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Land Law Final Version Notes

LLM Law Notes > Land Law (Property) Notes

This is an extract of our Land Law Final Version document, which we sell as part of our Land Law (Property) Notes collection written by the top tier of University Of New South Wales students.

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

LAND LAW - UNSW S 1 2018 1

FUNDAMENTAL CONCEPTS IN LAND LAW

4 POSSESSION

INTERSECTION OF CONTRACT AND LAND LAW

4 4 5 5 6

NATIVE TITLE

7 RECOGNISED INTERESTS IN LAND
PROPRIETARY VS. CONTRACTUAL
FIXTURES

COMPENSATION FOR ACQUISITION OF LAND:
NATIVE TITLE AND THE RACIAL DISCRIMINATION ACT 1975 (CTH)

7 9 9 10 14 14

THE TORRENS SYSTEM

15 INTRODUCTION
OLD SYSTEM TITLE

15 15

INDEFEASIBILITY

20 IMMEDIATE VS. DEFERRED INDEFEASIBILITY

MORTGAGES AND THE EXTENT OF INDEFEASIBILITY

20 20 21 21 21 24 25

EXCEPTIONS TO INDEFEASIBILITY

26 FRAUD AND S 56C

OVERRIDING STATUTES

26 33 34 35

CAVEATS

39 TERMINOLOGY
MABO (2), QUITE SIMPLY:
THE NATIVE TITLE ACT 1993 (CTH)
EXISTENCE OF NATIVE TITLE

REGISTRATION GIVES RISE TO INDEFEASIBILITY EVEN WHERE THERE HAS BEEN:
INDEFEASIBILITY OF LEASES AND MORTGAGES
RULES: INDEFEASIBILITY
INDEFEASIBILITY CASES
VOLUNTEERS

IN PERSONAM EXCEPTION
SHORT-TERM TENANCIES (3 YEARS OR LESS) 2

INTRODUCTION

CANNOT LODGE CAVEAT WITHOUT REASONABLE CAUSE

39 39 39 40 40 41

COMPETING EQUITABLE INTERESTS IN THE TORRENS SYSTEM

45 THE GENERAL RULES

WHERE FAILURE TO CAVEAT LIKELY TO AMOUNT TO POSTPONING CONDUCT

45 46 47

CO-OWNERSHIP

50 FUNDAMENTALS

ENDING A CO-OWNERSHIP

50 50 53 53 54 59

LEASES

63 INTRODUCTION

CONTRACTUAL REMEDIES FOR BREACH OF LEASE

63 63 64 65 69 69 73 76

MORTGAGES

82 INTRODUCTION (NOT THE MOST RELEVANT)
THE NATURE MORTGAGES
REMEDIES FOR BREACH OF MORTGAGE
PRIORITIES, MORTGAGES AND TACKING

82 83 83 87

STATUTORY BASIS
CAVEATABLE INTERESTS
PROCESS FOR CAVEATS
EFFECT OF CAVEAT

FAILURE TO CAVEAT EXAMPLE

JOINT TENANCY
TENANCY IN COMMON
AT LAW
IN EQUITY

CREATION OF LEASES

SUBSTANTIVE REQUIREMENTS
COVENANTS
MULTIPLE SOURCES OF RIGHTS
ASSIGNMENT
REMEDIES FOR BREACH OF LEASE 3

RESTRICTIVE COVENANTS

89 PROPERTY THEORY

89 93 95 96 98 99

INTRODUCTION TO RESTRICTIVE COVENANTS
DEVELOPMENT OF THE LAW OF RESTRICTIVE COVENANTS
FOUR CONDITIONS OF A VALID COVENANT
CREATION OF COVENANTS IN SUBDIVISIONS POST-1960

ENFORCEABILITY OF FREEHOLD COVENANTS
S 89 CONVEYANCING ACT - POWER OF COURT TO MODIFY OR EXTINGUISH EASEMENT, PROFITS A PRENDRE AND CERTAIN
COVENANTS

99 INTERSECTION OF FREEHOLD COVENANTS WITH PUBLIC PLANNING REGIME

101 ADDITIONAL POINTS ABOUT FREEHOLD COVENANTS:

103 EASEMENTS

105 105
CREATING EASEMENTS

105 EASEMENTS IN GROSS - NOT ALLOWED

108 IMPLIED EASEMENTS AT COMMON LAW

109 REGISTRAR GENERAL OF NEW SOUTH WALES V JEA HOLDINGS (AUST) PTY LTD (2015) 88 NSWLR 321; [2015] NSWCA 74
- EXCEPTION TO INDEFEASIBILITY IN S 42(1)(A1)

111 NOVEL EASEMENTS

112 FOR AND AGAINST NOVEL EASEMENTS

113 CASE EXAMPLES - THE PROBLEM OF 'NOVEL' EASEMENTS

114 PARKING EASEMENTS

118 INTERPRETATION OF EASEMENTS

119 EXTINGUISHMENT OF EASEMENTS

122 FUNDAMENTALS 4

FUNDAMENTAL CONCEPTS IN LAND LAW
POSSESSION-

If someone 'has possession' they are entitled to be in control of land and to use and occupy it

If you buy a house you are entitled to be in possession of it

If you rent it out, the tenant will be entitled to possession

If the lease starts on the 1st, but the tenant picks up the keys on the 5th:
§ 1-4 - right to possession
§ 5 onwards - factual possession

If a friend is allowed to stay whilst you're on holiday no interest has been conveyed so this is a bare license
In modern society land is proved through Torrens title, not possession
Possession is title - you can sell it; the true owner can get the land back from you within 12 years

ADVERSE POSSESSIONIf you do not bring a claim to recover land within 12 years you will be 'statute barred'
This means the person in possession (even wrongly) will be able to keep it

Extremely rare in NSW

RECOGNISED INTERESTS IN LAND
The basic explanation of the limited rights considered property are:
Fee simple:Entitled the owner to possession of the land for an indefinite period, subject only to government acquisition and regulation by planning and other laws

Lease:A time limited interest in land
Entitled to possession, to the exclusion of everyone else including the landlord.
The landlord, who still owns the fee simple, has carved out a smaller interest and given it to the lessee
The lease is an interest and belongs to the lessee, which may give rise to a sub-lease

Mortgage:A small interest in land that the owner of a fee simple (or lease) give to another in return for money

Mortgagor is the owner of the land; mortgagee is the lender of money
Allows the mortgagee to sell the land if they are not paid back the money
In Torrens you do not transfer your legal fee simple, you just register the mortgage

Easement: 5-

A right to do something on someone else's land
Affect two pieces of land:
o Land benefited ('dominant tenement')
o Land burdened ('service tenement')
Whoever owns the benefited land can use the easement and vice versa
Only certain rights will be recognized as an easement - economic and social benefits

Drive way, pipes, wires, mail box etc.
o Conveyancing Act s 88K - SC can impose an easement (strict though)

Restrictive or freehold covenants:A right to stop someone doing something on their land (building two stories etc.)

Profits a prendreThe right to gather naturally occurring materials form another's land (quarry etc.)

Lien or chargeA little interest in land equivalent to an amount of money owed to the owner of the lien
It is like a mortgage, without the right to sell the land, however if the land is sold the owner of the lien has the right to be paid directly out of the proceeds of sale (useful in bankruptcy etc.)

NUMEROUS CLAUSUS PRINCIPLE (B EDGEWORTH)'Closed list' principle expresses common law's stringent approach to property rights
Landowners are not at liberty to customize their rights; the sytem of rights in rem is a strictly circumscribed one, with a tight regulatory regime governing the range and form of available rights over land
Three mischiefs are targeted by this:
o The concern to maximize the uses to which land can be put

The vice of adding to the already existing difficulties that confront third parties who purchase land

Protecting the integrity of the 'science of the law' (the systematic rationalization of the common law)

PROPRIETARY VS. CONTRACTUALContract rights are enforceable between the parties (privity) and property rights are enforceable in rem
(against the world)
However, there is freedom of contract but property rights are restricted by numerous clausus

King v David Allen and Georgeski

FIXTURES'Land' means land and everything permanently attached to it (fixtures)
o E.g. the house attached to the land
This is important in valuing land 6

INTERSECTION OF CONTRACT AND LAND LAWThe first step of purchasing land is a contract (oral and then written)

Conveyancing Act 1919 (NSW) s 54A - writing-

Contracts for sale of land must be in writing
This reflects the significance and uniqueness of land
S 54A requires the 'agreement' (contract) to be in writing or some 'some memorandum or note thereof', meaning that the entire contract does not need to be in one formal document (includes letter,
email or receipt), but must contain all of the essential terms (the property, the parties, purchase price etc.) and signatures
Enforceable contract will depend upon: consideration, completeness , certainty, intention

With regard to land, exchange of contracts is an accepted way of indicating intention (sign identical contracts and give to the other)

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