How to Ensure That the Transfer Goes Ahead

Two property owners who share ground ownership are said to be in a joint tenancy. This type of ownership gives tenants complete rights of survivorship and is typically applied to married couples. Owners have a union of interest, a unity of title, a unity of possession, and a unity of time under a joint tenancy. Therefore, the Abbotts have the authority to give Mr. Abbott the property because they are joint owners. They can end the joint tenancy by consent once the property has been properly transferred to him. When they do, Mr. Abbott will have legal ownership of the property. The lawful ownership under the fee simple grants Mr Abbott the exclusive privileges

over the tenement. He becomes the one with the right to decide who can own an interest in their land. In this case, once Mr Abbott has ownership of the property, he is free to engage the Bosun Energy firm in the exploration of energy in his land.

However, there seems to be a challenge with regards to encroachment on public land. The facts of the case study is that the Abbotts built a large deck (which means it was visible to all, including the Walfield City Council authorities) extending into the City Council’s land. As a result, they had encroached into public property. It could be the reason why the Form 1 had been requisitioned requiring information about the boundary between the Abbotts and the parkland. However, it will be noted that the deck had been openly and continuously used for five years without any opposition from the City Council. As such, the City allowed the Abbotts to use the land, albeit without actually stating so (Fitzpatrick & McWilliam, 2016).

In order for the transfer to go on, the Abbotts have different remedies. Firstly, the Abbotts may remedy themselves by engaging the City Council, so that they can be issued with a written consent to continue using the tenement. Secondly, they may purchase the part of the land, which they have been using, so that it becomes permanently owned by them (the Abbotts). Thirdly, since there was actual possession of the public property (the land had been in use for five years), and the use had been without permission, the lawyer may petition for a prescriptive easement by the Abbotts. The claim for adverse possession must be applied in full as in Sherrard (2003).

Actions which Might Be Taken by the Registrar of Titles and Council

Actions that may be taken by the Registrar of Titles and Council include suing the Abbotts for encroachment. However, they will have to prove a few things. They have to provide evidence that the land legally and factually belongs to them. Secondly, they should demonstrate that the Abbotts used the land improperly. In suing the Abbotts, the Registrar of Titles and Council will need to give a valid reason why no action had been taken in the past remedy the situation. In a case where the court finds that the Abbotts have a case to answer, the Registrar may have among other remedies the right to be awarded for damages. It may also possess the right to have the court order for demolition of the said deck which had extended into its boundary. Demolition of the deck may be ordered at the discretion of the court like in the case of Felard Investments Ltd. (1979).

Another action that may remedy the situation is a mutual agreement with the Abbotts to allow them to continue using the land, but with a written consent. On the other hand, if they are willing, they may sell the property to the Abbotts, so that they (the Abbotts) may have sole rights over the land. Suing the Abbotts should be a last resort, since the use of the land had been open for 5 years. As such the Abbotts had acquired a right to apply for the adverse possession. The burden of proof, if the Registrar of Titles and Council sued, would be upon them (Tagliarino, 2016).

Will the Transfer Affect Bosun Energy’s Right to Explore Land?

Yes, the transfer will affect the exploration of land by Bosun Energy. It is so because the right to explore had been given to them by the Abbott’s by virtue of their joint tenancy. Transfer of land will revoke the joint tenancy of the property and grant Mr Abbott exclusive rights over it. As such, it is the prerogative for Mr Abbott to issue authority to the energy firm to continue exploring the land. A new agreement will have to be approved by the two new parties: Mr Abbott and Bosun Energy. The initial one between the Abbotts and Bosun Energy will have to be cancelled. Since the transfer of land will be by fee simple, Mrs Abbott will no longer have rights over the land.

However, Mr Abbott may include in his will the way he would like the succession of the land to be on his death. Sole proprietorship of the tenement makes Mr Abbott the sole owner of the land in his life, and the latter assumes the legal succession rights when he dies (Dukeminier & Sitkoff, 2017). However, in its exploration, there should be full disclosure of the issues that have arisen with reference to the encroachment claims. The energy firm may need to wait for the court to make a ruling, before they can proceed with the exploration.

References

Dukeminier, J., & Sitkoff, R. H. (2017). Wills, trusts, and estates. Wolters Kluwer Law & Business.

Felard Investment Ltd. v. Trustees of the Church of Our Lady &c., 1979 J. J. 19.

Fitzpatrick, D., & McWilliam, A. (2016). Property and social resilience in times of conflict: land, custom and law in East Timor. Routledge.

Tagliarino, N. K. (2016). Encroaching on land and livelihoods: How national expropriation laws measure up against international standards. World Resources Institute: Washington, DC, USA.

Sherrard & Ors v. Registrar of Titles & Anor [2003] QSC 352. Retrieved on September 06, 2017 from http://archive.sclqld.org.au/qjudgment/2003/QSC03-352.pdf