Law of Real Property: Co-ownership and Easements and Introduction to Co-ownership
Administrative Announcements and Term Assessments
The lecture commenced with administrative reminders regarding the structure of the course and upcoming requirements. A significant announcement concerns the term two quiz, which is a mandatory terms requirement. While the quiz does not contribute marks toward the final grade, completion of all four term quizzes and attendance at workshops is essential for eligibility to sit the end-of-year examination. The quiz consists of multiple-choice questions administered online with a duration of minutes. The window for completion is open from the current time until next Friday at PM (midday). The content of the quiz covers materials from the latter half of term one, specifically in-person claims, landlocked land, easements, and the introductory concepts of co-ownership. Students were assured that the quiz is assessed on a pass-fail basis and that the primary goal is engagement rather than achieving a perfect score.
In addition to the quiz, a term two workshop is scheduled for weeks and . While the lecturer designed the workshop materials and scenarios, they will not be facilitating the sessions in person. Students were advised to familiarize themselves with their specific workshop date and location, as multiple sessions occur across different venues. Materials for the remainder of the term, including those for leases and licenses, are already available on the Learn platform.
Interference and Remedies in Easement Law
The discussion on easements concluded by addressing interference and the legal remedies available to the dominant tenement owner. The primary means of enforcement against an owner of a servient tenement who interferes with easement rights is a private nuisance action. Unlike a standard nuisance claim, the plaintiff must first establish the existence of a valid legal or equitable easement. A legal easement is typically registered on the title, while a member of a specified class might reference an easement in gross. Interference is considered a question of degree and is heavily dependent on specific factual circumstances.
In the English case of West versus Sharp, the court held that placing concrete creep blocks along the side of an access strip (a right of way) and planting trees at the edge did not constitute actionable interference. The rationale was that the right of way remained usable for its intended purpose despite these additions. Conversely, a concrete barrier placed directly across the right of way would likely be deemed interference. When such interference is proved, courts may grant equitable remedies such as an injunction or a declaration, or award monetary damages.
Self-Help Remedies: Abatement and Deviation
Abatement is a self-help remedy that allows the dominant owner to enter the servient land to remove an obstruction blocking an easement. Examples include shifting a physical barrier or breaking a locked gate. However, dominant owners must exercise caution; if their actions exceed what is reasonably necessary to restore access, they may be liable for trespass. Abatement is distinct from simply clearing natural obstructions like a fallen tree, as it specifically responds to intentional interference by the servient owner. Another self-help remedy is deviation, which permits the easement holder to physically travel around an obstruction on the servient land. Like abatement, deviation must be reasonable to avoid a trespass claim.
Under the Land Transfer Regulations, court proceedings are viewed as a last resort. Parties involved in an easement dispute are required to attempt alternative or informal dispute resolution (ADR), such as negotiation, mediation, or independent expert appraisal. If litigation is necessary, jurisdiction depends on the easement type: the District Court handles vehicular rights of way, while all other easement disputes fall under the jurisdiction of the High Court.
Review of Estates in Land
Before delving into co-ownership, the lecture reviewed the hierarchy of estates in land, using the metaphor of a bundle of sticks. Property law defines different categories of rights, with ownership being the most comprehensive classification. The largest estate at common law is the fee simple estate, characterized by its unlimited duration and three broad categories of rights: possession (the right to exclude others), use and enjoyment, and alienation. Alienation is notable in fee simple estates because the owner has full power to dispose of the entire interest, sell it, or carve out subordinate rights like leases or easements. Ownership only terminates in rare cases where the owner dies intestate without successors, in which case the property vests in the Crown.
Life estates are similar to fee simple estates but are limited to the duration of the owner's life. While the holder has rights of possession and use, their power of alienation is limited; the interest cannot pass by will, and its market value during the owner's lifetime is restricted by the life expectancy of the holder. Life estates often arise in the context of family trusts. Leasehold interests are also estates in land, but they are limited in duration and always involve a reversionary interest held by the fee simple owner. Finally, future interests, such as reversions and remainders, are interests where the owner is not currently entitled to possession but will be upon the occurrence of a specific event, such as the termination of a prior life estate.
The Nature and Manifestations of Co-ownership
Co-ownership is defined by the simultaneous entitlement of two or more persons or entities to the same parcel of land. This arrangement is common across residential, commercial, and agricultural sectors. While often associated with married or de facto couples, co-ownership is increasingly used as a tool for first-time buyers to enter the property market through shared housing arrangements, similar to the Housemates platform in Toronto or similar mobile applications in New Zealand. These platforms act as matchmaking services for prospective owners who wish to share the financial burden of a mortgage and maintenance.
Co-ownership is also prevalent in Maori land management. Due to land fragmentation, it is common for a single block of land to have numerous owners; data from indicated that the average block of Maori freehold land had owners. Other forms of co-ownership include cross-leases, where multiple dwelling owners collectively own the entire property and grant leases to one another for specific areas, and commercial syndicates where groups of investors pool funds to buy property. Co-ownership interests can exist at law or in equity, and legal incapacity (such as being a minor) does not prevent a person from holding a co-ownership interest.
Joint Tenancy: Concepts and Presumptions
Joint tenancy is one of the two primary categories of co-ownership in New Zealand, alongside tenancy in common. To the outside world, joint tenants are viewed as a single, collective owner. Each joint tenant is entitled to the whole of the property, characterized as an equal and undivided interest. There are no individual shares. This means that even if individuals contribute unequal amounts to the purchase price (e.g., one person contributing and another ), they are each still entitled to the whole interest as joint tenants. Every joint tenant retains the right to sever their interest during their lifetime, which converts the joint tenancy into a tenancy in common.
Under Section of the Land Transfer Act, there is a default legal presumption that two or more persons named in a transfer instrument as owners take the land as joint tenants. This presumption does not apply to Maori land. The presumption can be overridden by including "words of severance" in the transfer instrument, such as "equally," "between," or "in equal shares." Even without such words, a court can investigate the nature of the relationship and determine if a tenancy in common was intended. To ensure the creation of a joint tenancy and avoid accidental conversion to a tenancy in common, practitioners should avoid language implying separate shares, such as the word "equally," which courts have historically interpreted as a word of severance.
The Four Unities of Joint Tenancy
A joint tenancy is legally distinguished by the presence of the "four unities." The first is the Unity of Title, meaning all joint tenants must derive their title from the same legal instrument. The second is the Unity of Time, requiring that the interest of each joint tenant must commence simultaneously. The third is the Unity of Interest, which dictates that the co-owners must hold the same type of estate (e.g., both must hold a fee simple or both a life estate) for the same duration. The fourth is the Unity of Possession, meaning no joint tenant has an exclusive right to any specific part of the land; every tenant is entitled to the whole. Another defining feature of joint tenancy is the right of survivorship, or jus accrescendi, which is unique to this form of co-ownership.
Questions & Discussion
During the lecture, a student inquired about the definition of the deviation remedy. The lecturer explained that deviation is a self-help remedy where an easement holder, faced with an obstruction on the designated easement path (such as a concrete block on a driveway), physically goes around the obstruction by driving or walking over another part of the servient owner's land. The lecturer cautioned that this must be done reasonably to avoid being subject to a trespass action.