EXAM Notes PDF

Preview

Summary

Exam summary notes on examinable content (Topic 3 onwards)...

Description

Topic 3 – Intro to title in land *CASES/LEGISLATION: none

If you have land it will be through either of these mechanisms: 1. Native Title Elements for Native Title Claim under Mabo: • a. Existence of an identifiable community or group; and • b. A traditional connection with or occupation of the land under the laws and customs of the indigenous people; and • c. The substantial maintenance of the connection with or occupation of the land 2.

General Law Land: The first common law system of land ownership and conveyancing to operate in Victoria was the old system of General Law Land; there are still some parcels of General Law land today, especially in the inner suburbs of Melbourne and in country Victoria. In order to establish good title to General Law land, it is necessary to trace an unbroken chain of transactions, or dealings, with the land back for at least 30 years to what is known as “a good root of title”. All relevant documents in the chain of title for that period of time must be produced. Under the Deeds System: title to land was derived from a deed between two or more parties, which could be voluntarily registered, on the Deeds Register. General Law land is governed by the provisions of the Property Law Act 1958 (Vic) (‘PLA’).

3.

Torrens System Land: title to land derived by title Under the Torrens System, title to land is derived by registration of the interest in land on a central, public, Register. The Register (both electronic and paper forms) is maintained by the Registrar of Titles, register. Under the Torrens System, a Certificate of Title to land (or to the interest in land) is conclusive evidence of title. Torrens System Land is governed by the provisions of the Transfer of Land Act 1958 (Vic) (‘TLA’) and, unless expressly excepted or inconsistent, the relevant provisions of the PLA.

Topic 5 – Doctrine of Tenure and Estates

Estates v Interests • Rights over land which do not confer a right of possession are not estates. • These lesser rights are called interests in land – e.g. mortgages, easements and restrictive covenants. (lower ‘current’ rights’)

Freehold estate - • A freehold estate is distinguishable from a leasehold estate based on time. • A freehold estate is for an indefinite period of time • Includes 1. Fee simple 2. Life estate 3. Fee tail: The fee tail is an estate of inheritance but, unlike the fee simple, inheritance is limited to a particular person and his or her specified lineal descendants. Fee Simple Estate • Definition: –Closest to full ownership – ‘Fee’ means inheritable – ‘Simple’ means not limited to a particular class of heirs • Rights: – Use, alienate and exclude – Can alienate – • inter vivos (during lifetime); or • by testamentary disposition (via will) Life Estate • A life estate is an estate through, which the freehold estate is granted to a person, referred to as the life tenant, for the life of a nominated person. Can still sell it. • It can be for the life of the life tenant • Or the life of another estate pur autre vie

Future interests • Someone who is in possession of a freehold estate has a present interest • Someone has is not in possession but has certain rights may have a future interest in the freehold a. b.

Reversion Remainder

Types of future interests 1. Reversion • A reversion interest arises when the grantor has not set out exactly where the remainder of the estate will go. The reversion, by presumption, goes back to the grantor. • A reversion is the residue of the freehold estate after a lesser estate has been granted. • Example – ABC grants a life estate to XYZ “to XYZ for life” • ABC the owner of the fee simple has create a life estate – a lesser estate • ABC remains the owner of the fee simple but is not entitled to possession because of the life interest to XYZ • ABC’s residual interest (fee simple estate) will revert back to ABC upon XYZ’s death • Until then XYZ has a present interest pursuant to the life estate • Until XYZ’s death, ABC’s estate is a future interest = fee simple estate in reversion – reversionary interest 2. Remainder • With a remainder interest, the grantor sets out that the remainder of the estate will pass to a third party a. Contingent remainders b. Vested remainders

TUTORIAL ANSWER - Advise X as to whether they have an interest in ___ as at 2015. Amy has a vested interest in remainder. Because she gets the property of Jill passes away, at the moment its just vested in interest. Does she have an interest before shes born? If unknown/unborn child, then the unborn child has a contingent remainder, and when shes born it vests.

TOPIC 7A – SALE OF LAND In the case of Torrens system land, the registration of a transfer takes the place of the deed required by PLA s 52. Statute

TLA ss 40, 41, 42 (1)

7.4 What is the effect of the failure to satisfy the formal requirements for the transfer of a legal interest in land? 7.4.1 Equity Prevails The Judicature Act 1873 (UK) merged the common law and equity jurisdictions with the proviso that equity would prevail in the event of conflict or in any matter not specifically provided for. This position was replicated in Victoria by the Judicature Act 1883 (Vic), now the Supreme Court Act 1958 (Vic) s 29. 7.4.2 For an equitable interest there must be: 1) A valid contract (as you learnt in LAW2101 Contract A); and 2) Evidence of a contract; and 3) The contract must be specifically enforceable. 7.5 Evidence of a contract 7.5.1 Instruments Act 1958 (Vic) s 126 Prescribed reading Statute

Instruments Act 1958 (Vic) s 126

Case

ANZ Banking Group v Widin (1990) 102 ALR 289 S&N 4.44 MGG (Federal Court) 8.120

7.5.2 What is the effect of non-compliance with s 126? Can contracts that are not evidenced in writing ever be specifically enforced? What if they have been part performed? Prescribed reading Case

McBride v Sandland (1918) 25 CLR 69 (this case S&N 4.42C

refers to the classic statement by the House of Lords in Maddison v Alderson (1883) 8 App. Cas. 467) Regent v Millett (1976) 133 CLR 689 ANZ Banking Group v Widin (1990) 102 ALR 289 S&N 4.44 Textbook MGG: 8.65-8.70, 8.120, 8.155-8.170 Further Reading:  

S&N 4.38-4.49 T&D 6.13

7.6 What property rights arise in equity under a contract of sale of land? When and how will a contract for the sale of land be specifically enforceable?

Prescribed reading Case

Lysaght v Edwards (1876) 2 Ch D 499

S&N 4.52C and 4.57C

Bunny Industries Ltd v FSW Enterprises Pty Ltd [1982] Qd R 712

S&N 4.52C; 4.50, 4.53

Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 52; (2003) 217 CLR 315

7.7 SALE OF LAND Transactions involving the sale of land are complex. There is almost invariably a time lapse (e.g. 30, 60 or 90 days) between the time a contract of sale is made and the time when the deed of conveyance (general law) or executed transfer (Torrens land) and paper Certificate of Title (if there is one) are delivered to the purchaser on payment of the balance of the purchase money (i.e. ‘settlement’). This time lapse allows the purchaser to investigate title and to obtain finance. In this section we consider what makes a contract for the sale of an interest in land a valid and enforceable one. 7.8 STATUTORY REGULATION OF LAND SALES The Sale of Land Act 1962 (Vic) (SLA) imposes certain requirements on the sale of land. These requirements pertain to matters such as terms contracts, cooling-off

periods, deposits, passing of insurance risk, vendors’ statements and the conduct of auctions. You need to be familiar with the following sections: Prescribed reading: Students are expected to go through these sections independently. These sections will only be covered briefly in class and are examinable. Statute

SLA s 31 (purchaser’s right to cool off) SLA ss 32-32P (Vendor’s Statement) SLA ss 33-33C (Due Diligence Checklist) SLA ss 34-36 (Insurance Provisions)

Textbook MGG 8.240-8.320

Further reading: 

Due diligence checklist (OL)

7.9 GIFTS OF PERSONAL PROPERTY For noting only: Gifts of Real Property. In the case of land under the Torrens system, a registered document is necessary to pass legal title. Thus, an effective gift of Torrens title land will require registration of the transfer of land. An effective gift of general law land requires execution of a deed. We have also seen that a specifically enforceable contract of sale of land gives rise to an equitable interest in that land, ie while the vendor retains legal title the purchaser acquires an equitable interest in the land. The principle in Lysaght v Edwards cannot apply to an attempted gift of land since, by definition, there is no specifically enforceable contract. In some cases, a person intending to make a gift may go some way towards carrying out that intention. For example, a person wishing to make a gift of Torrens system land may execute a transfer and hand it over to the donee. The question is whether, in certain circumstances the donee may acquire an equitable interest before the legal interest passes. If so, this is an example of an equitable interest passing without the parties specifically intending to create it. 7.10 Gifts of Personal Property Title to goods can be passed by deed of gift or, more commonly, by delivery. What is required to make a gift by delivery? Prescribed reading Case

Re Stoneham [1919] 1 Ch 149

OL

Thomas v The Times Book Co Ltd [1966] 2 All ER 241; 2423, 246 Rawlinson v Mort [1905] 93 LT 555 (OL) Wrightson v McArthur [1921] All ER 261 (OL) For noting only: Sale of goods The requirements for a valid sale of personal property (which passes legal title to that property) are contained in the Goods Act 1958 (Vic). In the simple case of a sale of specific goods, property in goods normally passes at the time the contract of sale is made. More complex rules apply where goods are sold by description. Goods Act 1958 (Vic) ss 6-8, 22, 23. The Personal Property Securities Act 2009 (Cth) includes provisions regarding the passing of title in relation to goods, which may override the terms of the sale. For example, certain conditional sales agreements in which the seller retains title to an item of personal property are deemed effective to give the seller a security interest in the property.

**go back over tutorial 3 notes DOES ‘X’ HAVE AN EQUITIBLE INTEREST (when there is no legal interest) Where someone has sold land to someone and seeing what interest someone has STEP 1 – What type of interest is it?** - Legal interest? If not, then equitable. STEP 2 – Which system of land is it? Has there been a transfer? If Torrens System: -For Torrens System land, title passes on registration s 40 (1) TLA- Instruments not effectual until registered -Certificate to be conclusive evidence of title s 41 TLA If General Law: -Legal title will pass on execution and delivery of deed of conveyance s 52 (1) PLA. Deed needs to be: Signed s73(1) PLA Sealed s73(1) PLA Delivered s73(1) PLA

STEP 3 – >Conclude whether it satisfies these requirements to be a legal interest. > If not a legal interest in land is it an equitable interest in land? > And is it possible to have an equitable interest in land? > What needs to be satisfied to do so? > PTO STEP 4 – What if the legal requirements are not met? >Then there is no legal interest, however there may be an equitable interest in the land if these elements are all met. -It may be the case that the legal formalities have not been complied with and the person in question may have an equitable interest in land. -There are three elements for there to be an equitable interest in land. 1. Needs to be a valid contract 2. Evidence of Contract 3. Specifically enforceable STEP 5 – Is there a valid contact? (keep brief*) -offer -acceptance -consideration -intention to create legal relations STEP 6 – Is there evidence of the valid contract? 1. Evidence in writing pursuant to section 126 of the Instruments Act; OR *for multiple documents look at ANZ v Widin. Where express reference is made from one document to another, it is to be read together. There must be signature. ANZ v Widin Multiple documents can be read together so as to constitute a sufficient memorandum in writing. “It is still indispensably necessary, in order to justify the reading of documents together for this purpose, that there should be a document signed by the party to be charged, which, while not containing in itself all the necessary ingredients of the required memorandum, does contain some reference, express or implied, to some other document or transaction.” “Where any such reference can be spelt out of a document so signed, then parol evidence may be given to identify the other document referred to, or, as the case may be, to explain the other transaction, and to identify any document relating to it. If by this process a document is brought to light which contains in writing all the terms of the bargain so far as not contained in the document signed by the party to be charged, then the two documents can be read together”

Refused because: 1. Diary note was not incorporated by express reference or necessary interference by the mortgage documentation. Cannot be used to make good the deficiencies. 2. Note not signed by W.

2. Oral agreement & Sufficient acts of part performance. a. Is there an oral agreement? If so, look for part performance to support oral agreement. b. Are there acts of part performance? > What test to apply to part performance? > STRICT Madison v Alderson = strict test “must be unequivocally, and in their own nature, referable to some such agreement as that alleged”. That is, it must be such as could be done with no other view than to perform such an agreement. > LESS STRICT Stedman v Stedman = if alleged acts of PP point on the BOP to some such contract and were at least consistent with that contract, that would suffice. Stedman v Stedman - Agreement b/w estranged husband and wife that wife would sell him the house for 1500 pounds - This was an oral agreement - Then the husband paid the deposit, he organised the transfer HELD: applied less strict test. On BOP there was a contract by looking at conduct as a whole. Mason v Clarke There was a farm and it was leased to a tenant - The lease reserved the right for the landlord to kill rabbits and go fishing on it - Then the landlord allowed the rabbit catcher to go on the land by oral agreement and he paid the man 100 pounds and wrote it on a receipt as ‘wages’. HELD: >Yes it was sufficient acts of PP >Mason had set snares, taken rabbit and hired helpers >These acts were part performance of the oral agreement and exclusively referable to it Maddison v Alderson >The woman claimed that there was an oral agreement between her and the man that she would not get a wage any more and instead be left the life estate when the man died. >The acts of PP (cleaning, washing) were not unequivocal to the type of K alleged they could also mean love and affection.

ANZ v Widin >Oral agreement + part performance was argued as an alternative >ANZ had partly performed the agreement by endorsing and accepting bills and having W sign various loan documents >The court applied the “strict test”, holding that the ANZ’s acts were unequivocally referrable to a contract of the general nature of that alleged by the bank (a mortgage). *Regent v Millet *In the most recent HC case (Regent) in OZ the crt expressly left open whether the Stedman approach should be adopted. However later cases in Australia have followed the more classic approach in Madison.

>Agreement that if the child and her husband paid off the mortgage then they would transfer it in their name. >They paid off the mortgage >Father occasionally helped out >The child renovated the house and made improvements to it >Held: Yes sufficient acts of PP (the fact that they possessed it was enough) >Also strengthened the case that they made improvements to it. >Is possession enough? There have been some cases in which it has been held that the entry into possession alone, or the taking of possession coupled with the expenditure of money by one party on the improvement of property, with the cognizance of the other party to the contract, may amount to part performance (Gibbs J). STEP 7 – Is this valid contract specifically enforceable? ************* > Specific performance is a discretionary remedy. Whether specific performance is granted depends on the circumstances being such as to invoke the exercise of the Court’s discretion to grant specific performance . > An agreement need not be legally enforceable to be specifically enforceable in equity. Therefore, it need not comply with all the above formalities. However, specific performance will not be granted in circumstances where: > there must be no bars in equity.** (go over) – look at Tanwar > Specific performance will only be given when damages are inadequate. In the case of land damages are generally inadequate. > The purchaser is not ready, willing and able to complete the K at the time of the breach. > Specific performance is determined at the time of the breach not when the K is made (Bunny & Tanwar) > Consequence if a specifically enforceable K…. > If the purchaser has a contract that is specifically enforceable then it confers an equitable interest on the purchaser of land. > Even though the vendor still holds legal title, the court will impose a constructive trust. Therefore the vendor becomes the trustee for the purchaser [note differing views post Tanwar]

So what interest does each of the vendor and purchaser have prior to conveyance or registration? > The traditional view is that the vendor holds the property on constructive trust for the purchaser (Lysaght).

What happens when purchase of land, but not yet possession. Lysart v Edwards When does a purchases equitable interest arise > the moment the contract becomes enforceable (Lysart). Constructive trust = *need to go over (aug30 pt1 1:00:00 onwards) Lean =

What is the effect of the failure to satisfy the formal requirements for the transfer of a legal interest in the land Bunny > In this case the Supreme Court of QLD applied the well known principle of Lysaght v Edwards that a specifically enforceable contract of sale confers an equitable interest on the purchaser of land. However, equity will only take this view when the contract is specifically enforceable, and there are no bars to the award of equitable remedies to enforce the agreement. > In other words, if the vendor having sold the property to the purchaser, sells it to another buyer for a higher price, then the vendor must hold those profits on trust for the purchaser because the purchaser is the equitable owner of the property. Tanwar This case is the authority for the proposition that equity will not serve parties that don’t have a specifically enforceable contract. If a contract is breached and there is no longer a specifically enforceable contract , equity will not step in (i.e. In equity don’t have clean hands b/c not ready willing and able) for equity to pass there must be either: > A K in writing (c/f s.126) capable of being specifically enforceable; or > An oral contract which has been part performed capable of being specifically enforceable. > In this case the purchaser was not ready and able to perform the K as the $ $ had not arrived from Singapore on the date of completion. **contrast this view with traditional view (Bunny)

Tanwar v Bunny comparison > Tanwar – the K was not specifically enforceable because time was of the essence (they were not ready willing and able to perform)

> Perhaps we confine Tanwar to its particular facts – so when the K is subject to other things to be done before settlement, equitable title will not pass as the K is not specifically enforceable > We also need to come to the realization that the law is not clear > In Tanwar K was not specifically enforceable > So a K that is specifical...