5/11/2014 9:44 AM

Texts Edgeworth et al, Sackville & Neave Australian Property Law 9th ed 2013. Transfer of Land Act 1958 (Vic) Property Law Act 1958 (Vic) Residential Tenancies Act 1997 (Vic)

Real Property Law: Whats It All About?

I own a house, but then something occurs which, under the laws rules, means that you now have a right to live in it. That something might be that I make a contract with you to this effect, or I give you a share in ownership, or that we fall in love and decide to live together and pay off the mortgage together, or various other significant happenings. Then I sell the house to John. Two possibilities: Your right can not affect John Your right potentially affects John

Real Property real has to do with land, land Property rights and proprietary rights and remedies

Property rights are rights that potentially affect John Did John know about the right? enforceability of property law against people varies depending on circumstancesother interests that dont involve possession

Real Property Law Whats it all about?

1. How are these property rights created or acquired?2. What type of rights are recognised as property rights?3. How are disputes between competing or inconsistent property rights resolved?

Lecture two The Torrens System of Land Registration

Registration tries to address a problem part of nature of land is that many people can have a claim to a land

Chain of Title one broken link could produce problems to the current vendor. A purchasers rights is only as good as the rights of the vendor and the rights of the vendor is only as good as the person who sold it to the vendor and so forth. General law conveyancing problem that arose - equitable interests such as those of a beneficiary of trust didnt show up could still effect the purchaser had she/he would have known about it had they acquired.

Background The Torrens system (general law conveyancing) addresses two risks faced by the purchaser: Is the vendor entitled to sell me what he purports to be selling me? If not, I dont get what I think Im getting - nemo dat principle Are there existing interests in the land that I dont know about but which may affect me if I dont go to the effort of making proper inquiries? Facilitated the transfer of landThe Torrens system developed in response to Australian societys need for a system of conveyancing which facilitated the transfer of interests in land. was introduced in Victoria 152 years agoNote: a small percentage of land in Victoria still has not been brought under the Torrens system. This land is referred to as general law land.Land that was alienated by the crown before the introduction of the Torrens system didnt become a part of the Torrens system consult part 2 of the TLA (Vic)

The Act governing the operation of the Torrens System in Victoria is the Transfer of Land Act 1958 (Vic) (TLA) Administered by Department of Planning, Transport and Local Infrastructure Terms used in TLA are defined in TLA s 4: Always refer to definitions land includes any estate or interest in land proprietor means any person seized or possessed of or entitled to any estate or interest in land registered proprietor means any person appearing by the Register or by any registered instrument to be the proprietor of any estate or interest in land

The Torrens system in outline

TLA Part III provides for establishment and maintenance of a central land register.

The register is divided into folios

Each fee simple estate gets its own folio in the register.

Each folio contains: A description of the parcel of land in which the estate is held; A description of the holder for the time being of the estate; Particulars of other interests (if any) affecting the estate; Other information (if any) that relates to the estate and is required by TLA or any other Act to be recorded on the folio.

Each folio is allocated a distinctive identifying reference (e.g. Volume 1324 Folio 657). On the creation of a folio of the register, the Registrar also produces a certificate of title for that folio and delivers it to the person entitled to it.

The certificate of title is a paper copy of the information contained in the folio on the date of production of the certificate of title.

Possession of the certificate of title is often crucial for registering a dealing in the land usually, the Registrar will not record a land dealing on a folio of the register unless the certificate of title for that folio is lodged along with the instrument effecting the dealing. Every time a new transaction is recorded on a folio of the register, the old certificate of title is destroyed and a new certificate of title is produced top reflect the updated information.

TLA Part IV deals with registration of land dealings TLA s 45 (1) A registered proprietor may transfer his estate or interest in land by an instrument in an appropriate approved form (2) Upon the registration of the transfer the estate or interest of the proprietor as set out in such instrumentwith all rights powers and privileges thereto belonging or appertaining, shall pass to the transferee; and such transferee shall thereupon become the registered proprietor thereof. TLA ss 66 & 71 registration of lease & sublease (will be considered in topic 6) TLA s 74 registration of mortgage (will be considered in topic 7) TLA s 72 recording of easement (will be considered in topic 8)

Indefeasible = cannot be defeated Purchaser offered a positive and negative guarantee as to their title Once registered, an innocent purchaser: gets good title despite irregularities in the transaction (positive guarantee) has title unencumbered by older un-registered interests (negative guarantee) gets priority over subsequent registered interests attached to the same estate

The Positive Guarantee The Torrens system of registered title of which the Act is a form is not a system of registration of title but a system of title by registration. That which the certificate of title describes is not the title which the registered proprietor formerly had, or which but for registration would have had. The title it certifies is not historical or derivative. It is the title which registration itself has vested in the proprietor. Consequently, a registration which results from a void instrument is effective according to the terms of the registration. It matters not what the cause or reason for which the instrument is void.Breskvar v Wall [1971] HCA 70 per Barwick CJ

- As long as B is unaware of what C is up to, B has perfectly good title

The Negative GuaranteeSection 42 TLA(1) Notwithstanding the existence in any other person of any estate or interest (whether derived by grant from Her Majesty or otherwise) which but for this Act might be held to be paramount or to have priority, the registered proprietor of land shall, except in case of fraud, hold such land subject to such encumbrances as are recorded on the relevant folio of the Register but absolutely free from all other encumbrances whatsoever, except

Section 42 TLA cont(2)Notwithstanding anything in the foregoing the land which is included in any folio of the Register or registered instrument shall be subject to(a)the reservations exceptions conditions and powers (if any) contained in the Crown grant of the land;(b)any rights subsisting under any adverse possession of the land;(c)any public rights of way;(d)any easements howsoever acquired subsisting over or upon or affecting the land;(e)the interest (but excluding any option to purchase) of a tenant in possession of the land;(f)any unpaid land tax, and also any unpaid rates and other charges notwithstanding the same respectively are not specially recorded as encumbrances on the relevant folio of the Register.

Section 43 TLAExcept in the case of fraud no person dealing with the registered proprietor shall be required to ascertain the circumstances underwhich such proprietor or any previous proprietorwas registeredor shall be affected by notice actual or constructive of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding; and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud.

Limitsinnocent purchaser =they must be innocent + they must be a purchaserTLA s 42(2)Other limits and exceptions explored in Topic 11

REAL PROPERTY LAW NOTES5/11/2014 9:44 AM

Lecture Three: The Creation of Legal Property Interests: The Effect of Contracts

Property Creating Events can be events quality of intention behind the transaction is highlighted and relatively certain sometimes these events can be messy and uncertain Will either be legal or equitable property law refer to foundations of property law you might want to grade them by strengthLegal interests are more well protected than equitable interests which are more likely to disappear when land exchanges Rights can also be created in an informal way in circumstances where one or more parties only have a vague idea that property rights are being created (lawyers arent involved)

Formal, organised equitable interest land formation Legal interests is generally prospective easements of adverse possession Look at equitable interests With equitable interests more likely to me informal - resulting trusts, constructive trusts and estoppel

contract is convenient locks people in contract in advance contract is not always a part

all land, s52 general law land or Torrens lands s18 definitions

registration of that interest that confers the interest on the person who is registered as the proprietor

Lecture Four: The Creation of Equitable Property Interests the effect of contracts Broadly speaking (except adverse possession and easements etc.) generally equitable interests

Read up on this case more question of availability of specific performance

Lecture Four: The Creation of Equitable Property Interests Trusts

Formalities Property Law Act

Section 53 (1)(b)a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will;(c) a disposition of an equitable interest or trust subsisting at the time of the disposition must be in writing signed by the person disposing of the same, or by his agent thereunto lawfully authorized in writing or by will.

Section 53(2)This section shall not affect the creation or operation of resulting, implied or constructive trusts.

Trusts can be formed in an organised/formal way or a disorganised wayExpress trust formal creation of trustTrust someone has a property right and is required by equity to use it for the benefit of another person Land someone has legal title but must use it for the benefit of someone else (beneficiary)S53 legal or equitable interests, it adds no additional requirements as per s51, it lays out formalities writing s52 exceptions to which the formalities wont apply - resulting and constructive trusts are exceptions s53(2)

There is a relationship register in Victoria Victorian Relationship Act 2010

Main example of a resulting trust when one person pays for a property however the property is registered in someone elses name, unless it was a clear gift. So the legal owner becomes a trustee If it is only part of the money, in equity, you guys would be co-owners depending on contributions.

Examine intentions of all the contributors to the purchase price to rebut the presumption. Subsequent intentions/actions/declaration of intentions (treated cautiously unless they are against intention could be self-serving) examined evidentiary matter Equity assumes gift giving doesnt happen unless there evidence. However it has evolved and now considers it natural presumption of advancement family situation. So in this situation, equity starts with the presumption that a gift is being made.

Displaces the presumption of resulting trust that arises in other contexts. Presumption of advancement can be rebutted by evidence of actual contrary intention Limited by gender

Cummins the fact that the couple were married, registered as 50/50 joint proprietors, the fact that this was their matrimonial home it rebuts the presumption that Mrs C holds 75% not equitable interest look at circumstances as well

Constructive trust arises independently of express written formalities Equitys main concern unconscionability Imposing trustee status on someone who didnt expect or want it

Tutorial One S53 of the PLA & s126 of the IA requirement of having things in writing, s126 of the IA (contracts for land), s53 of the pLA (conveying interests in land)Look at the conduct separately then consider the validity of a possible contract

Torrens System Registered interests in land & equitable (non registered) interests in land SO if you dont have a legal interest see if you have an equitable interest in 5/11/2014 9:44 AM

Lecture Five: Creation of Equitable Property Interests - Trusts

You have to establish detriment reliance Detriment should be something someone would not have done but for the benefit of the contract Allan v Snyder Common intention behaviour that is considered by the court is quite limitedReliance financial contribution is clearly a detriment, looking for something more that a partner would be expected to do at any case Requirement of common intention can be problematic may have never been discussed if a r/s does end, a re-distribution of assets might be needed, however the court cannot just impute intention so a constructive trust may be created Dodds

Muschinsk v Dodds Baumartner v Baumartner 5/11/2014 9:44 AM

Lecture: Creation of Equitable Property Interests Estoppel

Raising the equity of estoppel for this subject a successful claim of estoppel is a mere equity, not a full equitable interest (as someone would have under a trust). It could give rise to a proprietary right. property owners allow people to act to their detriment while labouring under the belief that they will have a right to a certain property a false assumption about their future property rights detrimental reliance could be a positive reaction or a failure to act (you could have lost opportunities)

could give the value of the promise in money (expectation relief like contract law), relief could be reliance based would be reliance based - aware easement etc. look at the difference between expectation relief and reliance based relief

each doctrine leads to different remedies and each doctrine has different kind of unconscionable behaviour Look at the equitable doctrines themselves and they are all distinctively different Part performance agreement is a considerably hard test to meet might have to look at common intention constructive trusts

once youve identified your common intention, that tells you your remedy estoppel Giumelli most common way of protecting the relying party is to vindicate their reliance not always the case though, Estoppel has various remedies

Not all equitable interests are created equal

Lecture: Leasehold Estates

uncertain duration freehold estate fee simple unlimited duration

Lease is capable of being dealt with as its own right, the same can be said of the property interest that is retained by the leaser payment of rent is not a necessary requirement length of a lease has to be defined at the outset

exclusive possession lies at the heart of a lease problem is it is not always easy to determine if someone has been granted exclusive possession what really counts is the substance of an agreement, not just the label that people give to it. Right of exclusive possession right to exclude all other people including the person who granted the right

it doesnt matter if the terms of the lease provides for earlier possible termination dates MAXIMUM DURATION must be known

what is unknown is when the lease may be terminated what is the period of the periodic lease? Whatever the lessor or lessee intended it to be

can be bought to the end at any time without notice the tenant will be entitled to a reasonable amount of time to vacate the premises based on a few factorstenancy at will does not survive the death of a tenant as far as the common law is concerned it could exist indefinitely, however s13 of the LLA it expires after 12 months

tenancy at sufferance ends when a landlord kicks them out or tenant leaves

leasehold of land can be registered on the Torrens system land is to be read widely in the act, as is any interest in land

No contract between L and A, however there is a privity of estate Reversion commonly called landlords right present right to future possession once the lease expires property interest rights

Principles governing termination of contracts look at contracts notesForfeiture pursuant to forfeiture clause in lease s67(a) TLA implies a forfeiture clause into registered leases in the absence of contrary provision S112 TLA provides that statutory implied terms can be varied by expressed terms in practice, landlords include express terms that are even more favourable to them

Gummland case

s216 Tutorial Seminar Question 1Gifts of Land Is it registered and complete in equity look at this you focused too much on trusts and stuff Interpretation of C v P make sure it correct focus that on if the transferor has ensured that the donee is in a position to fulfil the transfer without help form the doner In this situation, it is unclear what Es duties are as he is both clients lawyers if Es was just Sids lawyer, it would be differentIt is possible to have an equitable gift to have been made without being registered for a long time Make sure you look at the equitable title do not focus on trusts

Seminar Q 2Do specific calculations/percentages for contribution etc. Purchase money resulting trust? Registration of a sale where the person who has registered didnt pay the wholesale price look at intentions, examine the situation 2 presumptions presumption of advancement (established relationships, assumed gift, de facto no relationship) and what counts as a contribution of purchase price time of purchasing how much will parties contribute at the time, taking on liability from the bank etc. Mortgage repayments are not relevant.

Categorising different types of property interests Substantive different types of land in relation to land example, if you have a lease, if you have an estate, if you own property, easement, mortgage etc. Strength Legal or Equitable interests could be legal or equitable if it is registered or not different levels of strength Creation non-consensual (last sem: adverse possession) consensual interests register of transfer (legal),contract (only equitable, it can be for a lease etc. Bunnings case) s126 writing requirements for contract itselfPart performance PMRT purchase money resulting in trust Intention (common intention constructive trust) equitable s53(3) PLAJoint venture constructive trust equitable s53(3) PLAEstoppel interest is less clear, court will have to find a remedy for your reliance and analyse intentions you still get a mere equity s53(3) PLA

There may be exceptions for s53(3) 5/11/2014 9:44 AM

Mortgages:

The Role of Security interests

SI

Some terminologyLender / BorrowerCreditor / DebtorMortgagee / Mortgagor

Advantages of secured creditAcquisition v Non-Acquisition financeMultiple mortgages

The Torrens Mortgage

Creation and nature of mortgages and charges

(1) The registered proprietor of any land (a) may mortgage it by instrument of mortgage in an appropriate approved form; (b) may charge it with the payment of an annuity by instrument of charge in an appropriate approved form. (2) Any such mortgage or charge shall when registered have effect as a security and be an interest in land, but shall not operate as a transfer of the land thereby mortgaged or charged. -TLA, s 74

giving mortgager a distinct interest in land, definitely not transferring the fee simple land right the borrower remains the registered proprietor of the respective land interest granted is a non-possessory legal interest

Mortgage Terms

Covenants concerned with the repayment of the debt (note also TLA s 84)

Covenants designed to preserve the mortgaged property (note also TLA s 66)

Covenants providing remedies for the mortgagee if default occurs. Note operation of TLA s 75 and National Credit Code

Remedies of the Registered Mortgagee Personal action to recover debt Entry into possession (not considered in this subject) Appointing a receiver (not considered in this subject) Foreclosure (not considered in this subject) Power of sale

The Registered Mortgagees Power of Sale

Preconditions for exercise of power Default in payment of the principal or interest or in the performance of any other covenant in the mortgage. Default continues for one month or, if some other period is expressly specified in the mortgage contract, the default has continued for the specified period. After expiration of the month or other specified period, the mortgagee has serve on the mortgagor notice in writing to pay the money owing or to perform and observe the covenant. One month (or some other period expressly specified in the mortgage) has passed after the service of the notice, and the notice has not been complied with.

Mortgagees Duty

Really important to keep in mind that the torrens system in different states use different things to specify the mortgagees duty so other cases wont be relevant respective to Victorias mortgagees duties Ss77(1) two duties duty to act in good faith + to have regard to the interests of the mortgagor

Look at these cases carefully Reasonable steps Justice Lush (sp?) Goldcel Nominees v Network Finance look at what the mortgagee must do to satisfy the requirements as per s77(1)

Effect of the power sale

TLA section 77(4): Upon the registration of any transfer under this section all the estate and interest of the mortgagor or grantor of the annuity as registered proprietor of the land mortgaged or charged shall vest in the purchaser as proprietor by transfer, freed and discharged from all liability on account of such mortgage or charge and (except where such a mortgagor or grantor is the purchaser) of any mortgage charge or encumbrance recorded in the Register subsequent thereto except

(a)a lease easement or restrictive covenant to which the mortgagee or annuitant has consented in writing or to which he is a party; or and the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorize the sale or that due notice was not given or that the power was otherwise improperly or irregularly exercised

Q: what would be the situation where the power of sale has been improperly exercised and the purchaser is yet to register their title?

Unregistered mortgages of Torrens land

A specifically enforceable contract to enter into a legal mortgage equitable mortgageLook up equitable mortgage Remedies available for equitable mortgage are different Especially note mortgage by deposit of certificate of title

Tutorial : Mortgages

1. Is it a mortgage? Obligation to pay right to sell the land if they dont pay interest is secured to the landannuity in terms of gift, talked about in the TLA where you have an obligation to pay someone money if you dont pay them they can sell your land. So an interest tied to land. Not common now

2. Types of mortgage Legal mortgage registered Equitable mortgage unregistered it has to be enforceable in equity, specific performance (contract in writing) or part performance usually has to be mortgagor (so unlikely)

3. obligations & rights repayment of mortgage

4. breach of obligation failure to pay

5. Remedy (most important) source of remedy power of sale TLA s77 sale (first notice s76 + 77 if you completely mistake WHAT they owe (so interest instead of payment) can render the notice invalid, however accidentally misstating the owed amount on the notice does not render the notice invalid) foreclosure equitable mortgage look at contract for remedy

All obligation mortgage Traditional mortgage when registering the mortgage it states the specific amount5/11/2014 9:44 AMAll obligation mortgage when registering the mortgage it states that it secures - All monies and obligations (including potential future re-mortgaging etc.)

Easements & Profits a Prendre Right to use land not an interest in estate etc.

Essential characteristics of an easementThere must be a dominant and servient tenementThe easement must accommodate the dominant tenementThe dominant and servient tenements must not be owned and occupied by the same personThe alleged easement must be capable of being the subject matter of a grant

The easement must accommodate the dominant tenement

Capable of being the subject matter of a grantGrant must not be expressed in terms of too wide and vague a characterRights given must not amount to grant of exclusive possession or right of joint occupation or exclusive use (see Ryan v Sutherland)Rights given must not constitute mere rights of recreation, possessing no quality of utility or benefit

Creating EasementsStatuteExpress grant or reservationImplied grant or reservation (not considered in this unit)Prescription goes to creation issue, not content issue Registering/recording easements on the Torrens register

Creating Easements: PrescriptionUse as of rightopen, not secretpeaceful, not forciblewithout permission, but with acquiescence

Continuous use (depends on the easement claim) for 20 years at lease Each party must hold land in fee simpleNot applicable to easements of air and light (PLA ss 195 & 196)

Creating Easements: the Torrens registerTransfer of Land Act s 45(1) A registered proprietor may transfer his estate or interest in land by an instrument in an appropriate approved form.(2) Upon the registration of the transfer the estate or interest of the proprietor shall pass to the transferee; and such transferee shall thereupon become the registered proprietor thereof.

Transfer of Land Act s 72(1) A folio of the Register may contain a recording to the effect that the land therein described is subject to or has appurtenant thereto an easement.(2) Upon application in an appropriate approved form the Registrar shall on the relevant folio of the Register make a recording of any easement over or upon or appurtenant to any land under this Act which the Registrar is satisfied has been created by any instrument deed or other written document or recognized by an order of any court or award of an arbitrator.

Transfer of Land Act s 42(2)Notwithstanding anything in the foregoing the land which is included in any folio of the Register or registered instrument shall be subject to - (d) any easement howsoever acquired subsisting over or upon or affecting the land

Extinguishments of easementsBy abandonmentBy express release: I dont want this anymoreBy dominant and servient tenement becoming owned and occupied by the same personBy statute specialised legislation dont sweat this not really on exam

Transfer of Land Act s 73A registered proprietor may make application in an appropriate approved form to the Registrar for the deletion from the Register of any easement in whole or in part where it has been abandoned or extinguished.(3) Where it is proved to the satisfaction of the Registrar that any such easement has not been used or enjoyed for a period of not less than 30 years, such proof shall constitute sufficient evidence that such easement has been abandoned. Profits a prendre A right to enter another persons land and take from it part of its soil, minerals, natural produce or wild animals (such as game) May be an exclusive or a shared rightCan exist in gross or be appurtenant so does not have to do anything with nearby land like easementMay be granted in perpetuity or for a limited time

holder of a profit a prendre doesnt have possession of the thing until they take it they just have a right to enter and take can be extinguished by abandonment look at extinguishment closely

Indefeasibility of Title

enforceability against third parties (against people who werent party to their creation)

registration of every instrument does not necessarily give it better right or interest doesnt mean that it becomes indefeasible

- where does torrens indefeasibility kick in?

preference is not necessarily given to earlier registered interests look at the relevant exceptions to indefeasibility

fact that they are reordered on the relevant folio means that the registered holder is prevented from defeating them by claiming on his or her indefeasible title however a new registered interest holder can claim indefeasible title by claiming there was a defect with the recording not many interests that can be recorded

Tutorial Four Leases

1. Is there a lease(s)? (a)Substance?Exclusive possession Radaich Duration(b)Type of lease legal/equitable issue may arise when third parties are involvedRegistered legal (s66) 3 years +Legal unregistered lease (s52) deed or by s54 (oral lease)Equitable leases (Walsh v Lonsdale s126 requires a legal contract) or part performance (oral and longer than 3 years, have rent or possession etc. look at the circumstances)Gratuitous lease rent isnt a requirement for a thing to be a lease could be registered or created by deed could not be established by part performance (c) Between who?Assignment Subleases examine elements in contract Who has privity of contract or privity of estate etc.?

2. Rights and Duties (Think of how all of these interact with each other) Common lawContract (can override s144 + 147, however a contract cannot override s146) Potentially a deedStatute Transfer of land act TLA s67 (rights and obligations)PLA s144 not unreasonably withholding consent to sublease or assignmentS146 how you give notice for a breachResidential tenancies act RTA

3. Breach

4. Remedies

Forfeiture Requires a right to forfeiture + contractual right ORS67 of the TLA (transfer of land act)

Limits on the exerciseRent (not s146) procedure requires a demand (formal) TLA s67 no formal demand, although you need to wait a month s79 of the Supreme Court Act Non-rent s146 send them a notice specifying the breach + demand the remedy + give them a reasonable time limit (at lease 2 weeks)

Relief against forfeiture Repudiation Why would you claim for repudiation in opposed to forfeiture S146 now applies to repudiation Benefit b/c it is a contractual claim- damages + forfeiture

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Indefeasibility of Title Part 2

Fraud & Indefeasibility

What amounts to fraud? Fraud means actual fraud, i.e. dishonesty of some sort Actual knowledge of dishonesty = fraud Wilful blindness towards dishonesty = fraud The mere fact that [the registered proprietor] might have found out fraud if he had been more vigilant, and had made further inquiries which he omitted to make, does not of itself prove fraud on his part. But if it be shewn that his suspicions were aroused, and that he abstained from making inquiries for fear of learning the truth the case is very different, and fraud may be properly ascribed to him. (Assets Co v Mere Roihi).

Whose fraud? Fraud must be brought home to the registered interest holder whose title is being impugned (Assets Co v Mere Roihi) Fraud of an agent will be brought home to the principal where the fraud is committed by the agent while acting within the scope of agents actual or apparent authority. Where the fraud of the agent is in furtherance of his own interests and runs counter to the interests of the principal, that fraud wont be brought home to the principal (Schultz v Corwill Properties Pty Ltd).

Russo v Bendigo Bank Ltd Law clerk employed by banks solicitor attested mortgagors signature though she hadnt seen the mortgage instrument being signed. Law clerk was too inexperienced to understand that attestation was more than a mere formality but rather a vital step in process of putting the mortgage on the path to registration. No fraud by law clerk because no personal dishonesty on her part Solicitor did not have knowledge of forged signature or false attestation No fraud by solicitor because no personal dishonesty on his part

Grgic v ANZ Grgic jnr had someone impersonate his father, Grgic snr, and had that person execute a mortgage document over Grgic snrs property Bank managers assistant signed as witness, certifying that the mortgagor was personally known to him. Managers assistant less than meticulous but no evidence of fraud

TLA s 43 Except in the case of fraud no person contracting or dealing with or taking or proposing to take a transfer from the registered proprietor of any land shall be required or in any manner concerned to inquire or ascertain the circumstances under or the consideration for which such proprietor or any previous proprietor thereof was registered or shall be affected by notice actual or constructive of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding; and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud.

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Indefeasibility of Title Cont.

Personal obligations may arise from the conduct of the registered interest holder or the conduct of his/her agent

Contract clause designed to do more, its purpose was to say that the Thompsons took their rights subject to the Bahrs equitable interest arising from the earlier contract

++++

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Conflicts between Unregistered Interests

Lodging a caveat over property is a useful tool for preventing the party which is registered on the title of that property from dealing with the property in a way adverse to your own interests.

A party who believes they have some interest in the owner's land, but who does not have a registered interest, may wish to lodge a caveat. It is a fact of the Torrens System that registration of a new interest in land generally trumps all prior unregistered interests. Therefore caveats are used so that a party which holds an unregistered interest is notified of the intention to register a new interest, so that they have a chance to take action before their unregistered interest is extinguished.

Caveats are registered on title to the property so that any potential purchaser who checks the certificate of title to that property is informed that another party has an interest in that property. The Titles Office will not give effect to any dealing with that property without first notifying the caveat holder.

In order to lodge a caveat over a property, you must have a 'caveatable interest'. A caveatable interests requires a recognised interest in land, and must be lodged in the correct form with the Registrar of the relevant Titles Office in a given jurisdiction.

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Co-ownership of Interests in Land

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Co-ownershipHow to distinguish b/w JT + CT Look at legal and equitable ownershipLegal should be in the title JT (unless it is not equal on the registrar which is rare) Joint Tenancy Equitable two stages Creation four unities (you might have a JT, which may be contradicted by intention) possession, interest, time, title 1. JT generally follows law 2. Malayan credit case three exceptions to have a JT in equity Resulting trust Mortgagees always TC sort of in business Partnership In business you can infer or assume that the parties did not assume survivorship to apply Severance By transfer go to previous topics on transfer in equity etc. Transfer of leaser interest? Does a creation of a lease sever a JT? It does notit puts it on hold suspends the JT whether its one party that has leased their share or both parties leasing the joint fee simple Frieze v UngerIf it had been mortgaged? Lyons v Lyons it does not sever it, so if one of the JTenants dies, the mortgage ceases to exist and it survives same as for easements Co-ownership relationshipRentLicense co-tenant can revoke it in English common law ContributionTermination 5/11/2014 9:44 AM

Rent Contribution Termination Co-o

Licence

Interests Type (look at the facts and see what exists)Ownership / estates MortgageLease Easement Co-ownership

CreationRegistration ContractResulting trust

Co-existenceAlways disputes with multiple interests at play Mortgagor / mortgagee (rights, dutiestheir co-existence)Life tenant / remaindermen (waster etc.)Lessee / lessor Co-ownership (creation, rights, type, severance etc.)

Competition RP v non- RP ET v Legal interestMere equity v equitable interest

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Final Lecture 2013 Exam