SAMPLE ONLY- LAW2112: A HD EXAM NOTES

Topic 6 Adverse

First possessor- is there AP?

Pick the date with both FP and ITP and argue why previous dates don’t satisfy the threshold

Factual possession

• “Open act, that is not secret, without consent, is peaceful and adverse to the owner” (Bowen CJ, Mulcahy) o Is it an open act that is not secret? ▪ Possession that would be noticed by a careful and reasonable RP/ doc holder ▪ unconcealed and not hidden ▪ NB: can still possess underground cellar in secret- About AP’s behaviour not whether land itself is capable of being openly possessed o Is possession without RP’s consent? ▪ Where there is a / / DTH consent given, can only satisfy FP when the lease/ license/ consent expires ▪ Time will start running when consent ends- argue when and why the consent ended on that date o Is possession adverse to RP’s of the land? o Is APer’s CURENT use of the land is inconsistent with/ contrary to the DHT’s CURRENT use of the land? ▪ Inconsistency does not mean that the USE ITSELF must be inconsistent or different from the DTH’s use- Slade J in Buckinghamshire stated this question of inconsistency was unnecessary, affirmed by the of Lords in JA Pye ▪ Australian courts are likely to follow the modern view of what inconsistency means • Can APer and DTH use land at the same time? o Analogise to JA Pye v Graham- they couldn’t both use the land as a farm at the same time, thus it is adverse • IS APer’s use of land different from the owners use of the land/ UNIQUE to the APer? o The use of the land as a garden was unique to M as was the councils intended use of the land as a road- Buckinghamshire v Moran- modern view o Used the land for family gatherings vs the council wanted to use the land to build a council hall- Whittlesea ▪ Adverse doesn’t mean that it has to be a hostile use- Buckinghamshire o Is AP possessing land peacefully? ▪ Peaceful= uninterrupted, exclusive and continuous possession- Shaw v Garbutt ▪ Is there possession without violence or force? • Use common sense here- has APer tried to horribly scare DTH away from property? ▪ NB: if violent, analogise to squatter using a shotgun to warn off DHT and others from entering- held still peaceful in Shaw v Garbutt • Physical control: Does the APer exercise a degree of physical control over the land? SAMPLE ONLY- LAW2112: Property A HD EXAM NOTES

Slade J- Powell v McFarlane- UK o Look at: ▪ excluding others from the land: changing locks, erecting a keep out sign ▪ Physical control because you have the only key? (JA Pye) ▪ Putting up a fence (whittlesea) ▪ maintaining the land? Pay taxes? (Perry; Buckinghamshire) o Decide whether this cumulatively amounts to more than mere occupation- Slade J Powell v McFarlane o NB: no physical change to land needs to occur- you just have to possess the land, not neccesarily change it or “put your stamp on it”- (Whittlesea)

o Is APer acting as if they are the owner of that kind of land? (analogise to Whittlesea; Perry) ▪ Have regard to the nature of the land and the manner in which that land is commonly used or enjoyed- Slade J- Powell v McFarlane ▪ What kind of land is it?

Intention to possess- animus possidendi

Does the AP objectively have an intention to possess the land and use it as its own at the present time?

DETERMINED OBJECTIVELY ON THE FACTS: use the same facts that you used for FP o Does the APer intend to exclude the world at large as far as reasonably possible? .- JA Pye v Graham ▪ Depends on what is reasonable to exclude them looking at the type of land • ie. land more geographically difficult to possess will need less action from APer to exclude people cf. open land ▪ Threshold is only doing what is REASONABLE TO EXCLUDE THEM- ie. It is impossible to exclude everyone entirely o Do they intend to occupy and use the land as if it were their own? Slade J- Powell v McFarlane- UK ▪ Eg. Whittlesea- used it for family gatherings as if it were their own ▪ Perry- used it as his own- lived there ▪ Look at the facts which show that they ARE using the land is if it were their own and say that this points to objective intention o Is the intention made relatively clear to the world? ▪ Look at APer conduct to determine this o APer only needs to intend to possess the land, they DON’T have to intend to purchase it or own it in the future – Whittlesea o NB: APers own statements of intent are inherently subjective- generally weak ▪ Can only be used in conjunction with other facts to support actions and thus show intent Eg. Whittlesea- Abbatangelo’s statement that they “intended to use land as part of their property for family activities” supported the fact that AP’d land was enclosed on three sides by her property and on the other side by a road to satisfy ITP FULL NOTES FOR ADVERSE POSSESSION AVAILABLE FOR PURCHASE SAMPLE ONLY- LAW2112: Property A HD EXAM NOTES

Topic 8 Leasehold Estates

Is there a lease or a license?

There will be a lease if there is exclusive possession and certainty of duration.

1) Does the tenant have exclusive possession of the property as a question of fact?

NB: if there is exclusive possession, it cannot be a license and you can eject persons for

• Look at nature of agreement, premises and parties’ circumstances • Does tenant have physical control of entry? ▪ Locks, keys and who has access ▪ not decisive if LL retains keys but if tenant has keys only, points strongly towards exclusive possession- Radiach v Smith HCA, Swan v Uecker (AirBnB) • Is exclusive possession needed for the purpose of the agreement?- ie to run the milkbar?- Radiach v Smith o Residential vs commercial premises- you are more likely to have exclusive possession of residential premises because this is needed to carry out your living- Street v Mountford UK • Did the parties intend to create right of exclusive possession under the written agreement? Objective intention test- Windeyer J, Radiach o Look at written agreement itself first and that actual rights it confers o Can also look at surrounding circumstances- substance of the agreement- actual facts of the case and rights conferred o If parties at arms length- PF intention to create legal relations points towards exclusive possession o If family/ friends, look closely at what objective intention points towards- ▪ does the LL actually allow their friend exclusive possession or do they come in all the time and hang around whenever they want? • Substance of the agreement- NOT THE FORM- is important- Windeyer J in Radiach o If agreement is headed license agreement, is irrelevant to finding exclusive possession- analogise facts of Radiach- EP over milkbar was conferred • Factors irrelevant to answering exclusive possession: Swan v Uecker o Whether the premises considered the primary place of residence o That the LL can come in and out and has a set of keys- LL needs a set of keys and this is irrelevant to whether tenant has exclusive possession - see above o Whether the tenant/ licensee can be made to leave- irrelevant because can happen with both and • Radiach v Smith- milkbar case Radiach the tenant that ran the milkbar, HCA, Windeyer • Street v Mountford- Street LL granted periodic lease for 2 rooms residential to Mountford, UK • Swan v Uecker- swan LL, Uecker tenant who later “leased” the property on airBnB without consent for a sublease, St Kilda, VSC FULL NOTES FOR LEASEHOLD ESTATES AVAILABLE FOR PURCHASE

SAMPLE ONLY- LAW2112: Property A HD EXAM NOTES

Topic 9 Creation of Leasehold Estates

Legal lease Equitable lease Holds the parties to their prop and contractual Holds the parties to their prop and contractual duties at common duties as if, but not equal to if they were enforceable at Enforceable against the whole world Not enforceable against third parties You will get a remedy for a breach found in court Even if an equitable lease can be granted, - not discretionary equitable remedies are discretionary the court ultimately decides upon that case whether or not they should provide a remedy

Legal leases

GLL o PLA s 52: must be in the form of a of lease- in writing and signed by the parties- otherwise the lease is void o Except if it is one of the (2) exceptions or 54(2) applies o S52(2) exceptions: (d) leases or tenancies or other assurances not required by law to be made in writing; (e) receipts not required by law to be under seal; (f) vesting orders of the Court or other competent authority; (g) conveyances taking effect by .

o EXCEPTION: short term parol leases don’t have to be in writing- PLA s54(2) • Parole leases (verbal not in writing) • Provision applies when your interest vests in possession • Has to be a lease less than 3 years, regardless of whether a fixed or periodic lease and regardless of having an option to renew • You are only allowed the market rent- the best rent without taking a fine o If the LL wants more he has to register the lease o Despite any verbal terms of rent, if it is above market value then the LL is not allowed to charge market value • PLA s 54(2) Nothing in the foregoing provisions of this Division shall affect the creation by parol of leases taking effect in possession for a term not exceeding three years (whether or not the lessee is given power to extend the term) at the best rent which can be reasonably obtained without taking a fine.

Torrens System land

• You must meet the writing requirements from s52 PLA- expressed as a deed- in writing and signed • Extra requirement of registration: s40 TLA requires that instruments are registered to take effect • S66 TLA- for a lease to be registered it has to be greater than 3 years • Leasehold interests, whether registered or not, are exceptions to indefeasible title, “landowners will take their interest subject to the tenant’s possession- s42(2)e TLA SAMPLE ONLY- LAW2112: Property A HD EXAM NOTES

▪ Unregistered interests of tenant are enforceable against the LL and thus, they are in a sense considered legal under Torrens ▪ Provision applies to all leases thus, short ones incapable of registration and long ones capable of registration

Effect of RTA or RLA on legal leases

S3 RTA: meaning of tenancy agreement under RTA is wide enough to allow parol leases, equitable leases and legal leases, regardless of whether writing requirements are met. You are protected by RTA once you take possession.

• Tenancy agreement: the means of agreement whether or not in writing, whether express or implied under which a person lets a premises as a residence

S16 RLA- requires a lease in writing and signed by all parties ie. forcing you to have a legal lease. BUT failure to comply doesn’t make the lease unenforceable or invalid or illegal, ie. you can still enforce it in , they just want them to be in writing FULL NOTES FOR CREATION OF LEASEHOLD ESTATES AVAILABLE FOR PURCHASE