Nature of Land 23/04/2019 15:56:00

Introduction
Land law is one of the most ancient and basic parts of our law (established in 1066 during feudal
times). The very basic principles are still feudal , although the law, obviously, now exists and
functions in a completely different social situation. Land law is governed by its own special regime,
because:
 Land is finite, permanent and fundamentally important to life
 There are multiple interests in land: more than one owner may have an interest -
simultaneous, leases (lessor and lessee both have interests), mortgages etc.
Different people may have interests in the same piece of land, either at the same time
(simultaneously) or successively.

Nature of land: both physical and legal

Definition of ‘land’
A statutory definition of land: Land Transfer Act 2017, section 5:
"Land includes -
(a) estates and interests in land:
(b) buildings and other permanent structures on land:
(c) land covered with water:
(d) plants, trees and timber on or under land."

There are, however, limits on the rights of ownership of land.

Origins of NZ land law

Modern New Zealand land law has its origins in 2 revolutions:
 When the doctrine of tenure and estates was introduced into England (1066)
 When those concepts were imported into NZ, impacting on the pre-existing Maori land
law

Distinction between real and personal property

Real Property (realty)
 Real property is property that cannot be moved
o Contrast between land or any immovable buildings on it, and a car, furniture, or
other moveable items including cash (known as chattels)
 When real property is unlawfully taken, legal action may compel the return of the land
itself, not just the equivalent monetary value of the property
 Divided into corporeal and incorporeal hereditaments

Corporeal hereditaments
Tangible, physical things such as land and all things attached to it e.g. buildings.

Incorporeal hereditaments
Intangible, rights over the physical land - estates, interests of land (non-physical "interests"). The
common law treats these rights as real property.
Types of incorporeal hereditament:
 Freehold interest (see Estates section)
 Easement: A right of way over adjoining land, not involving taking something from the
soil, and without the person holding the right having to have any interest in the
underlying land
 o Example: rights of way providing access for people and vehicles to back lots
o Can prevent a landowner from undertaking certain activities on their land
o Whether an easement is positive or restrictive, the easement is (almost) always
in favour of one landowner, who owns land known as the dominant tenement
o The land over which the right is exercised is known as the servient tenement
 Profits à prendre: A right to take some natural thing that is in or under the servient
tenement (land) that is capable of being owned once taken
o Examples: rights to obtain minerals, crops, timber, fish and wildlife
o As with easements, it is a right over land where an interest in the underlying soil
is not required
 Rent charges: Arises under a lease agreement where the lessor is given the right (known
as "distress") to take personal chattels of the lessee on the land to enforce the payment
of rent arrears. Tenants' permanent fixtures to the land are not included

Personal Property (personalty)

 Characterised by moveability
 Chattels
 Where personal property such as cash or furniture is unlawfully taken, legal action may
only compel the defendant to return the monetary value of the items taken (damages).
Rarely could you recover the thing itself (real actions)
 Personal property, because it is moveable, is more likely to have disappeared or
changed following the unlawful taking. Land is not capable of disappearing or changing
in this way

(and resource consents under the Resource Management Act, section 122 - neither personal or real
property)

Land Title Systems

The essence of land law is title and the transfer of title. The idea of an ‘ownership’ different from
possession was slow to develop.
 Historically, the only way to transfer title was physical delivery of possession (or "livery
of seisin"), when the purchaser of the land came onto it and the vendor would physically
hand him the keys, branch of a tree, indicating transfer (with witness) then depart from
the land
 Later system was the deeds system, which was introduced to NZ with the settlers in
1840
o Deed: signed and witnessed formal legal document
o Can be used (among other things) for the conveying of land - title deeds
o The only system possible in an age before central government surveying and
registries
 Current system: The Torrens (Land Transfer) system; now one of electronic/computer
title
o Public registry of land and who owns it
o Guarantee of land title
 The Ture Whenua Maori Act 1993 ( the Maori Land Act 1993): governs Maori land
Tenure 23/04/2019 15:56:00

The origin of tenure and estates in England

 Originally, land in England was for the most part owned absolutely - those who owned
the soil had no obligations to any higher authority (allodial ownership - land which has
no lord)
 Following the battle of Hastings in 1066, William I replaced allodial ownership with an
extreme form of feudalism where he was the absolute owner of the soil, and all others
held interests directly or indirectly from him
 All titles could be traced back to the one supreme overlord, a system that became
known as tenure
 Those who held land directly from the King were called tenants in chief
 Those under them were called demesne lords - they were both tenants under the
tenants in chief and lords of those below them
 Tenants who actually possessed the land were called tenants in demesne. Their servants
(e.g. "villeins") farmed the land

The doctrine of tenure

 Tenure: Lat. teneo, tenere, to hold - "the mode of holding land, derived from feudal
times"
 The doctrine of tenure is "the common law doctrine that all land is held of the Crown,
directly or indirectly, on one or other of the various tenures."
 The principle dates from 1066, where the fundamental principle of land law was
established: all land is held of the King (we do not hold land, we hold our land of the
Crown)
o We are "seised of an estate in fee simple" - we own estates in the land (not the
land itself). We hold land of the Crown
 Subinfeudation:
o King grants land to his followers, who then grant land to their subordinates, etc.
o Fee is an estate that can be inherited
o Subinfeudation: granting fees
o Was stopped in the statute of Quia Emptores Terrarum 1290 which forbade
further subinfeudation, limiting the type and consequently the number of
tenures that could exist between the Crown and the lowest rung of the feudal
ladder. However the existing chain of subinfeudation was not abolished
o Quia Emptores Terrarum 1290 was only replaced in 2007
 Section 57(3) PLA 2007: An instrument purporting to create, transfer or
assign an estate in fee simple in any land subject to the reservation to
the person executing the instrument of an estate in fee simple
(subinfeudation) continues to create, transfer or assign an estate in fee
simple without any such reservation
 Different sorts of historical tenures which had particular services attached to them
o Free (knight/military service, grand & petty sergeantry)
o Spiritual tenures (frankalmoign & divine service)
o Socage
o Unfree (villeinage/copyhold)
 Knight service had all of the incidents of tenure; other tenures had some. All had
escheat. Many incidents arose on death & inheritance.
  Tenures Abolition Act 1660 (Eng) reduced the number of tenures to two: free and
common socage, where a tenant owed their lord no military or spiritual services, but
only labour, which was gradually replaced by money payments and the tenure came to
be called "freehold."
o Copyhold was a specialist tenure recorded in the rolls of manorial courts and
didn't apply in NZ where manorial courts and manors didn't exist
 Leases were considered as mere private arrangements between landowner and
someone who the landowner allowed to live on the property. By the end of the 15th
century, a lessee could recover possession against someone who had rejected them off
the land - ‘chattels real’ - but now leasehold estates. They will be considered separately
later.
 Freehold: not linked to whether you have a mortgage

Pre-1840 land law in New Zealand

 In 1840, land law consisted of customary communal interests held by Maori hapu and
whanau, who were allodial or absolute "owners" or possessors of the soil and were not
subject to any overlord
 Treaty of Waitangi: transfer of sovereignty to the English Crown (however not the only
document involved in the transfer)
o Article 2 refers to land and estates, but there is no reference to estates in the
Maori version. The reference to the Crown's "exclusive right of Preemption"
should Maori wish to sell their land was not mentioned in the Maori version,
which just provided that the Crown could purchase land should they wish to sell
o Maori customary interests in land were largely extinguished by the Crown
following negotiation or otherwise

Post-1840 land law

 Because of the Tenures Abolition Act 1660 (Eng), freehold tenure was the only tenure
that could apply when the Crown granted land to its subjects in NZ
 The English Laws Act 1858 (NZ)
 Section 57 Property Law Act (PLA) 2007 formally abolished all feudal incidents of estates
in fee simple:
i. A Crown grant of land, or a certificate of title or computer register having the
force and effect of a Crown grant of land, whether issued before, on or after 1
January 2008, for an interest in fee simple confers on the person named….a right
of freehold tenure (free and common socage) without any incident of tenure for
the benefit of the Crown.
ii. An estate in fee simple is transferable, and has always been transferable, without
the permission of the Crown or the need to make any payment to the Crown.
 All land is holden of the king (or Crown), who is therefore lord paramount. New Zealand
landowners are all his tenants in capite (in chief). Nulle terre sans seigneur; no land
without a law (allodial land). We own an estate in the land - no absolute ownership.

R v Symonds (1847) NZPCC 387n at 388 per Chapman J: ‘It is a fundamental maxim of our laws,
springing no doubt from the feudal origin and nature of our tenures, that the king was the original
proprietor of all the lands in the kingdom, and consequently the only source of private title….This
principle has been imported, with the mass of the common law, into all the colonies settled by great
Britain; it pervades and animates the whole of our jurisprudence in relation to the tenure of land.’

Veale v Brown (1868) 1 NZCA 152 (whether the principle of escheat applies in NZ - if a tenant dies
without anyone to whom the land can pass, where does the land go to): ‘The feudal system, long
extinct in England itself as a social and political system, is yet the source of all the doctrines of the
English law of real property. It is a fundamental principle of that law that all lands are holden of
some superior lord ~ according to the old French maxim, Nulle terre sans seigneur. In other words,
the doctrine of tenure is a fundamental principle of the English law of real property, and to say that
the doctrine of tenure is not to prevail in this colony is as much as to say that the English law of real
property is not in force here. This we may safely treat as an absurdity.’

Rural Banking and Finance Corporation of New Zealand v Official Assignee [1991] 2 NZLR 251, 356
per Fisher J: ‘Because the doctrine of tenure governs the ownership and use of land in New Zealand,
there can be no room for allodial interests, that is to say estates held in absolute ownership without
acknowledgement to a superior….In the case of New Zealand fee simple interests, that superior is
always the Crown. It follows that in New Zealand the Crown must always be the proprietor of any
land for which no subject can show title.’

A modification of the doctrine in New Zealand: Aboriginal Title

Te Runanganui o Te Ika Whenua Inc Society v AG [1994] 2 NZLR 20, 23-24 per Cooke P:
‘Aboriginal title is a compendious expression to cover the rights over land and water enjoyed by the
indigenous or established inhabitants of a country up to the time of its colonisation. On the
acquisition of the territory, whether by settlement, cession or annexation, the colonising power
acquires a radical or underlying title which goes with sovereignty. Where the colonising power has
been the United Kingdom, that title vests in the Crown. But, at least in the absence of special
circumstances displacing the principle, the radical title is subject to the existing native rights. They
are usually, although not invariably, communal or collective. It has been authoritatively said that
they cannot be extinguished (at least in times of peace) otherwise than by the free consent of the
native occupiers, and then only to the Crown and in strict compliance with the provisions of any
relevant statutes.’

Te Ture Whenua Maori Act 1993, s 129:

129. All land to have particular status for purposes of Act—
(1) For the purposes of this Act, all land in New Zealand shall have one of the following statuses:
(a) Maori customary land:
(b) Maori freehold land:
(c) General land owned by Maori:
(d) General land: (land under the Land Transfer Act)
(e) Crown land:
(f) Crown land reserved for Maori.
(2) For the purposes of this Act,—
(a) Land that is held by Maori in accordance with tikanga Maori shall have the status of
Maori customary land:
(b) Land, the beneficial ownership of which has been determined by the Maori Land
Court by freehold order, shall have the status of Maori freehold land:
 (c) Land (other than Maori freehold land) that has been alienated from the Crown for a
subsisting estate in fee simple shall, while that estate is beneficially owned by [a Maori
or by a group of] persons of whom a majority are Maori, have the status of General land
owned by Maori:
(d) Land (other than Maori freehold land and General land owned by Maori) that has
been alienated from the Crown for a subsisting estate in fee simple shall have the status
of General land:
(e) Land (other than Maori customary land and Crown land reserved for Maori) that has
not been alienated from the Crown for a subsisting estate in fee simple shall have the
status of Crown land:
(f) Land (other than Maori customary land) that has not been alienated from the Crown
for a subsisting estate in fee simple but is set aside or reserved for the use or benefit of
Maori shall have the status of Crown land reserved for Maori.
(3) Notwithstanding anything in subsection (2) of this section, where any land had, immediately
before the commencement of this Act, any particular status (being a status referred to in subsection
(1) of this section) by virtue of any provision of any enactment or of any order made or any thing
done in accordance with any such provision, that land shall continue to have that particular status
unless and until it is changed in accordance with this Act.

Attorney General v Ngati Apa [2003] 3 NZLR 643.

Foreshore and Seabed Act 2004; now the Marine and Coastal Area (Takutai Moana) Act 2011

Customary title: does not depend on a grant by the Crown

Estates 23/04/2019 15:56:00

Doctrine of estates
 An estate is an interest or "bundle of rights" in land
 Concerned with the relationship of the tenant to the land
 The interest in that land that will continue to exist for certain periods of time depending
on the particular estate you hold

Historically, the interest of any tenant in land held under a lord was called his "feud" or fee.

Introduction
Rural Banking and Finance Corporation of New Zealand v Official Assignee [1991] 2 NZLR 251, 356
per Fisher J: ‘Since the Norman Conquest, English land has been governed by the doctrine of tenure.
By that doctrine the Crown is the overlord of all land in the kingdom. Subjects hold the land as mere
tenants under grants emanating directly or indirectly from that source. Strictly speaking subjects
own not the land itself but merely an “estate” in the land which confers certain rights to use of the
land.’

Walsingham’s Case (1573) 2 Plowd 547

‘The land itself is one thing, and the estate in land is another thing.’
‘An estate is time in the land; or, the land for a time.’

Classification of Estates
Estates are classified due to how long they last (duration of interest). Duration determines the
features of the estate, such as what interest the holder can dispose of (or alienate) to others. Since
each estate has a different duration, several estates can exist simultaneously over the same piece of
physical land. These are called concurrent estates.
 Freehold estates
 Estates less than freehold (e.g. leasehold)

Freehold estates
The period of time in which it is going to last is indeterminate/uncertain (as opposed to leasehold
estates in which the duration is specified). Measured in human life, and we don't know when that
will end.

(Note that the word ‘freehold’ has nothing whatever to do with whether or not mortgages or other
encumbrances exist on a title!)

Types of freehold estate:

Fee Simple Estate
 Fee: an heritable estate
 Simple: could descend to all classes of heirs
 The fee simple is of virtually unlimited duration. It can be passed by will, or on intestacy
(when you die without a will), under the Administration Act 1969. In the complete
absence of successors it will return to the Crown, not by escheat (which has been
abolished), but as bona vacantia. (Bear in mind that until the Statute of Wills 1540 it was
impossible to leave freehold land by will)
 Equivalent of full ownership of the land: the owner has every lawful right on and in
respect of the land
  Possession is described more technically as "seisin" and includes the right to exclude all
others from the land - subject to any powers given to other by statute to enter the land
 Nobody else may have any right or interests in the land unless authorised by the owner,
the predecessor entitled or by the law
 Unless specifically limited by statute, fee simple owners have full rights to use their land
as they wish, and the courts will uphold that basic right and interpret any statutory
restrictions with that basic position in mind

Types of fee simple estate:

 Fee simple absolute (most common form): the duration of the fee simple estate is not
modified by any particular future event. Any land title issued in "fee simple" without
further words is a fee simple absolute
 Determinable fee: arises when the document creating the estate records that it will
automatically come to an end on the happening of a specified event that may or may
not occur
 Fee simple upon condition: arises when the document creating the estate records that
the estate may be brought to an end if a condition imposed on the grantee or their
successor is breached. In such cases the grantee or successor has the right to enter onto
and determine the estate

Life estate
 Freehold estate which endures only until the death of the individual to whom it has
been granted (cannot be passed on by the will of the grantee)
 Usually found in the will of a husband or wife, who leaves a life interest to their spouse
until they die and it goes to their children
 Because of its uncertainty, it is not common in commercial arrangements
 Obligation not to commit waste
 Estate pour autre vie: form of life estate where the life involved is the life of someone
who does not hold the freehold estate

Stratum estate
 Derives authority from Unit Titles Act 2010
 Provides for the creation of fee simple estates in situations where individual dwellings
are part of a larger building or development, to provide secure property interests for
occupiers of flats or units
 A unit plan is created which, when deposited with the District Land Registrar, creates a
"stratum estate" consisting of a fee simple estate in the unit itself, and a "tenancy in
common in undivided shares" in common property such as the lift and lobby areas in a
high-rise building

Leasehold estates (estate less than freehold)

 Estates that terminate at a fixed date set at the creation of the lease hold interest
 There is no limit to the duration that may be set
o Leases for 99 or even 999 years exist, often called "leases in perpetuity"
o These extreme durations make some leasehold estates almost as secure as fee
simple estates
 Leases commonly include conditions concerning maintenance of the land during the
course of the lease and rights of renewal on termination
  Leasehold estates include periodic tenancies e.g. residential tenancies (governed by the
Residential Tenancies Act 1986). These are a series of short-duration estates that are
regularly rolled over
 Leases are real property but are called "chattels real" as they arise from a contract
between landlord and tenant, and the common law didn't initially allow the lessee
whose interest was wrongfully taken to recover the leasehold interest from anyone but
the landlord - if a third party had disposed of the lessee's interest, only monetary
compensation was available. The common law developed remedies allowing lessees to
recover their interest from anyone

Classification according to whether the estate confers an entitlement to present right or future
right to enjoy of the land
Estates in possession and estates in expectancy
 Person who currently holds the estate has the estate in possession, and the ability to
divide the estate
 Person to whom the estate is left has the estate in expectancy (they have the estate in
the future). Right to enjoy the land at some time in the future (an estate is land for a
time), and future estates can be put on the title. Types of "future interests":
o Reversions
o Remainders

Reversions
Reversions arise where the owner of a freehold or leasehold estate grants out some lesser interest
to another. The freehold or leasehold estate thus reduced is known as a reversion. Every time a
leasehold estate is granted, a reversion is created to the owner of the fee simple. A reversion is
always “vested” in the person entitled to it, because it is a certain estate once the lesser interest
comes to an end.

Remainders
Remainders arise when the owner of a fee simple estate grants an estate to one person and, at the
same moment, a second or more estates to another or others that only takes effect once the prior
estate (or estates) comes to an end.
 E.g. where a parent grants a life interest to one family member and, on that person’s
death, a fee simple interest to another
 Remainders arise most commonly through wills
 Vested remainder: a remainder is said to be “vested in interest” where there is certainty
about who it is that will take the land once the prior estates have come to an end, and
the only condition to be fulfilled before the estate vests is that all the prior estates are
ended
 Contingent remainder: a remainder is said to be “contingent” where there is uncertainty
about either of these matters (the estate is granted on condition)
o E.g. where the grant provides that the second estate goes to a named person,
but only so long as they remained unmarried

Sections 59 & 63 PLA 2007 speak of future interests and contingent interests. Also see section 76
LTA 2017 (cf s.95(1) LTA 1952)
Equity 23/04/2019 15:56:00

Introduction
Historically, the royal courts developed rigid rules and principles, in relation to both the procedure of
hearings and the actions upon which a case could be brought. In response to the "harsh" rules and
petitions to the chancellor, a separate court called the Court of Chancery was established, and it
developed a body of law known as "equity". The Court of Chancery administered a separate, more
flexible system of rules, laws and procedures. Although the Court of Chancery no longer exists (was
disestablished in 1873), equity has continued to be a distinct concept. The basis of the chancellor's
jurisdiction was that the Chancery was the court of conscience, was not put off by formality.
 All of the estates (fee simple, life, leasehold etc.) can exist not only as legal estates, but
can also exist as equitable estates (not recognised by common law as they don't meet all
the legal requirements). I.e. there are interests other than legal interests (equitable
interests)

Underlying Characteristics of Equity

 Substance not form
 Conscience based
 Discretionary: equitable relief is discretionary - if you are demanding relief of court of
conscience, your own conscience must be clean
 Innovative
 Limits on enforceability: equitable estates are liable to be defeated by people with a free
conscience (by a bona fide purchaser for value without notice), whereas legal estates
cannot be defeated

Examples of interests recognised by equity

Trusts
 An estate in land is held at common law by one person, who holds the full legal interest
and rights that attach to it, but that person may only use those rights to further the
interests of the beneficiaries of the trust
 If they do not, they may be compelled to do so by an application to a court to exercise
its equitable jurisdiction
 Trusts do not appear on the title (the names of the trustees do, but does not say that
they are the trustees)
 Common law does not enforce trusts, as they only enforce the legal title
 Section 153 LTA 2017
Purchaser’s equity
 When there is a contract for sale and purchase of land, the formal transfer of possession
does not happen until some time later
 If a contract has been entered into to purchase land but the vendor fails to complete its
part of the arrangement, then although the legal title remains with the vendor, equity
can require the vendor to transfer the land or otherwise to act consistently with the
contract of sale (the remedy of specific performance)
 However, equitable rights are possible to be defeated
Covenants
Rights of Fee Simple Estate Owners 23/04/2019 15:56:00

Airspace
 How much airspace is included in the definition of land?
 "Land is a column stretching from heaven to hell"
o Historically in the common law, you owned unlimited airspace over your land
o Was tolerable when there were no such things as flying machines (now the
situation is different because of aeroplanes, satellites etc. - wouldn’t make sense
if every plane flying over was trespassing)
 Civil Aviation Act 1990, section 97(2): No action shall lie in respect of trespass, or in
respect of nuisance, by reason only of the flight of aircraft over any property at a height
above the ground which having regard to wind, weather and all the circumstances of the
case is reasonable, so long as the provisions of this Act and of any rules made under this
Act are duly complied with.

Bernstein of Leigh (Baron) v Skyviews & General Ltd [1977] 2 All ER 902, 907
 English High Court case
 Was flying an aircraft hundreds of feet above a property to take photographs trespass?
 Per Griffiths J: ‘The problem is to balance the rights of an owner to enjoy the use of his
land against the rights of the general public to take advantage of all that science now
offers in the use of air space. This balance is in my judgment best struck in our present
society by restricting the rights of an owner in the airspace above his land to such height
as is necessary for the ordinary use and enjoyment of his land and the structures on it,
and declaring that above that height he has no greater rights in the airspace than any
other member of the public.’

Lower down, trespassing on airspace

 Woollerton & Wilson Ltd v Richard Costain Ltd [1970] 1 All ER 483
o Crane 15 feet above the factory roof
o Held to be within a reasonable height
o Held to be a trespass, an injunction was issued
 Kelsen v Imperial Tobacco Co Ltd [1957] 2 All ER 343
o Kelson shop, tobacco company shop put a sign up next door that hung over
Kelson's shop by 8 inches
o Held to be a trespass
 Concrete Properties Ltd v Churchill Group Holdings Ltd noted in (1988) 5 BCB 142
o Crane overhanging neighbouring land, several hundred feet up in the air,
hanging over a carpark rather than inhabited land
o Held this was an inappropriate place for the issue of an injunction, not risk to
people or privacy as compared to private land

Some interesting questions about otherwise unauthorised searches…..

 Cannabis searches: Police would conduct intrusive searches over private property (e.g.
Helicopters flying 50ft over back gardens), without reason to suspect

Statutory restrictions on common law airspace

 Balloons, Kites, Rockets, Remotely Piloted Aircraft (RPAs, Drones), Model Aircraft &c ~
Part 101, Civil Aviation Rules
 o Drones may not operate above persons or property who have not consented to
the operation of the drone, and may not fly at a height above 400ft, must always
be within the line of sight of its operator, and give way to aircraft
 Building height restrictions under the Resource Management Act 1991

General rule that aircraft must remain at least 500ft above the ground (mainly for safety reasons)

Subsoil
 The right to take minerals from below the surface of the earth (mining etc.)
 S 2(1) Crown Minerals Act 1991 - ‘mineral’ means ‘a naturally occurring inorganic
substance beneath or at the surface of the earth’
 S 10 Crown Minerals Act 1991: Notwithstanding anything to the contrary in any Act or in
any Crown grant, certificate of title, lease or other instrument of title, all petroleum,
gold, silver and uranium existing in its natural condition in land (whether or not the land
has been alienated from the Crown) shall be the property of the Crown.
o Gold and silver are the property of the Crown = Royal Prerogative. Historically at
common law, the holder of a fee simple title had title to all minerals except for
gold and silver
o Added to this are petroleum and uranium in the Act
o This extends to the 12-nautical-mile limit of the territorial sea
 Section 59 Land Act 1948
o Any grant of land made by the Crown after this date, ALL minerals belong to the
Crown
o Therefore no minerals are owned by the landowner
o If land is alienated from the Crown before this date (1948), things are more
complicated: different definitions of minerals, different dates and terms of
Crown grants - matter of historical investigation
o Freehold Maori land was never the subject of Crown grant
 "Other" minerals remain property of Maori landowners
 Resource Management Act 1991 and Crown-Owned Minerals Act

Land adjoining and under water

 The common law of property extends up to 12 nautical miles from the baseline of the
territorial sea. Beyond that, the NZ government has sovereignty to 200 nautical miles,
but no interest in the land
 Rivers: the English common law provided that unless circumstances indicated otherwise,
the owners of the land on the banks of the non-tidal parts of rivers owned to the centre
line (ad medium filum aquae)
o Early decisions assumed that the presumption applied in NZ, but there have
been some exceptions particularly in relation to Maori customary land
o Almost all activities in the beds of rivers (and lakes) are controlled by the
Resource Management Act 1991
 Lakes: the beds of lakes belong to the owner of the surrounding land. Where there is
more than one surrounding owner, each owner's interest is a wedge-shaped piece of
land with its apex at the centre of the lake
o The use of lakebeds is controlled by the Resource Management Act 1991
 Foreshore and Seabed: Marine and Coastal Area (Takutai Moana) Act 2011 - "neither the
Crown nor any person owns, or is capable of owning, the common marine and coastal
 area" which includes land from the high-water mark to the limits of the territorial sea
not already in private title
o Maori can obtain, through direct negotiation with the Crown or via High Court
orders, "protected customary rights" in the common marine and coastal area
which are non-territorial use rights, or a "customary marine title" which includes
a right to veto any use not approved by the title holders (must have applied
before 3/4/17)
 Lagoons: follows rules for lakes (freshwater lagoons) or foreshore (tidal lagoons)

Water
 At common law, natural water (water flowing on or under land and not confined to any
artificial receptacle) cannot be owned by any person
o Water cannot be owned unless in a pipe or a tank - must obtain a water permit
in this case
 Resource Management Act 1991 (formerly the Water and Soil Conservation Act 1967)
o S 14: water may not be taken, used, dammed or diverted unless it is permitted
by a rule in a regional plan or a resource content has been obtained (exceptions:
use of water for domestic, stock and firefighting purposes, and geothermal
water for Maori communal activities)
 Environment Canterbury (Temporary Commissioners and Improved Water
Management) Act 2010

Trees and crops

 Trees and crops are part of the land
o At common law, land includes things growing on the land and some built
structures
o S 5(1) Land Transfer Act 2017: trees and timber are part of "land" for the
purposes of that Act
 Clearance of trees and bush for non-commercial purposes is subject to district plan rules
under the Resource Management Act 1991. Individual trees can also be the subject of
district plan rules restricting interference with them
 Where the roots and branches of trees cause problems for neighbouring properties, or
utilities such as roads and electricity or telephone lines, an action may lie in nuisance to
remove the obstruction, or statues such as s 33 Property Law Act 2007

Fixtures
Fixture: an item of personal property (chattel) which has become so attached to the land, that it
forms part of the land
 Quicquid plantatur solo, solo cedit (whatever is affixed to the soil, belongs to the soil)

The general rules - is the item a chattel or a fixture?

 Generally whoever has the right to the fee simple, has the right to the fixture
 At what point do things become fixtures (affixed to the land)?
 When a lessee brings on to the premises chattels that remain chattels (items of personal
property)

Holland v Hodgson (1872) LR 7 CP 328, 335 per Blackburn J:

  Mill containing looms (valuable items of machinery for weaving), held down by nails
driven into wood that was in the floor
 What rights did the mortgagee have over the looms? Were they fixtures (part of the
land) or items of personalty that had been attached just for the purposes of keeping
them in place?
 Degree of annexation (to which it is attached to the property) and object (purpose) of
annexation
 ‘Perhaps the true rule is, that articles not otherwise attached to the land than by their
own weight are not to be considered as part of the land, unless the circumstances are
such as to shew that they were intended to be part of the land, the onus of showing
they were so intended on those who assert that they have ceased to be chattels, and
that, on the contrary, an article that is fixed to the land even slightly is to be considered
as part of the land, unless the circumstances are such as to shew that it was intended all
along to continue a chattel, the onus lying on those who contend that it is a chattel. ….
This, however, only removes the difficulty one step, for it still remains a question in each
case whether the circumstances are sufficient to satisfy the onus.’

Degree of annexation
 Things sitting on the land, attached by only their own weight, are not fixtures unless
shown otherwise, burden of proof on the person who believes otherwise
o Exceptions that are not attached to the land e.g. keys
 Things fixed (even slightly) to the land, are fixtures unless shown otherwise (that they
are intended to be chattels), burden of proof on the person who believes otherwise

Object of annexation
 Was this item intended to be permanent, become part of the land and improve its
worth, or was it intended to be attached for a mere temporary purpose, or as a chattel?
o Leigh v Taylor [1902] AC157.
 Valuable tapestries, had been carefully tacked onto wooden batons that
had been attached to the walls
 Attached for the reason for better display, to enjoy them as chattels, not
as fixtures
o Spyer v Phillipson [1930] All ER Rep 457.
 Ornamental wooden panelling had been attached to walls for the better
enjoyment as a chattel
 Has the thing placed there become an integral part of the land or the buildings?
o D’Eyncourt v Gregory (1866) LR 3 EQ 382.
 Sculptures placed in a garden on their own weight (by Blackburn's test
not fixtures)
 However, garden was designed around the sculptures
 Sculptures were fixtures because they were an integral part of the
garden
 Degree of damage done by the removal of the thing (to the thing itself and the
land/building)
o Elitestone Ltd v Morris [1997] 2 All ER 513 (see more below)
 Bungalow resting on concrete tiles, couldn’t be removed except by its
destruction
 Could not be intended to remain a chattel
Neylon v Dickens [1979] 2 NZLR 714*
 Prefabricated house, fuel tanks, helicopter hangar, game freezing and storage facility
installed as part of deer recovery company (who did not own the land)
 Prefab house connected to sewage, water, electricity etc. as attached as any ordinary
house, but still held to be a fixture (due to particular circumstances)
o House was dropped in by helicopter and could be moved by helicopter
o Informality in arrangement involving putting this equipment on the land -
between farmer landowner and the owner of the house
 What if there is a 3rd party who does not know about the agreement between these 2
parties? E.g. purchaser if the property is sold? Assumption that the property is attached

Halliday v Bank of New Zealand [2013] 1 NZLR 279

 Forestry case - plants are part of the land without having necessarily have been planted
there (self-planted)
 Trees become part of the realty, not chattels

But doubt has been cast on this idea of looking at the understood intentions of the parties:

Lockwood Buildings Ltd v Trust Bank Canterbury Ltd [1995] 1 NZLR 22

 Neither party was the landowner, who were the Shearer brothers: Lockwood supplied
the property (showhome) to the landowners, that was designed and furnished like a
house, and obtained an instrument for it. Attached as an ordinary dwelling with
foundations, landscaped and designed to look like an ordinary house. Not connected to
the sewer, but there was water and electricity attached. Notice on the door saying it was
a showhome
 Agreed between original parties that the house was to remain their for a minimum of 12
months
 Trust Bank were the first mortgagee, were not aware of the arrangement between
Lockwood and the Shearer Brothers
 Because of building difficulties, Lockwood uplifted the building and sold it
 Trust Bank brought a trespass action against Lockwood, saying the house was part of the
land (a fixture) and removing it was trespass
 Held that the house was a fixture (attached to the property, become part of the land) so
could not properly be removed by Lockwood
 Purpose is determined by what is apparent on an objective visual examination
o Private arrangements between parties when there is a 3rd party involved are
not relevant

Elitestone Ltd v Morris [1997] 2 All ER 513

 Whether a bungalow resting on land for 50 years was part of the land and therefore
included in a tenancy agreement over the land
 Couldn’t be removed except by its destruction
 "A house which is constructed in such a way that it cannot be removed at all, save by
destruction, cannot have been intended to remain a as a chattel. It must have been
intended to form part of the realty."
o Can the item be properly said to have become "part and parcel of the land?"
  House of Lords said that what the parties intended cannot change what, in law, is real
property
 Whether something is a fixture or not is an objective test, agreements between the
parties cannot change that

Auckland City Council v Ports of Auckland Ltd [2003] 3 NZLR 614

Whether a wharf extension and floating port facilities, including pontoons floating on fixed poles,
were fixtures to land and therefore "rateable as land"
CA held they were because they were clearly fixed to the seabed and intended to remain fixed in
place

Queenstown Central Ltd v March Construction Ltd [2016] NZHC 1884

 In this case, neither party wanted the alleged fixture (a fill of soil, silt, gravel, shingles)
and were trying to say it was the other party's
 To remove what remained of the fill would require 12,000 truck movements to a site 20
miles away (would cost a large amount of money)
 The land could not be built on until the fill was removed
 March Construction: original owner of the fill, had been placed on the site under a
temporary resource consent (5 years). Had attempted to sell the fill. Landowner had also
sold some of the fil
 Fill had been covered in topsoil and grass seed had been planted - to any reasonable
observer would appear to be part of the land
 Was the fill a fixture or a chattel?
o To an observer, appeared as though it was attached to the land (objective test =
fixture)
o However, objective observer = informed observer who would know that this
land had not been compacted, could not be used until the fill was removed
 Held that the fill was not a fixture but a chattel, belonged to March Construction who
were also liable for trespassing for the amount of time the fill remained on the property
when the new landowner owned it

Reservation of Title clauses

 A retention of title clause is a provision in a contract for the sale of goods which means
that the seller retains legal ownership of the goods until certain obligations are fulfilled
by the buyer – usually payment of the purchase price
o A title to these goods remains with the vendor until they are paid for
o Does not prevail against fixtures
Whenuapai Joinery (1988) Ltd v Trust Bank Central Ltd [1994] 1 NZLR 406
Joinery, retention of title clause, after installation the landowner ran out of money. Whenuapai
recovered the joinery, even though they had agreed that the retention of title clause didn’t apply.
Trust Bank Central said that W was trespassing so their actions were improper

Tenants’ Fixtures
Where a lessee brings on to the premises chattels that remain chattels (items of personal property)
throughout the lease, the lessee may remove them from the premises at any time before the end of
the lease. Where a lessee brings on to the premises items that become fixtures (part of the realty),
the lessee is not entitled to remove these at all, unless they are "tenants' fixtures."
  Tenants' fixtures: a lessee may (subject to agreement to the contrary by lessor and
lessee) remove any trade, ornamental or agricultural fixture (except a lessor's fixture)
that has been affixed by the lessee to the leased premises, but may only do so while in
lawful possession or during a reasonable period after ceasing to be in lawful possession
(s 266 PLA 2007)
 See under rights and duties of landlords and tenants for more info

Steps to take when determining fixtures

 Is the item a chattel or part of the land? If it is a chattel, it may be removed during the
term of the lease
 If the item is a part of the land, i.e. a fixture, is it a tenant's fixture? If so, it may be
removed
 If the item is a fixture other than a tenants' fixture, it must be left on the property at the
end of the lease, unless the lease makes some express provision authorising its removal
by the lessee

Fences & hedges

Fencing Act 1978, ss 2, 9
2. Interpretation—
In this Act, unless the context otherwise requires,—
“Adequate fence” means a fence that, as to its nature, condition, and state of repair, is reasonably
satisfactory for the purpose that it serves or is intended to serve:
“Fence” means a fence, whether or not continuous or extending along the whole boundary
separating the lands of adjoining occupiers; and includes all gates, culverts, and channels that are
part of or are incidental to a fence; and also includes any natural or artificial watercourse or live
fence, or any ditch or channel or raised ground that serves as a dividing fence:
“Occupier”— (applies to occupiers, not necessarily landowner - can be long-term tenants)
(a) In relation to any land, other than a public reserve, means the owner thereof, except that,—
(i) Where another person is in occupation of the land under a tenancy granted for a term
of not less than 10 years certain or continues to be in occupation of the land after having
been in occupation thereof under such a tenancy, that other person shall be the
occupier of the land; or
(ii) Where no person is an occupier of the land by virtue of subparagraph (i) of this
paragraph, but a person is in occupation of the land as mortgagee in possession, that
last-mentioned person shall be the occupier of the land:
(b) In relation to any public reserve, means the local authority, trustees, or persons in which or
whom control of the reserve is vested:

9. Adjoining occupiers to share cost of fencing—

Subject to the provisions of this Act, and to any order of the Court made under this Act, the
occupiers of adjoining lands not divided by an adequate fence are liable to contribute in equal
proportions to work on a fence.

What is an adequate fence?

Smith v Paaymanns [1989] DCR 433
 DC case
 Adequate fence judged by the standards of the reasonable occupier
Grainger v Rossendale Holdings [1989] 2 NZLR 389
 Change of use, a fence that had previously become adequate became inadequate
 Electric fence - on one side, horses were grazing, on the other side there were cabbages
 Horses were replaced with sheep, who were able to get through the fence and eat the
cabbages
 No common law re fences - tort of cattle trespass. However section 26 of the
Impounding Act 1955 greatly limits the ability to sue for cattle trespass
 Cattle trespass only lies where there is an adequate fence between the properties
Was the fence adequate or not?
 Does a fence that had been adequate previously become inadequate with a change of
use?
 Once a fence is adequate for one purpose, it remains adequate
 Any other decision would mean the landowner whose neighbour changed use of the
land would be required to put in money to change the fence

S 333 Property Law Act 2007 - allows a neighbour to seek an order from the DC that a fence is kept
in repair where it is adversely affecting the enjoyment of neighbouring land

Hedges - same legal position as a fence

 Cause a great deal of argument between neighbours as they require maintenance

Interference by trees or other structures

 Property Law Act 2007, ss 332-338.
o In certain circumstances, a landowner may apply to the DC for an order that a
neighbouring landowner must remove/trim interfering trees
o The order must be: fair, reasonable, balance of hardship test involved
o Court must take into account whether the tree was present when the current
owner took ownership of the land
 Historic trees can be listed under the Resource Management Act, subject to certain
protections

332 Application of this subpart

This subpart applies to—
(a) any structure that was erected on any land except a structure that—
(i) was erected with a building permit or building consent issued by the relevant
territorial authority; or
(ii) was erected by the Crown, for which a building permit or building consent
was not necessary, but would have been necessary had it been erected by a
person other than the Crown; and
(b) any tree, shrub, or plant (tree) growing or standing on any land.

333 Court may order removal or trimming of trees or removal or alteration of structures
(1) A court may, on an application under section 334, order an owner or occupier of land on which a
structure is erected or a tree is growing or standing—
(a) to remove, repair, or alter the structure; or
(b) to remove or trim the tree.
(2) An order may be made under subsection (1) whether or not the risk, obstruction, or interference
that the structure or tree is causing—
 (a) constitutes a legal nuisance; and
(b) could be the subject of a proceeding otherwise than under this section.
(3) Subsection (4) applies if—
(a) the applicant’s land may be used for residential purposes under rules in the relevant proposed or
operative district plan; and
(b) the application is made in relation to the use or enjoyment of the land for those
purposes; but
(c) no building intended for residential purposes has been erected on the land.
(4) The court may not make an order under subsection (1) unless satisfied that the building will be
erected on the land within a reasonable time and, if the court makes the order,—
(a) the order does not take effect unless and until the building is erected; and
(b) if the building is not erected within a reasonable time, the order may be vacated on
the application of any interested person.

Support
 The common law provides that landowners have a right of support from adjacent
landowners - adjoining landowners may not excavate their land so as to cause
subsidence (the process by which an area of land sinks to a lower level than the land
surrounding it, or a building begins to sink into the ground)
 Property owners have a right to have their land unaffected by acts on adjoining land
(e.g. removing natural support)
 However neighbours are not obliged to add more support, just to not remove existing
support
 The action is personal (only the owner of the adjoining land who undertook the
excavation is liable) and the action must only be taken once damage has actually
occurred
 Greenfield v Rodney County Council (1990) 6 BCB 21.
Rights of Limited estate holders 23/04/2019 15:56:00

Obligation not to damage the land in a way that will affect future estate holders.

Emblements
If you have a life tenancy, and plant annual crops on the land, and you die before the annual crop is
harvested then your estate may enter and harvest the crops

Waste
The common law doctrine of "waste" prevents owners with a limited estate in land (i.e. less than
freehold) from exploiting a property or allowing it to fall into a state of disrepair
 Statutory rules also often restrict both the owner of a freehold estate and those holding
lesser estates from committing waste
Waste is an unreasonable or improper use of land by an individual in rightful possession of the land
 E.g. cutting down of ornamental timber
 Environmental aspect - encourages landowners to use the land sustainably

Property Law Act 2007, ss 68-70.

68 Voluntary waste or equitable waste by life tenant or lessee

(1) A life tenant or a lessee of land is liable in damages for the tort of
voluntary waste and the tort of equitable waste to the person entitled to the
reversion or remainder expectant on the estate for life or the lease.
(2) Subsection (1) applies unless the liability is excluded by an express or
implied term of the grant of the estate for life or the lease.
(3) However, liability for equitable waste---
(a) is not excluded by the exclusion of waste or voluntary waste; but
(b) is excluded only if expressly excluded.

Types of Waste
Ameliorating Waste
 Ameliorate - to make something better
 Holder of the limited estate changes the character or value of the land to improve it
 Possible to obtain damages, if there has been damage to the inheritance
 Uncommon type of waste
Voluntary Waste
 Act by the person holding the limited estate which injures the inheritance (cutting down
ornamental timbers, pulling down useful buildings which have value)
 Life tenants may be unimpeachable for waste. In that case, voluntary waste is not
available for action unless the damage is extreme (equitable waste)
Equitable Waste
 Wanton destruction of the premises
 Not excused by clauses that the life tenant is unimpeachable
Vane v Lord Barnard (1716) 23 ER 1082
 Family home was a castle, settled with a life interest (father) without impeachment for
waste, with the rest of the interest going to the son
 Fallout between father and son, so father decided to destroy the castle and take
valuable items so his son would get nothing
 Court of Chancery held that even when you are unimpeachable with waste, you cannot
get away with wanton destruction