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PROPERTY B EXAM NOTES 1. Background 2. Torrens System

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PROPERTY B EXAM NOTES 1. Background 2. Torrens System [Subject to Copyright S. Sneddon] PROPERTY B EXAM NOTES 1. Background 2. Torrens System background 3. Caveats 4. Remedies 5. Competing interests Exceptions to indefeasibility 6. Fraud 7. In personam 8. Errors on register 9. Short leases 10. Omitted easements 11. Adverse possession 12. Overriding statutes 13. Easements 14. Covenants 15. Mortgages 16. Finders keepers 17. Bailment 18. Security interests 19. Undivided Bulk [Subject to Copyright S. Sneddon] (1) BACKGROUND - Fundamental Principles of Categories of property Property Legal vs Equitable RELATIVITY OF TITLE AND JUS TERTII (Common law vs Equity) Definition of property Title is proof of better (not necessarily best) right to possession. Acts Interpretation Act 1954 (Qld) s.36: REAL PERSONAL (Realty) (Personalty) ‘Any legal or equitable estate or interest (whether present or future, (rights in rem) (rights in personam) A person in possession cannot rely on a 3rd party having a better right (land) (goods/chattels) vested or contingent, or tangible or intangible) in real or personal to possession than the possessor as a defence (Jus Tertii). property of any description (including money), and includes things in action’ Corporeal Incorporeal Chattels Real Chattels Personal hereditaments hereditaments (Leasehold) (Pure personalty) Proof of better (not best) right to possession of land: (tangible) (intangible) ‘If party A can prove a better title than party B he is entitled to A relationship between person and thing succeed notwithstanding that party C may have a better title than A, Does not refer to material objects. Property is a bundle of rights that Choses/Things Choses/Things if C is neither a party to the action nor a person by who authority B is may exercised with respect of that object: Moore v Regents of Uni of in Possession in Action (tangible) (intangible) in possession or occupation of the land (e.g. if B has leased from C)’: California. Ocean Estate v Pinder Corporeal hereditaments Three parties: Tangible or physical things over which rights of ownership can be Priority in property 1. State (gives recognition to holder of right) exercised, e.g. lands or buildings 2. Holder of right Asher v Whitlock General rule: prior possession defeats subsequent 3. Everyone else not recognised as having a right. Incorporeal hereditaments possession, unless prior possession is: Victoria Park Racing Grounds v Taylor Intangible or non-physical rights affection land. E.g. easements or 1) abandoned (adverse possession of land, or finders keepers) profits a prendre. 2) transferred, or Interest 3) legally extinguished A right, claim or privilege that an individual has toward real or personal Chattels Real (lease) property. Includes total or partial rights (e.g. co-ownership) Lease over land (grant to exclusive possession for period of time). Common law does not recognise absolute title to land, so Pl. does not Originally regarded as mere contracts, now treated as real property. have to prove title is good against all the world – only that his title is Estate Still has it’s own category. relatively better than that of the def. Title is NOT about BEST title, it is The degree or extent of one’s interest in the property. E.g. right to about BETTER title possession and ownership are separate interests. If you have Proprietary possession + ownership = the total ‘estate’. One who has the free disposition of his property. Asher v Whitlock Williamson took possession of and occupied two parcels of waste land. Estate refers to the strength of a person’s connection to the property. Title to land (ownership) Titles to both parcels held by another person not party to the dispute. The strongest estate (biggest bundle of rights) is fee simple (absolute Title = best right to possession or any right to possession. Williamson died. In his will he left the property to his wife Lucy for life or ownership except for Crown). Good title = ability to resist any claim for possession and ability to until her marriage, and then to his daughter Mary in fee simple. Lucy recover from dispossessor. stayed on the land and married Whitlock. Mary’s heir (Asher) brought Fragmentation of proprietary interest an action against Whitlock, arguing that she was heir of Mary’s fee Example: Possession simple. Held: Williamson’s estate was devisable (could be passed A owns a house (owner in fee simple) down through a will). Williamson would have been able to bring B leases A’s house (possessor) Visible power or control over something, as distinct from lawful ejectment (‘recovery of title’), his right of possession passed to Mary, C lives next door uses A’s land to reach their own (easement) ownership. Holding or occupying. and she could have maintained ejectment – and therefore so could her D comes onto A’s land to take timber heir (Asher). Asher had better right than Whitlock. Possession is prima face evidence of seisin (possession and title) in Characteristics of property fee simple (freehold). National Provincial Bank v Ainsworth: 1. Definable ‘A possessor acquires a fee simple estate because the fullest estate 2. Identifiable by third parties, known to the law is presumed until a lesser estate is proved. If no other 3. Assignable (can be transferred) factors come into play, then, regardless of the length of time, as 4. Durable (some degree of performance). between mere possessors prior possession is a better right.’ Toohey J in Mabo [Subject to Copyright S. Sneddon] Old System of Land 5. Searching a chance of title required skill, therefore was time consuming and expensive. Public conveyancing of land This is the transferring and creating of rights in land. Improvement to Private Conveyancing: Deeds Registration Feoffment with livery of seisin: feoffer (person seised of land) and 3 basic elements: feoffee (person to whom interest was being conveyed) were required to - Logging time of entry of a property document attend an open or public ceremony in the presence of witness either on - Indexing of the document the land itself or within sight of the land. - Archiving the document (copy) Private conveyancing of land 3 basic principles Needed good root title. Conveyance of fee simple provided good root - Security: registration in government office helped prevent fraud title - Evidence: registered documents can be used to help support a claim - Notice and priority: allows public notice of transaction and date and Tracing of chain: title only strong as weakest link in chain (nemo dat). time of registration recorded on original and duplicate: determined Nobody can pass better title than he or she possesses. Cannot sell or priority transfer what you have not got, or what you have not got title to. Effect of registration was to give the instrument priority over all other instruments that were unregistered or registered at a later time. Nemo Dat Quod Habet Registration had no effect on the validity of an instrument, therefore did not corrective defective title. On any sale of land under the deeds Blackacre B and C’s title not valid system it was the execution and delivery of the deed which vested the vendor’s estate in the purchaser – not the actual registration of the deed. As such, land under the deeds system was vulnerable to most of the defects of the private conveyancing system. A B C Priority under deeds registration system Example: X forges transfer to B X holds fee simple in Blackacre X grants $50K mortgage to Y dated 10 June X grants another $50K mortgage to Z dated 11 June 36 Z registers mortgage on 11 June Y registers mortgage on 12 June Priority to Z as registered first Other title defects under private conveyancing All deeds and other instruments made bona fide and for valuable 1. Documentary title may have been valid but incomplete (e.g. consideration take priority according to the date of registration rather easement omitted from chain of title, still binds purchaser) than the execution date of the contract. Reflected in PLA 1974 s.246 If you had notice of prior interest you were not bona fide. 2. Title documents held by private individuals, therefore high chance of fraud 3. If a document was lost or destroyed, proof of title depended on secondary evidence available. 4. Necessity of entry onto land was abolished, therefore physical examination of property not strictly necessary, resulting in uncertainty of land boundaries. [Subject to Copyright S. Sneddon] (2) Torrens Title System notice of another unregistered interest (why? Mirror (s.178) Priority determined according to date the document was lodged principle) (PLA s.184(2)), Leros v Terara for registration (not the date of execution). Rush to the register! THREE FUNDAMENTAL PRINCIPLES OF TORRENS Possible loss of priority if instrument is rejected by Registrar for non- Title by Registration compliance with time frames (s.156, 157) Mirror principle - Register is an accurate reflection of the actual land “The Torrens Title System is a system of title by registration, What is an ‘interest in a lot’ that can be registered? - A party should be able to rely on the register – whatever is NOT registration of title” on it is what ‘should be going on’ Barwick CJ in Breskvar v Wall Schedule 1 Acts Interpretation Act - Should not be necessary to investigate the history • Legal or equitable estate in land or other property or; - Thus – a RP isn’t bound by any unregistered interests: (LTA You acquire title when you register. You don’t have title just upon • Right, power or privilege over, or in relation to, land or other s.184(1)) conveyancing (i.e. when you sign a contract and hand over purchase property (eg. easements) - Example money). o A holds fee simple interest in Blackacre EFFECT OF REGISTRATION o X steals A’s title deed and forges A’s signature on a Certificate of Title transfer to B For volunteer: benefits of registration apply to an instrument o B is a bona fide purchaser unaware of forgery.
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