Australian Property Law (2018) Journal Volume 26 Part 3

The ‘slumbering’ snark? Aspects of the equitable charge — Recent authority on security, enforcement and caveats – by Lee Aitken

(2018) 26 APLJ 299

The equitable charge and the caveat enjoy a symbiotic existence. Frequently, a lender will seek to enforce a charge which is expressed only Delphically in the lending instrument, and for which the lodgement of a caveat is a primary protection and remedy. Recent cases exemplify the continuing difficulties in determining both when a charge has been created, and how it may be most efficiently enforced. Much of the problem seems to arise from an unwillingness on the part of the counterparties to recognise expressly the contractual relationship between them. This article looks at the most recent authorities and endeavours to rationalise them.

Movement of land, demolition, fire, silt, waste, pests, population shift: Canterbury coping with its damaged land – by Toni Collins

(2018) 26 APLJ 315

In 2010–11 a number of large earthquakes struck Christchurch which had a significant impact on the land and the ‘clean green Garden City’ image. The movement of the land caused rockfall and cliffs to collapse affecting properties beneath them. It also caused boundaries of properties to move. Other properties have now become vulnerable to flooding and liquefaction. Air quality was affected by silt, dust and smoke, and water quality by silt and pollution from damaged infrastructure. There was an increase in unwanted pests owing to the central business district being inaccessible for more than 2 years and deserted residential suburbs. There was also a population shift from suburbs within the city to areas on the outskirts, which were not prepared for sudden growth. Finally, a significant amount of waste was generated from the collapse of multi-story buildings and the demolition of hundreds of commercial buildings and residential properties. This huge volume of waste had to be processed and stored.

This article looks at some of the issues that arose as a result of the earthquakes and how Canterbury has coped with its damaged land since then. It considers land movement, demolition, fire, silt, waste, pests and population shift. It looks at the law in place at the time and examines new legislation enacted since the disaster. It questions whether there is a need for more proactive planning to cope with issues arising from extensive land damage in a natural disaster rather than the reactive approach that was taken.

Omitted easements in the Torrens system: Devising a better strategy — by Lynden Griggs

(2018) 26 APLJ 333

The law on omitted easements as an exception to indefeasibility is in a mess. With jurisdictional differences all too evident, and the parties often overwhelmed by the cost of litigation, law and community expectation are unaligned. This article seeks to connect the practice with the law and to argue in favour of a wide and expansive view as to when the exception applies. The approach suggested consists of a wide exception for omitted easements to indefeasibility together with a ‘conclusive evidence’ provision in the legislation that the recording of the easement on the dominant tenement establishes the existence of that easement. This approach is supported by history, authority, and by reference to the underlying integrity of the land administration system.

The Personal Property Securities Act 2017 (Fiji) — by Nicholas Mirzai

(2018) 26 APLJ 353

On 8–9 December 2017, the Fijian Government hosted its annual Attorney-General’s Conference for the 19th time. Among the topics for discussion was the newly enacted Personal Property Securities Act 2017 (Fiji). As has been the case with the Australian Personal Property Securities Act 2009 (Cth), the foreign jurisprudential and commercial experience will likely be of significant value to Fiji — particularly in the Act’s infancy and transitional period. A working version of this article was delivered to the attendees of that conference.

Strata title, dispute resolution and law reform in Queensland — by Michael Weir

(2018) 26 APLJ 361

Although strata title relies upon standard property law concepts, the inherent nature of this hybrid statutory-based property interest and its importance in housing a large and increasing part of the population creates specific policy and legal problems. This article will analyse the nature of strata title, how it differs from a standard unit of real property and its requirement for joint obligations between other lot owners and the body corporate. The reform of strata title in the Queensland’s property law review will provide a context to analyse some of the problems that arise in this complex area of property law. This law reform initiative lays bare some of the tensions involved in this type of property interest and the difficulty in achieving fair and effective outcomes. This article will outline the significant conflict that arises in strata title and the power differential that exists between stakeholders. The article analyses how best to avoid and alleviate disputes between the various parties.

Book Review - Strata Title Property Rights: Private governance of multi-owned properties by Cathy Sherry (Routledge, 2017) — by Thomas Gibbons

270 pp, ISBN 9781138914926

Cathy Sherry is a well-known authority on Australian law relating to strata titles and multi-owned properties. This book draws on her PhD thesis, and warrants attention for a number of reasons. It is a rare book-length academic analysis of strata issues within a property law context, and is a scholarly study, rather than a treatise or annotated legislation. It expressly links property law theory to strata issues, providing insight into how the moral character of property, the role of property in a liberal democratic state, and the notion of property as a system, all serve to illustrate the kind of things that strata law should, and should not, regulate. Readers within Australia and New Zealand will benefit from both the theoretical and black-letter insights into by-laws; readers from other jurisdictions will see common issues and areas of common ground. There are various prescriptions for legislatures and policy makers, and property academics hitherto uninterested in strata issues may find their views change, for the book is thorough and rich in legal, interdisciplinary and practical insights. It is worth noting that the book has already been cited by the Privy Council,1 showing its use across jurisdictions.