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LAW2112: Property A Semester 1, 2021 TUTORIAL BOOK

Contents TUTORIAL 1: Topic 5 DOCTRINE OF ESTATES/FRAGMENTATION OF INTERESTS ................ 4 TUTORIAL 2: Topic 6 ADVERSE POSSESSION/POSSESSION .................................................. 6 TUTORIAL 3: Topic 7 SALES OF REAL PROPERTY; GIFTS OF PROPERTY ............................. 7 TUTORIAL 4: Topics 8-10 LEASES AND LICENCES .................................................................... 8 TUTORIAL 5: Topics 8-10 LEASES AND LICENCES .................................................................... 9 TUTORIAL 6: Topic 11 EASEMENTS ...........................................................................................10 TUTORIAL 7: Topic 12: RESTRICTIVE COVENANTS .................................................................12

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General comments about Tutorials Purpose of Tutorials Property A tutorials aim to: 1. Develop students’ understanding of the property law materials taught in lectures. The experience of the lecturers is that many students avoid engaging with the unit materials until just prior to the final exam. The consequence is that they do not have a sufficient grounding in the relevant principles and perform poorly on the final exam; 2. Practice problem solving techniques through the application of rules and principles to factual problems; and 3. Improve students’ proficiency in oral expression. 4. Provide opportunities for students to discuss and ask questions about difficulties that they encounter in studying the material and applying the principles. Tutorials perform a different function to lectures and should not be regarded as a form of minilecture. Preparation for Tutorials Little can be gained by mere attendance at tutorials without preparation or participation. Students are therefore advised that to ensure that they are adequately prepared for tutorials so that they get the full benefit of the tutorial program. Preparation consists of reading the cases and other materials in the Reading Guide for the relevant topic, reading the tutorial questions beforehand and preparing a draft answer or notes of questions and issues that will assist you to answer the tutorial question. Participation involves making a contribution to tutorial discussion and being respectful of and receptive to the views expressed by other students and the tutor. Through participation and discussion, tutorials will provide you with feedback on your problemsolving technique and the accuracy and completeness of your understanding of the legal principles. Please note that participation is essential as part of your tutorial participation mark, which is worth 10% of the assessment in the course. Please refer to the Information Notice on the Tutorial Participation mark on the Moodle course page. Consultations with Tutors Students may make an appointment to see the tutor to discuss particular legal issues arising from the tutorial discussion. See Unit Guide for consultation times. Cancelled tutorials At times, a tutor may need to cancel a class due to circumstances beyond his or her control. Students will be notified of cancelled tutorials. Every effort will be made to give students early warning of cancellations. However, in some cases this will not be possible. Where a tutorial is cancelled by a tutor a make- up tutorial will be held at an appropriate time. Technique Suggestions The tutorial problems will generally be based on the material dealt with in lectures. Students’ answers to the tutorial problems should be based on a combination of the lecture material, relevant readings and students’ analysis of the facts of the problem. A suggested technique for answering problem questions is the following: Issue Page 2 of 12

Begin your answer by thinking about what your client wants. For example A (your client) wants to show that there is a binding lease with B for the exclusive use of premises owned by B. Most problem questions raise multiple several legal issues. Each tutorial will look at a different issue; in an examination you should consider (often briefly) the possible relevance of all topics examinable. Make it clear which issues you are discussing; using headings is a good way to do this. Relevant Law State the relevant legal principle(s) which relate to each issue identified. In other words, what is the law? Legal principles should be supported by case authorities and/or appropriate statutory provisions (in examinations, there is no need to give a citation for the case in issue). Principles should be stated clearly and concisely. Do not write out your lecture notes or passages from a text book. State only the principle that is relevant to the issue which you are addressing. Where the law is unclear, it may be necessary to develop the legal principle beyond one or two sentences. Apply the law Apply the relevant legal principles identified above to the facts of the problem. If the point is significant, you should compare the application of the principle in question in a decided case with the application of the principle to the facts under consideration. *** This is the most important part of your answer. Remember that legal argument turns on the application of the law to the facts of a case. *** Remember also that it is only by detailed comparison of the relevant facts and the decision in a decided case that a principle may soundly be applied or distinguished. Even though you may have been asked to advise only one party (the plaintiff or the defendant), your client must be made aware of the arguments contrary to her or his cause. Conclude Decide what your conclusion is, based upon application of the relevant law to the facts and issues.

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TUTORIAL 1: Topic 5 DOCTRINE OF ESTATES/FRAGMENTATION OF INTERESTS Tutorial Question One a) In 2015, Patrick transfers Blackacre “to Tess for life”. Having no real use for Blackacre, in 2017 Tess sold her interest to her cousin Harold, who has always loved the place. Harold immediately removes the exquisite, manicured privet hedge which lines the long driveway and which serves as a windbreak for the house and garden, because it gives him terrible hayfever. Upset, Patrick confronts Harold, but is told that he (Harold) can do what he likes while he is living in Blackacre. Was it possible for Tess to sell her interest to Harold? If so, what interest did Harold obtain? Does Patrick have any rights against Harold in respect of the hedge? b) In 2008, Andrew transfers Whiteacre “to Jill for life, and then to Jill’s first-born child”. At the time of the transfer, Jill had no children. In 2011, Jill gave birth to Amy. Jill is still alive. Advise Amy as to whether she has an interest in Whiteacre as at 2018.

Tutorial Question Two Consider the following facts and answer for each. Based on what you know so far (you can provide more detail once you learn the relevant material): are the interests property interests? If so, are they personal or real and who is competing for the interests? 1. I own a piece of farming land at Pakenham. My interest is registered. 2. At the moment I am not using a section of my property which adjoins my neighbour’s land. My neighbour, Bill Jones, approaches me to see if he can have exclusive possession of this area for one year. We agree that he can and decide the terms which include payment of $200 a month for rent. 3. There is a downturn in the economy and I have to borrow $10,000 in order to plant my crops for the next year. My current crop has failed. I approach my bank and negotiate a loan for this sum on certain terms of repayment. The bank will only lend the money if I sign a contract and have this interest registered on the title to my property, so I do. 4. In one corner of my land, next to the part that I have leased to Bill Jones, there are some gum trees growing wild. Bill approaches me for permission to come onto my land to cut down and take away these trees. I give him this permission upon payment of an agreed sum. 5. Bill Jones has problems with access to his property. I have two road frontages, one of which is a main road. Bill has only one road frontage which is a gravel road and provides him with unsatisfactory access to the main road. He approaches me again, this time for permission to have access across my land to the main road. I agree. 6. The financial problems of the rural community have hit even harder. I can’t raise further funds by way of loan and decide to sell part of my property, which has a separate title. I want to restrict the type of materials used to build any house which may be erected on this land and instruct my solicitor to include a condition to that effect in the contract of sale. Page 4 of 12

7. I transfer my property “to my son James for life, and then to Fred”. (i) Can James, during his life, sell his interest to Harold, and if so, what interest does Harold obtain? (ii) Can James leave his interest in his will to Harold? (iii) Identify the interest held by Fred while James is still alive.

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TUTORIAL 2: Topic 6 ADVERSE POSSESSION/POSSESSION Bush Mountain is a high peak in a remote area of the Victorian Alps, accessible only by a single unsealed road which runs to its base. It is owned by Tiberius Kirk. In 2002, Tiberius was approached by Trek Enterprises, a group of investors wishing to develop the mountain as a ski resort. Tiberius entered into a 99 year lease for the mountain, under which Trek Enterprises would develop the resort and operate it for the term of the lease. Annie, an ardent environmentalist who knew the area well from frequent bushwalking visits, was enraged by this plan. She mounted a vigil in protest, setting up camp in a canvas tent at the mountain end of the access road in 2002. She vowed she would remain and block any construction activity until Trek Enterprises formally renounced their plans. She attracted significant public support, and Trek Enterprises attempted to negotiate with her to assure her the environment would be respected. However, by 2003, following the negative publicity, investors were having second thoughts about the development, and Trek Enterprises announced that its plans would be put on hold indefinitely. Annie remained in occupation at Bush Mountain and, in early 2003 she erected a shack in place of the tent, and planted a modest vegetable garden. She lived in the shack and frequently walked all over the mountain and its surrounding area, happily sharing her knowledge of wildlife with any other bushwalkers she happened to meet. On one occasion, however, she found a bushwalker dropping litter, and screamed angrily at him to get off the mountain until he beat a hasty retreat. To further protect the mountain wildlife, she put signs up saying “No Hunting Allowed” at the end of the access road. On Annie’s death in 2010, she left a will devising “the right, title and interest in all my real property to my sons Chuck and Dave”. Chuck and Dave visited the property a month after Annie’s death and decided to open a bungee jumping business. They installed the bungee jumping equipment by nailing it to the tallest tree they could find, cleared the area formerly occupied by Annie’s garden, and built a café and gift shop. From that time on they visited Bush Mountain every weekend and opened it to the public (weekends only). They seldom ventured outside the immediate vicinity of the building. Trek Enterprises come to you for advice in the year 2018. a) Can Trek Enterprises evict the brothers from the land and proceed with its plans to develop the site as a ski resort? b) Who has the rights to the bungee jumping equipment?

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TUTORIAL 3: Topic 7 SALES OF REAL PROPERTY; GIFTS OF PROPERTY Barry owns a house in Seville in the Yarra Valley, which is fully insured. The property is on the market for private sale. To save costs, Barry has decided to advertise over the internet and handle the sale himself, rather than engage a real estate agent. Barry obtains two copies of the Standard Form Contract of Sale of Real Estate that is used by Victorian real estate agents in readiness for what he hopes will be a quick sale. After visiting the property twice, on 1 February 2018 Carol makes Barry an offer to purchase the property for $550,000. The offer is made over the phone and is verbally accepted by Barry, whereupon Carol immediately pays a deposit of 10% into Barry’s bank account by electronic transfer. On 5 February, Barry and Carol meet to ‘fill in the blanks’ on the contract. The contract provides for settlement to take place within 90 days of the signing of the contract, and is expressed to be ‘subject to finance’. Carol signed Barry’s copy of the contract, but in his haste Barry forgot to sign Carol’s copy. Carol noticed the omission on 7 February, and Barry promptly faxed her a copy bearing his signature. a) What is the nature of the interests held by Barry and Carol in the Seville property on the 7th, 5th and 1st February? On 27 February a tree branch comes down on the Seville house and severely damages the roof. Carol has not taken out any insurance on the property. b) Carol comes to you for advice as to her options. On 1 March 2018 Barry enters into a written contract to sell the Seville property to Des for $600,000. The contract provides for settlement to take place within 30 days of the signing of the contract, and settlement does take place. Des is now the registered proprietor. Barry is quite prepared to return Carol’s deposit. c) What interests are held by Barry, Carol and Des respectively after settlement of the contract between Barry and Des?

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TUTORIAL 4: Topics 8-10 LEASES AND LICENCES Billy owns a retail garden supplies shop at 8 Margaret Street Richmond, Melbourne. His neighbour, Jill, was the owner of a wholesale garden nursery at 12 Margaret Street. Between the two premises at 10 Margaret Street there is a strip of vacant land which was also owned by Jill. In March 2001, Jill and Billy executed a 20-year ‘Occupation Agreement’ concerning the vacant land. For a monthly fee of $500, the agreement allows Billy to use the land to store pot plants for sale to the public. The agreement further provides that Jill is to be the sole provider of pot plants for Billy’s shop. At the time of the agreement, Jill was concerned to protect her commercial reputation by ensuring that the pot plants are in good condition and displayed properly. To that end, the agreement includes the following terms: Clause 8: Jill hereby grants to Billy a licence to use the land only as a display area for garden pot plants. Nothing contained in this agreement shall be construed as granting any estate or interest in the land to be occupied by Billy. Clause 9: Billy shall permit Jill and her authorised representatives to enter and inspect the land at any time outside business hours. In June 2001, Billy fenced off the vacant land so that customers only had access to the pot plants through his shop. Jill was able to access the land from her nursery through a side gate. At the time of fencing the land, Billy said to Jill: ‘I know you want the plants to look good, so feel free to use the side gate and inspect them whenever you like'. However, Jill rarely did so as she did not want to disturb Billy. In August 2015, Jill passed away after a long illness. Her daughter, Eka, inherited the garden nursery and the vacant land. Eka continues to operate the nursery. She is also the lead singer in a punk rock band which often performs for friends at the back of 12 Margaret Street. In December 2015, Billy comes to see you for legal advice. His employees are complaining about the noise from the band. He would like to sue Eka for breach of the Occupation Agreement. He no longer wants the garden nursery owned by Eka to be the sole provider of his pot plants. Advise Billy: a) Whether the Occupation Agreement is a lease or a licence (10 marks). b) Whether Eka is liable to pay compensation for the rock band noise (5 marks). c) Whether Eka can enforce the exclusive pot plant supply arrangement (5 marks). For all of the above, there is no need to consider the Retail Leases Act 2003 (Vic) or the Transfer of Land Act 1958 (Vic). You may assume that there is no privity of contract between Billy and Eka.

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TUTORIAL 5: Topics 8-10 LEASES AND LICENCES In January 2016, Larry decided to invest in a factory-warehouse at Geelong. He was registered as sole owner under the Transfer of Land Act 1958. In August 2016, Larry executed a deed of lease of the Geelong factory to Trendy Gear Pty Ltd for a term of 6 years. The lease was registered. Trendy Gear Pty Ltd were manufacturers of low cost clothing. The lease specified that the premises were to be used as a manufacturing plant and Clause 7 of the lease required Larry at the request of Trendy Gear Pty Ltd to install a reinforced concrete floor “to support its heavy equipment”. In December 2016 Trendy Gear sold the clothing business to Baby Boomers Pty Ltd and with Larry's consent assigned the balance of the term of the lease to Baby Boomers Pty Ltd. The assignment was registered under the Transfer of Land Act. In February 2017, Larry decided to sell the Geelong premises. He entered into a contract with Richard for the sale of the land and factory for one million dollars. Settlement of the sale took place on 15 May 2017 and Richard registered his transfer shortly afterwards. Richard then wrote and notified Baby Boomers Pty Ltd of the change of ownership. Baby Boomers Pty Ltd wrote back asking Richard to install the reinforced concrete floor in accordance with Clause 7 of the lease. When Richard refused, Baby Boomers Pty Ltd stopped paying him rent: a) In March 2017, Baby Boomers decide they want the reinforced concrete floor installed. Can they compel Larry to install the floor? b) If Larry refused to install the concrete floor and Baby Boomers stopped paying rent in April 2017, could Larry sue to recover the arrears of rent from: (i) Trendy Gear Pty Ltd; or (ii) Baby Boomers Pty Ltd. c) If Trendy Gear Pty Ltd did not assign the lease and stayed on as the tenants, could they compel Richard to install the concrete floor? If Richard refused to install the concrete floor and Trendy Gear then stopped paying rent, could Richard sue Trendy Gear to recover the arrears of rent?

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TUTORIAL 6: Topic 11 EASEMENTS Tutorial Question One Since 1968, Tom Waits has used a 3 metre wide and 10 metre long track across a piece of land belonging to his neighbour, Mr Sitsby, to allow easier access to his back paddock from the main road. For the first 5 years Tom only used the track once a year to get a tractor into the paddock. From 1974 Tom started to use the track on a more frequent basis (4-5 times a year). In 2004 Tom constructed a dirt road from his farmhouse through his back paddock. He linked it up to the track. Mr Sitsby, realising that Tom intended to convert the track into part of a new driveway to his property, refused any further access to his land. To ensure this he padlocked the gate separating the track on his land from Tom’s back paddock. Tom sold his farm in June 2007 to Rita Coolridge, who became the registered proprietor. When Rita tried to use the track she was refused access by Mr Sitsby. She wants to know whether she can use the track and whether she is able to complete the driveway. Since 1984 Tom (and now Rita) have operated a small winery. Improved access will be used to increase on-site sales of wine. (a) Advise Rita. (b) If Mr Sitsby sold his property, would the new registered proprietor of that property be bound by any right of way that Rita might have over the track?

Tutorial Question Two Cynthia Burrows has lived in Ocean Spray for the last 32 years. Ocean Spray is a coastal property overlooking the Bass Coast in Victoria. In 1991, Cynthia subdivided her property. In the years that followed she built a new house for herself on the front half of the property and when it was completed she decided to sell the back half containing the old house. Ocean Spray then became known as the backhalf and fronthalf. Clive Shepperd was driving past one day and noticed the ‘for sale’ sign. By this time, Ocean...