propertylaw

Key Issues

Before answering the questions below you should be familiar with the following:

  • The concept of the doctrine of tenure and the main rights that people can claim over land.
  • The concept of the doctrine of estates, and the various ways that rights over land can be classified.

Keep in Mind

  • Do not rely on common understandings of terms. Check whether there are legal definitions.
  • Not all forms of waste are prevented. Distinguish between permitted and non-permitted types of waste.

 

Question 1

 

Rangi and his two brothers are the registered proprietors of a block of land designated as Māori Land. Rangi has been living on part of this land, under a lease agreement, with his de facto partner, Tina. They have placed on the land a “relocatable house”, which has been placed on existing timber piles, and rests on these piles by the weight of the house itself. There are some additional attachments to the house for plumbing and services. The lease agreement contains a clause which states “all parties to this deed agree that as between them and for all purposes the house remains a chattel and does not become a fixture attached to the land”.

Rangi and Tina end their relationship. Under the Property (Relationships) Act, Tina is entitled to a half share in the relationship property, which she claims includes the house. She initiates proceedings for sale of the house. Rangi argues that the house is a fixture, and not a chattel. Under the Te Ture Whenua Maori Act 1993 the Property (Relationships) Act does not apply to land designated as Māori Land, and therefore Tina has no claim.

It is accepted by both parties that if the house is considered a chattel, it can be sold and Rangi and Tina will take 50 per cent of the profit each. If the house is considered a fixture, it remains with the land, and Tina has no claim over it.

Advise Rangi as to whether this house is likely to be considered a fixture or a chattel.

[Time Limit: 30 minutes]

Answer Plan

The following points should be considered in your answer:

  • The test for fixtures and chattels.
  • Whether the house is a fixture or a chattel.

 

Question 2

 

David owns property in the lower North Island. When he purchased the property, he was aware of a sewage pipe buried beneath the surface of his large back garden. The pipe is large, and services over 600 properties. Two years ago a major landslide occurred. This created a gully in the garden, which is 6m deep and 10m wide in the area where the sewage pipe is located. The landslide damaged the sewage pipe. Temporary repairs were carried out to the pipe, which means that the pipe is currently suspended through the gully, at a height of 4m above the floor of the gully, for a length of 10m. Ground anchors attached to the surface of David’s property hold the pipes in place.

The council has recently announced its intention to make this temporary arrangement permanent. David is unhappy about this. The pipe and the ground anchors will be left exposed for the length of the gully, which is visually unappealing. More importantly, there have been major concerns with the smell from the pipes for the duration of the temporary repairs, and David wishes to avoid this being permanent.

David wishes to argue that this is his property, and he therefore has rights over the surface (where the anchors are placed) and above the surface (where the pipes run). Advise David as to these rights.

Assume that there are no easements relating to the sewage pipes on the certificate of title. The council’s authority to use David’s land is found in s 181 of the Local Government Act 2002, which allows territorial authorities to construct sewage drainage“ works on or under private land”, if it considers this necessary.

[Time Limit: 30 minutes]

Answer Plan

The following points should be considered in your answer:

  • The extent of rights over land.
  • Whether David can protest against the council’s actions.

 

For the full sample answers and more see Wilson Questions and Answers: Property Law (2nd ed, LexisNexis, Wellington, 2014).

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