Real Property Law

3 Found helpful • 142 Pages • Complete Study Notes • Year: Pre-2021 • Previously uploaded under: LAWS2017 - Real Property Law

Real Property 1 TENURE, ESTATES, AND NATIVE TITLE 5 1.1 Definitions 5 1.2 Tenure 6 1.3 Estates 9 1.4 Native Title 11 2 THE MEANING OF LAND 16 2.1 The right to airspace 16 2.2 Legislation regulating airspace and ground-level access 19 2.3 The owner’s rights to minerals 21 2.4 Boundaries with neighboring land 22 2.5 Growing things 22 3 FIXTURES AND CHATTELS: 23 3.1 Definitions 23 3.2 Tenant’s fixtures 24 3.3 Test for fixtures/chattels 25 3.4 Cases on Fixtures 28 4 WASTE 35 4.1 Permissive waste 35 4.2 Voluntary waste 35 4.3 Equitable waste 35 4.4 Ameliorating waste 35 5 THE TORRENS TITLE SYSTEM 36 5.1 Essentials 36 5.2 Indefeasibility 38 6 TORRENS TITLE - EXCEPTIONS TO INDEFEASIBILITY 43 6.1 Fraud (make flowchart) 43 6.2 The Personal Equity Exception 49 6.3 Prior folios (s 42(1)(a) of the Real Property Act) 53 6.4 Omitted/misdescribed easements (s41(1)(a1) of the Real Property Act) 53 6.5 Misdescribed/omitted profit â prendre (s 42(1)(b) of the Real Property Act) 54 6.6 Wrong Boundaries (s 42(1)(c) of the Real Property Act) 54 6.7 Short term tenancies (s 42(1)(d) of the Real Property Act) (Maybe read more) 54 6.8 Overriding statutes 55 6.9 Possessory title (Part 6A of the Real Property Act) 55 7 TORRENS TITLE - PRIORITIES BETWEEN UNREGISTERED PARTIES 56 7.1 Characterizing unregistered interests 56 7.2 Caveats (Part 7A of the RPA) (Todo: caveats by registrar general) 57 7.3 Injunctions 59 7.4 The difference between unregistered interests: legal and equitable interests. 59 7.5 Priorities between unregistered interests 62 7.6 Notice 64 8 TORRENS TITLE – UNREGISTERED INTERESTS: POSTPONING CONDUCT 64 8.1 Different where a beneficiary is involved 64 8.2 Types of postponing conduct 64 8.3 Failure to take possession of Title Deeds 65 8.4 Failure to retain possession of title deeds by an act of gross negligence 65 8.5 The premature release of the title deeds by a vendor on sale or by a first mortgagee on discharge of mortgage; and the inclusion of a receipt clause which wrongly states that the proceeds of sales have been received. 66 8.6 Execution of a dealing which does not truly reflect the transaction, such as the execution of a transfer by a registered proprietor, who has mortgaged but not sold a property (Holding out) 69 8.7 The failure of the holder of an unregistered interest to create a caveat, where that person was not in a position to take possession of the title deeds 70 8.8 The requirement for a purchaser to caveat 71 8.9 The requirement for a beneficiary under a trust to caveat 71   9 OLD SYSTEM TITLE 72 9.1 Chain of title 72 9.2 Interests in old-system title land 73 9.3 Deeds 74 9.4 Registration of deeds and s 184G of the Conveyancing Act 75 9.5 Converting old system land to Torrens Title land 77 10 MORTGAGES 79 10.1 Mortgages under Old System Title 79 10.2 Remedies available to a mortgagee 82 10.3 Tacking 89 11 CO-OWNERSHIP 91 11.1 Types of Co-ownership 91 11.2 Creation of co-ownership 92 11.3 Severance (joint tenancy → tenancy in common) 93 11.4 Ending co-ownership 96 11.5 Rights of co-owners inter se 97 11.6 Taking accounts: after co-ownership ends 97 11.7 Entitlements (occupation, rent and profits) 98 12 EASEMENTS 100 12.1 Characteristics of an easement 100 12.2 Creation of Easements 103 12.3 Ancillary rights to an easement 112 12.4 Obligation on the owners of the dominant and servient tenement; deviations of a right of way coming from obstruction 112 12.5 Changing an easement 112 12.6 Extinguishing an easement 115 12.7 Remedies 117 13 RESTRICTIVE COVENANTS 119 13.1 Introduction 119 13.2 Requirements for a binding covenant under OST 120 13.3 Restrictive covenants on TT land 122 13.4 Remedies/defences 123 13.5 Extinguishing a covenant 123 13.6 Etc. 124   14 LEASES 125 14.1 Introductory issues 125 14.2 Essential characteristics of a lease 126 14.3 Types of leases 128 14.4 Covenants 129 14.5 Assignment and subleasing 136 14.6 Terminating/ending a lease (breach and consequences) 137 14.7 Waiver 140 14.8 Remedies 140

This document is 25 Exchange Credits