Property Notes

Topics: Property law, Easement, Deed Pages: 10 (2597 words) Published: June 13, 2011
* System of title by registration rather than registration by title (Breskvar v Wall (1971) 126 CLR 376. * Indefeasibility- The registered proprietor holds the title free of all unregistered interests. S42 Real Property Act 1900 (NSW). * Registration of a void instrument confers immediate indefeasibility in the absence of fraud (Frazer v Walker [1967]] 1 AC 569. * Sir Garfield Barwick sitting on the Privy Council in Frazer v Walker described it as: “a convenient description of the immunity from attack by adverse claim to the land or interest in respect of which he is registered, which a registered proprietor enjoys”

* FRAUD- in the case of fraud a proprietor can be removed from the register. Fraud is not notice, it is dishonesty or moral turpitude (Assets v Mere Roihi [1905] AC 176 “Fraud must be brought home to the person whose registered interest in sought to be impeached, or to his or her agents acting within their authority.” Fraud must take place before registration. Anything that takes place after is subject to an in personam claim. * EXPRESS EXCEPTIONS- Leases- s42(1)(d) RPA- less than 3 years * Easements- s 42(1)(a1)

* IN PERSONAM- The registered proprietor is subject to unregistered interests that they have created, such as contracts, trusts and estoppel. (Barry v Heider (1914) 19 CLR 197

Bahr v Nicolay (1988) 164 CLR 603
* In 1979 the Bahrs obtained a licence of Crown Land in Western Australia. On the building of commercial premises the Bahr’s could transform the licence into a Crown Grant and so become the proprietors of the property. * The Bahr’s sold to Nicolay. Nicolay was resell the property to them at the end of the 3 years. * During the 3 year term Nicolay sold the property to the Thompson’s. * The contract between Nicolay and the Thompsons contained an acknowledgment of the agreement between Nicolay and the Bahr’s (Clause 4 of the contract. * After the Thompsons’s became registered as proprietors they commenced negotiations for the resale of the property in accordance with their agreement with Nicolay but later refused to transfer the property. * The Thompson’s argued that they had mere notice of the Bahr’s interest and so were not obliged to resell and were not guilty of statutory fraud. * Mason and Dawson JJ. Fraud, a “dishonest repudiation of a prior interest which the registered proprietor has acknowledged or agreed to recognize as the basis for obtaining title. * Wilson and Toohey JJ. No statutory fraud – in any case it occurred after registration. Conduct does give rise to a constructive trust. * Brennan J collateral contract and constructive trust.

The Torrens Assurance Fund
* Section 129 of the RPA gives a remedy to a person for loss or damage against the Torrens Assurance Fund in respect of an interest in land, suffered as a result of the operation of the RPA, where the loss or damage arise from: * the registration of some other person as proprietor of the land or an interest in the land (s 129(1) (b));   * the person having been deprived of the land or an interest in the land through fraud (s129(1)(e)).

King v Smail [1958] VR 273- doctrine of indefeasibility only protects bona fide purchasers. Volunteers not covered.
Bogdanovic v Koteff (1988) 12 NSWLR 472 – NSW volunteers covered
Mrs B looked after Mr K on the basis of a promise that she would be given an interest in the house which would allow her to stay for life. Son inherited house.
Breskvar v Wall applied - no distinction is made between volunteers and purchasers hence indefeasibility is given to the son

Under 42(1)(d) of the Real Property Act, a registered interest is subject to a short-term lease if: * The term of the lease is less than 3 years including any options, * The tenant is in possession or entitled to immediate possession,...
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