Introduction to Land Use

Planning Law
Lecture # 4
Land Use & Planning Law includes aspects of:
• Municipal law
• Constitutional law
• Administrative law
• Civil Rights
• Remedies
• Environmental
 Introduction to Land Use Law
• What is land use planning law?
– A series of interconnected regulations which limit
the way in which real property can be developed
and utilized
• What are its purposes?
– Orderly development of local communities
– Separate incompatible uses
 Origins of Land Use Law
• Nuisance Law
– Non-tresspassory invasion in another‟s interest in
the private use and enjoyment of land
• General Rule: owner is at liberty to use his
property as he sees fit without objection or
interference from his neighbor
• But owner will not be permitted to make an
unreasonable use of his premises to the
material annoyance of his neighbor.
• Difference between a private nuisance
and a public nuisance is generally one of
degree. A private nuisance is one
affecting a single individual or definite
small number of persons while a public
nuisance is one affecting the rights
enjoyed by citizens as part of the public.
 Property Law Component - Overview
• Introduction – Basic Concepts in the Legal System
• Public Land, the Doctrine of Tenures and Title
• Private Title to land
• Estates and Interests in Land
• Unregistered, Inchoate and Informal Interests –Equity and
Trusts
• Co-Ownership
• Easements
• Land Covenants
• Profits a Prendre
• Mortgages
• Adverse Possession
• Title to Land and Priority between conflicting interests in land
 Common Law
Common Law is used in three senses -
1 Common Law system is one of the international legal families
(Other legal families include Civil law, indigenous customary
law, communist, religious systems)
2 Body of Rules built from court cases
– Legislation prevails over common law
– Based on precedent
3 Common Law and Equity. Equity is discretionary and court
can make an order for the defendant to do something (specific
performance) or stop the defendant from doing something
(injunction)
 Subordinate Legislation
• Regulations
• Statutory Rules
• By-laws
• The power to make subordinate legislation is
delegated to a subordinate public body by
Parliament
• It is subordinate to legislation
 WHAT IS PROPERTY?
• “The third absolute right …is that of property which
consists in the free use, enjoyment, and disposal of all
his acquisitions, without any control or dimunition,
save only by the laws of the land…..” Blackstone
• “The word `property‟ is used … to denote legal
relations between persons with respect to a thing.”
ALI (RP)
• Romanic ownership is a like a box which contains
rights to occupy, use, and alienate, whereas Anglo-
American ownership is like a bundle of sticks relating
to a given thing with each stick a legal interest
relating to the thing (Merryman)
 The Good News & the Bad
• The good news is that you have already
learned a lot of property law.

• The bad news is that it is more difficult to get

one‟s arms around the “law of property” than
the “law of torts” or „the law of contracts.”
 Boundaries
• One way to see this is to think about boundaries.
• Torts & Property
– Intentional torts
– Negligence
– Strict liability
– Tort claims as property.
• Contracts & Property
– Contracts pertaining to property
– Contracts as property
– Contract claims as property.
• What is left if you take away everything that
could be considered a contract or a tort?
• Think of “property” as a different way of
conceptualizing the legal world that you have
already been exploring in contracts and torts.
• Compare “property” with “persons” and
imagine a course on the law of “persons.”
• All law is about persons.
• Not all law is about property, but much of it is.
Traditional Property Classification
• A. CLASSIFICATION BY CHARACTER OF PROPERTY
– REAL vs PERSONAL PROPERTY
– TANGIBLE vs INTANGIBLE
• B. CLASSIFICATION BY SCOPE (EXTENT) OF
INTEREST
– COMPLETE vs LIMITED
• C. TEMPORAL CLASSIFICATION
– PRESENT vs FUTURE INTERESTS
• D. CLASSIFICATION BY CHARACTER OF OWNER
– PUBLIC vs. PRIVATE
– CORPORATE vs. INDIVIDUAL
 CLASSIFICATION BY CHARACTER OF
PROPERTY
• REAL PROPERTY (LAND)
– Usually includes things “attached” to the land, like crops,
minerals, buildings & monuments (“fixtures”).
• PERSONAL PROPERTY (A/K/A “MOVABLES” OR
“CHATTELS” OR “CHOSES”)
– TANGIBLE
• E.g. Plants, Animals & Minerals (once removed from
the land)
• E.g. Manufactured items
• E.g. Collectibles
• E.g. Artwork
INTANGIBLE PERSONAL PROPERTY
• Money, stocks & bonds, bank accounts (often
represented by a certificate)
• Intellectual property
– Patents
– Copyrights
– Trademarks
– Trade Secrets
– Domain Names
• Contracts
– Insurance contracts
– Purchase & Sales Agreements
– Employment contracts
– Options
• Actionable legal rights (“choses in action”)
CLASSIFICATION BY SCOPE (EXTENT) OF
INTEREST
• Single owner vs. concurrent or shared
ownership.
• Legal title vs. beneficial or equitable
ownership (trust relation)
• Freehold vs. non-freehold (tenancies).
• Estates in land vs. Interests in land that are not
“estates” (e.g. permissive rights to use).
• In general, classification by particular interests
(sticks).
 Temporal Classification
• Present interests v. Future interests
– E.g. Person by will bequeaths residence to
surviving spouse for life and upon spouse‟s death,
to children.
• Unlimited duration vs. Limited Duration
– E.g. Owning a house vs. Leasing a house or
apartment.
– E.g. Owning a car vs. Leasing
– E.g. Time-limited License to manufacture or
reproduce something that is patented or
copyrighted.
 Classification by Class of Owner
• Public vs. Private
– Public lands
– Creations in the public domain
– Things that may not be privatized
– Things that are “owned” privately
• Collective vs. Individual
– Public
• Federal
• State
• Local
– Private collectives
• corporations, partnerships, cooperatives, associations, families
 Problem
• Imagine that Airco owns a tract of land which it has
identified as an ideal site for a wind farm.
• It proposes to erect 100 wind turbine generators to
catch the prevailing wind from the west.
• To Airco‟s east is Neighbor E who would also like to
build a wind farm.
• To Airco‟s west is Neighbor W who wants to preserve
the unobstructed view to the east.
• Can Airco, E or W find support from any of the
authors quoted for their respective positions?
 Origins of Property?
• Occupation
– “Ancient Law …knows next to nothing of Individuals.”
– Are new claims based on occupation possible today?
• Natural Law (Aquinas)
– Is it inconsistent with the occupation theory?
• Labor (Locke)
– Is this alternative or elaboration?
– Locke‟s limits?
• Legal Construct (Bentham)
– Sovereign government?
 What does it mean to „own‟ property
• There are different concepts of „ownership‟ – think about what
it means to „own‟ property
• Dual European heritage
– Old feudal laws from England (Hierarchy of Ownership)

– Torrens System from German system –

 Doctrine of Tenures

• To understand how Property Law operates, it is

important to understand this archaic heritage
which was inherited at the time of European
Settlement
 Feudalism
• In the middle ages, English land law expressed
the social relations of feudalism
• Tenures in land were organised in a hierarchy,
with the Monarch at the top as the ultimate
owner down to Barons, Bishops and free land
holders (free holders)
• At the bottom of the pyramid were peasant
land holders
• This hierarchy imposed multiple land tenures
with respect to the same piece of land
• Everyone was a tenant of the Monarch
• Tenures, estates and interests in land in were
first formed under this feudal structure
• The idea that the Monarch is the ultimate
owner of all land (which is where we get
Crown Land from) and that all other private
interests in land are held below the Monarch
has been retained
• In Mabo v Qld (1992) described this concept
of tenure as a ‘skeletal principle’ of the
Common Law which is ‘beyond the power of
the courts to change’
 Colonial Land Administration
• Feudal conception: British Crown sells land to private
European settlers
• Two parallel systems of colonial land administration:
– The Surveyor-General was responsible for surveying and
parcelling Crown land and then selling it to European
settlers. Freehold (private) titles were created
– Private titles were registered at the Land Titles Office under
the authority of the Registrar of Titles
 What is Freehold? An overview of the
doctrine of Tenures
• The meaning of freehold is derived from the Doctrine
of Tenures
• Difficult to understand ‘freehold’. Historically
„freehold was a miscellaneous category – any land
not held under some other type of tenure was deemed
to be ‘freehold’
• To understand freehold tenure completely, we need to
understand what other types of tenure existed
• Practically, any land that is not „Crown Land‟ is
„Freehold Land‟
• Historical tenure in England.
• Some examples
– „Knight‟s Service‟ – Lords were obliged to provide a fixed
number of armed horsemen for 40 days of the year in
exchange for their land tenure
– „Spiritual Tenures‟ – land leased to (for example) a
monastery with an obligation to pray or provide a spiritual
service such as an obligation to sing mass every Friday!
• This is part of the problem – to understand the
concept of freehold we are confronted with centuries
of English History stretching back to 1066!
 Ordinary Ownership
• Commonly termed „freehold estate in fee simple‟
• Most likely registered under the Torrens System (rarely
general law deeds conveyancing system – old law)
• Further problem - the freehold fee simple estate has never had
a clear definition

Land held of the Crown in fee simple may be assured in fee

simple without licence and without fine and the person taking
the assurance shall hold the land of the Crown in the same
manner as the land was held before the assurance took effect

• A case for law reform long overdue?