murray Islands began to take action in the high court of Australia and confirming their land rights. Eddie Marbo was a torres islander who thought that the Australian laws were wrong and who went to fight and try and change them. He was born in 1936 on Mer which is known as Murray Island. The British Crown in the form of the colony of Queensland became of the sovereign of the islands when they were annexed in1978. They claimed continued enjoyment of there land rights and that had not been validly extinguished by the sovereign. (Australian Bureau of Statistics 2012)
Tooher, Joycey, ‘Jubilant Jamie and the Elephant Egg: Acquisition of Title by Finding’ (1998) 6 Australian Property Law Journal 117
In 1992, the doctrine of terra nullius was overruled by the High Court in the case Mabo v Queensland (No.2) [1992] HCA 23. After recognising that the Meriam people of Murray Island in the Torres Straits were native title landholders of their traditional land, the court also held that native title existed for all the Indigenous people in Australia prior to European contact. To make the legal position of landholders and the processes that must be followed in claiming native title clear, the federal government passed the Native Title Act 1993 (Cth). The Native Title, which was drafted in 1993, attempted to provide a fair and just method of dealing with land in the future. However one of the fundamental flaws of the native title system is that the concept of native title was based on the prejudiced principle that the Crown had the power to extinguish traditional indigenous ownership of the land. Although the government could have been able to amend the flaws of the Native Title Act following the High Court’s decision in relation to the Wik Case, which laid the rules for co-existence and reconciliation of shared interests in the land, they failed to do so. Amendments to the Native Title Act in 1998 undermined any benefits the Indigenous people could have received, and provided the already-powerful non-Indige...
Foner, Eric, and John A. Garraty. "Homestead Act." The Reader's Companion to American History. Dec. 1 1991: n.p. SIRS Issues Researcher. Web. 06 Feb. 2014.
claims, land through an occasional action of Congress to return control over land to particular
part of the Doctrine Hedley Byrne and Co. Ltd V Heller and. Partners Ltd (1964), Rondel V Worsley (1969).
The first point to note when analysing occupiers’ liability is that originally it was separate to the general principles of negligence which were outlined in Donoghue v Stevenson .The reason for this “pigeon hole approach” was that the key decision of occupiers’ liability, Indermaur v Dames was decided sixty six years prior to the landmark decision of Donoghue v Stevenson . McMahon and Binchy state the reason why it was not engulfed into general negligence, was because it “… had become too firmly entrenched by 1932 … to be swamped by another judicial cross-current” Following on from Indermaur v Dames the courts developed four distinct categories of entrant which I will now examine in turn.
The process, however, brings tension for people who are threatened with dispossession. The compulsory acquisition of land for development purpose may ultimately bring benefits to society but it is disruptive to people whose property is acquired. In countries
Locals were not allowed to own land and hence had no say in any land issues and therefore, could not refuse to vacate land as soon as they are asked to. Local people had no security of tenure then but after independence and the introduction of agrarian land reforms, speculative land grabs were abolished as they provided communities and local people with a secure title to land. There was an introduction of a DUAT which gave them the rights to use and benefit of land (Van Den Brink, 2008). This however, did not provide full ownership of land but was good in that it was similar to a lease, was more secure, renewable and it was long term (could be held for a period of 50
One of the special concepts in land law is of overriding interests. The standard practice in the English land law is all the interest and rights affecting or is binding over particular a land should be registered in the Register. However, the concept of overriding interest denotes that there are interests which are binding on the owner (the registered proprietor) regardless of not being formally registered. It was introduced because in that era it was though that it would be unreasonable and unjust to overlook such rights and interest enjoyed. Overriding interests need not be registration to bind the legal owner of the land. Therefore, if the land is sold to another person the interests and rights would not be lost. It can be said that overriding by nature are unregistered if they are registered they will cease to be an overriding interest.
...ng an endangered species. Such a decree reduces the private use-value of the land and hence weakens incentives to care for the land. Similarly, if there were high transfer taxes for land sales, it too would weaken incentives to care for the land. In fact, anything that weakens the owner's private property rights in the land weakens his incentives to do the socially responsible thing - conserve on society's scarce resources.
IFAD (2014) contends that PLUP is a “process that results in a land-use plan or several land-use plans for a given goal, objective or set of objectives” (p. 1). It is an interactive and integrated process to realize high levels of participation in land use planning projects and most importantly, to provide the local community with greater control over the process of development. Its role is to bring actors together for the purpose of developing a common vision and to agree upon a way forward – as part of this, tenure security could be improved. In particular, it provides an opportunity for marginalized groups to take part in the project development process. Moreover, PLUP provides information and direction to the concerned community and to decision makers to optimize the productivity of the land and resources, to develop infrastructure and services, to protect the environment and biodiversity and to establish appropriate governance and administrative systems.
In order to secure land tenure for the urban informal settlers, different countries have introduced licenses or Certificates in different names. However they all have the same objectives. For instance, in Zambia residents are issued with a 30-year Occupancy Licences while the area undergoes through the process of upgrading. These can be later replaced by certificates of title, which carry the same effect as if the landowner were obtaining a direct lease of the land from the state (UN-Habitat, 2012). In Botswana, Certificate of Use is issued to informal dwellers so as to encourage them on further housing investment (Durand-Lasserve, 2006). In Brazil, Concession of the Real Right to Use is issued to residents. The validity period of these licences varies between 30 and 50 year periods but subject to renew (Van der Molen, 2002).