VOCAB LIST
Pastoral
Lease
Doctrine of
Tenure
Socage
tenure
Torren
Title
System
Doctrine of
Estate
Seisin
Radical
title
Easement
Restrictive
covenant
Profit a
prendre
Lien/charge
equitable
vendor
liens
Allodial
title
Indefeasibil
ity
Joint
tenancy
Tenants in
common
attestation
Caveat
Beneficial
ownership
Legal
ownership
Full
beneficial/l
egal title
Mesne
profits
CASE LIST
W1A INTRODUCTION
Email of the lecturer: julian.laurens@unsw.edu.au
Effort ability to engage with the material, opinion.
Crown land
o When Australia was colonized by the British colony, all of the land
became Crown land which the King has the ultimate ownership of the
land.
o The recognition of indigenous ownership of land by the non-indigenous
legal system did not occur until 1992 in the Mabo case.
Old System title
o Since the registration of the first grant of Crown land in Feb 1792 until
the introduction of the Torrens Title System in 1863, land ownership in
NSW was based on the English common law system of title.
o Old system land title is a matter of quality: the title is good if it trumps
over lesser titles. In the Old system, a separate deed is prepared every
time land is dealt with. This means, as time passes, the number of
documents requiring safe storage increase and the chance of error
increases.
Torrens title
o Under the Torrens Title System the State maintains and guarantees the
Torrens Title Register. The Torrens title tells us the current state of
ownership and list any encumbrances affecting the land.
Crown Grants
Between that period, lands were grants to citizens known as Crown grants.
Crown grants are consistent with the English land law doctrine of tenure,
which assumed that all citizens titles to land can be traced back to an initial
grant from the King.
Once a citizen has a land title, they are free to deal with the land as they
please. The Crown can only retain freehold titles back before the end of the
lease, by compulsory acquisition, that ism through a formal legislative
process, which requires the payment of money to citizens.
Crown grants are normally issued subject to various exceptions, reservations
and conditions and the title that develops from the grant will inherit these.
These conditions are not written out.
Exceptions
o Reserves of coal, gold, silver and other minerals
Reservations rights to:
o Construct roads, bridges, etc.
o Take or remove indigenous timber and other natural produce and repair
purposes
Conditions
o Obligations such as maintenance
Quit rents
Doctrine of tenure refers to a mode of holding land whereby one person holds
lands from another subject to the performance of certain obligations.
The roots of the doctrine lie in the feudal system.
All land are presumed to be ultimately owned by the Crown, and a royal
grant is required to use the property of the King
Doctrine of tenure was also about the relationship between people the
obligation between one level with another in relation to the possession and
ownership of land.
These tenants who held directly from the Crown were known as tenants in
chief. It followed that only the Crown owned land absolutely, as it alone held
of no other.
The obligations of tenants generated complex feudal ties between the King
and his tenants in chief in the form of services and incidents.
o A service - an obligation on the part of the tenant owed to the landlord.
Socage tenure agricultural labour
Subinfeudation the process of creating tenures out of a
tenanted land
o Incidents were circumstances, most commonly on the death of the
tenant
E.g. death of a tenant in fee simple the heir of the tenant had to
pay a sum of money known as relief to the overlord before he
could succeed to the land.
Escheat: the land of the tenant by tenant in chiefs being
convicted of a felony.
Pyramid of feudal relationships: there were number of persons with rights:
o 1. Tenant in demesne with possessory rights
o 2. Mesne lord to whom the tenant owed services
o 3. Tenant in chief to whom the mesne lord owed services
o 4. Crown who received services directly from the tenant in chief
It allowed for a number of overlapping sets of rights to subsist over one
particular parcel of land. A simplified version of this fragmentation exists in
the case of contemporary tenancy.
In 1290, the Statute of Quia Emptores was passed.
o 1. It permitted every free man to alienate his interest in the whole or
part of his land without his lords consent.
o 2. It prevented further subinfeudation from taking place.
With the process of subinfeudation abolished, the feudal pyramid
began to shrink.
Today the doctrine of tenure has no practical significance in Australian land
law. Its influence still lingers, however, in three areas.
o 1. No person can, in the technical sense, own land, since all land is
held of the Crown. This proposition is till formally part of Australian law.
o 2. The modern landlord-tenant relationship bears some resemblance to
the early tenurial relationship.
o 3. The traditional doctrine of tenure operated until Mabo to obstruct
recognition of native title.
o
No services
Council of the Municipality of Randwick v Rutledge
o It was noted that tenurial holding was marked by obligations of
services and incidents, and that in the case of Socage tenure.
No incidents
In Australia, the feudal overlord was the Crown. In the case of Socage tenure,
escheat occurred in two kinds of cases:
o 1. Where the tenant in fee simple was convicted of a serious criminal
offence, or left the realm to avoid conviction.
o 2. Escheat arose on the death of a tenant in fee simple intestate and
without next of kin.
Where a tenant in fee simple dies intestate without next of kin, the Crown
now takes the realty and personalty of individuals dying intestate without
next of kin as bona vacantia in the majority of Australian jurisdictions.
It therefore seems that any reference to landholders holding of the Crown
appears to have been overtaken by a gradual process of legal evolution,
rendering the term now quite misleading.
Leasehold estates
Decisive differences between the system of Australian land law and its
English forbear lies in the recognition of indigenous rights native title.
o Different indigenous groups may exercise their native title over the
same land.
o Mabo concludes that native title is not a common law title but is
instead a title recognised by the common law.
Common law does not protect native title right it simple recognises native
title rights existence
If the land were desert and uninhabited, truly a terra nullius, the
Crown would take an absolute beneficial title to the land for the reason
given in AG v Brown: there would be no other proprietor. But if the land
were occupied by the indigenous inhabitants and their rights and
interests in the land are recognised but the common law, the radical
title which is acquired with the acquisition of sovereignty cannot
itself be taken to confer an absolute beneficial title to the
occupied land.
It would be wrong, to point to the inalienability of land by that
community and, by importing definitions of property which require
alienability under the municipal laws of our society.
The nature and incidents of native title
Native title though recognised by the common law, is not an institution
of the common law and is not alienable by the common law. Its
alienability is dependent on the laws from which it is derived.
1. Unless there are pre-existing laws of a territory over which
Crown acquires sovereignty which provide for the alienation of
interests in land to strangers, the rights and interests which
constitute a native title can be possessed only by the
indigenous inhabitants and their descendants.
It follows that a right or interest possessed as a native
title cannot be acquired from an indigenous people by
one who, not being a member of the indigenous people,
does not acknowledge their laws and observe their
customs
o 2. Native title, being recognised by the common law, may be
protected by such legal equitable remedies as are appropriate
to the particular rights and interests established by the
evidence, whether proprietary or personal and usufructuary in
nature title relating to inheritance.
o 3. Indigenous people as a community, are in possession or are
entitled to possession of land under a proprietary native title,
their possession may be protected or their entitlement to
possession may be enforce by a representative action brought
on behalf of the people
Extinguishing of native title
o Sovereignty carries the power to create and to extinguish
private rights and interests in land within the Sovereigns
territory.
They can voluntarily extinguish by surrender to the Crown. They can also
be lost by the abandonment of the connection with the land or by the
extinction of the relevant tribe or group.
o
Deane and
Gaudron JJ
NOTE
While the HC was of the view that the theory of tenure remained a central
pillar of the land law in Australia and that it was too late in the day to rule
otherwise, the majority of the court held in favour of the continued
application of a modified theory of tenure.
o Distinction was made between the radical title acquired by the Crown
on the acquisition of sovereignty and the absolute beneficial ownership
that was held to follow rom the traditional doctrine of tenure.
The Crown only acquired absolute beneficial ownership in respect of land
which was not in the occupation of the Indigenous inhabitants at the time of
acquisition of sovereignty.
S 3 objects
o (a) Recognition and protection of native title
o (b) establish ways in which future dealings affecting NT
o (c) mechanism for dealing claims to NT
S 10 recognises the concept of native title
S 11 provides that it cannot be extinguished contrary to the Act
S 20 compensation
S 223 (IMPORTANT) defines native title as a communal, group or
individual rights and interests of Aboriginal peoples or Torres Strait
Note
S 223 the first step is to know what their laws and customs and traditions
are.
Then it is assessed to whether the customs are connected to the claimed
area.
There must also be continual existence of rules that have a normative
content rather than a certain observable behavior Yorta-Yorta This is a
question of fact.
Though native title generally encompasses the kinds of usages of land typical
of a hunter-gatherer society, it may nonetheless be so expansive as to
amount to exclusive possession of land and full beneficial ownership, as the
order in Mabo (No2) in favour of the Meriam people demonstrates.
De Rose v South Australia (2003) Apart from the requirement in s 223(1)(c)
that the rights and interests must be capable of recognition under the
common law, s 223(1) does not impose limits on the content of traditional
laws and customs
Definition in s 223(1) of native title and native title rights and interests
have remained constant.
Native Title Act 1993 (Cth) s 223(2) offers the examples of hunting, gathering
and fishing as possible native title rights.
1. Territorial sea (12 nautical-mile stretch of water from the low-water mark
over with Australia exercises sovereignty.)
o The HCA held that the Crown have sovereignty rights and interests
over it, and that title, not being a creature of the common law, could
exist alongside such rights as long as it was not inconsistent with them.
2. Inland waters
o Yanner v Eaton (1999) CLR : HCA held that hunting of estuarine
crocodiles with harpoons was a valid exercise of native title.
3. Cultural Knowledge
o Western Australia v Ward: we do not think that a right to maintain,
protect and prevent the misuse of cultural knowledge is a right in
relation to land of the kind that can be the subject of a determination of
native title.
4. Other ways of protecting cultural knowledge
o Ward affirmed that native title does not extend to the protection of
intellectual property rights associated with the land; but they also
emphasised that the law governing confidential information and
copyright might afford suitable protection.
5. Mineral and petroleum
Ward: HCA held that the relevant legislation had extinguished any
possible native title rights to minerals with the possible exception of
ochre.
6. Is native title alienable?
o Native title is in general inalienable. However, there are two
exceptions.
(I) Native title may be surrendered to the Crown
(II) It may be acquired by a clan, group or member of an
indigenous people in accordance with the laws and customs of
that people.
7. Membership of claimant group
o Ngalakan People v NT (2001): the determining factor was whether the
traditional laws acknowledged and the traditional customs observed by
the group allowed a person to identify as a member of a group.
o Gumana v NT (2007) (issue of spouses): the key question was heather
a particular individual was a member of that community. The spouses
were members of the community that established a communal title to
the land in accordance with s223(1).
7. Can native title evolve over time?
o It is not yet clear how much change is acceptable for there to be a
continuing connection to the land.
o Harrington-Smith on behalf of the Wongatha People of WA (No 9): the
question is what to make of all the evidence concerning hunting. I think
it shows that there is a connection between claimants and the land in
general of a kind and degree that non-Aboriginal people do not have
o According to Mabo (No 2): native title can evolve. The question is
the degree of change that is acceptable for the common law to be
recognised.
o
ISSUES
by the NTR.
By special leave, the claimants appealed to the HCA.
Whether there is a native title.
1. Did the claimants demonstrate that they were descended
from those who were indigenous inhabitants of the claim area in
1788?
2. What was the nature of the entitlement which the indigenous
inhabitants enjoyed in relation to their traditional lands in
accordance with their laws and customs and what was the
extent of those lands?
OUTCOM
E
Gleeson
CJ,
Gummow
and
Hayne JJ
Gaudron
and Kirby
JJ
NOTE
De Rose v South Australia (No 2) (2005) 145 FCR 290
FACTS
Group of Y and P people claimed native title over De Rose. The
traditional laws and customs relied on by the claimants were those of
the Western Desert Bloc. One of the claimants, Peter de Rose, was born
under an ironwood tree.
ISSUES
OUTCOM
E
Wilcox,
Sackville
and
Merkel JJ:
The trial judge dismissed the claim of native title on the basis that de
Rose had abandoned their connection with the land.
Whether the abandonment is relevant to constitute a failure to claim
native title.
In view of these findings the effect of those laws and customs is, in
our opinion, plainly to constitute a connection between Peter De Rose
and the claimed area.
The correct inquiry would have required the primary judge to ascertain
the content of the traditional laws and customs, to characterise
the effect of those laws and customs and then to determine
whether the characterisation constituted a connection between
the appellants and the claim area.
The primary Judge seems to have been influenced by his view that Peter
De Rose and the other appellants had not provide satisfactory reasons or
excuses for their failure to discharge their responsibilities as Nguraritja
or to maintain contract with the claim area.
While this may be true, it is not apparent why the appellants reason for
NOTE
Jango v NT (2006)
o The evidence did not show a consistent pattern of observance and
acknowledgment of laws and customs by members of that society.
Thus the claim failed.
Bennell v WA (2006)
o FCA endorsed the view that a connection may exist regardless of a
physical presence on the land.
Risk v NT [2006]
o Demonstrates that where interruptions affect the presence of a
claimant in an area and such an interruption subsequently affects the
continued observance and enjoyment of traditional laws and customs,
the necessary connection will not exist.
Harrington-Smith on behalf of the Wongatha People v Western Australia (no 9)
[2007] FCA 31 (individuals and small groups claims)
o It may be conceivable that there may be individuals who could
establish that they have individual rights or interests in smaller,
personal my country areas. No individual has applied for a
determination of native title on that basis. The rights and interests
claimed would apparently be different from the group rights and
interests presently claimed.
In Mabo, Brennan J held that at common law native title could be extinguished
without the consent of Aborigines and without the payment of compensation.
To do so, its exercise must reveal a clear and plain intention to extinguish a
native title.
o 1. By legislative provision expressed to extinguish native title
o 2. By an inconsistent grant of an interest in land over a native title
Fee simple by definition has exclusive possession
o 3. By acquisition by the Crown
Aboriginal people should not be pushed into the sea in this backdrop,
its unlikely that leases was to exclude Aboriginal people from them.
Hence, it was not about exclusive rights with respect to pastoral leases.
There was no clear and plain intention on part of the government to
extinguish rights when granting pastoral leases, which is what is
required to extinguish any native title rights.
His Honour concluded that none of the grants necessarily extinguished
all incidents of native title.
DICTA
NOTE
Leases conferring rights of exclusive possession
Western Australia v Ward (2002) 191 ALR 1 (HCA)
FACTS
Concerned three separate native title claims.
ISSUES
OUTCOM
E
RATIO
DICTA
NOTE
QUESTIO
NS
Court has concluded that the NTA has transmogrified the common law
meaning of native title, that the starting point and ending point for the
definition of native title. As a result, in Ward and Yorta-Yorta, the entire
discussion of native title is treated as an exercise in statutory interpretation
rather than an articulation of the common law.
Now that the HC has contradicted this position of following the common law
rights, it would seem to me that the most urgent reform to the Australian law
on native title is to amend the definition of native title to make clear that
native title means whatever the common law of Australia says that it means.
to an end. Mabo and Wik demonstrate that statutory provisions that regulate
the use of land will not necessarily extinguish native title.
NOTE
1.2 What are the recognised interests in land? The numerous clauses
principle closed list of rights of using land
A chattel ending up part of land. When they are assembled in a way that is
intended to be permanently attached to the land, thus becoming part of it.
To avoid confusion, the standard contract of sale for residual land in NSW
allows vendors to tick boxes to make it clear whether these items are
included in the sale of the land.
1.6 How does Equity and Trusts connect with Land Law?
The clients legal rights or remedies are inadequate. The legal remedy of
monetary damages is inadequate because land is unique and so specific
performance can be sought in the court as a equitable remedy.
Equitable estoppel can be sought even if there is no legal title, nor did they
even have legally enforceable contract. Equity is prepared to step in when
there is a common intention or a detrimental reliance.
Sometimes a client is a beneficiary and can only claim under equity.
A legally complete contract for the sale of land + in writing = the purchaser
getting an equitable interest in land.
o The purchaser does NOT get the equitable interest because the vendor
intends to give the purchaser the equitable interest, but rather because
equity regards as done what ought to be done.
S 54A and s 23(1)(c) of CA 1919 (NSW)
o
o
The Torrens system is the system of land registration that is used in all
Australian states regulated by the Real Property Act 1900 (NSW).
The Torren system replaced Old System Title, which had a number of
problems.
There are two basic principles that underpin Torren title:
o 1. all parcel of land (lots) have had their boundaries defined by a
professional, accurate survey
o 2. There is a publicly accessible government register that definitively
records who owns that parcel of land and who else may have rights to
it.
In the Old System Title, it was required by the vendor to prove their
ownership by producing a series of documents (deeds) from previous
purchasers of the land.
Example 1:
Deed 1-3 shows that V had a valid legal title and Deed 4 conveyed that
legal title from V to P.
A deed could only transfer a legal title if the person executing it actually had
legal title. This meant that if there is a weak link in the chain of deeds the
subsequent owners may have acquired nothing.
nemo dat quod non habet rule you cannot give what you dont
have.
o It created a system of derivative title, that is, Ps title derived from V
is no better than V or Cs.
Example 2:
Example 3
By applying the nemo dat rule: Ps title transferred from Vs title transferred
from Cs title = a legal fee simple burdened by Xs 25 year lease.
o ABOLISHED
(ii)
The legal owner would only lose if they have behaved recklessly with the title
deeds.
(iv)
Conclusion
Bona fide purchase rule and nemo dat rule no longer applies to land in NSW.
The deeds registration system was introduced in early 19 th century to make
conveyancing more secure.
There are two certainties that are essential in relation to ownership of land
o 1. WHAT is the land we are dealing with; and
o 2. WHO owns it and has rights to it
1. What is the land
o Plan of survey defines its boundaries. The process of drawing surveys
involves practical, legal knowledge and professional judgment to
determine where to draw the boundaries.
Individual Torrens title are included on a deposited plan, which is essentially a
map of an area defining the boundaries of multiple parcels of land. New
deposited plans will be drawn up when
o 1. new Crown grants are made to citizens; OR
o 2. Old System land is converted; OR
o 3. An existing Torrens title is subdivided into multiple new Torren titles.
The plan will be given a number (e.g. DP76543), as will each lot on the plan
(e.g. lot 1, 2, 3, etc.). The number 31/76543 is known as the folio identifier.
In addition to ordinary plans of subdivision there are also strata and
community plans of subdivision. Strata plans are needed to subdivide the
airspace in high rise buildings into individual Torrens lots (apartments, offices,
etc.) and common property (halls, lifts, foyers, etc.)
Registered plans of subdivision are extremely important in strata and
community title because they define the boundaries of privately owned lot
property and common property. Individual owners are responsible for their
own lots, and the body corporate (all owners) is responsible for common
property.
The Old system title was rotten from the ground up and an entirely new
system was needed.
The page was called a folio and it recorded all information about ownership
of that particular parcel of land. It recorded the current owner of the fee
simple lease if it was a leasehold grant from the Crown, as well as any
encumbrances that affected the land.
The folio is referred to as the certificate of title (CT), and it completely
replaces the old deeds system as a way of demonstrating ownership of land.
For every parcel of land there are two CTs: the page in register itself (the
original CT) and a single copy, called the duplicate CT, which is given to the
current owner of the land.
What is effect of registration?
o It is recordation on the registration that transfers or creates
legal title to land.
o The Torrens system is not a system of derivative title, that is,
purchasers do not derive their title from their vendor by the execution
of deeds.
A typical Torrens land sale will start with signing and exchange of identical
copies of a written contract (s 54A Conveyancing Act 1919). This is a promise
by the vendor to transfer legal title and a promise by the purchaser to pay the
full purchase price, the contract will be completed; i.e. the parties will carry
ISSUES
OUTCOM
E
RATIO
WINDEYE
RJ
DISSENT
Berger argued that the easement thus gave him rights to the exclusive
use of that part of the land
Whether the rights (in respect to the building) created by the
transfer document were sufficiently notified on the register to
bind Bursill.
NOTE
Thus, the creation of rights here was insufficient and not binding on the
Defendant, who, when he registered, became indefeasible to the
Plaintiff's claim.
You cannot just rely on the legal document to ascertain all the rights of a
title. A prudent person is presumed to check other documents
reasonably depending on the circumstances.
S 164 restriction on constructive notice
A purchaser shall not be prejudicially affected by notice of any
instrument, fact, or thing, unless:
(a) it is within the purchasers own knowledge
(b) as ought reasonably to have been made by the solicitor or other
agent.
Torrens saw the inadequacies of the deeds registration system flowed from
the dependent nature of old system titles; that is, from the principle that one
weak link in the chain of title was sufficient to destroy or impair the title of the
last person in the chain.
The scheme he proposed was based on the idea that the state should
authoritatively establish title by setting up a register.
In short, Torrens attempted to make titles to land independent by making
the register conclusive and by barring retrospective investigation of title
The conclusiveness of the register is, in general, what is meant by the
principle of indefeasibility.
The objects of Torren system
o 1. persons who propose to deal with land can discover all the facts
relative to the title.
o 2. Ensure that a person dealing with land which is subject to the
system is not adversely affected by any infirmities in his vendors title
which do not appear on the register
o 3. provide a guarantee by the State that the picture presented by the
register book is true and complete.
The Torrens system is a variant of the system known internationally as a
system of registration of title.
W3B
S 40 of the NSW Act(s 41of Vic. Act) grant or certificate of title registered
under this Act shall be conclusive evidence that the person named in such
grant or certificate as the proprietor of or having any estate or interest in
the land. (???)
The NSW legislation most clearly emphasises that the conclusive evidence
provision is not a major source of indefeasibility, but is designed to assist in
relation to the proof of title.
Doctrine 1: The indefeasibility provision provides as follow
o (1) held to be paramount except in the case of fraud Crown
grant or certificate of title but absolutely free from all other
incumbrances whatsoever, except
(a)[ interests under a prior registered Crown grant or certificate
of title];
(b) [land included in the Crown grant or certificate of title by
wrong description],
o (2) shall be subject to [a number of matters to be considered]
notwithstanding the same respectively are not specially notified as
incumbrances on such grant certificate or instrument
Doctrine 2: The paramount provision is accompanied by the so-called
notice provision to prevent certain equitable principles applying to
registered land and to narrow accordingly the definition of fraud
Doctrine 3: the protection of purchasers provision protection
extends to a purchaser bona fide by providing that nothing in the Act is to be
interpreted so as to deprive a bona fide purchaser for valuable consideration
open to an action for recovery of damages or to an action of ejectment (s
45(2) RPA 1900); or to deprivation of his or her estate or interest (s 42(1) RPA
1900)
Note
Gives a registered proprietor an "indefeasible" title to land.
It is important to remember that s42 RPA refers to the registered proprietor
of "any estate or interest in land recorded in a folio of the Register". Thus,
a mortgage, easement or lease etc. can be indefeasible, not just fee simple
interests.
S 42 is applied in Frazer v Walker
Legislation could in fact be worded so as to evince a strong intention that
the indefeasibility provisions in the RPA would be overridden (note s42(3))
Real Property Act Notice Provisions
s 43 Purchaser from registered proprietor not to be affected by notice
(1) Except in the case of fraud no person contracting or dealing with or
taking or proposing to take a transfer from the registered proprietor of any
registered estate or interest shall be required or in any manner concerned
to inquire or ascertain the circumstances in or the consideration for which
such registered owner or any previous registered owner of the estate or
interest in question is or was registered, or to see to the application of the
purchase money or any part thereof, or shall be affected by notice direct or
constructive of any trust or unregistered interest, any rule of law or equity
to the contrary notwithstanding; and the knowledge that any such trust or
unregistered interest is in existence shall not of itself be imputed as fraud.
s 43A Protection as to notice of person contracting or dealing in
respect of land under this Act before registration
NOTES
Under s 42, P is subject to such other estates and interests and such entries.
When P registered, Xs lease was already on the register and thus Ps title was
subject to it. P has to let X stay for the full 25 years.
In the case where the lease is unregistered, P will not be bound for the
equitable lease even though he would have constructive notice. This is
because s 42 says that if P is the registered proprietor of an estate or interest
in land, he is only subject those interests that are on the register and; s 43
says that it makes no difference if P knew about an unregistered interest.
Deferred vs immediate indefeasibility
E.g. A bona fide purchaser (or mortgagee) (P1) registers an instrument to
which the signature of the registered proprietor (O) has been forged by a rogue
(F). F forges Os signature on a mortgage or transfer, pockets the loan advance
or proceeds of sale, and absconds with the money. P1 registers the forged
instrument, ignorant of the forgery. Both O and P1 are innocent parties.
P1 then passes the subsequent purchaser (P2).
Immediate indefeasibility
Deferred indefeasibility
Good title is conferred on P1
Title of the purchaser (P1) who
immediately on registered of the
registers a forged instrument is
forged instrument. Thus, P1s
defeasible.
registered title cannot be set aside,
even though it was procured by
If, before P1s title is set aside, P1s
registration of a forged instrument,
passing of title to P2 (bona fide)
provided of course that P1 has acted
makes P2s title indefeasible.
without fraud.
Dynamic security interest of the
Static security interest of existing
purchaser is protected
owners
RPA registered-generals role
Static security
o protects the interests of existing owners in a third part property
dispute with purchasers
o Owners should not be deprived of their property by the act of
another without their consent.
o A rule that awards the land to O promotes static security.
Dynamic security
o Incentive to acquire assets for productive purposes. It protects the
reasonable expectations of purchasers that they will acquire a title
free of unknown prior claims and defects.
o This promotes dynamic security, by upholding the reasonable
expectations of purchasers that they will gain an indefeasible title if
they register an instrument in good faith. Owners of land are now at
risk of losing their title to land as a result of an invalid instrument.
It has long been said that the objects of the system are twofold: security of
title and ease of transaction.
o (1) Facilitate the transfer of property rights, or to make
conveyancing quicker, cheaper and easier, but these are merely the
consequences of enhancing security of transfer and acquisition.
o (2) Title registration can therefore be reformulated as follows: to
reduce transaction costs, and thereby to make conveyancing
quicker. cheaper and easier, by providing dynamic security
The dilemma for the law is that it is sometimes impossible to provide both
forms of security when the rights of a prior owner conflict with these of a
good faith purchaser
Where a purchaser in good faith registers an unauthorised disposition, the law
must still provide an adjudication rule to determine who gets the land.
ISSUES
OUTCOME
RATIO
NOTE
It is these sections which together, with those next referred to, confer
upon the registered proprietor what has come to be called
indefeasibility of title.
Before this case, static indefeasibility was applied, but this was
changed.
NSW parliament gave legislative recognition to the decision in
Frazer by amendment to NSW, s 135:
any purchaser or mortgagee bona fide for valuable consideration
of land under the provisions of this Act on the plea that his vendor
or mortgagor may have been registered as proprietor, or procured
the registration of the transfer to such purchaser or mortgagee
through fraud or error, or under any void or voidable instrument,
or may have derived from or through a person registered as
proprietor through fraud or error, or under any void or voidable
instrument.
Breskvar v Wall (1971) 126 CLR 376; [1972] ALR 205 (AUTHORITY)
FACTS
Breskvars, the appellants, were the registered proprietors of certain land
in Qld. They executed a memorandum of transfer for an expressed
consideration of $1200, the name of the transferee being omitted.
S 53(5) of the Stamp Act 1894 (Qld) provided that no transfer was to be
valid either at law or in equity unless the name of the transferee
(was) written at the time of execution.
1. Trial judge found that the transfer was executed to afford security for
a loan of $1200 provided by Petrie (2nd respondent), who took the
possession of transfer and duplicate CT from the Breskvars.
2. 1968 Petrie inserted the name of his grandson, Wall.
3. Oct 1968, Wall was selling the land to Alban (the 3 rd respondent), a
good faith purchaser without notice. The trial judge found that Petrie and
Wall were acting fraudulently, in an attempt to cheat the Breskvars out
of their land.
ISSUES
OUTCOM
E
RATIO
Barwick
CJ
Menzies J
NOTE
Personal covenant:
o Mercantile Credits v Shell Co of Australia
Securing enforcement of the performance of the mortgagor of every covenant
of a mortgage is not an effect of infeasibility provisions
o Carazo v Total Australia
Particularly covenants in a mortgage which are illegal and void will not be
improved by registration
o Duncan v McDonalds (NZLR)
Has been said that registration only validates invalid provisions which delimit
or qualify the estates or interest or are otherwise necessary to assure that
estate or interest to the registered proprietor: PT v Maradona
o Where a mortgage specifies the amount of the debit registration
confers indefeasibility on that amount because qualifying the debt
delimits the interest registered:
Perpetual Trustees Victoria v English
Also an encumbrance the covenants of which may be otherwise void for
uncertainty will not be cured by registration:
o Handarf Golf Club v John Nitscheke Nominees
What attract indefeasibility? Example of leases:
Consents, approvals or anything else given by a previous owner pursuant to a
registered lease will bind the assignee: Salon Today v MNIR a subsequent
lessor was bound by the previous owners consent for the lessee to display
signage pursuant to a clause in the registered lease
o Whats in the lease is whats in the lease, whats in the lease thats
registered is what you will get notice of as well
S 42(1) RPA
Indefeasibility of the terms in a registered instrument
Mercantile Credits Ltd v Shell Co of Australia (1976) 136 CLR 326
FACTS
1969 Registration of the lease: The Respondent was the lessee of a
property. Under the lease, he had a covenant on renewal.
1974 Lease renewed.
After the registration of the lease, the lessor executed a mortgage with
the Appellant, and then defaulted on payment. The Appellant tried to
exercise his power of sale.
ISSUES
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E
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DICTA
NOTE
A volunteer is one who does not give valuable consideration for his or her
title. Under the general law a person who acquired a legal estate as a
volunteer was subject to the equities which affected the donor or predecessor
in title whether or not the donee had notice of those equities: Re Nisbet and
Potts Contract [1905] 1 Ch 391
The effect of denying indefeasibility to a volunteer is that the volunteer
obtains a registered title that is as good as, but no better than that of the
transferor this is an exception in some states
o if the transferors registered title was defeasible for fraud, the
volunteer too would take only a defeasible title
CURRENT POSITION: HC arguably dealt with this issue through some obiter
dicta in Farrah Construction v Say-Dee, which indicated that volunteers do
ISSUES
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E
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DICTA
NOTE
DICTA
NOTE
(B) FRAUD
Loke Yew v Port Swettenham Rubber (1913) AC 491 PC
FACTS
Eusope was the owner of a lot of land. The plaintiff (LY) acquired some
land off Eusope, but did not complete registration. Eusope entered a
contract to sell the rest of the land to the defendant, who agreed that
they were only buying the land which did not belong to the plaintiff.
Agent assured the validity of the registration when it was not completed.
Despite their understanding that they are not buying the unregistered
land belonging to the plaintiff, the defendant registered all of the land in
their name and thus became the registered proprietors of the plaintiffs
land as well.
ISSUES
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E
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DICTA
NOTE
Fraud Must Be Operative
It is important to note that an exception will only be made for fraud if the
fraud is 'operative' - in other words, if the fraud actually caused a person to
act in a way that is detrimental to himself. If the fraud resulted in no harm, it
won't affect indefeasibility.
Rectification
s 138 RPA (NSW) Court may direct cancellation of folios and other
actions related to folio
(3) A court may order the Registrar-General to do one or more of the
following:
o (a) cancel or amend a folio of the Register,
o (b) cancel, amend or make a recording in a folio of the Register,
o (c) create a new folio of the Register,
o (c1) create a new edition of a computer folio,
o (d) issue a new certificate of title.
s 56C (1): a mortgagee must before lodging a mortgage for registration take
reasonable steps to ensure that the person who, or on whose behalf, the
mortgage was executed is or will become the registered proprietor.
s 56C (2): A mortgagee is considered to have taken reasonable steps if the
mortgagee has taken the steps prescribed by the regulations
s 56C (6): Cancellation if RG is of the opinion:
o (a) that the execution involved fraud against the registered proprietor,
and
o (b) that the mortgagee:
(i) has failed to comply with subsection (1), OR
(ii) had actual or constructive notice that the mortgagor was not
the same or was about to become, the registered proprietor of
the land that is security for the payment of the debt to which the
mortgage relates.
SCOPE: actual authority??? (check moodle!!)
Assuming the principal is not aware of a fraud but the agent is that is not
enough (- there must be
Presumption? (Moodle!)
o The presumption is rebuttable an excceotion in the case of the
agent themselves being the person undertaking the fraudulent
conduct, or being involved in a fraudulent scheme.
Grgic v ANZ Banking Group (1994) 33 NSWLR 202
o bank officer held not to be fraudulent because the impersonator had
the CT and other documents relating to the land and had been
introduced to the bank officer in the name of the registered proprietor
by an established customer.
Officer believed the person
Westpac Banking Corporation v Sansom (1995) NSW
o Fraud found Officer attested that husband had signed when it was the
wife who signed.
ISSUES
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DICTA
fraud.
Whether the law clerks unawareness of the forged signature
should be held as fraud to the effect that the mortgage is
defeasible. Whose actions constitute as fraud?
Principle of imputed notice (not applied?)
Appeal dismissed. The banks mortgage is valid.
Mere false statement does not amount to fraud. The term fraud
means dishonesty.
Waimiha Sawmilling case The term fraud means dishonesty
a wilful and conscious disregard and violation of the rights of
other persons.
Law Clerk:
There was no direct evidence of dishonesty or moral turpitude on the
part of G. G knew that what she said was false but she has not shown to
be dishonest. She had nothing to gain from her false statement.
NOTE
The Bank:
The bank was also not aware of the forgery and it was not party to any
scheme to obtain a mortgage from the appellant contrary to her wishes.
If it were to be held responsible for the circumstances under which the
appellant lost her interest in the land, then it could only be because the
bank itself put the mortgage on the path to registration.
In Davis v Williams: false representation intending to induce the
Registrar-General would be sufficient dishonesty to be held as fraud.
J Wright Enterprise v Port Ballidu [2002]: misrepresentation that has a
insubstantial consequence is not sufficient to render a title defeasible.
RPA s 56C(1) contravened (?)
Action in rem
A proprietary action taken against the object that is the subject of the dispute
rather than against a person
Order made in an action in rem determine rights as against the entire world,
not just between the parties: McGovern v Victoria [1984] VR 570
ISSUES
RATIO
MASON
CJ and
DAWSON
J
Can a trust be inferred in the case where the parties intended to create
or protect an interest in a third party and a trust can protect or create
that interest in a third party and a trust can protect or create that
interest or give effect to the intetntion then there is no reasons
Looks at Loke Yew: the repudiation is fraudulent because it has its object
the destruction of the unregistered interest notwithstanding that the
preservation of the registered interest was the foundation or assumption
underlying the execution.
WILSON
and
TOOHEY
JJ
Contract scarcely seems to give sufficient effect to what the parties had
in mind. A trust relationship is much more accurate and appropriate
reflection of the parties intention The present can is an express
trust.
Appellants interest under cl 6 constituting an equitable interest in the
land, the 2nd respondents became subject to a constructive trust in
favour of the appellants.
Act would not preclude the enforcement of the estate or equity because
both arise, not by virtue of notice of them by the 2 nd respondents,
because of their acceptance of a transfer on terms that they would be
bound by the interest the appellants had in the land by reason of their
contract with the 1st respondent.
BRENNA
NJ
NOTE
ISSUES
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DICTA
NOTE
ISSUES
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DICTA
OUTCOM
E
NOTE
Overriding Statutes
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DICTA
OUTCOM
E
NOTE
Dichotomy of approaches
o 1. Sequential approach entails reading the provisions of later statutes
in a restrictive manner so as to avoid abrogating the indefeasibility
provisions.
o 2. Broader interpretation of later statute and impliedly repeals the
indefeasibility provision.
Caveatable interest
only in respect of land: Valerica Pty Ltd v Global Minerals (2001) NSW
ConvR
A Caveatable interest need not be a registrable interest, nor one that gives
the holder a right to compel the registered proprietor to deliver a registrable
interest, so long as the interest is one in respect of which equity will give
specific relief against the land: Composite Buyers Ltd v Soong (1995) 38
NSWLR 286 at 287.
o
The registered proprietor of land to lodge a caveat against dealings where the
registered proprietor fears an improper dealing because of the loss of a
certificate of title or for some other reason: NSW s 74F(2)
Mortgagors interest as an equity, not an equitable interest in property: Latec
Investment v Hotel Terrigal (in liq) (1965) 113 CLR 265.
o *This case is often distinguished and not followed.
While the Registrar does not scrutinise caveats to determine whether there is
evidence to support the factual basis of the claimed interest, the registered
proprietor may apply to have the caveat removed and the Registrar is
generally empowered to require the Caveatable to show cause why the
caveat should not be removed.
o NSW s 74F(5) RPA
s 74L RPA Act provides that if, in any legal proceedings, a question as to the
form of a caveat is raised, the court shall disregard any failure of the caveator
to comply strictly with the formal requirements
Most jurisdictions provide for the registered proprietor to apply to the court
for the removal of a caveat: NSW: s 74MA
A court may remove a caveat because the prohibition on registration of
dealings is stated too widely. Where a dealing has been lodged for registration
and an application is made for removal of caveat, the court will order removal
of the caveat if the claimed interest would not entitle the caveator to the
assistance of the court
The power of the court to order the removal of a caveat is not confined to
cases where the caveat is bad in form: Kerabee Park v Daley [1978] 2 NSWLR
222.
ABC v ONeill (2006) 227 CLR 57 HC clarified the burden of proof imposed
on an applicant for injunctive relief under the 1 st limb of the test: Eng Mee
Yong v Letchumanan, which requires a serious issue to be tried
o a sufficient likelihood of success to justify in the circumstances the
preservation of the status quo pending trial
it is not the role of the Registrar to test the validity of the claimed interest. To
have reasonable cause the Caveatable must have believed on reasonable
grounds that he or she had the interest claimed.
I think the foundation for reasonable cause must be, not the actual
possession of a Caveatable interest, but an honest belief based on reasonable
grounds that the caveator has such an interest.
On the facts as I have found them, the defendant did not have any
reasonable grounds for believing that it had what it claimed in the caveat,
namely an agreement giving it the right to an instrument of mortgage.
Rice v Rice (1854) 2 Drew 73; 61 ER 646, the VC was of the view that
the maxim was applied as a device of last resort
EXCEPTION: postponement
o An earlier equitable interest will be postponed to a later one
where the conduct of the earlier interest holder has led or
allowed the later interest holder to acquire that interest in the
mistaken belief that the earlier interest did not exists: Barry v
Heider (1914)
o Only occurs where the earlier holders act or neglect contributed in
some way to the later holder acquiring its interests without notice of
the earlier interest: Lapin v Abigail, or where it was reasonably
foreseeable that, as a consequence of the acts or omissions of the
earlier owner, a later equitable interest might be created and that the
owner of that later interest would assume the non-existence of the
earlier: Heid v Reliance
o
OUTCOM
E
NOTE
The court took the view that it was not reasonable for the appellant to
believe that Gibby would act honestly in the best interest of the
appellant when the appellant knew that Gibby was an employee of a
company which controlled the purchaser.
J & H (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546
FACTS
Bank loaned money to Josephson. The bank obtained a mortgage in
registrable form as well as the CT but did not register the mortgage. J &
H Just advanced further money to Josephson about the CT and accepted
his statement that it was with the bank for safekeeping. J & H Just lodged
a caveat.
ISSUES
Whether the bank maintained its priority according to time.
RATIO
The fact that a caveat discoverable by a search of the title is
notice to all the world of the interest claimed does not mean
that the absence of a caveat is a notice to all and sundry that no
interest is claimed.
Other than the existence of caveat - The conduct of the parties
must be examined (especially on the conduct on the first
encumbrancer).
DICTA
To say that would, it seems, be to equate the noting of a caveat in the
register book with the registration of a dealing: it would make competing
equitable interests depend not upon priority of creation in time and
other equitable considerations, but upon priority of the lodgment of
caveats.
OUTCOM
E
NOTE
BROOKIN
G JA
ORMISTO
N JA
OUTCOM
E
NOTE
TRIAL
ISSUES
RATIO
MOORE
and
STONE JJ
DOWSET
TJ
(DISSENT
)
OUTCOM
E
NOTE
W7B CO-OWNERSHIP
CO-OWNERSHIP
JOINT TENANCY
Joint tenants are said to hold per my et per pour tout (for nothing and for all)
meaning that no joint tenant has any individual share, but that each has a
right, with the other joint tenant, to the whole of the property.
Severance sever a joint tenants
o unilateral agreement
o course of dealings
o unilateral act an action that cannot
(A) Right of survivorship (no individual share)
When one joint tenant dies, the hole of the estate remains with the surviving
joint tenant(s). The survivor is not regarded at the time of transfer. The effect
of the death is simply as the survivor acquired that interest at the time of
transfer. The effect of the death is simply to free the property from the control
of one of its owners.
Prevents a joint tenant from disposing of his or her interest in the property by
will.
If die at the same time presumption in favour of seniority I no other
evidence (Conveyancing Act 1919 (NSW) s 35))
(B) Four Unities
1. Unity of possession: each co-owner is entitled to possession of the
whole of the property, not exclusively form himself or herself but to be
enjoyed together with the other joint tenants
o (Thrift v Thrift)
2. Unity of Interest: The interest of each joint tenant must be the same in
nature, extent and duration
3. Unity of Title: All the joint tenants must derive their interests from the
same document or the same act
4. Unity of Time: The interests of all joint tenants must vest at the same
point in time.
o Exception 1: conveyance executed to a trustee
o Exception 2: Any disposition in a will may give rise to a joint tenancy in
the grantees
Mortgage
o Note that if one joint tenant gets a mortgage and then passes away
before it is discharged, survivorship tales priority over the mortgage (a
mortgage is a charge over land, not a transfer thus does not affect the
four unities): Lyons v Lyons
Corporation
o Can a corporation be a joint tenant?
At common law . No (a corporation cannot die)
At statute YES can be an individual equates the winding up
of a corporation with death
A valid joint tenancy cannot be defeated (by a third party)
Registration a JT conclusively determines the nature of the interest.
But still parties to a JT can still argues that in equity the parties hold as
tenants in common between themselves: Calverley v Green (1984) 155 CLR
242
TENANCY IN COMMON
Tenants in common each have a distinct yet undivided share in the property,
which can generally be dealt with by each tenant in common at their liberty.
There is no right of survivorship. Upon his or her death, the share of a tenant
in common passes to the beneficiary or beneficiaries nominated in his or her
will, or descends to the persons entitled to his or her property under the rules
governing intestate succession.
The only unity which is essential for there to be a tenancy in common is unity
of possession.
o other three may or may not exist
Tenants in common is growing because of dual income couples where both
has the power to contribute and maintain their shares of the land.
Divorce rate increasing also contribute to this.
In general at law a tenants in common exists by:
o Absence of one of the four unities
o Use of words of severance
o Indication of intention to create a TIC: Surtees v Surtees (1871) LR 12
EQ 400
Transfer can be does inter vivos (during your lifetime)
In equity
OUTCOM
E
NOTE
In the opinion of their Lordships, one such case is where the grantees
hold the premises for their several individual purposes.
Plaintiff lost. There was a TIC.
ISSUES
RATIO
DICTA
order (AVO) against the Respondent coming near her daughter (who also
lived with them).
The Appellant, who could no longer live on his property, sought
occupation rent as a result of being ousted.
Occupation Rent ousted owner
The denial (some kind of force, trespass) of the respondents
interest in the property amounted to an express denial of his
rights as co-tenant and constituted an ouster. There should be
occupation rent.
Express statutory power (AVO) is not an ouster.
The true nature of ouster is that it constitute a trespass by one cotenant of another co-tenants rights in respect of the property
Ousting is 'an express denial of the title and the right to possession of
fellow tenants, brought home to the latter openly and unequivocally'.
'The respondent's removal from the property and the continuance of
that removal did not constitute a legal wrong...it occurred pursuant to an
express statutory power'.
Thus, obtaining the restraining order did not constitute ousting the
respondent (because it is pursuant to an express statutory power).
Neither did the fact that the Appellant ignore the Respondent's letters in
which he tried to sell the house.
OUTCOM
E
NOTE
However, throughout the trial, the Appellant did deny that the
Respondent has title, and only gave it up after the trial judge decided so.
This did amount to a denial of the Respondent's rights as a co-owner and
thus an act of ousting.
The Respondent wins - entitled to occupation rent from the beginning of
the proceedings.
Forgeard v Shanahan
FACTS
The parties were joint tenants and lived in a property until the
relationship broke down.
ISSUES
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DICTA
OUTCOM
E
NOTE
Callow v Rupchev [2009]
FACTS
Parties were living together in a relationship. They bought a house in
joint names, but the relationship fell apparat, and Callow left the place.
The premises were ultimately sold in Nov.
ISSUES
The distribution of the proceeds of sales (Is there an ouster?)
RATIO
An occupation rent is payable by a co-tenant whose sole
occupation was achieved by the intentional ouster or violent
exclusion of another co-tenant or where termination of a
personal relationship made it unreasonable to expect
continued joint occupation.
DICTA
A plaintiff seeking contribution cannot avoid equitable defences by
invoking a common law remedy.
Respondents denial of Ms Callows title was not at her legal title but her
beneficial title
Part of the issue with Biviano concerned the quantum of the occupation
fee chargeable to the appellant.
OUTCOM
E
NOTE
Occupation rent the figure of $210 per week which had been proposed
by C was accepted.
The court held that the occupation fee should accrue during the period
of Rs sole occupancy.
Boulter v Boulter
A co-owner bring an action against another to prevent him from 'wasting' the
property (destroying it etc.).
In Ferguson v Miller, an injunction was granted to stop the removal of
ornamental trees (which was considered waste), but not for re-sealing and
widening the driveway (which was considered repair).
Joint tenant or tenant in common may sell or give his or h8er interest to
another person, provided this does not interfere with the right of the other coowner to possession of the land.
Easement A joint tenant can encumber his interest in the land to compel his
co-owner to submit to the encumbrance if the encumbrance does not
interfere with the right of that co-owner to possession of the land.
Corin v Patton
o H and wife JT
o Wife terminally ill wanted to sever JT assumption to provide an
interest in the property to her children
o Executed deed of transfer to brother Corin
Executed deed of Trust Corin to hold for Mrs Patton as she directed (or
a court)
o Was an unregistered mortgage Mr Patton solicitor could not register
the transfer because she did not get. ???
Relevant severance principle: severance by an individual operating upon his
own share 2nd and 3rd principle would imply Patton knew he did not
ISSUE: does the mere declaration of intention or other inconsistent act by an
individual suffice? English authority it could be but only if the other party
knew about it. No evidence of that here. Similarly cannot impose a trust in
equity there was no express or ipled agreement to sever between the
parties
And as a matter of history and principle
Per Deane J:
o It has long been settled that one joint tenant can by an appropriate
instrument act of legal transfer and in the absence of applicable
statutory restraint, alienate his legal interest
Equity will no perfect an imperfect gift the mere execution of an instrument
in favour of the donnee will not be enough to confer an equitable interest.
For Torrens land ???
RPA 1900 (s 97)
o Provides that a joint tenant may register a transfer to himself or herself
in order to sever the JT also there is no need for an accompanying CT
E.g. Anderson v ODonnell mum and daughter home unit as JT mum filed
under s 97 RPA daughter tried to resist severance said was an agreement
not to sever
o Windeyer J said that was not on the evidence implication though that if
there was an agreement like that it would have prevented the
severance
In fact in Goyal Chandra [2006] NSWSC 239 Brereton J held that an
agreement
Severance by declaration of trust
Conveyancing Act 1919 (NSW) s 23C(1)(b) holding the property on trust for
designated beneficiaries
o
Severance by agreement
Forfeiture rule
Equity imposes a constructive trust on wrongdoer for benefit of victims
beneficiaries
Rasmanis v Jurewitsch
Rules does not apply in a number of cases
Does not apply in cases of self-defence of extreme provocation?
Termination of co-ownership
NO
W9B LEASES
INTRODUCTION
The lessees rights essentially comprise an estate carved out of the larger
estate of the freeholder, but limited in time. Gives the tenant exclusive
possession of land for a maximum fixed duration.
As leases conventionally arise in contracts; it is therefore a curious hybrid
which hovers between the worlds of property and contract
Common law principles that assume equal bargaining power between the
contracting parties are now widely acknowledged to cause hardship when
that assumption is inaccurate.
Printed contracts that are in no sense the product of negotiation and are
presented to consumers on a take-it-or-leave-it basis.
Types of tenancies
1. Residential tenancies
o Reform of residential tenancy law constitutes only one element in a
housing policy designed to improve the quality of accommodation for
poorer people. An important part of that policy is an expansion of the
role of public authorities responsible for providing public housing.
2. Retail tenancies
o Consumer protection and other reforming legislation have also affected
commercial tenancies. The Consumer and Competition Act 2010 (Cth)
has made a significant impact on commercial leases by proscribing
unconscionable conduct, misleading and deceptive conduct and certain
kinds of false representation.
3. Agricultural tenancies
o The states and territories have according enacted statutes regulating
such relationships. A particular area of vulnerability for agricultural
tenants is fixtures.
4. Leases under the Crown Lands Act
o Wik Peoples v Queensland legislation introduced a number of
concepts unknown to the common law of landlord and tenant such as
the perpetual lease. It also blurred the distinction between the lease
and licence
5. Other tenancies
o This reduced sphere of operation should not be taken to imply that the
principles of the common law of landlord and tenant to be considered
in this chapter are of marginal importance.
Lessor landlord
Lessee tenant
reversion - The lessors interest in the land during the currency of the lease
Assign the reversion The disposes of this interest, usually by transferring
the estate in fee simple.
Instead of assigning the lease the lessee may decide to sublet the premises
for any period less than the duration of the lease. Thus a lessee holding a
lease with 10 years to run may sublet to a sublessee for a term of nine years.
The lessee continues to pay rent to the lessor, but is now entitled to receive
rent from the sublessee instead of remaining in occupation of the premises.
Sublease for a period equal to or in excess of the balance of the full term of
the lease is considered at law, an assignment of the lessee regardless of
description : Milmo v Carrenas
term of years six months to 999 years
periodic tenancy lasts for the designated period, which might be a week,
month, quarter or year, and continues thereafter for a further period unless
the appropriate notice is given by either party.
o one for a definite period, with a superadded provision that it is to
continue for another definite term of the same period, unless
terminated by proper notice to quit at the end of the first period
o If the landlord wishes to increase the rent and the tenant is not
prepared to agree, the landlord must give the tenant appropriate notice
to terminate the periodic tenancy and offer a fresh tenancy at the
proposed new rent.
Creation of leases
landlord-tenant relationship
o (A) usually created by means of certain documentary formalities
o (B) implication of law notwithstanding the absence of a concluded
agreement between the parties
Substantive requirements
o Certainty of duration
o Another observation from case law from Wilson v Meudon [2005]
Clause in lease tied exclusive occupation to ownership in shares
the lease was not terminable at will and did not expire at
any ascertainable date found no valid leasehold interest, only
a contractual, not proprietary right
Substantive requirements
Certainty of duration
Fixed-term tenancies
o common law rule valid lease must be of a duration that is certain,
or at least be capable of being rendered certain:
1. certainty in the commencement of the term
2. certainty in the continuance of the term
3. certainty in the end of term
As long as the maximum period of the lease is certain, the
lease is not invalid.
Lace v Chantler flexible lease where fixed term of years
may be made determinable before the end of the term on
a given period of notice.
4* - must not be ambiguous re terms of dates (especially ending)
i.e. duration of war: Lace v Chantler or the end of the
harvesting period: Bishop v Taylor or when the lessor finishes
building a new house: Mangiola v Costanzo
DICTA
Tenancy of life: It was intended that B enjoy the premises for life
subject of course, to determination pursuant to cl 5 and 6. I
have in mind in particular cl 6(c), which will apply on Bs death,
the fact that her interest is unassignable, and the fact that it
was intended to ensure that she could stay in her home
Prudential [1992]: an agreement could not give rise to a tenancy as a
matter of law if it was for a term whose maximum duration was
uncertain at the inception; a fetter on a right to serve notice to
determine a periodic tenancy was ineffective if the fetter is to endure for
an uncertain period, but (b) a fetter for a specified period could be valid.
The law is not in a satisfactory state. There is no apparent practical
justification for holding that an agreement for a term of uncertain
TYPES OF TENANCIES
ISSUES
RATIO
DICTA
OUTCOM
E
NOTE
Formal requirements
Torrens title
o For leases in excess of three years, in NSW by RPA s 53(1) leases of
three years or more must be registered.
When any land under the provisions of this Act is intended to be
leased or demised for a life or lives or for any term of years
exceeding three years, the proprietor shall execute a lease in the
approved form
Old system
o at common law, a leasehold, interest could be created without
formality
ISSUES
RATIO
DICTA
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NOTE
certain covenants are implied by the common law as a result of the landlordtenant relationship.
(A) quiet enjoyment
o obligation requires the landlord to ensure that the tenant can occupy
and enjoy the premises without disturbance or interference from the
lessor or those for whom he or she is responsible: Hudson v Cripps
[1896] 1 Ch 265
o act breaking this constitutes trespasses
o disturbance must be more than trivial
writing letters demanding to vacate is not a breach: David Jones
v Leventhal
o the right to quiet enjoyment can be modified by agreement between
the parties. A lease provided that the landlord would have reasonable
access to the premises in order to exhibit the premises to prospective
purchasers. The lease also contained an express covenant for quiet
enjoyment. It was held by the Supreme Court of New South Wales that
the particular right conferred upon the landlord by the access clause
qualified the right conferred upon the tenant
(B) not to derogate from grant
(C) a covenant that certain furnished dwellings are fit for habitation.
o NOW OVERRIDEN BY STATUTE (residential tenancies legislation)
The question arises whether a landlord is liable for the actions of his other
tenants (i.e., is a landlord liable if one tenant disturbed the other's right to
quiet enjoyment/made the other's premises less fit for the intended
business).
FACTS
ISSUES
RATIO
DICTA
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The problem was NOT caused by the defendant and capable of being
rectified by active intervention of them this aspect of intervention has
been held to be an important distinguishing feature
In this particular case, there was actually a clause in the lease to Top
Flight where "the lessee undertook not to do or permit any act or thing
which might be a nuisance or cause damage or disturbance to any other
tenant or to the lessor".
This clearly empowered the Defendant to do something about the
nuisance and disturbance, yet he did not do so, even after the repeated
requests of the Plaintiff. The evidence also indicated that the Defendant
was clearly aware of the sawdust problem, making it reasonably
foreseeable.
NOTE
the Defendant can justifiably be held liable for the actions of Top Flight.
IMPORTANT:
Although there is no general duty for landlord to provide premises fit for the
purpose of the lease or to provide premises fit for habitation, the landlord is
under a duty to take reasonable care for the safety of the tenant
It is said that the duty is found in tort and not in covenants
Appellant landlord had breached its duty to the plaintiff to take reasonable
care for the safety of occupants of the demised premises. The appellant had
conceded that it owed such a duty and all justices of the court appeared to
accept that such a duty arose, in the form of a duty in tort rather than a duty
arising from an implied covenant in the lease.
DICTA
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NOTE
Duty is not one of strict liability, and there is no obligation to remove all
defect and therefore no duty to make the residential premise absence of
defects or that reasonable are is taken by another in respect of existing
defects.
Lessor was not liable because the defect was not dangerous.
(IMPORTANT) Hume narrowly confine the scope of the duty
to take reasonable care to avoid foreseeable risk of injury, but
not to make the premises as safe as reasonable care to avoid
foreseeable risk of injury, but not to make the premises as safe
as reasonable care could make them.
not liable to install handrail where the respondent fell from the
steps
Virgona v Lautour not liable to fix when fell from roof cavity because it
is not a reasonably foreseeable place for a person to go
Loose Fit v Marshbaum [2011] NSWCA
FACTS
Patron of a fitness centre was injured when she fell down stairs where no
handrail was present, in contravention of the local building regulations.
The stairs had been installed by the owners of the building without
council permission. The tenants, who owned and ran the fitness centre,
took possession of the premises some weeks before the patron fell down
the stairs.
ISSUES
Whether the landlord was liable for breach of reasonable care
for safety of invitees
RATIO
DEPENDS ON FACTS OF CASE:
General proposition tenant is in possession and has control
and can determine who enters and therefore held liable.
DICTA
OUTCOM
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NOTE
This is not a general repair responsibility, but rather about simply taking care
of the house in an ordinary manner (e.g., keeping it clean, not damaging it
etc.).
*However, this covenant appears to be overridden by s 84 (1)(b) of the
Conveyancing Act 1919 (NSW)
At the expiration of the term, the lessee is bound to deliver vacant possession
to the lessor.
This obligation extends to subtenants and other occupiers and thus the
tenant must see that all such persons have vacated the premises.
W10B COVENANTS
Express covenants
o Covenant to repair
o Covenant against assignment or subletting
o Covenant as to user
o Covenant to pay rent
Covenant to repair
o Factors taken into assessing the obligation:
Nature and locality of the premises
The age of the premises and value
The condition of the premises at the commencement of the
lease
The terms of the lease
Nature of the defect and the cost to remedy
See list at Holding & Management v Property Holding &
Investment
o Distinction between a repair and a renewal
Unless lease is clear a covenantor who covenants to repair not
liable for renew.
Covenant to repair does not extend to the covenantee
o Covenant to KEEP IN repair is more extensive than a covenant TO
repair. In some cases repair WILL entail replacement of the damaged
item
Chandos Developments v Mulkarns [2008] NSWCA
Roof was in such a bad state that you can only replace it
o What is the standard? There is no requirement to put premises into a
better condition than what they were when leased it appears in NSW
statutory interpretation standard form repair covenant in schedule to
conveyancing Act 1919 (NSW) the standard of repair relates to the
premises condition at demise (to lease): Callaghan v Merivale CBD
(2006) NSW ConvR
o
o
Common law position was along the lines that a landlord who has
covenanted to repair had to put things into fit condition thorough
repair when demised if they were not already: Lurcott v Wakely &
Wheeler
Proudfoot v Hart
Tenant covenanted to keep premises on good tenantable repair
and leave them in such at end of tenancy
Per Lord Esher MR where the premises are not in repair when
the tenant takes them, he must put them into repair in order to
discharge his obligation under a contract to keep and deliver
them up in repair
Implication? If the premises burnt down or hit by earthquake tenant
liable to rebuild: Mathew v Curling
You could be responsible for fixing the problem of a previous tenant
even if the precious tenants structural alterations constituted a breach
of repair covenant (which it would): Bailey v J Paynter (Mayfield)
Lord Esher MR in Proudfoot highlighted some qualifications i.e. the
age of the premises
Thus the NSWCA has applied the caveat that with an obligation
to repair, regard must be head to the age, character and locality
of the building and to the type of tenant likely to lease the
building: Abrahams v Shaw
fair wear and tear exception: Haskell v Marlow
Reasonable conduct do not let minor things that are related to
far wear and tear spiral into problems that go beyond that
reasonable use by the tenant and the ordinary operation of
natural forces
Fair and wear principle applies where the ordinary operation of
natural forces results in a condition which could be regarded as
something to be delat
Further limits
No obligation to renew or improve the premise: Graham v Market
Hotel (1943)
A repair covenant does not impose a duty to repair an inherent
defect in the premises: for what is an inherent defect see
Graham v Markets Hotel (1942)
NOTICE
No notice, no liability
OBrien v Robinson [1973] a lessee and wife were injured when
a ceiling collapsed on them landlord held not liable as he had
no notice of the disrepair (7-Eleven Stores v United Petroleum)
BUT landlord must repair within reasonable time EVEN if notice is
given to them by a person other than the tenant: McGreal v
Wake
Lease is a property right have an inheret right to transfer in whole or
part: Keeves v Dean [1924] includes weekly or periodic tenancy:
Commonwealth Life Assurance v Anderson
But lease can provide otherwise landlord likes to be in control
quality of the tenant
RATIO
DICTA
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NOTE
lessee
There is a common law duty to indemnify lessees damages. This
is applicable where the plaintiffs payment to the landlord has
discharged a liability owed by the defendant.
Both the lessee and the defendants were liable to the lessor for
the breach of the covenant, which ran the land, the former by
contract and the latter by the privity of estate.
The premises which are the subject of the lease being in the possession
of the defendant as ultimate assignees, they were the parties whose
duty it was to perform the covenants which were to be performed upon
and in respect of those premises. It was their immediate duty to keep in
repair, and by their default the lessee, though he had parted with the
estate, became liable to make good to the lessor the condition of the
lease.
Original tenant has rights of recoupment against the assignee
This is extended in Teparyl Pty Ltd v Willis [2010] VSCA:
Original tenant also has rights of recoupment against assignees
guarantor.
The benefit and burden of covenants having reference to the subject matter
of the lease should run with the reversion.
ISSUES
RATIO
DICTA
During the period of the lease, the defendant owed the plaintiff money
(arrears of rents and outgoings, etc.)
With that money still owing, the plaintiff assigned its reversion (i.e., sold
the fee simple) to another party.
The plaintiff is now seeking to claim those rents.
Does the right to recover arrears even before an assignment of
a reversion transfer to the assignee (and thus is forfeited by the
assignor?)
Assignee of the reversion acquires the right to sue for breaches
of covenant committed before the assignment, and the assignor
loses that right.
Until notice be given the assignment is an equitable
assignment, but it is an assignment which requires nothing
more from the assignor to become a legal assignment. The
assignee may himself give notice at any time before action
brought
However, in this case, the contract of sale between the Plaintiff and the
purchaser of the reversion specified that the Plaintiff could recover
arrears which existed before the assignment. This constituted another
assignment - the equitable assignment of that debt (note: the assignor
of the reversion has now become the assignee of the debt, and the
assignee of the reversion has become the assignor of the debt).
OUTCOM
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NOTE
W11A REMEDIES
Basically, a landlord has two ways to get a lease forfeited through privity of
contract (breach of contract), and privity of estate (breach of covenants).
Forfeiture in generally immediate loss of all interest in property, including
the right to possession: Whim Creek Consolidated NL v Colgan
Common law landlord has NO implied right to bring the lease to end prior to
its natural determination by effluxion of time
It is the invariable practice of landlords to include a clause in the lease
dispensing with the requirement of a formal demand.
Section 129 applies to both forfeiture and re-entry
DICTA
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NOTE
RATIO
DICTA
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NOTE
Where the tenant has repudiated the obligations under the lease, the
landlord may accept the repudiation as discharging both parties from
further performance, terminate the lease and recover loss of bargain
damages for the loss of the lease.
Normally, not paying rent is not enough it must be demonstrated that
there was an intention to act in a manner substantially inconsistent with
his obligation under the lease?
Fact that a use of unprofitable is not sufficient for frustration: Maori
Trustees v Prentice
This case put an end to the question in Shevill, which stated a line of
authority which specified that mere forfeiture because of a covenant (as
opposed to a breach of a condition or repudiation etc.) does not entail
expectation damages unless the lease says so.
Anti-Shevill clauses specified that certain covenants are conditions
(essential terms) which would entitle the landlord to terminate and
receive expectation damages if breached. This is common today.
agreement prior describing the clause as an essential term, and its
breach will be repudiatory
ISSUES
RATIO
DICTA
SUBMIS.
OUTCOM
E
NOTE
OUTCOM
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NOTE
where a lease has been terminate (as opposed to forfeiter), there will be no
relief against forfeiture
ISSUES
RATIO
DICTA
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NOTE
W11B MORTGAGE
There is a difference between old system mortgages and Torren system
mortgages
56C Confirmation of identity of mortgagor
Definitions
1.
2.
3.
4.
power of sale
right to sue on the personal covenants in the mortgage
foreclosure
right to possession
Power of sale
58, and 58A of that Act, and the provisions of s 59 of that Act shall
apply to any transfer executed for the purpose of such sale.
o
Statutory duty: notice to the mortgagor
Websdale v S & JD Investments Pty Ltd (1991) 24 NSWLR 573
FACTS
Mortgagee may exercise the power of sale conferred by s 58 of the RPA.
The notice correctly state that there had been default in the payment of
interest but incorrectly stated that the full amount of the principal was
due and payable.
ISSUES
RATIO
DICTA
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NOTE
Once the notice period has expired, and the notice has met the statutory
requirements, the mortgagee becomes subject to a separate duty:
o The equitable duty to ensure that the sale is conducted in a way that
fairly balances the interests of mortgagors and mortgagees.
Mortgagee may NOT sell the property to himself or herself or to someone
acting on the mortgagees behalf: Farrar v Farrars (1999)
o this is not so clear for associates/ related parties (DISFAVOURS IT)
Difficult arise from the conflict of interest
o mortgagees interest lies in a quick sale
o mortgagor is entitled to any excess and therefore is interested in the
best possible price
s 111A duties of mortgagees and charges in respect of sale price of land
o must take reasonable care to ensure that the land is sold for:
o if the land has an ascertainable market value when it is sold not less
than its market value, or
o In best price that may reasonably be obtained in the circumstances
Sale to associate
Auction sales
Southern Goldfields Ltd v General Credits Ltd (1991) Supreme Court of Western
Australia
FACTS
Appellants, as 1st mortgagee, exercised its power of sale and sold the
security by public action. The respondent, 2 nd mortgagee, brought an
action alleging that it was sold in bad faith and recklessly sacrificed the
respondents interest because:
1. failed to take account of two valuations
2. Reserve price had been set too low.
ISSUES
Whether or not the conduct of the defendant in setting the
reserved price at 360k in the light of the valuations which were
available to it and then allowing the sale to be made at that
price amounts to wilfully or recklessly sacrificing the interest of
the mortgagor and the plaintiff.
RATIO
Test was only held to be one of bona fides, not a duty to get the
best price possible.
If the defendant acted bona fide, and certainly, if it took
reasonable precautions to obtain a proper price the plaintiff
must fail even if the price obtained was below market value and
even if, by waiting or by spending more money on the property,
a better price could have been obtained: Porter v Associated
Securities Ltd
DICTA
IMO the evidence does not show that the appellant confined his
attention to his own interest, nor that he conducted the sale in
complete disregard
Pendlebury: ???
What appears clear is that the sale price being at the amount of the
highest bid, was the best price obtainable on the day and that such was
so regardless of what the valuers considered the value of the property to
be. Consequently it is clear in my view that the setting of a reserve price
in itself could not amount to the willful or reckless sacrificing of the
interests of the mortgagor and the plaintiff.
OUTCOM
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NOTE
There was no evidence of any reason to suggest that the highest or any
bidder would be prepared to increase his offer.
Appeal allowed. The auction was valid.
The closer the mortgagee and the purchaser, the greater the risk and
burden (one of circumstances)
Timing of sale
Westpac Banking Corporation v Kingsland (1991)
FACTS
The plaintiff bank, pursuant to an equitable charge, appointed receivers
ISSUES
RATIO
OUTCOM
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NOTE
and managers. Neither the bank nor the receivers exercised a power of
sale over the mortgagors principal asset. The defendant as guarantor
alleged the bank should have accepted an offer for the purchase of the
principal asset, alleging that had the bank exercised its power of sale,
the liability of the guarantor would have been extinguished.
Duty to obtain the best price or the assets of the company
Principal issue - Whether there a breach of duty because of a
failure to consider offers received and to sell property so as to
extinguish the liability of the mortgagor and thus that of the
guarantors.
The mortgagee can decide when he wishes to exercise the
power of sale, there can be no liability attaching to him for
failure to exercise it at any particular point of time.
The mortgagee was not in breach.
The general trend of recent case law is to impose an objective
requirement of reasonable diligence on the mortgagee.
RATIO
DICTA
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NOTE
Court-ordered sale
12A EASMENTS
Introduction
right attached to a piece of land giving the owner or occupier rights over
another piece of land, the exercise of which interferes with the normal rights
of the owner or occupier of that other land: Concord Municipal Council v Coles
(1906) 3 CLR 96
o servient tenement is where the easement is (?)
known historically as incorporeal hereditaments, they are not rights to the
land itself, but represent rights over the land
Corporeal hereditaments and the various security interests such as
mortgages.
An easement only gives the owner of the dominant tenement limited rights in
relation to the servient tenement, in accordance with the terms of the
easement. This may be positive or negative in nature. A positive easement
gives the owner of the dominant tenement the right to do something on his or
her neighbours land (that is, the servient tenement)
o Walking over it or running a drainage pipe across it.
Positive easement allow grantee to make positive use of the land burdened
by the easement
o Right of way
o Right to use the toilet: Miller v Emcer Products
o Right to use cattle yeards: Clifford v Dove
o Fix advertising signs
Negative easements give grantee the right to restrict certain lawful usages
of the servient property
o Easement of light
o
ISSUES
RATIO
DICTA
OUTCOM
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NOTE
In general, easements are created in the same way as other interests in land
by means of the execution of formal documents. Easements over land under
the Torrens legislation may be expressed granted by registration of an
Easements in gross
ISSUES
RATIO
At trial, the jury found that the defendant had obtained a pecuniary
advantage from hiring pleasure boats for use on the canal. A verdict was
entered for the plaintiff. Counsel for the defendant obtained a rule nisi to
enter.
Whether there is accommodation of dominant tenement
sufficient connection between the right and the dominant
tenement.
It is argued that, as the owner of an estate may grant a right to
cut turves, or to fish or hunt, there is no reason why he may not
grant such a right as that now claimed by the plaintiff. The
answer is, that the law will not allow it. So the law will not
DICTA
OUTCOM
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NOTE
ISSUES
RATIO
DICTA
OUTCOM
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NOTE
ISSUES
RATIO
Plan covering the estate was registered by the Land Titles Office in
1989, as was the section 88B instrument setting out a number of
restrictions. One of these restrictions, the Fourteenth Restriction, was
known as the Easement for Vineyard allow the owner of the benefited
land to enter the burdened land and carry out harvesting and
agriculture.
Whether the right granted accommodated and served the
dominant tenant
The respondent acknowledged that a right benefitting the trade
carried out on the dominant tenement may in appropriate
circumstances be a valid easement. But this is provided that the
conduct of the trade is a necessary incident to the normal
enjoyment of the land, not merely an independent business
exercise.
The appellant was unable to establish that the connection
between the land and industry carried out on the land was more
than just a mere convenience as required to establish the
requisite accommodation
pure commercial interests of themselves, though not
necessarily incompatible with an easement, are not sufficient to
justify, and may even militate against, the creation of such a
right in rem
DICTA
OUTCOM
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NOTE
Creation of easement
Express grant
o 1. Under old system by deed: CA s 23B(1)
o 2. Torrens by registration or transfer: RPA s 46, s 47(1), s 42
(indefeasible)
Registration of a plan of subdivision
o S 88(1) CA where an easement expressed to be created by an
instrument, the easement is not enforceable against a person
interested in the servient land who was not a party to creation unless
the instrument clearly indicates:
(a) the land to which the benefit of the easement or restriction is
appurtenant
(b) the land which is subject to the burden of the easement or
restriction
Provided that it shall not be necessary ro indicate the sites of
easements intended to be created in respect of existing tunnels,
pipes, conduits, wires
3. Implication
o 1. Easement implied by law on the conveyance or transfer of a parcel
of land, in favour of the purchase, where the parties have omitted
expressly to grant one
o 2. Commonly arise under the second and third limb of the rule in
Wheeldon v Burrows at time of severance the quasi easement is
continuous and apparent [ second limb] and necessary for the
reasonable enjoyment of dominant land [third limb] on severance [first
limb] and [see Daar Pty v Ltd Feza Foundation Ltd [2001] NSW ConvR
55-996.
o 3. By necessity where severed land becomes landlocked, or needs
support: Union Lighterage v London Graving Dock
o 4. Via common intention of the parties: Richards v Rose and also via
the description of the land in the conveyance or transfer: Dabbs
4. Prescription
o (bit like adverse possession)
o 1. Means of acquiring an interest in land by long use
o 2. Long user of 20 years, if without force, without secrecy and without
permission, generates a presumption of a lost modern grant of an
easement: Delohery v Permanent Trustee (1904)
o 3. Common law prescription does not apply in Australia? Note s 179 CA
no prescriptive easement over light or air
o 4. In NSW, LPI say a prescriptive easement cannot be created over
Torrens title land. Any prescriptive easement which is in existence
when the servient tenement is converted to Torrens title will remain
effective even though not recorded on the title
o **It might not apply in Australia
5. Court appointed easements
o 1. Conveyancing Act s 88K if reasonably necessary for the
development of other land
o 2. Reasonably necessary means something more than reasonably
desirable or preferable over the alternative means
o 3.
Extinguishment
Five ways
o 1. Express release RPA s 47(6) Torrens
o 2. Abandonment: Treweele v No 36 Wolseley Rd (1973) CA s 89(3) for
declaratory orders
1. 2 step test for abandonment owner must have ceased to use
the easmenet and they must have positively intended to
abandon the easement: Re Marriot [1968]
o 3. Alteration to dominant tenement: Jebert v Davis
o 4. Unity of dominant and servient tenement: James v Plant
o 5. By statute e.g. Conveyancing Act s 89(1) it is discretionary: Pieper
v Edwards
1. Abatement
o 1. Self-help
No more force than is necessary: Logan v Lamberg Bleaching
2. Not likely to be a breach of the peace
3. No injury to third parties or the public: Roberts v Rose
o Thus if a right of way obstructed the owner of the dominant tenement
may break open a locked gate or may even pull down a dwelling if
necessary: Lane v Copsey
2. Action
o 1. An owner of an easement is entitled to sue for damages, a
declaration or an injunction or a combination of these in cases of
interference with their rights: Leeds Industrial Co-operative Society Ltd
v Stock
o 2. The relevant tort is nuisance not trespass: Paine & Co v St Neots
Gas & Coke Co
ISSUES
RATIO
DICTA
Jamieson wanted to build a wall that will block Moncrieff from parking
cars. Jamieson argued that there was only a right of way and no right to
park cars.
Whether parking was part of the subject matter in a right of way
easement.
Whether right to park can be done in an easement.
The effect of parking does it exclude possession of the
servient tenement owner.
Lord Scott of Foscote: test which asks whether the servient
owner retains possession and, subject to the reasonable
exercise of the right in question, control of the servient land (of
the whole)
The right must be such that a reasonable use thereof by the owner of
the dominant land would not be inconsistent with the beneficial
ownership of the servient land by the servient owner
I do not see why a landowner should not grant rights of a servitudal
character over his land to any extent that he wishes
OUTCOM
E
NOTE
reject the test that asks whether the servient owner is left with any
reasonable use of his land
There was a right to park cars.
Is the use of the right of the easement means that the servient
tenement owner cannot retain possession and control? if so, there
cannot be an easement.
FACTS
ISSUES
RATIO
DICTA
OUTCOM
E
NOTE
Perpetual Trustees Co Ltd v Westfield Management Ltd (2007) 12 BPR 23, 7983
(NSWCA) (S&N p 575)
Four-corner rule (?)
Per Hodgson JA:
an issue the appellant raised was the admissibility of certain evidence to aid
in the construction of the easement
takes care in applying principle from Gallagher could imply two related
propositions that are incorrect
in my opinion, there is just one question, what does the grant authorise; and
that question is to the determine by construing the grant
in determining this question, regard may be had to surrounding
circumstances, including the physical circumstances of the dominant and
servient tenements and the use actually being made of them at the time of
the grant
Communications between the parties prior to grant potentially relevant and
consistent with authority but at the lease should be objective otherwise not
relevant is this the case with Torrens easements?
Three principles in determining whether a use of the servient tenement is
authorised
o For a grant of an easement to bind the servient tenement rather than
merely to operate as between the parties, the use authorised must be
such as to benefit the dominant tenement;
o Form the law of nuisance is the principle that unreasonable use of land
causing unreasonable damage to other land is actionable thus while a
use of the servient tenement may be within that which was granted, if
it is carried out unreasonably and causes unreasonable damage it may
be constrained.
o Rule that if there is ambiguity in an instrument creating an easement it
will be construed against the grantor but this is a rule of last resort.
Look at the words what indication of intention
o Focused on the use intended and contemplated by the grant itself for
the benefit of the dominant tenement only
1039
o Specific performance
S 89 CA gives the Court a power to modify or wholly or partially extinguish
an easement, profit a prendre or freehold covenant if satisfied of certain
conditions Courts do not readily grant s 89 applications for modification or
extinguishment.
4 ways
o 1. Express agreement
o 2. Implied agreement: Chatsworth Estates Co v Rewell
o 3. Merger: Kerridge v Foley
But doctrine does not apply to covenants over Torrens land
where those covenants are noted on the title: Post Investments v
Wilson note RPA s 47(7)
Also does not apply to restrictive covenants created by the
registration of a CA s 88B plan
Building schemes an exception in case of acquiring benefited
and burdened land covenant is suspended till resale
o 4. Order of the SC under s 89(1) CA obsolete, etc.
13B REVIEW
Areas
Brainstorm
Indefeasibility
o Extent of indefeasibility in joint tenancy where one party committed
fraud without another party knowing.
o S 42 RPA
Fraud
In personam
Whether there was a creation of a further exception of the indefeasibility
o i.e. whether the registered joint tenants title was defeasible
fact transfer of property, number of proceeding, estate in fee simple,
consideration of $1
The company said that the Clauds claim was fraudulent, Felicity had derived
an interest in the land through fraud.
HELD:
o Para 16 Torren title it is a system of title by registration, not a
registration of title
o 118(1)
o Because Joint tenant, section 100, 2 or more persons who registered
o Not only in breach of fiduciary duty but also fraudulent
o Primary judge held that indefeasibility applied with Felicity free from
any other interest, however, felicity registered as a sole
proprietorship and was not a transferee of valuable interest. But she
was covered in the protection from 118(1)(d)(i) (???)
Primary judge dismissed the proceeding from the company
The company and Claud appealed to HCA,
o Felicity held the farm on trust absolutely for the benefit of the company
HCA said not absolutely (?)
o 3 different reasoning/matter
Agency (p 30)
Joint tenancy
Registration through fraud
o What is relevant
The key aspect is that the fraud must be brought home where
the registration through fraud was brought to his agents
Felicity was an agent of Claud and was fraudulent
Para 36 long been recognised that no word is more commonly and
constantly abused than the word agent. Close attention
Para 38 - It is important, however, to keep at the forefront of consideration
that GC&Co did not allege, and the courts below did not find, that Felicity
knew of Claudes fraudulent conduct. Yet the conclusion that Claude was
Felicitys agent was treated by the majority in the Court of Appeal as a
sufficient basis for concluding that the fraud exception provided by s 42(1) of
the RPA applied and that her title as registered proprietor was defeasible.
That is, what was seen as a factual inquiry about whether Claude brought
about the transfer to Claude and Felicity as joint tenants with her knowledge
(but without her knowing of the fraud) was treated as concluding the legal
issue presented by s 42(1). But why that step should be taken was not
explained. Rather, the word agent was used as a statement of conclusion.
The reference to fraud being brought home in should be understood as
posing the agent had knowledge
o Scope of the authority of the agency (one aspect)
o Outline with the judgment that
o Those question of WHY Claud should be imputed with ??
Para 44 joint tenancy (KEY)
o Cant sell it, cannot alienate it
o In the Court of Appeal, Beazley P held43 that, even if the title which
Felicity had held jointly with Claude was defeasible, it did not follow
that the title she took on registration of the transfer of Claudes interest
to her was. There was, in her Honours view,44 no relevant fraud of
which Felicity had knowledge such as to impugn her indefeasible title
as the sole joint tenant. By contrast, as already noted, Macfarlan JA
held45 that Felicity was infected with Claudes fraud because she and
Claude took title from [GC&Co] as joint tenants [and] joint tenants
are treated by the law as in effect one person only (emphasis added).
Basten JA held46 that it was preferable in principle to treat the shares
of the joint tenants, holding title under the [RPA], prior to any
severance, as differentially affected by the fraud of one, to which the
other was not party.
45 (KEY)
o Why should a joint tenant held responsible for the actions of someone
else
49
o Therefore the barely statement of the principle cannot stand as a
deductive argument
Does not entail for all purpose that they are the one person
51
o It is wrong to begin from fraud exception
53 (KEY)
o This idea that joint tenants are treated as entity is inconsistent with
statutes
o In fact, it is consistent with principle that joint tenants should be seen
as separate entities ( s 118)
Under
o S 42 provides protection, assuming one party has done fraud, s 42 is
protective in the sense that
o Section 118 generally should not (1)(d)(i) should not be read
directly/only for fraud (?)
o Fraud does not apply to felicity
66
o The interest from and or derived from Claud may be recovered by the
company. The part of the interest was created by fraud and
unfortunately and because Felicitiy was not a bona fide purchaser FOR
FULL VALUE and therefore the title was defeasible (the consideration
was $1)
REVISION
Property 2010