A c e y o u r e x a m s i n s t y l e w i t h U n i C r a m N o t e s i n t o w n !
P r o p e r t y L a w N o t e s
2010
Edition 1
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A c e y o u r e x a m s i n s t y l e w i t h U n i C r a m N o t e s i n t o w n !
P r o p e r t y L a w N o t e s
Topics
1.
I
NTRODUCTION
How to use Cram Notes
Abbreviations
2.
P ERSONAL P ROPERTY
A.
Possession of goods i.
Jus tertii
B.
Tortious acts on personal property i.
Trespass ii.
iii.
C.
Bailment
Conversion
Detinue i.
ii.
For reward
Gratuitous bailment iii.
Rights against third party
Jus tertii iv.
3.
P
RIORITY OF
I
NTERESTS IN
P
ROPERTY
A.
Prior Legal v Subsequent Legal interest
B.
Prior Legal v Subsequent Equitable interest i.
Exceptions
C.
Prior Equitable v Subsequent Legal interest i.
Actual Notice ii.
Constructive Notice
D.
Prior Equitable v Subsequent Equitable i.
Exception
E.
Mere equity v Subsequent Equitable
4.
C
O
-
OWNERSHIP
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A c e y o u r e x a m s i n s t y l e w i t h U n i C r a m N o t e s i n t o w n !
P r o p e r t y L a w N o t e s
A.
Joint tenancy
B.
Tenancy in common
C.
Which is it? i.
Words of severance ii.
Presumption in equity
D.
Rights against other co-owners i.
ii.
Claim for improvements
Occupation rent iii.
Disposition of interests
E.
Severance of Joint tenancy i.
ii.
iii.
Unilateral action
By agreement
Course of dealing
Court order iv.
5.
R EAL P ROPERTY & T ORRENS T ITLE
A.
Fixtures i.
ii.
Degree of annexation
Object of annexation iii.
Tenant’s fixtures iv.
Chattels annexed by mistake
B.
Possession of land
C.
Adverse possession i.
Factual possession ii.
iii.
Intention to possess
Mistake as to title iv.
v.
vi.
vii.
D.
Estates
Inconsistent use
Successive interests
Abandonment
When does time stop running?
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A c e y o u r e x a m s i n s t y l e w i t h U n i C r a m N o t e s i n t o w n !
P r o p e r t y L a w N o t e s i.
ii.
iii.
Types
Determinable limitation
Condition subsequent
Void contingencies iv.
v.
Doctrine of waste
E.
Legal future interests i.
ii.
Types of future interests
Rules for legal remainder
F.
Contracts for sale of land & leases i.
Formalities
1) Land
2) Leases
Is the contract incomplete? Doctrine of part ii.
performance iii.
Risk & incomplete contracts
G.
Equitable lease where no formal lease agreement
H.
The concept of indefeasibility i.
Deferred indefeasibility ii.
iii.
Immediate indefeasibility
Exceptions to indefeasibility
1) Fraud
2) Omission or misdescription of easements
3) Short term tenancies
4) Rights in personam
5) Inconsistent legislation
I.
The Torrens register i.
Notice ii.
Caveats i.
Caveatable interest ii.
Application iii.
Removal
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P r o p e r t y L a w N o t e s iv.
Compensation v.
Competing interests
6.
E ASEMENTS
A.
Creation i.
ii.
Implied grants
Easement of necessity iii.
Implied reservation
B.
Substantive requirements i.
Dominant and servient tenement
C.
Extent of easement
D.
Extinguishment & abandonment
7.
L EASES
A.
Types of leases
B.
Creation i.
Legal lease ii.
Equitable lease
Implied periodic lease iii.
iv.
Tenancy by estoppel
C.
Substantive requirements for leases i.
ii.
D.
Covenants
Exclusive possession
Certainty of duration i.
Implied by law
1) Quiet enjoyment
2) Non-derogation from grant
3) Fitness for habitation
4) Duty to take reasonable care for safety of occupants
5) Obligation to repair
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P r o p e r t y L a w N o t e s ii.
Implied by statute
1) To repair
2) To pay rent iii.
3) Landlord to inspect and repair
4) Re-enter
Express covenants
1) To repair
2) Covenant against assignment or sub-letting
E.
Assignment of leases i.
Privity of contract ii.
Privity of estate iii.
Assignment of reversion
Liability following assignment iv.
F.
Forfeiture of lease
G.
Relief against forfeiture
8.
M ORTGAGES
A.
Principles under Torrens system
B.
Tacking and Priority
C.
Clogs on the equity of redemption i.
Property remains encumbered after redemption
Option to purchase ii.
iii.
iv.
Postponement of right to redeem
Collateral advantages v.
Penal provisions
D.
Mortgagee’s remedies i.
ii.
Power of sale
Mortgagee’s duty
1) Timing
2) Conduct
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A c e y o u r e x a m s i n s t y l e w i t h U n i C r a m N o t e s i n t o w n !
P r o p e r t y L a w N o t e s
A snippet from our Property Law Cram Notes
CO-OWNERSHIP
Joint Tenancy
Right of survivorship
Last remaining survivor owns the whole estate
Interest of a JT cannot be disposed of in will
BUT can sever inter vivos to create TIC
Unity of
Possession – each entitled to the WHOLE, not exclusively for himself but to be enjoyed together with other JTs
Interest – same in nature, extent and duration
Title – derive interest from same document/act
Time – all interests must vest at same point in time (except trustee/will)
Tenancy in common
Each holds a distinct yet undivided share
Only unity needed is thus unity of possession
Can alienate inter vivos or dispose via will
[..]
REAL PROPERTY
Deferred Indefeasibility
Gibbs v Messer
“those who deal, not with the RP, but with a forger who uses his name, do not transact on the faith of the register; and they cannot by registration of a forged deed acquire a valid title in their own person” although can pass a valid right to 3 rd parties
Clements v Ellis
“justification for destroying an existing legal estate… found only in the necessity of protection those who subsequently deal in good faith and for value in a manner which the register appears to authorise.”
Immediate Indefeasibility
Frazer v Walker
“registration and not its antecedents which vests and divests title”
“in no way denies the right of a plaintiff to bring against a RP a claim in
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A c e y o u r e x a m s i n s t y l e w i t h U n i C r a m N o t e s i n t o w n !
P r o p e r t y L a w N o t e s personam , founded in law or in equity”
Breskvar v Wall
“not a system of registration of title but a system of title by registration”
priority contest between RP (Breskvars) and purchasers (Rice v Rice ) o
“armed” the Walls by giving them a blank transfer
[..]
Exceptions to Indefeasibility – Fraud
RPA s42 and s43 – narrow defn, s43 excludes actual or constructive notice of fraud
Fraud may occur before or after registration (Bahr v Nicolay)
Actual fraud, “personal dishonesty or moral turpitude” (Butler v
Fairclough) o “must be brought home” to the RP (Assets Co) o not constructive/equitable fraud (Assets Co) o Wilful blindness may be equivalent to actual fraud (Assets Co)
“something more than mere disregard of rights ” ( Wicks v Bennett) o Mere fact that fraud would be discovered if more vigilant, or if made further inquiries, does not of itself prove fraud (Assets Co)
[..]
Constructive Notice of the Torrens Register
Bursill v Berger
what is ‘notified’ to a prospective purchaser by his vendor’s Certificate of
[..]
Title is everything that would have come to his knowledge if he had made such searches as ought reasonable to have been made by him as a result of what appears on the CoT.
i.e. constructive notice of what appears on the Register, but nothing else
cannot take Register’s interpretation of rights and interests at face value
What is a caveatable interest?
must be an interest in land
contract that purport to give someone a right to caveat? (not enough to just give a contractual right to lodge a caveat, IT MUST be an interest over the land)
Mere equity is not an interest in land – Valerica
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P r o p e r t y L a w N o t e s
Why lodge a caveat? In event that the interest is sold, you will be paid out your share in order of priority of caveating, as opposed to a personal debt.
[..]
EASEMENTS
Easement is a right annexed to land to utilise other land of different ownership in a particular manner. They are proprietary interests which run with land.
If land which serves or is burdened by an easement (servient tenement) is transferred, the seller is no longer bound personally
Easements of way v Service easements
Positive v Negative easements (Phipps v Pears)
Positive – allows dominant to do something
Negative – restrictive burden on servient tenement
[..]
LEASES
Creation of Legal Lease
1) agreement – contract formed
2) enforceable when contract is signed and in writing ( s54A CA ) a) or oral agreement (s23D CA + s42(1)(d)) i.
term (plus term under option to renew) does not exceed three years ii.
rent is “best rent” (market) iii.
lease takes effect in possession (right to immediate possession) b) or acts of past performance equitable lease c) or Walsh v Lonsdale – specifically enforceable lease equitable lease d) or LL has accepted rent implied legal lease
3) Equitable interest until settlement, if want to dispose of subsisting equitable interest prior to settlement use s23C CA
4) Landlord register the standard LPI form, both party signed and lodged for registration with the CT, then the tenant will be the registered proprietor of a lease
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A c e y o u r e x a m s i n s t y l e w i t h U n i C r a m N o t e s i n t o w n !
P r o p e r t y L a w N o t e s
[..]
Implied Covenants
1) Quiet Enjoyment
lessee has right to occupy and ENJOY the premises without the disturbance or interference from the lessor and those for whom s/he is responsible
Quiet enjoyment does not mean free of noise, but free of interference
( Worrall)
[..]
2) Non-derogation from the grant
not in breach if LL did not know at time of grant that the premises were to be used for a special purpose (Aldin)
If lease part of land for a particular purpose, must not do anything on remaining portion of land that makes leases land unfit for that purpose
(Battik)
Non-derogation of grant only applies to adjoining lots of land (lease first lot for use, then lease or retain 2nd lot that conflicts with 1st lots use)
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