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Servitudes And Security Interests Notes

Law Notes > Property A Notes

This is an extract of our Servitudes And Security Interests document, which we sell as part of our Property A Notes collection written by the top tier of Monash University students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Property A Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

ServitudesNonpossessory interests o

Profits a prendre

o

Easements

o

Restrictive covenants are not servitudes, but are also nonpossessory rights. They restrict the use and occupation of land for the benefit of other land

A servitude is a right to use and enjoy another's property, not amounting to taking possession.

Easements Definition

* An easement is a right enjoyed by the owner of one piece of land (called the dominant tenement), the exercise of which interferes with the use and occupation of another piece of land (the servient tenement).

* Exception: legislation creates certain easements in gross - no requirement that it benefit land Positive and negative easements

* A positive easement gives a right for something to be done -

* Eg a right to walk or drive across land

* A negative easement gives a right to prevent something being done

* Eg a right to receive light to a defined aperture (restricts the height of buildings on the servient land) Policy questions
- Should easements in gross be permitted generally (legislation passed to allow as in NT etc)?
o

Why should a dominant tenement be necessary?

Should easements by prescription be abolished (policy?)?
[RG] In its final report (no. 22) on Easements and Covenants (2011), the Victorian Law Reform Commission recommended the abolition of easements by prescription and some types of implied easement, and proposed the creation of a process for the imposition of easements in appropriate circumstances by order of VCAT.

Security interests

*

Security interest is a property right (of lender/creditor) attached to a debt

*

Land commonly used as security because identifiable, permanent and tends to hold its value

Types of security interest
[11.2] Include:

*

*

Mortgages (what we are mostly concerned with) o

GL: Ownership security: If you give mortgage to bank, security by ownership (you are giving your title to the land) in general law

o

Charge: a nonpossessory right over property/ land as security for an obligation. A mortgage under Torrens system is an example of charge. Only in the event you default can the bank retain possession.

Pledges/pawns o

*

Fixed charges o

*

*

Fixed charge: gives the creditor the right to sell the asset on default. CF floating charge

Floating charges o

*

Possessory security: the borrower does not transfer title but rather possession - a pledge/pawn - you give the pawn broker possession of your good and if you do not pay back the money they can sell your property.

rather than be attached to a specific asset, relates to the assets of the company as a whole - in the event of a default the floating charge will crystallise and enable the lender to secure possession of the assets

Liens o

possessory lien: entitles someone to retain possession of the property so as to receive payment for a debt. repairer's lien: can retain possession of a repaired thing until you pay - no right to sell, but there may be a court process to allow them to sell it?

o

equitable lien: equitable right to a charge over debtor's property without the right to possession. Vendor's lien: if you enter a K for sale of land and tfr title to the land before you get the full sale proceeds, if the purchaser can't come up with the full payment you get a vendor's lien. You can go to court to get an order to have the purchaser discharge the debt

Hirepurchase agreements o

Hire purchase agreement: purchaser attains the right to possess items but ownership only transfers upon the total repayment of the debt.

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