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.

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.

Carbon sequestration: Evaluating the impact on rural land and valuation approach

This thesis uses semi-structured interviews and documentary analysis to explore the impact of carbon sequestration rights on rural land in Queensland and to determine whether current rural valuation knowledge and practice is equipped to deal with these rights. The carbon right in Queensland is complex and subject to significant individual variation. The nature and form of this right will determine whether it has a positive or negative impact on Queensland rural land. Significant gaps in the knowledge of industry stakeholders, including rural valuers, concerning carbon rights were found, and recommendations for valuation practice were made.

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).

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.

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.

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.

Statutory protections from forfeiture of a leasehold estate following Apriaden Pty Ltd v Seacrest Pty Ltd

In Apriaden Pty Ltd v Seacrest Pty Ltd the Victorian Court of Appeal decided that termination of a lease under common law contractual principles following repudiation is an alternative to reliance upon an express forfeiture provision in the lease and that it is outside the sphere of statutory protections given against the enforcing of a forfeiture. The balance of authority supports the first aspect of the decision. This article focuses on the second aspect of it, which is a significant development in the law of leases. The article considers the implications of this decision for essential terms of clauses in leases, argues that common law termination for breach of essential terms should be subject to compliance with these statutory requirements and, as an alternative, suggests a way forward through appropriate law reform, considering whether the recent Victorian reform goes far enough.

Enabling sustainable property practices by ensuring security of tenure

Sustainable property practices will be essential for Australia’s future. The various levels of government offer incentives aimed at encouraging residents to participate in sustainable practices. Many of these programmes however are only accessible by owner occupiers, or landlords and tenants with long term tenancies. Improving security of tenure for tenants, to enable longer term tenancies, would positively impact upon property practices. This article explains what security of tenure is and identifies how a lack of security of tenure adversely impacts property practices. By comparison with Genevan property practices, it concludes by making suggestions as to how security of tenure can be reinforced.

A comparison of security of tenure in Queensland and in Western Europe

Queensland residential tenancies are usually granted for up to 12 months with no guarantee of renewal. On expiration of the term, the landlord, without need to provide an explanation, can require the tenant to leave. Europeans find this unusual. As Hammar observes, to ‘never be sure whether ... you will be allowed to stay for another year ... is ok for a student, or for someone working ... but not for households’. This article informs Queensland policy makers and industry about European practices and concludes by proposing legislative amendments to realise the tenant’s security of tenure.

Commercial developments in airport precincts : lease and valuation issues : preliminary study

Over the past 30 years the nature of airport precincts has changed significantly from purely aviation services to a full range of retail, commercial, industrial and other non aviation uses. Most major airports in Australia are owned and operated by the private sector but are subject to long term head leases to the Federal Government, with subsequent sub leases in place to users of the land. The lease term available for both aviation and non aviation tenants is subject to the head lease term and in a number of Australian airport locations, these head leases are now two-thirds through their initial 50 year lease term and this is raising a number of issues from a valuation and ongoing development perspective. . For our airport precincts to continue to offer levels of infrastructure and services that are comparable or better than many commercial centres in the same location, policy makers need to understand the impact the uncertainty that exists when the current lease term is nearing expiration, especially in relation to the renewed lease term and rental payments. This paper reviews the changes in airport precinct ownership, management and development in Australia and highlights the valuation and rental assessment issues that are currently facing this property sector.

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.