Real Property Final Exam Notes

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  • Topic: Easement, Real property law, Property law
  • Pages : 26 (7487 words )
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  • Published : October 16, 2012
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Old System Title

Legal Interests under Old System Title

S184G CA: priority given to the earlier same as s 12 of the former Registration and Deeds Act. If the four elements are satisfied, namely: 1.Instrument relating to the land (excludes wills) must be effective and not void 2.Made in good faith

a.There must be no fraud – Re Cooper
b.It must be bona fide - Marsden v Campbell
c.Notice only effective after registration, no notice before registration, but after settlement – Scholes d.Knowledge before registration is irrelevant – Burrows
e.Scholes can be avoided if settlement takes place after registration and what is registered is not a transfer, but a contract for the sale of land - Moonking 3.With valuable consideration
4.Registered under this section or Registration and Deeds Act as an instrument. Must be created by instrument

Priority is given to the first person registered. There is no indefeasibility in Old System.

S184G Cases

Darbyshire- if a person has a registered equitable interest then this gives rise to a legal interest. Priority is given to the first registered interest, the second registration is irrelevant

Types of Estates in Old System

Legal estate in fee simple:

Purchaser receives a legal interest at settlement when they get a conveyance by deed. The estate passes from the vendor to the purchaser. •A first mortgage by deed at settlement, where the vendor delivers •The legal estate may only vest with 3 parties:

oVendor before settlement
oPurchaser post settlement (who may be subject to)
oFirst mortgage post-settlement
Interests may also be non-legal in nature, such as those from statute: •Deeds of easement
Deeds of Lease
Lease that complies with s23D CA
oImmediate right to possession
oLess that 3 years in duration
oObtained for the best rent possible

Equitable Interests

Purchaser has a legal interest prior to exchange of contracts, from then on, it becomes a legal interest •Beneficiary under a trust
Mortgagor’s equity of redemption
oRight for borrower upon repayment of debt in full to get a reconveyance from the mortgagee oMortgage debt: interest on principle and the principle with any resulting legal costs oLimited by time, usually specified in the contract within the common law ‘expected’ time frame oEquity of redemption = contractual right to redeem + common law right to redeem (Kreglinger v New Patagonia Meats) oThe equity of redemption expires once foreclosure occurs (Kreglinger v New Patagonia Meats) •Mortgages other than a first mortgage by deed, such as an equitable interest from the deposit of title deeds as in Cooney v Burns •Agreements to grant mortgage promised by the owners of the bank (ANZ v Widdin) •2nd and 3rd mortgages – these are only equitable interests, only the first mortgage is a legal interest •Leases in writing which do not satisfy the requirements of s23D CA

Qualified Title

Transferring stage between Old System and Torrens Title. It is Torrens with qualifications, i.e. Torrens subject to Old System: title subsisting interests – enforceable. Lasts from 6-12 years.

If in the first 6 years of qualified title the where:
There is a dealing
For valuable consideration
There has been no fraud
The caution is still valid up until the 6th anniversary of the recording of the caution.

Where there are no further dealings in the next 7 years, so 12 years after the initial recording of the caution, it lapses on the 12th anniversary. Where there has been a dealing, the caution will lapse at the time of dealing

Real Property Act

s28J: cautions recorded on the register warn regarding any land warning persons dealing with the registered proprietor that the land comprised therein is held subject to any subsisting interest, whether recorded therein or not. Registrar General has the ability to amend the Register to include these cautions

s28M: when a caution ‘lapses’ the transition from...
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