Over history, many forms of land ownership (ie different ways of owning land) have been established. Land tenure can be defined as the mode of holding or occupying land (Burke 1976, p.323).
Land tenure systems dealing with ownership of land in Australia and New Zealand include:
- General Law (‘Old System’) Title
- Torrens (‘Real Property’) Title
- Strata Title
- Native/Aboriginal Title and Maori Title, and
- Possessory Title.
In Australia and New Zealand, land is predominantly held under the Torrens Title system, although remnants of General Law Title (deeds of conveyance) still remain. All land in the Australian Capital Territory is leasehold (effectively Torrens freehold) and much of the Northern Territory is held under Crown lease. Native/Aboriginal Title and Maori Title are recognised as separate forms of ownership by both Acts of Parliament and the Courts of the land. Crown Land is ’remaining’ land that is still held by the Crown.
General Law Title
Land originally granted by the Crown was subsequently held and dealt with under the English general law system of tenure through the issue of a deed of conveyance. All subsequent dealings with the land required verification of the validity of the deed under transfer by searching (at each and every transaction) the previous chain of history of the deed for a period of up to 30 years preceding the transfer, to ensure there was proof of a good root of title and that there were no legal impediments to the effectiveness of the deed transfer.
While this system operated well enough in the early days of settlement when transactions were simple and few in number, it was soon realised that there was no guarantee that all the interests in the land had been uncovered through recordings and/or searching, and that previous defects and deficiencies could easily pass to a new owner.
Soon after, Registries of Deeds were established under various Acts of Parliaments to protect purchasers and mortgagees through the registration of all conveyancing transactions at a single State–controlled repository, thus simplifying searching of land records for further dealings with parcels of land.
However, it was quickly realised that, with a rapidly expanding population, there was a need for still greater surety and protection of the parties involved in land dealings, and that further simplification of the land tenure system was required.
This led to development of the Torrens system of title, which is still in place today.
The Torrens system of land title was devised by Sir Robert Torrens in South Australia in 1858, and was actually based on the Lloyd’s of London shipping register.
Its key feature is that it captures all interests in a property, including transfers, mortgages, leases, easements, covenants, resumptions and other rights in a single Certificate of Title which, once registered with the State by a Registrar General or Recorder of Titles, is guaranteed correct by the State.
In other words, the register is conclusive evidence of ownership. This is known as the principle of ‘Indefeasibility of Title’. Thus, there is no need to search behind or beyond the Certificate of Title to ensure proven ownership of the land.
It should be noted, however, that the State guarantee of ownership does NOT extend to the boundaries of the land shown in a title being correct.
"Strata Title is a form of ownership devised for multi-level apartment blocks and horizontal subdivisions with shared areas. The ‘strata’ part of the term refers to apartments being on different levels, or ‘strata’… Strata Title Schemes are composed of individual lots and common property. Lots are either apartments, garages or storerooms and each is shown on the title as being owned by a Lot Owner. Common Property is defined as everything else on the parcel of land that is not comprised in a Lot, such as common stairwells, driveways, roofs, gardens and so on" (Strata Title wiki 2012).
Native and Maori Title
In Australia, native title is a common law concept that recognises "Aboriginal people have property rights and interests in land arising from traditional law and custom. The traditional relationship to land is dual in character, having spiritual and material dimensions" (Rigsby 1999).
Prior to this recognition, it was generally recognised that, at the time of British settlement, the doctrine of terra nullius prevailed: Australia was a "land belonging to no one". This was rejected by the High Court in 1992, where it was held that Australia recognises a form of native title, to be determined in accordance with Indigenous law and custom (Mabo v Queensland No. 2).
The rights to native title have also been enshrined in Acts of Parliaments, both Federal and State.
For native title to exist in a particular area today, a number of conditions have to be satisfied:
"When the Crown acquired sovereignty over the claimed area, which happened at different times in different parts of Australia, there had to be an identifiable group of Aboriginal people inhabiting the claimed area, with traditional laws and customs giving rise to native title rights at that time.
There must be an unbroken chain of inheritance or succession, in accordance with traditional Aboriginal laws and customs, from the original native titleholders to the present day claimants.
The Aboriginal laws and customs giving rise to the native title rights must have been observed and recognised continuously during that period.
There must not have been an event that had the effect of extinguishing the native title rights, such as a valid freehold grant, or valid extinguishing legislation." (van Hattem 1997).
In New Zealand, a totally different scenario unfolded following British settlement, in that the British Crown decided to negotiate with the Maori people to obtain sovereignty of the country, signing the Treaty of Waitangi in February 1840, which:
"Ceded to the Crown of England all the powers of sovereignty exercised by the chiefs of the tribes of New Zealand.
Guaranteed to the Chiefs and tribes of New Zealand, and to the respective families and individuals thereof, the full exclusive and undisturbed possession of their lands and estates, forests, fisheries and other properties which they may collectively or individually possess, so long as it is their wish and desire to retain the same in their possession, and gave the Maori people all the rights and privileges of British subjects.
With the signing of the Treaty, two systems of land law confronted each other – the English system and the indigenous Maori system. This created difficulties in land dealings and the transfer of land, particularly as European settlement increased and settlers demanding land sought to buy it from Maori owners. This led to a series of disputes in the 1850s, and the establishment of the Maori Land Court in 1865 to deal with disposal and transfer of traditional Maori lands. Today, the English land law system prevails but not exclusively – the indigenous Maori system has not disappeared entirely" (LINZ, undated).
Possessory Title (Adverse Possession)
"Possession is prima facie evidence of ownership. ’Possession is nine–tenths of the law’ means that possession is good against all the world except the true owner" (Burke 1976, p. 257).
At common law, ownership may be claimed by an adverse occupier against the true owner of the land (limited to the land actually possessed and not a greater area held under the same title). The true owner is said to have been dispossessed and their rights of ownership are extinguished.
For any claim to be successful, there are a number of basic requirements. There must be clear and irrefutable evidence that:
"The possession was open, not secret; peaceful, not by force; and adverse, not by the consent of the true owner." (Hallmann 1994, 9.51)
Actual possession of the property occurred for the required statutory period governed by the relevant statute of limitations (varies but generally accepted as 12 years), and was exclusive and uninterrupted.
The occupant exercised all the rights of a true owner, for example through the payment of due rates and taxes, and by making improvements to the land or by cultivation or construction of enclosures, and so on.
Claims for adverse possession against the Crown are more limited and complex, and extend over much longer periods of time (30–60 years, depending on the circumstances of the possession). In some cases, there can be no adverse possession against the Crown (for example, in the case of crown reserves or reserved roads).