Lecture Notes + Exam Templates - Summary - lecture 1 - 10 PDF

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Lectures weeks 1 - 10 summaries and template answers for all topics. Mr Patrick Lim was lecturer. ...

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LECTURE ONE Torrens Title: Indefeasibility Torrens Title came into effect by operation of the Real Property Act 1886 (SA), therein abolishing the general law ‘deed’ system of registration. Characteristics:  Proprietary right to something was born from the registration of that right, rather than the transaction.  A registered right on the Certificate of Title was said to have priority and be paramount over other, unregistered interests (subject to limited exceptions). INDEFEASIBILITY “A convenient description for the immunity from attack by an adverse, unregistered claim for land” – Privy Council, Frazer v Walker.  No definition expressly provided by legislation – must turn to case law to determine its true meaning; paramount, unimpeachable. s69 RPA alludes to what it means to have indefeasibility: “The title of every registered proprietor of land shall… Be absolute and indefeasible, subject only to the following qualifications” s56 RPA: Priority is given to the legal right with the earliest date of registration.  Shows that Torrens Title honours the date of registration as the key. s186 RPA: When property is transferred from a vendor to a purchaser, the purchaser is not required to make investigations into the ownership of the property beyond the scope that is covered by the Certificate of Title. s207 RPA: Bonda fide purchaser of land for valuable consideration is protected from an action as a result of the registered proprietor fraudulently transferring ownership. Mirror and Curtain Principle Analogy for the idea of indefeasible title.  Mirror: The Certificate of Title acts as a mirror, thereby reflecting all legally registered interests of which the incoming purchaser of land must take note.  Curtain: The curtain represents a veil behind which equitable and other interests which are not otherwise registered on the Certificate of Title hide, symbolising that they (generally) do not need to be taken notice of, even if the purchaser is aware of their existence.

Immediate Indefeasibility v Deferred Indefeasibility Example: Person A has their C/T and gives it to Person B to look after while they go on holiday. Person B is a forger, and contracts with Person C to sell the property. Person C signs the transfer, being bona fide, and registers their interest duly on the C/T. Immediate Indefeasibility: Upholding the security of the transaction rather than title, Person C would enjoy indefeasibility of their newly acquired title, and Person A would be compensated under the Governmental Assurance Fund. Frazer v Walker, Breskvar v Wall Deferred Indefeasibility: Upholding the security of the title, indefeasibility would be deferred to the person to whom Person C sells the property. Person A would still be able to recover their property against Person C, but not if it had been sold further. Gibbs v Messer, Clements v Ellis

LECTURE TWO Torrens Title: Exceptions and Caveats Three sources of exceptions to indefeasibility: 1. Express statutory exceptions – s69 RPA. 2. General and Common Law Exceptions, 3. Overriding provisions of other statutes.

S69 REAL PROPERTY ACT Registered proprietor’s interest is indefeasible, unless: (a) Fraud:  If any person has obtained their Certificate of Title by defrauding the original proprietor, they will not receive indefeasible title. Does not affect indefeasible title of a bona fide purchaser What is Fraud?  Knowledge of an unregistered interest is not fraud. (s72 RPA)  Perspective buyer not required to make enquiries (s186). Must be actual fraud, not just what someone ‘should have known’. Assets v Mere Roihi.  If a buyer’s suspicions are aroused but fails to make enquiries for fear of not wanting to uncover truth, they will be guilty of fraud. Loke Yew v Port Swettenham Rubber. In Personam Rule  If a person has a cause of action that would otherwise be unconscionable to deny, he cannot use indefeasibility to circumvent the Torrens System, the aggrieved party will have a right in personam. Bahr v Nicolay (No 2)

(b) Forgery or Disability  Forges signature by means of insufficient power of attorney or person under legal disability. Macquarie Bank v Sixty-Fourth Throne  It is dishonesty to shut one’s eye to forgery – wilful blindness. Pyramid Building Society v Scorpion Hotels. (c) Erroneous Inclusion of Land  If land has been included incorrect on Certificate of Title. James v Registrar-General (d) 2+ Certificates for Same Land  First registered will prevail. (h) Leases  Leases for less than a year do not need to be registered, but still confer an exception to someone’s otherwise indefeasible title. Peventer v BP. s70 – In all other cases, title of registered proprietor has indefeasibility.

GENERAL / COMMON LAW EXCEPTIONS Volunteers Jurisdiction is key – do not agree: Should a volunteer receive the benefits of immediate indefeasibility?  SA, Victoria: No. o Real Property Act 1886 – no unregistered estate, interest, power, right, contract, or trust shall prevail against the title of a registered proprietor taking bona fide for valuable consideration. – s71 o Acts show that they are not meant to defend someone without valuable consideration. o King v Smail (Victoria):  Interest acquired by a volunteer is affected by prior equities.  Upheld in Rasmussen v Rasmussen.  Nothing in indefeasibility cases to distinguish King v Smail  NSW, WA, QLD, NT: Yes – guaranteed under the QLD & NT Land Titles Act. o Bogdanovic v Koteff:  Koteff willed house to his son,  Bogdanovic had a life estate.  Koteff became registered proprietor as volunteer,  Bogdanovic claimed life estate as an unregistered right.  Held that he could kick her out. o Endorsed in WA – Gadson v Gadson, Conlan v Registrar of Titles.  Farah Constructions Pty Ltd v Say-Dee Pty Ltd – not authority – obiter. o Would prevail ‘even if they were volunteers’ General Law

Pryce on Irving v McGuiness  Owned one property behind the other,  Held that an easement existed for necessity of right of way. Aus Hi-Fi Production v Ghel  Decided the opposite in NSW.

OVERRIDING PROVISIONS Subsequent acts can expressly repeal provisions of the Torrens Statute. South-Eastern Drainage Board v Savings Bank of Trustees Quach v Marrickville Council.

UNREGISTERED INTERESTS  Equities not abolished – s249 Certain interests are unregistered:  Trusts – cannot be registered,  Registrable interest – has not yet been registered (transfer of property etc)  Equities can be enforced against the registered proprietor – s246 – Barry v Heider.

CAVEATS  Having an unregistered interest makes you vulnerable – can lodge a caveat on the C/T for your interest pursuant to s191 RPA.  People cannot register their interest without making precautions for the caveat. Butler v Fairclough:  Caveat recognises a temporary protection of an equitable interest.  Evidence that you have taken the steps to show your interest. s191 Real Property Act  (c) No registrations allowed contrary to caveat.

LECTURE THREE Priority Rules and Compensation PRIORITIES Disputes can arise from competing interests in one piece of land. 1) 2) 3) 4)

Registered v Subsequent Registered Registered v Subsequent Unregistered Unregistered v Subsequent Registered Unregistered v Subsequent Unregistered

Registered Interest v Subsequent Registered Interest s56 RPA:

 Earliest registered interest has priority,  Irrespective of date of transaction. Registered v Subsequent Unregistered  Registered interest prevails; indefeasible title – s186.  Barry v Heider – court can overrule the general rule. Unregistered v Subsequent Registered  Registered interest has indefeasibility,  Volunteers may be an exception. Unregistered v Subsequent Unregistered  First transaction created in time will prevail if all else is equal. Rice v Rice Heid v Reliance Finance  Heid received less money for transaction but granted lien over the property.  Reliance granted mortgage over the property but no notice of lien; held that mortgage would take priority because Heid was negligent and committed estoppel. “Have they by their conduct, enabled another interest to take priority?” Abigail v Lapin, Osmanoski v Rose  Failure of first interest-holder to lodge a caveat may determine who has priority. o Not lodging a caveat is not determinative – Jacobs v Platt Nominees. Ultimately, consider:  Failing to hold onto Certificate of Title,  Arming someone with Certificate of Title,  Failure to Lodge a Caveat May determine whether a person should lose priority.

REMEDIES UNDER TORRENS A person may claim for:  Appeal decision of the registrar-general (administrative actions),  In rem action (ejectment/recovery)  In personam action (compensation) APPEAL s221 Real Property Act – A person whose request is rejected by the registrar-general is entitled to summon them to court to challenge their decision.  Able to summon them for any dispute. Pirie v Registrar-General. IN REM Ejectment s192 RPA:

A RP, Lessor or Mortgagee may cause any person in possession of land to be summoned to Court to show cause why they should give up possession. Compensation – In personam Part 18 – The Assurance Fund s201(1) – Establishes that the fund exists. s203 - Person deprived of land in consequence of fraud or registration of another registered proprietor is entitled to sue the fund. s204 – Person who has become Registered Proprietor and is bona fide is no longer liable.  Fraud committed by one co-owner will still allow the other co-owner to claim against the fund. Diemasters v Meadowcorp.

LECTURE FOUR Leases A lease (contractually) confers a lease hold estate to a tenant, and grants the landlord a fee simple reversion which will revert back to them upon conclusion of the lease hold. Terminology      

Lease – agreement, tenancy, Lessor – landlord, grantor, Lessee – tenant, Sublease – tenant sublets their lease hold to another lessee, Assignment – tenant or landlord assigns lease/reversion to another, Merger – tenant buys property.

Types of Leases 1. Fixed term lease  Duration of the lease is either known by both parties, or easily ascertainable – Lace v Chantler  Cannot be unascertainable time periods, i.e. war. 2. Periodic tenancy,  “A succession of fixed-terms which continues indefinitely, until a party is given notice to quit.”  Where a tenant enters into possession and pays rent pursuant to an invalid fixedterm lease, a periodic lease is implied – Radiach v Smith.  Fixed-term of short duration – year-to-year, week-to-week. o Brought to an end by notice; if year-to-year, six month notice required. If less than year-to-year, one week notice required. Commonwealth Life Assurance v Anderson.

 The length of periodic lease is defined by the parties’ intent:- Moore v Dimond. o Expressly, it is conclusive. o If not, evidence factors into calculation:  Period throughout which rent is paid – Turner v York Motors. o Strong presumption that yearly periodic lease is created upon completion of fixed-term lease. 3. Tenancy at Will  Tenant remains in occupation with consent on the understanding it may be cancelled at any time,  Reasonable notice period is required  Lease over three years that does not meet requirements will amount to a tenancy at will – Dockrill v Cavanagh.

4. Tenancy at Sufferance  Tenant refuses to leave.

Requirements of a Tenancy 1. Exclusive possession, Distinguishes between a mere license and a lease  Possession must extend to being able to exclude anyone from your land – Hill v Tupper.  Does not have to be called a lease to be a lease – Radaich v Smith.  Sole occupation does not mean exclusive possession; must be able to prevent anyone from entering – Radaich v Smith.  Intention of the parties is a subsidiary interest – Raidach v Smith.  Intention originally used to base decision on – Street v Manniford, Isaac v Hotel De Paris, Errington v Errington. 2. Certainty of Duration  All leases must have a duration that is either known or is ascertainable. o Must be able to determine:  Commencement,  Continuation,  Conclusion – Say v Smith.  Uncertain terms such as “end of the war” are invalid - Lace v Chantler, Prudential v London. 3. Formal Requirements  s30(2) Law of Property Act: All verbal agreements under three years are valid, beyond which they must be written.

 Leases for less than one year do not need to be registered to enforce legality – s69(h) Real Property Act.  If they are greater than one year and not registered, although enforceable, they are not indefeasible. Deventer v BP. 4. Rent  Not a requirement, but often present.

COVENANTS Promises in a lease 1. Express, 2. Usual, 3. Implied: a. Common Law b. Statute c. Contractual Principles 1. Express  Anything provided for in the lease agreement:  Pay rent, repair premises, not to sublet without consent, etc. 2. Usual Covenants  Must make express mention of ‘all the usual covenants apply…’  Hampshire v Wickens: o Quiet enjoyment, o Pay rent, o Permit inspections, o Keep in good and tenantable repair, o Landlord’s right to enter upon breach. 3. Implied Quiet Enjoyment Lavender v Betts – removing doors and windows.  Right for tenant not to be interrupted,  Telex Aus v Thomas Cook – can depend on the nature of the activity.  Cutting off gas/electrivcity – Perera v Van Diya Not to Derogate from Grant Landlord cannot do something to make it unfit for the purpose for which it was granted – Aussie Traveller v Marklea.  Sawdust entered premises, landlord derogated from grant.

 Distinguished in that it deals with making the property unfit – Browne v Floter. Tenant-Like Manner Warren v Keen – tenant not liable for fair wear and tear of a property.  Tenant must do all reasonable jobs that would be expected: o Replacing electric fuses, o Watering the garden etc. Fitness for Purpose Under Common Law, implied covenant that the landlord will make the land habitable at the commencement of lease if it is furnished – Cruse v Mount. Landlord’s Duty of Care  Landlord is required to ensure the safety of the tenant – Northen Sandblasting v Harris.  Glass complied with 1950s standard, but did not with 2000s standards – was not held to breach the duty of care between landlord and tenant – Jones v Barlett.  No grounds for imposing anything other than a duty of care.  Just has to be safe, not necessarily meet the standard of safety. 4. Statute s124 Real Property Act:  Covenant to pay rent,  Must keep property in good repair. o Such repair as having regard to the age, character and locality of the house, would make it reasonably fit for the mind of a reasonably tenant – Proud v Hartfood. o Must get it up to the standard and then keep it there – Lurcett v Wakley. o Reasonable use of the house by the tenant and operation of natural forces is not required – Haskel v Marlow.

5. Covenants implied under General Law Must be:  Reasonable and equitable,  Necessary to give business efficacy to the contract,  ‘Goes without saying’,  Clear expression,  Must be consistent with express provisions. BP Refinery v Hastings.

ASSIGNMENT AND SUBLETTING

At Common Law, a landlord/tenant have the right to give away their remaining interest. Assignment by tenant  Gives away the rest of their full interest,  Landlord can assign reversion to another person subject to the lease. Landlord

Privity of Estate Privity of Contract

Tenant 1

Privity of Estate

Tenant can sub-lease  Not full disposal of interest; duties to landlord will remain the same. Landlord

Privity of Contract Privity of Estate

Tenant 1

Privity of Estate Privity of Contract

Tenant 2

Privity of Contract  All terms enforceable Privity of Estate  Covenants that are in relation to the land are enforceable – Spencer’s Case, P&A Swift v Combines English Docks eg. Payment of rent – Park v Webber, Repair – Williams v Earles, Renewal of lease – Weg Motors v Hales, Supply premises with water – Jourdain v Wilter, Ensure against first – Vernon v Smith, Not to assign without permission – Cohen v Popular. DETERMINATION OF LEASES  Expiry: lease comes to an end. o Sub-lease determines on date of head lease.  Notice: At Common Law, minimum period required to end: o 1 week – 1 week notice, 1 year – 6 months’ notice etc.  Surrender: mutual agreement of offer and acceptance,  Merger: tenant buys house,  Pursuant to contract: express term,

 Remedies: landlord can end for breach. o Tenant must have breached expression condition, o Landlord must serve notice and state what the breach is: 3 months – Penton v Barnett, o Breach must be current at expiry of notice, o Landlord must take action, o Tenant must not have been granted relief against forfeiture – Gill v Lewis.  Statute: o s4 Landlord and Tenant Act 1936 – if 6 months’ rent is arrear, then the landlord can evict. o s10 No re-entry until notice to remedy breach. REMEDIES  Repudiation of lease accepted by other party. o Must be a breach of an essential term – Shevill v Builders Licensing o Landlord can claim loss of bargain damages if repudiated, landlord must mitigate their loss – Gumland Property Holdings, Wood Factory v Krritos.  Injunction – stops tenant breaching in future.  Mesne Profits – leasor can claim, damages for trespass after lease finished – Progressing Mailing House v Taboli  Set-Off – can set off costs of repair again rent – British Anzani v Imm

LECTURE SIX Mortgages Mortgagee – Gives money and receives mortgage (bank), Mortgagor – Receives money and gives mortgage (person). Secured loan where the security is real property. Common Law Mortgage  Fee simple estate was conveyed from the mortgagor to the mortgagee,  Covenant was put in the contract which obliged the mortgagee to reconvey the property upon repayment.  Rights were totally extinguished when the mortgagee missed one repayment; all interest in the land would be completely lost, including the difference between debt and land value. Equity stepped in…  Focussed on intention rather than form of the contract,  Decided it was not equitable for someone to retain all the land Held that mortgage was not an absolute interest in land Equity of redemption allowed a mortgagor to retain the difference in the debt and the value of the land. Brydone, Foster & Co v Murray.

Equitable right to redemption allowed the mortgagor to ask for payment and hence redeem the property for defaulting on payment.  Decree misi - extension of time,  Decree absolute – cut off right to redemption. Formalities – Walsh v Lonsdale  Equitable mortgage – legal requirements not yet met.  Depositing of C/T for a loan = equitable – Russell v Russell  Northern England Fire Service v Whipp

Security Rights 1) Pledge/Pawn Loan secured by creditor’s possession of chattel; can pay their debt and reclaim their chattel. 2) Common Law Lien Right to passive possession, not disposition – can keep things until debt is paid. 3) Mortgage 4) Hire-Purchase Debtor retains possession, creditor has ownership until it is paid off. 5) Charge Equitable right – resort to property. No possession/ownership but can use it as satisfaction of debt. 6) Statutory Encumbrance Torrens mortgage; not transfer of ownership but a legal encumbrance. Torrens Mortgage Part 12, Real Property Act  Grants a charge over the estate,  Mortgagee/Mortgagor both have an interest,  Can have more than one legal mortgage as opposed to Common Law. s132 – Operates as a charge, no conveyance of interest. s128 – To achieve a legal mortgage, must be registered upon which R/P receives indefeasibility. ss140-142A – Foreclosure procedure:  Registrar-General must put notice in the Gazette, offering land for sale.  If it cannot be sold, then the mortgagee can foreclose and take full ownership of the land. ss143,146 – redemption:  Once a loan is satisfied, then one can redeem their property through discharge (s143).

Rights & Remedies of a Mortgagor  Right to lease stays with mortgagor,  Right to lease under C/L belongs to mortgagee...