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Property Law Tutes

Di Everett – tutor. Ph. 55951060. Secretary – Kerry.

 

Week Two – Tute One – 22.9.97

 

"Property" has a circular definition. It expands on the concept rather than defining it.

 

Elements of Property:

 

 

 

 

Week Three – Tute Two – 29.9.97

 

1. - Real Property – incorporeal heridament (Easement: a right to pass through or visit or . . have my property pass over someone’s land)

 

2.

Blinds

Stereo

A/C

Railway Carriage

 

Caesar Statue

 

 

Week Four – Tute Three – 6.10.97

  1. Under the doctrine of tenure, persons are not able to own the land itself, but rather an abstract "estate" in land. This estate is capable of being "broken up" and for multiple parties to have co-existing "interests" in the land. For example, while the original party may grant his son (in a will) an estate for life (life estate in possession), and remainder to his daughter in fee simple (fee simple estate in expectancy). These are examples of fragmentation of interests on the basis of time. There is also fragmentation between legal ownership (Common Law) and Beneficial ownership (equity).

 

  1. From Mabo – The High Court found that the feudal doctrine of tenure does apply in Australia. Its structure is too deeply ingrained in our law to be removed. However, Native Title was found to pre-date the Crown’s claim to land here.

 

  1. Estate – interest in land under the Doctrine of Tenure, not ownership of land itself. Estate = gives you a bundle of rights regarding the land.

 

  1. Estate in Fee simple, life estate (under s19 PLA) – (s.22 Property Law Act abolishes Fee Tail)

 

5. In Possession – Current right to possession/enjoyment of land

6. A. - Legal life estate vested in possession

 

  1. Legal life estate pour autrevis vested in possession

 

  1. Legal life estate vested in possession

 

  1. Legal life estate vested in possession.

- Legal life estate contingent fee simple remainder.

Week 5 – Tute 4 – 21.10.97

 

Questions of ownership

 

Dresser:

 

 

Brooch

 

Chris

 

 

 

 

  1. The Pioneer Container

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Tute 5 – Wk 6 – 20.10.97

 

  1. Possession is the root to title to land. After 6 years for personal property or 12 years for land, if you are simply in possession without any other claim to it, title is transferred to you.

 

  1. See flow chart diagram as amended in Prop Law notes.

 

 

 

3.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Week 7 – Tute 6 – 27.10.97

 

  1. Defects in Old System conveyancing – (Term "Private Conveyancing" refers to this and the Deeds Registration System as well.)

 

 

 

 

 

 

 

 

 

 

  1. Deeds Registration System

 

 

 

 

 

 

  1. Old System Title

 

Issues:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Week 8 – Tute 7 – 4.11.97

 

Features of Whelan’s ‘Torrens System’

  1. The actual physical unit of land is the basis of the System.
  2. The existence of a register being run by the Government. On the register, all documents can be recorded.
  3. Subject to exceptions, once a person becomes a registered owner, nobody else has a claim to that registered land;
    – LTA s184 – Except if the registered proprietor has been fraudulent
    – LTA s 185 – If the registered proprietor has done something that gives rise to inequity, he is liable in an action in equity.
    – Torrens System does away with Nemo Dat Rule, because title passes by registration and not by an act of the parties.
  4. Guarantee by the State for compensation. Such compensation is available for:

 

 

Q2.

Audrey’s property went to C by forged transfer of B.

 

 

 

NEXT

 

The land was transferred to D. D is now the registered proprietor. D mortgages property to G.

 

Advise Audrey to sue as above, if that fails, then turn to compensation. The government has a compensation scheme.

 

 

 

 

 

Week 9 – Tute 8 – 10.11.97

 

 

  1. Morticia – registered proprietor in fee simple.

 

Advise John whether he has a claim against James in fraud.

 

Torrens Title definition of fraud:

BUT:

 

According to these precedents, James Dibble has not been fraudulent by merely having knowledge of the unregistered interest. Knowledge is not enough for there to be fraud. Actual notice must be given of the easement, on the contract for example.

Therefore, John has no action in fraud against James.

 

However, had James allowed the use of the easement to continue for some time after he had become registered, John may have had an action against him in equity.

 

 

 

2.

 

Apply Lapin’s Case here.

 

In this case, has Amanda behaved in such a way as to allow a postponement?

When there are two unregistered equitable interests competing, conduct less than fraud will justify postponement.

Is her conduct sufficient to justify postponement?

REQUIRES:

Here, we have both these elements, so Amanda’s interest will be postponed. Eastpac acquires first priority over Amanda.

 

 

3.

 

LTA s179 – Registration is conclusive evidence of the contents of the instrument. (Something must be registered to be protected. Registration itself is the proof of the terms of the transaction.)

 

In Bursill, there was both an easement for the lower airspace and a transfer of title in fee simple for the upper airspace.

 

Bursill contradicts the Curtain Principle. This case says that you have to look behind the registration. Bursill says it is enough that the terms are laid out on the Certificate of Title to be honored. That is contradictory to LTA s179 which say that they must be registered to be honored.

Bursill is the accepted Australian authority on this. The rule in Bursill is the Australian position.

 

 

 

 

 

 

 

 

Tute 9 – Wk 10 – 17.11.97

 

1.

GH – reg fee simple owner

 

Sol – fraudulent behaviour

 

Sol’s fraud:

 

EZ Home Loans:

 

Greg Hacker:

 

Adam’s claim against GH:

 

 

Tute 10 – Wk 11 – 24.11.97

 

Q1. – Main Issue: Is this an exception to indefeasibility?

This was a legal easement, as it was registered. Continues to bind servient tenant, even when registered incorrectly.

    1. Identify - LTA s.185(3)(b) – easement omitted thru error of Registrar
    2. - Registrar’s refusal to correct - LTA s.15 – Power of Registrar – Registrar MAY correct any registry (discretionary power). Registrar has to be satisfied that registered holder will not be subject to prejudice.
    3. - BUT under LTA s.187(1) – can get court order from Supreme Court to force him to correct it.

      - Owner of lot 3 – his indefeasibility is subject to the easement, even though not registered as far as he knew. (exception to indefeasibility)

      - James v Registrar General – case about an omitted easement.

    4. Compensation - LTA s188(1)(g) – Compensable deprivation – loss of interest in a lot thru the omission/mistake of the registrar.

      LTA s188(2) - Claimant eligible for compensation from the State. If compensation is insufficient, complainant may take action against the State for suitable compensation.

 

Q2. Note on exam technique – always start answer with:
1. Indefeasible interest? 2. Exceptions to indefeasibility.

 

  1. Beville takes indefeasibility under s. 184, not subject to Con’s unregistered interests.

BUT - EXCEPTIONS:

 

 

 

Tute 11 – Wk 12 – 2.12.97

Q1.

  1. LTA s.122 – What circumstances a caveat may be lodged in. (It is lodged over the counter – they don’t look at the circumstances in detail.)

 

  1. Bosca Land’s Caveat (Qld view) – A conditional contract does not give you an equitable interest sufficient to lodge a caveat.

 

  1. What interest does B have? (He can only register if he has an interest)

 

  1. You can only lodge a caveat if you have an interest in the land. Same argument as question 1.

 

Q2.

Martha entitled to recover title from Slush Fund. Slush Fund’s title not indefeasible because of fraud. Eastpac has indefeasible interest in the mortgage.