Real Property Notes

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LAWS2017 Real Property
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Comprehensive Study Notes

1. Common Law and Equitable Approached to Competing Interests

The basic rules of priority:
1. Priority disputes occur when two or more people claim independent property rights that cannot co-exist. When one property right takes priority over another, the latter is extinguished or diminished to the extent of any inconsistency between them. 2. An earlier legal right takes priority over a subsequent legal right (nemo dat rule at common law). 3. A legal right takes priority over an equitable right of which a bona fide purchaser does not have notice. 4. An earlier equitable right takes priority over a later equitable right (but some exceptions exist).

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A: Old System Title
* Deeds:
* A deed is the most solemn act that can be done in respect to property: Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361. * Where the land is Old System title, the alienation of the fee simple and most interests in land at law must be effected by deed: s 23B(1) Conveyancing Act 1919 (NSW). There are four requisites for a valid deed: signing, sealing, delivery and attestation: s 38 Conveyancing Act * To create a legal interest under old system title, a deed must be signed conveying the land to the mortgagee whereas for an equitable interest under old system title, the title deeds are deposited with the mortgagee. * There can only be one legal owner, subsequent mortgages can only create equitable interests in the land.

3 stage process to purchase land:
1. Decision to buy
2. Enter into the contract with the vendor (exchange of contract) – payment of deposit * At this point the purchaser acquires an equitable interest in the land equivalent to the deposit. In most cases, courts will order specific performance because land is deemed special and unique. 3. Settlement – the relevant documents are handed over – the purchaser pays the remainder * The deed of conveyance (Old System Title)

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B: Priorities between competing legal interests
* Consider the situation where O (owner) delivers a deed of mortgage to M (mortgagee), then O delivers a deed of conveyance to P (purchaser). The important rule is that: * Where two or more legal interests in the one parcel of land are inconsistent with each other, priority depends on the date of creation of the interests. Where there is inconsistency, an earlier legal right takes priority over a subsequent legal right (nemo dat rule at common law). * The rule ‘nemo dat quod non habet’ means that you cannot give what you do not have. * Note the effect of a mortgage of old system title land the first mortgagee has a legal interest. The right of a second or subsequent mortgagee can only be equitable because it is a mortgage of an equity of redemption.

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C: Equity
* Equitable interest in property is one that will be enforced by a court exercising equitable jurisdiction. * Kinds of equitable interests include:
1. Beneficiary’s right under a trust
2. Right of purchaser under a valid agreement for sale of land 3. Right of mortgagee/lessee under a valid agreement (not a deed) to grant mortgage/lease 4. Right of a mortgagor in the mortgaged land which is Old System Title (equity of redemption) 5. Right of a second or subsequent mortgagee

6. Right of mortgagee under mortgage by deposit of deeds (principle of part performance) 7. Grantee...
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