These exam notes were used to achieve a High Distinction in Property B at Monash University, and include problem question notes and a separate document including content and suggestions for policy question answers. The notes cover all course content as of the exam year and include clear and easily usable exam problem structures.
The notes are easily navigated as include clear and comprehensive lists of contents and page numbers.
The author of these notes has never scored less than a High Di...
The following is a more accessible plain text extract of the PDF sample above, taken from our Property B Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Criticism of Gosper: if the forger had stolen the certificate for registration of the variatiom, there would have been no argument for a personal equity, despite it being used without authority. The fact that the mortgagee already had possession of the CT should not (in absence of fraud or knowledge of fraud on its part) give rise to a personal equity. Any toher result undermines confidence in the Torrens register (Butt, ‘Indefeasibility and Sleights of Hand, p 597).
Though the Privy Council (Frazer) and High Court (Bahr; Barwick CJ in Breskvar) have stated there is no inconsistency between the indefeasibility provisions and the enforcement of personal equities against the registered owner in personam, concern has been raised that the personal equities exception should not be allowed to develop as a collateral means of attacking the indefeasibility of a registered title. There is no formal inconsistency between immediate indefeasibility and the personal equities exception, but there is substantive inconsistency to the extent that enforcement of the personal equity against the RP undermines the purchaser’s security of transaction, where the result is to deprive the purchaser of the benefit of the registered title (Sackville and Neave p 534-5).
[5.113] A registered proprietor will be subject to the interest of a tenant (but life tenants have been held to be a ‘tenant’ – Perpetual Trustees v Smith). This is justified by the expense and inconvenience of requiring registration of all leases outweighing the advantages, given a purchaser bound by a lease is subject to it for a short time only. The purchaser can also be expected to discover the tenant’s occupation and ascertain the existence of a lease prior to purchase.
In other jurisdictions, the provisions apply to short term tenants. However, in Victoria, there is no limitation as to the duration of the tenancy. This means that the procedures provided for registration of leases are rarely followed. Arguably the Victorian protection is too broad, especially in relation to unregistered leases.
In ASIC v Money for Living, s 42(2)(e) was held to protect the interest of life tenants who entered a sale and lease-back arrangement under which they transferred their home in return for a guarantee income for life and a life-long right to occupy the home.
A reluctance to require registration of short-term leases is understandable, but it is more difficult to justify protecting long-term leases, thereby exposing bona fide purchasers to the risk of being bound by long-term leasehold estates of which they are not fully aware at settlement. The position in Victoria is exacerbated by the holding in Downie v Lockwood that a tenant’s equity of rectification of the original lease constitutes an unseverable part of the tenant’s interest in the land and is therefore binding on a registered transferee from the landlord under 42(2)(e). The provision is...
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These exam notes were used to achieve a High Distinction in Property B at Monash University, and include problem question notes and a separate document including content and suggestions for policy question answers. The notes cover all course content as of the exam year and include clear and easily usable exam problem structures.
The notes are easily navigated as include clear and comprehensive lists of contents and page numbers.
The author of these notes has never scored less than a High Di...
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