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
There must be no fraud – Re Cooper
It must be bona fide - Marsden v Campbell
Notice only effective after registration, no notice before registration, but after settlement – Scholes d.
Knowledge before registration is irrelevant – Burrows
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
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.
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:
Vendor before settlement
Purchaser post settlement (who may be subject to)
First 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
Immediate right to possession
Less that 3 years in duration
Obtained for the best rent possible
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
Right for borrower upon repayment of debt in full to get a reconveyance from the mortgagee o
Mortgage debt: interest on principle and the principle with any resulting legal costs o
Limited by time, usually specified in the contract within the common law ‘expected’ time frame o
Equity of redemption = contractual right to redeem + common law right to redeem (Kreglinger v New Patagonia Meats) o
The 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
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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