1. QUESTION

    land law exam   

   Land Law Examination

   Problem 1

   Overall good work just some changes need to be done. I have highlighted and put notes throughout the paper regarding what needs to be edited. As outlined in the instructions references should not be footnoted and in AGLC format. They must be referenced in text. The name of the case is sufficient enough and the name of legislation first time must be in full then you can make abbreviation through out when referring to section. You may need to reword some sentences to make sure this is done properly. ALSO please make sure the whole exam paper including headings is no more then 2000 words. Bibiliography is not needed and not included in word count but you can leave it for reference I will remove it before submission. Thank you

   Question 1

   Co-ownership occurs where one or two parties are deemed to hold title over the same estate/interest hence conferring unity of possession.^[1] Co-ownership can either be a joint tenancy or a tenancy in common.

   In the current case, the nature of the co-owner relationship between Robert and Alice over Parkville is a joint tenancy. The reasoning is that although the transfer of the estate did not set out the nature of the co-owner relationship, there was no agreement between the two that set out an intention to have equal interests and obligations over the property and business (this sentence is confusing it is either incomplete or make it clear what point you trying to make).The joint tenancy complies with all the four unities; unit of possession, unit of interest, unity of title and unity of time.^[2] An equitable presumption applies because the intention of the parties (Robert and Alice) makes it clear that they intend to hold the interest proportionately.

               In terms of the Princes Hill premises, the nature of intended co-ownership is a tenancy in common because the parties contributed to the property unequally.^[3]  Where the four unities are not found, and parties have unequal contributions to the property, the presumption of joint tenancy is made.^[4] Such a co-ownership is a creation in equity and is established where there is an unequal contribution to the purchase price, mortgage, or partnership.^[5] In the current case, the purchase of Princess Hill Property was made using money from both the sale of Parkville house and money that Robert had taken from his family trust. Although there are no specific details set out about the nature of co-ownership, it would be unjust to assume joint tenancy, especially because Robert had used money from a family trust to contribute towards the total purchase price of the Princes Hill premises.

   Question 2

               The claim of adverse possession is not enforceable because of failure to meet the 15 years minimum of factual possession (this sentence is repetitive and not needed as same point made later). A Torrens title is indefeasible free from any defects and grants paramount interests to the person possessing the title. However, one of the exceptions to the indefeasibility of titles, if registered, is adverse possession.^[6] In the current case study, there are competing equities between Robert and Alice, and the neighbouring owner with regard to the Princes Hill premises. Adverse possession is one of the paramount interests whose enforceability is not affected by the registration of subsequent interest.^[7] However, one of the requirements is that the adverse possessor (AP) must be in possession of such land for 15 years and factual possession must be proved. ^[8] In the present case, the AP with regards to Princes Hill premises can only prove parking his car in the same spot for ten years as opposed to the minimum of 15 years required. As such, the claim of AP is not enforceable because the adverse possessor has not proved actual possession for at least 15 years.

   Question 3

               The claim by Richard against both Robert and Alice falls under the unregistered interests caveat system and is enforceable because it is an interest of beneficiaries. Principally, although interests in Torrens land should be registered, trust interests are incapable of registration.^[9] The claim by Richard is that part of the money used in the purchase of Princes Hill premises was obtained from the family trust. As such, Richard has an unregistered interest in the land in the form of a resulting or constructive trust involving the Princes Hill premises. Notably, the caveat system entitles the holder of an unregistered interest in land to lodge a complaint about the title.^[10]  A caveat is the only way that an unregistered interest can be protected.^[11] However, an unregistered interest defeated by subsequent registration is distinguished automatically and cannot be revived.^[12]

               Richard’s claim against Robert and Alice is enforceable because it falls under the “in-rem” and “in personam” interest. The “in-rem” interest is interest on behalf of the family members who had placed their monies in the family trust.^[13] A person is entitled to bring an action against a property if the basis of a claim is law or equity, and there is a possibility of entitlement to relief.^[14] One of the grounds under which the “in personam” claim can be enforceable is due to the existence of a constructive trust.^[15][16] In the present case, Richard’s claim will be enforceable because he has a vested interest in the Princes Hill premises, especially since a portion of the purchase price was obtained from a family trust.

    

    

   Question 4

               The claim by Richard against Westlink succeeds because Westlink failed to register their caveat over the property. Ideally, unregistered interests are not recognized by the Torrens system.^[17] the failure to lodge a caveat by Westlink is relevant in terms of merit analysis of the case. Although Westlink was aware that it should have registered mortgage over the Princes Hill property, the bank did not do so, therefore, did not lodge a caveat. However, Richard lodged a caveat as a person with interest in the property due to the amount from family trust used in purchasing the property. The determination of this case will be based on the unregistered priority disputes.^[18] Richard lodged a caveat first; thus, his claim will be enforceable against Westlink because the bank failed to lodge a caveat despite being aware of the need to do so.

   Problem 2

   Question 1

   Capital Bank will acquire a deferred indefeasible title because it was an innocent party in the transaction and did not know about the fraud. Justin will not acquire an indefeasible title to the land because the registration of the title was made fraudulently. Notwithstanding any other person’s claim on estate or interest, the registered proprietor of the land shall have an indefensible title.^[19] However, the TLA provides that any folio on a register or amendment made to the register fraudulently is void against any person who defrauds or privy to such fraud.^[20]  In the present case, the incidence of deferred indefeasibility occurs because fraud tainted the transaction between Capital Bank and Justin. Where the provider of a mortgage is not involved in the fraud, then the courts endorse a deferred indefeasibility.^[21] However, if the infeasibility of tile is immediate, then the court may set the mortgage aside, especially if the money has not been used.^[22] Capital Bank acquires a deferred indefeasible title because it was not privy to Justin’s fraud.

   Justin will not acquire an indefeasible title because the registration he made was pegged on fraud. Registration based on fraud makes the title void against the person who frauded against.^[23] Fraud can either be in the form of acting inequitably or with an intention to deceive or acting unfairly. Justin acted with the intention to deceive because they stole the certificate of title and forged a transfer of Jamie’s home. Conduct that intends to deceive with no suspicions aroused amounts to statutory fraud.^[24] Statutory fraud is actual, and the person alleging such a defence should demonstrate that the registration of title involved dishonest and fraudulent behaviour.^[25] Justin committed an actual fraud; thus, he cannot acquire an indefeasible title.

   Question 2

               Jamie’s parents have an unregistered interest in the Burwood property, but they can enforce it against the purchaser (see below). As parties who paid the remaining money for the purchase of the property, Jamie’s family have an equitable interest, which should be protected by caveats.^[26] The interest was validly created but ought to have been registered. Unregistered interests can either be interests capable of registration, interests capable of registrations (is this a double up error?) but no evidence in registrable form, and interests incapable of registration. In the present case, Jamie’s’ parents failed to register their interests by choice (they did not need protection). The amount that the Jamie family contributed towards the purchase of the property is held in trust, and the benefit is the land transfer that took place.^[27] Any interests may become extinguished if a subsequent registration occurs where there is no caveat protection.^[28]

               Jamie’s parents cannot enforce their unregistered interest against the purchaser ( I am a bit confused you first say it is enforceable above then say it is not please make sure it is consistent and read over and make sure u choose the correct one with detailed analysis. If there is a reason why you have done this please explain to me on the chat.) because there is no written agreement creating the interest. The statute provides that an interest that arises under a contract for the sale of land or disposition is only enforceable if there is evidence of a written agreement creating the interest of a note/memorandum of agreement.^[29] For the case study, it is evident that Jamie and his parents only talked orally about how he would “pay them back when she can” and no formal loan agreement was executed. However, there are some exceptions to the general rule about the enforceability of equitable interests on land. For instance, an oral contract put into writing, and part performance is exceptions to the writing requirement.^[30] Part performance includes actions such as taking possession of the land or the title to the land.^[31] From the case study (to save words perhaps delete words like this throughout the paper if word count becomes an issue), Jamie’s family did not engage in any part performance; hence, they cannot enforce their equitable interests against the purchaser.

    

    

   Question 3

               Other remedies that might be available to Jamie are compensation/damages and specific performance. A party who has been deprived of his/her interests of which he is the registered proprietor can take action for recovery of damages.^[32]  However, there are various circumstances under which a person may seek compensation. One of those is that they must not be excluded by s.109(2) (which legislation act? U cant just put sections) and the facts presented must fall within one of the bases of the claim described under s.110(1). Compensation will not be paid if the deprivation arose from a breach of trust or was a result of a misdescription of title.^[33] Also, Jamie is entitled to indemnity because she sustained loss or damage from the inappropriate and illegal transfer of her land.^[34] The compensation remedy is not prevented by the mere fact that the loss of fraud was occasioned by neglect or willful default of the proprietor of the land of his/her agents.

               Jamie can bring an action of specific performance against the purchaser, especially if the property in question was unique and had some aesthetic value. Also, specific performance is a remedy available if damages will not be adequate to compensate Jamie for the loss suffered due to the fraudulent transfer of her property. The remedy of specific performance against a purchaser implies recognition of equitable rights in the third person.^[35] Also, through this remedy, the person alleging loss is given the right to take possession of the land in dispute. Nevertheless, orders of specific performance form the courts are discretionary.^[36] As a result, the decision on whether Jamie will be awarded specific performance will depend on the appropriateness of the remedy. For instance, if the uniqueness of the land has not been destroyed, then the courts might order for specific performance. However, if the subject matter has been altered or the purchaser cannot perform, then specific performance is denied by the courts.

    

   Bibliography

   Books and Journals

   Depoorter, Ben, and Stephan Tontrup. “How law frames moral intuitions: The expressive effect of specific performance.” Ariz. L. Rev. 54 (2012): 673.

   Esmaeili, Hossein, and Brendan Grigg. The boundaries of Australian property law. Cambridge University Press, 2016.

   Gray, Kevin J., and Susan Francis Gray. Elements of land law. Vol. 5. Oxford: Oxford University Press, 2009.

   Case Law

   Assets v Mere Roihi (1905) AC 176.

   Barry v Heider (1914) HCA 79.

   Barry v Heider (1914) HCA 79.

   Calverly v Green (1984) 155 CLR 242.

   Delehunt v Carmody (1986) 61 CLR 464.

   Farah Constructions v Say-dee (2007) HCA 22

   Frazer v Walker (1967) 1 AC 569.

   Gibbs v Messer (1891) AC 248.

   Heid v Reliance (1983) HCA 30.

   Heid v Reliance (1983) HCA 30.

   Leros Pty Ltd v Terara (1992) 174 CLR 407.

   Leros v Terara (1992) HCA 2.

   LHK Nominees v Kenworthy (2003) HCA Trans 426

   Lysaght v Edwards (1876) 2 Ch D 449.

   Maddison v Alderson (1883) 8 App Cas 467

   Russo v Bendigo Bank (1999) VSCA 108.

   Vassos v State Bank SA (1993) 2 VR 316

   Statutes

   Legislative Instruments Act, 2003.

   Property Law Act, 1958 (Vic).

   Transfer of Land Act, 1893.

    

    

   [1] s. 30(2) of Transfer of Land Act, 1893.

   [2] Kevin J., Gray, and Francis Gray Susan. Elements of land law. Vol. 5. Oxford: Oxford University Press, 2009: 20.

   [3] Calverly v Green (1984) 155 CLR 242.

   [4] Delehunt v Carmody (1986) 61 CLR 464.

   [5]Ibid.

   [6] S 42(2)(b) of Property Law Act, 1958.

   [7] S 42 (2).

   [8] S 42(2)(b).

   [9] Barry v Heider (1914) HCA 79.

   [10] S.89.

   [11] Heid v Reliance (1983) HCA 30.

   [12] Leros v Terara (1992) HCA 2.

   [13] Hossein, Esmaeili, and Grigg Brendan. The boundaries of Australian property law. Cambridge University Press, 2016: 39.

   [14] Vassos v State Bank SA (1993) 2 VR 316

   [15] LHK Nominees v Kenworthy (2003) HCA Trans 426

   [16] Farah Constructions v Say-dee (2007) HCA 22

   [17] S. 40(1).

   [18] Heid v Reliance (1983) HCA 30.

   [19] S 42 (1).

   [20] S 44.

   [21] Gibbs v Messer (1891) AC 248.

   [22] Frazer v Walker (1967) 1 AC 569.

   [23] S 44 (1).

   [24] Assets v Mere Roihi (1905) AC 176.

   [25] Russo v Bendigo Bank (1999) VSCA 108.

   [26] Barry v Heider (1914) HCA 79.

   [27] Lysaght v Edwards (1876) 2 Ch D 449.

   [28] Leros Pty Ltd v Terara (1992) 174 CLR 407.

   [29] Section 126 Instruments Act.

   [30] Section 55(d) PLA.

   [31] Maddison v Alderson (1883) 8 App Cas 467.

   [32] S 44 TLA.

   [33] S 109 (2).

   [34] S 110.

   [35]  S 44.

   [36] Ben, Depoorter, and Tontrup Stephan. “How law frames moral intuitions: The expressive effect of specific performance.” Ariz. L. Rev. 54 (2012): 673.

    

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