05 Real Property Exam Notes

Description

FUNDAMENTALS OF LAND OWNERSHIP 2 Ownership defined 2 Possession defined 2 Property 3 What are the characteristics of "property"? 3 Transferable/assignable 3 Res nullius 3 Doctrine of Tenure and Doctrine of Estates 4 Legal and Equitable Interests 5 General Law Priority Rules 6 Concepts of Land Trespass and Fixtures 9 Trespass to land 9 Transient interferences 10 Permanent interferences 10 Height? 10 Building and construction cases 10 Airspace 10 RIGHTS BELOW THE GROUND - MINERAL RIGHTS 10 Conveyancing Act 1919 s 177 11 Natural rights – water 11 BOUNDARIES 11 Fences 11 ENROACHMENT OF BUILDINGS 12 FIXTURES 12 TENNANTS’ FIXTURES 12 TORRENS TITLE. 12 Torrens Title – Title by Registration 14 Indefeasibility of Title 17 Priority 17 The Nature of Unregistered Interests under the Torrens System 22 Protection of Unregistered Interests – Caveats 23 Priorities between Unregistered Interests 25 Real Property Act (NSW) – section 43A 31 Estates, Interests and Entries Recorded in the Folio of the Register 39 Tenancies not exceeding 3 years: s 42(1)(d) 40 Personal Equities/Rights in Personam 41 Volunteers 46 CO-OWNERSHIP 47 Types of Co-Ownership 47 Tenancy in Common 47 Joint Tenancy 48 Requirements for Creation of a Joint Tenancy – the Four Unities 48 Creation of Co-Ownership 50 Rights between Co-Owners 56 Improvements 56 Occupation Fees 58 Rights to an Account for Rent or Profits Received 62 Terminating Co-Ownership 63 Termination of the Tenancy in Common 63 Termination of the Joint Tenancy 63 Severance of Joint Tenancy 63 EASEMENTS AND PROFITS A PRENDRE 70 EASEMENTS 70 Types of easements 70 Essential characteristics of easements 71 Creation of Easements 75 Omitted or Misdescribed Easements – exception to indefeasibility 85 In personam exception 87 Extent of Use 90 Extinguishment, Variation, Modification of Easements 94 PROFITS A PRENDRE 98 Creation and extinguishment of profits 98 Rights “in the nature of” profits 99 Omitted or misdescribed profits a prendre 100 COVENANTS OVER FREEHOLD LAND 101 Benefit of convents at Common Law 105 Burden of covenants in Equity 108 Benefit of covenants in Equity 110 Statutory requirements for creating covenants 111 Extinguishment of Covenants 112 LEASES AND LICENCES 118 The Essential Characteristics of Leases 118 Leases and Licenses compared 120 Licenses 124 Types of Tenancies 125 Tenancy at will 125 Tenancy for a term of years 128 Creation of Leases – Formal Requirements 129 Torrens Title Leases – exception to indefeasibility 132 MORTGAGES 133 Nature of Mortgages 134 Creation of Mortgages 135 Registered Mortgages 135 Power of Sale 137 Standard of Care 137 Relevant Factors in Exercising Power of Sale 141 Mortgagee selling to self, associate or related party 142 Relevance of mortgagee’s motives 143 Injunction to restrain sale 143 Priorities 146 Tabula in naufragio 146 Further Advances 147