The compatibility of leasehold and freehold tenure arrangements with environmental offset and trading initiatives

Environmental offsets and environmental trading initiatives are being rapidly introduced into environmental regulatory regimes. These relatively new legal mechanisms are attempting to fill in the gaps left by command and control regulation. The introduction of environmental offset and trading policy in Queensland will need to be compatible with existing land tenure regulation. Who owns and who uses natural resources are controlled by a range of legislative reservations and restrictions. Reservations give the State ownership of certain natural resources such as minerals, quarry material and, in some circumstances, forest products. Where there is a reservation in operation, the land holders rights are weakened. Restrictions in relation to uses prevent land holders from carrying out certain activities on the land. An example of a restriction of use is the operation of the Vegetation Management Act 1999(Qld), which prescribes the manner in which vegetation is to be dealt with. This article explores the nature of freehold and leasehold land tenure in Queensland and examines the effect of reservations and restrictions upon the operation of environmental offset and trading initiatives. Presently Queensland legislation does not directly address the relationship between land tenure and environmental offset and trading initiatives. The stability of tenure required for the creation of environmental offsets can be at odds with the flexibility allowed for under leasehold arrangements. This flexibility may act to undermine the permanency requirement of environmental offset creation (i.e. the guarantee that the offset is created for the long term).

Early land grants and reservations : Any lessons from the Queensland experience for the sustainability challenge to land ownership

Environmentalists have called for a new property paradigm premised on the idea of land ownership as a delegated responsibility to manage land and resources for the public benefit. An examination of Crown freehold grants from the beginnings of settlement until the 1890s in Queensland shows that fee simple titles were granted subject to express conditions and reservations designed to reserve useful natural resources to the Crown, and to promote public purposes. Over time, legislative regulation of landowner’s rights rendered obsolete the use of express conditions and reservations in grants. One result of this change was that the inherently limited nature of fee simple ownership, and the communal obligations to which it is subject, are less transparent than in colonial times.

The impact of property title type on residential property returns

Residential property in New Zealand comprises both freestanding residential properties and medium to high density residential properties. Medium to high density residential property comprises the typical units, townhouses and semi-detached houses common in most residential property markets. However, in many of the larger cities of New Zealand the free standing residential property market has evolved into two separate markets being freehold residential property and cross lease residential property. Cross leases have developed as a form of infill housing to reduce the urban sprawl in major canters, while reducing the time and cost for residential property developers. A cross lease is created when an existing freestanding residential property subdivides a portion of the existing land for the erection of another house on the original title, basically dividing one larger residential section into two smaller residential blocks. This paper will analyse house prices in Christchurch over the period 1992 to 2006 to determine if the various housing markets have shown similar capital returns or if there is a specific preference for a particular residential property title.

What is the impact of land tenure on the sustainability of retirement village communities in Australia?

In 2005, 17.3% of Australians were aged 60 years and older according to the Australian Bureau of statistics (ABS). According to aBS this situation mirrors the poulation profile of other developed countries such as Canada, New Zealand, the United States of America and to some extent the United Kingdom (ABS). Self contained independent living units in retirement Villages are now contributing to the dwellings available for those aged 55 years and over in Australia and the retirement village sector has become a significant sector within the residential property market. However, the method of operaton of many retirement villages, and the lack of freehold tenure, impacts on the desireability of retirement village life to potential residents. This paper focuses on sustainability from the perspective of the ongoing viability of retirement village operations in light of the impact of land tenure and operational issues on the perceptions of potential residents.

Dealing with unique interests in Crown Land : a Queensland perspective

Security of tenure is the cornerstone of the land management system in Australia. Freehold title is protected throug indefeasibility of title entrenched in legislation and protection of registrable interests in land is offered through the Statutory Assurance Fund. For those with interests pertaining to Crown Land no such protection is offered, although this position is not uniform across Australia. Notably those with Crown leasehold interests or a profit a prendre on Crown Land in Queensland are not protected through registration on the freehold land register and do not have the benefit of indefeasibility of title. The issue of management of interests pertaining to Crown Land has become increasingly relevant due to the complexities associated with balancing public interests including native title with more commercial interests in land generated through carbon sequestration, forestry and mining. This paper considers the framework for the management of Crown Land in Queensland and the adequacy of this framework for commercial interests that pertain to Crown Land.

Land Contracts in Queensland

This book provides a systematic and comprehensive account of the law relating to buyers and sellers of freehold land in Queensland. It analyses relevant clauses of the standard contracts in common use and the plethora of court decisions relating to the area.Its contents comprise a full transactional analysis of a conveyance from negotiation by a real estate agent through to completion. In addition, it contains chapters on special conditions, remedies, GST and stamp duty provisions.

Amendments to the Land Title Act 1994 (Qld)

Wholesale amendments to the Land Title Act 1994 (Qld) were recently introduced with the passing of the Natural Resources and Other Legislation Amendment Act 2005 (Qld). The amendments were preceded by an extensive review of issues associated with the operation of the freehold land register and consultation with a number of stakeholders. The three articles that follow address different issues associated with these statutory amendments. The first article provides a brief overview of the amendments. The second article deals with particular amendments designed to combat mortgage fraud. In the third article, the question posed is whether further statutory amendment could better protect unregistered interests.

Land Sales Act 1984: The time limit for an application for exemption

The decision of Wilson J in Wan and Ors v NPD Property Development Pty Ltd [2004] QSC 232 also concerned the operation of the Land Sales Act 1984 (Qld) (‘the Act’). As previously noted, s 8(1) of the Act provides that a proposed allotment of freehold land might be sold only in certain circumstances. An agreement made in contravention of s 8(1) is void. Section 19 allows a purchaser (and others) to apply for an exemption from any of the provisions of Pt 2. By s 19(6), notwithstanding s 8, a person may agree to sell a proposed allotment if the instrument that binds a person to purchase the proposed allotment is conditional upon the grant of an exemption. By s 19(7) an application for exemption must be made ‘within 30 days after the event that marks the entry of a purchaser upon the purchase of the proposed allotment.’

Land Contracts in Queensland [3rd ed]

Land Contracts in Queensland provides a thorough, user-friendly account of the law relating to buying and selling freehold land in Queensland. The authors analyse the substance of the transaction through the medium of standard contracts, and draw on a comprehensive range of court decisions relating to the area. There are chapters covering the role of the real estate agent, the disclosure regime for sellers and agents, the inclusion of special conditions, and stamp duty and GST implications.

State of Origin : Queensland Crown Leasehold - lessons from New South Wales

Throughout Australia freehold land interests are protected by statutory schemes which grant indefeasibility of title to registered interests. Queensland freehold land interests are protected by Torrens system established by the Land Title Act 1994. However, no such protection exists for Crown land interests. The extent of Queensland occupied under some form of Crown tenure, in excess of 70%, means that Queensland Crown land users are disadvantaged when compared to freehold land users. This article examines the role indefeasibility of title has in protecting interests in Crown land. A comparative analysis is undertaken between Queensland and New South Wales land management frameworks to determine whether interests in crown land are adequately protected in Queensland.

The impact of tenure type on the desire for retirement village living

In 2005 17.3% of Australians were aged 60 years and older (Australian Bureau of Statistics). A consequence of this aging population is the increased use of self-contained independent living units (SCILU) in Retirement Villages by older Australians. The retirement village sector has thus become a significant sector within the residential property market. In seeking to determine the impact of tenure type on the desirability of RV living this paper first profiles a typical SCILU in Australia, before explaining and examining the various tenure types offered by the market. This paper concludes that the multiplicity of offerings of the SCILU product with respect to tenure type, when combined with deferred management fees and participation in capital gains/losses, may be contributing to a lack of clarity in what the SCILU product entails and the security of investment it offers. This perception is supported by litigated disputes and may be damaging the reputation, ongoing viability and desirability of SCILUs.

Adverse possession and Crown Leasehold in Queensland

The decision of Eckford v Stanbroke Pastoral Co Pty Ltd [2012] QSC 48 ,although a decision refusing summary judgement raises a very important question of the ability to claim adverse possession of a pastoral lease issued in 1956 under the Land Act 1962 (Queensland).Division 5 of Part 6 of the Land Title Act 1994 (Qld) which guarantees registered freehold title expressly deals with the right of adverse possession however, there is no such provision in the present Land Act 1994 unlike s 170 of the Crown Lands Act 1989(NSW) which expressly precludes claims for adverse possession of specified non freehold land. There is no mention of adverse possession in any version of the Queensland Land Acts and only s 6(4) of the Limitation of Actions Act 1974 makes it clear that “the right, title or interest of the Crown” in or to any land is not affected by any adverse possessor.It is against the background that the Court considered the right of an adverse possessor to a Crown lease.

Assessing the long term viability of leasehold rural land in Queensland

Rural land holdings in a number of states in Australia can be freehold or leasehold. The actual type and tenure of the leasehold varies according to each state, but the underlying principles of ownership, transferability and farming and grazing rights are reasonably similar. There are rural areas that are all leasehold title such as the western lands in NSW, while rural land in some states and areas can be a mix of both freehold and lease hold rural property. Over the years many rural farming areas that were originally developed or granted as leasehold land have been converted to freehold title. In many instances the cost of purchasing perpetual leasehold property is similar to the equivalent freehold property despite the fact that an additional rental charge is applied to this form of ownership. Many of the current leasehold rural holdings are located in the more arid regions of the state and the prevailing agricultural farming system is either cattle or sheep grazing.

Inadequate management of medicines by the older-aged living in a retirement village

BACKGROUND: A comparison of the management of medicines by the older-aged living in freehold (fully owned) and rental homes in retirement villages has suggested that the older-aged living in rental, but not freehold, retirement villages may require help to manage their medicines. OBJECTIVE: The objective of this study was to investigate the management of medicines by the older-aged living independently in a leasehold (partly owned) home in retirement village to determine whether they also need help in managing their medicines. METHOD: Semi-structured interviews were conducted with 22 older-aged residents living in a leasehold retirement village. MAIN OUTCOME MEASURE: The main outcome measure was the perception of present and ongoing adherence. RESULTS: Amongst participants in the leasehold retirement village, with an average age of 82.9 years, the perceptions of present and ongoing adherence indicated that only 55 % of older-aged participants were adherent at the time of the study, and not likely to have problems with adherence within the next 6-12 months. Participants from the leasehold retirement village had a good understanding of 58 % of their illnesses. A mean of 9.8 medicines per person were prescribed. Cardiovascular medicines were the most commonly prescribed at 86 %. CONCLUSION: The older-aged living in leasehold retirement villages may require extra assistance/resources to manage their medicines.

Comparative studies of how living circumstances influence medication adherence in ≥ 65 year olds

Background Resources to help the older aged (≥65 year olds) manage their medicines should probably target those in greatest need. The older-aged have many different types of living circumstances. There are different locations (urban, rural), different types of housing (in the community or in retirement villages), different living arrangements (living alone or with others), and different socioeconomic status (SES) circumstances. However, there has been limited attention to whether these living circumstances affect adherence to medicines in the ≥65 year olds. Aim of the review The aim was to determine whether comparative studies, including logistic regression studies, show that living circumstances affect adherence to medicines by the ≥65 year olds. Methods A literature search of Medline, CINAHL and the Internet (Google) was undertaken. Results Four comparative studies have not shown differences in adherence to medicines between the ≥65 year olds living in rural and urban locations, but one study shows lower adherence to medicines for osteoporosis in rural areas compared to metropolitan, and another study shows greater adherence to antihypertensive medicines in rural than urban areas. There are no comparative studies of adherence to medicines in the older-aged living in indigenous communities compared to other communities. There is conflicting evidence as to whether living alone, being unmarried, or having a low income/worth is associated with nonadherence. Preliminary studies have suggested that the older-aged living in rental, low SES retirement villages or leasehold, middle SES retirement villages have a lower adherence to medicines than those living in freehold, high SES retirement villages. Conclusions The ≥65 year olds living in rural communities may need extra help with adherence to medicines for osteoporosis. The ≥65 year olds living in rental or leasehold retirement villages may require extra assistance/resources to adhere to their medicines. Further research is needed to clarify whether living under certain living circumstances (e.g. living alone, being unmarried, low income) has an effect on adherence, and to determine whether the ≥65 year olds living in indigenous communities need assistance to be adherent to prescribed medicines.