Understanding Land Tenure in Queensland

Presented by: Greg Short Understanding Land Tenure in Queensland Presentation Overview

• Basic Definitions

• The Legislation we operate under

• Non Freehold tenure

• Unallocated State Land – Lease Types

• Non-Freehold – Term Leases

• Other ways to occupy State Land

• Freehold Tenure

• Secondary Interests: Lease, Profit á Prendre, Covenant, Easements, Other Secondary Interests

• Conclusion (Reference guides)

www.bennettandbennett.com.au Definitions

Tenure: The legal right to live in a particular building or to use a particular piece of land during a fixed period of time (Collins English Dictionary).

Land Tenure: Is the means of identifying who has the right to use and occupy land in accordance with the varying degrees of ownership (Land Title Practice Manual).

Freehold Land: Is where land has been alienated from the State and the ownership rests with the individual owner for an estate in fee simple. (Land Title Practice Manual)

Non-Freehold Land: Is the land that has not been freeholded in Queensland including land below HWM (Land Title Practice Manual).

Leasehold: The holding of a property by lease (Google Dictionary).

www.bennettandbennett.com.au The Main Legislation Dealing with Tenure in Queensland

The Land Act 1994

• The general object of this Act is to manage all state land for the benefit of the people of Queensland having regard to the principles of Sustainability, Evaluation, Development, Community Purpose, Protection, Consultation and Administration. The Land Act applies to all land, including land below HWM. Although the Land Act generally applies to non-freehold land, most freehold land contains a reservation to the state for minerals. To that extent the Land Act applies to all land.

The Land Title Act 1994 The object of this act is to consolidate and reform the law about the registration of freehold land and interests in freehold land.

www.bennettandbennett.com.au Non Freehold Land Tenure

• Reserves

• Road

• Unallocated State land

www.bennettandbennett.com.au Example of a State Tenure Search

www.bennettandbennett.com.au Unallocated State Land – Lease Types

• Term Leases

• Perpetual Leases

• Freeholding Leases

www.bennettandbennett.com.au Non Freehold – Term Leases

• Term Lease - What is a Term Lease - General timeframe of Term Leases - Rolling Term Lease

• Special Lease

• Development Lease

• Examples of Term Leases

www.bennettandbennett.com.au Other Ways to Occupy State Land

• Permit to occupy: - what is a Permit to Occupy? - specific purpose - minor/temporary matters

• Road Licence - what is a Road License

• Occupation Licence - what is an Occupation License

www.bennettandbennett.com.au Freehold Tenure

• Freehold Land

• Deed of Grant (Crown Rights reserved)

• Freehold Land Register

• Certificate of Title

www.bennettandbennett.com.au Freehold Tenure (Title Search)

www.bennettandbennett.com.au Secondary Interest - Freehold Lease

• What is a Freehold Lease?

• Lease over 3 years must be registered

• Lease Terms and Conditions - Limited to certain hours or days

• ROL Approval for lease of land < 10 years

• Lease can commence at a future date

• Council consent for a lease of part of a lot in a BUP or GTP

• Subleases

• Examples of Typical Leases

www.bennettandbennett.com.au Lease Document

www.bennettandbennett.com.au Lease Plan

www.bennettandbennett.com.au Secondary Interest - Profit á Prendre

• What is a Profit á Prendre?

• Profit á Prendre must have a term

• Examples of a Profit á Prendre

www.bennettandbennett.com.au Profit a Prendre Document

www.bennettandbennett.com.au Profit a Prendre - SP120516

www.bennettandbennett.com.au Secondary Interest - Covenant

• What is a Covenant?

• Covenants can be positive or restrictive

• Covenants are in favour of Statutory Entities

• Types of Covenants - Related to the use of a lot or building - Preserving native animals or plants, natural or physical feature - Ensuring lots are transferred together

• Example of a Covenant

www.bennettandbennett.com.au Covenant Document

www.bennettandbennett.com.au Covenant - SP269381 & SP254941

www.bennettandbennett.com.au Secondary Interest - Easement

• What is an Easement?

• Easements must be of a positive nature

• Easements generally are in favour of benefitted land

• Easements in Gross

• Types of Easements

• ROL requirement for Access Easements

• Easements cannot be created over public road

• Easements can be created over public parks or Reserves

www.bennettandbennett.com.au Easement Document

www.bennettandbennett.com.au Easement Plans - SP299536 & SP291080

www.bennettandbennett.com.au Public Utility Easements

• What is a Public Utility Easement?

• Types of Public Utility Easements

• Restrictions on ‘Right of Way’ Public Utility Easements

• Public Thoroughfare Easements

www.bennettandbennett.com.au Public Utility Easement – Easement in Gross

www.bennettandbennett.com.au Public Utility Easements - SP299531 & SP299566

www.bennettandbennett.com.au High Density Development Easements

• What is a High Density Development Easement?

• Maximum Lot Size 300m2

• No Body Corporate required for Terrace Housing

• HDD Easements do not provide for the sharing of services

www.bennettandbennett.com.au High Density Development Easement Document

www.bennettandbennett.com.au High Density Development Easement - SP256849

www.bennettandbennett.com.au High Density Development Easement - SP256849

www.bennettandbennett.com.au Certificate of Title showing HDD Easements

www.bennettandbennett.com.au Secondary Interest – Other Interests

• Caveat

• Mortgage

• Carbon Abatement

• Writ of Execution

• Building Management Statement

• Community Management Statement

www.bennettandbennett.com.au Conclusion

• Relevant Documents:

- A guide to Land Tenure Under the Land Act 1994

- Land Title Practice Manual (Queensland)

www.bennettandbennett.com.au Let’s talk soon…

Greg Short Director

Email: [email protected] Phone: (07) 5631 8000 www.bennettandbennett.com.au