LAWS2383 Land Law - HD and Dean's List Full Course Notes

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HD and Dean's List Extensive Complete Course Notes. Covering every topic and lecture for the whole term. Topics covered: Week 1, Class 1 (The Concept of Property): Property as a set of relations between people with respect to things (not a thing in itself), six defining characteristics of property rights (in rem enforceability, stable identifiable subject matter, relativity of title, alienability, independence of parties, right to exclude), key theoretical positions (Felix Cohen 1954 on state-endorsed exclusion, Wesley Hohfeld on rights duties powers and immunities, Kevin and Susan Gray on property as legal conclusion, s 7 Conveyancing Act 1919 NSW definition, Stow v Mineral Holdings (1977) 180 CLR 295). Bundle of sticks metaphor (five key sticks: use and enjoyment, exclude, alienate, derive income, destroy; limitations including misleading suggestion of infinite divisibility, absence of right to exclude in native title, common and public property). Classifications (real property as fixed in location recoverable by real action, personal property as choses in possession and choses in action, chattels real as historical anomaly for leases). Interests and estates in land (fee simple, leasehold, mortgage, easement, restrictive covenant preview). Boundaries of land (airspace: Baron Bernstein of Leigh v Skyviews and General Ltd QB 479 on ordinary use and enjoyment limit, Shelfer v City of London Electric Lighting Co on injunction vs damages four-part rule, Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2009), transient vs established trespass distinction; accretion: Gifford v Lord Yarborough, Southern Centre of Theosophy Inc v South Australia AC 706 on imperceptibility requirement; erosion). Week 1, Class 2 (Origins of Australian Land Law): Doctrine of tenure (all land owned absolutely by the Crown, individuals hold estates of the Crown, feudalism rationalised by Tenures Abolition Act 1660 (UK) leaving free socage, doctrine imported at settlement, Attorney-General of NSW v Brown (1847) confirming feudal tenure in NSW, Mabo No 2 maintaining radical title not full beneficial ownership). Doctrine of estates (fee simple: inheritable alienable uncertain duration, 'fee' as inheritable, 'simple' as unrestricted, words of limitation abolished by statute; freehold life estates: ordinary and pur autre vie, inter vivos and testamentary creation, not inheritable, alienable as pur autre vie, doctrine of waste: four types of ameliorating, permissive, voluntary and equitable waste, s 9 Conveyancing Act 1919 NSW, remedies including injunction damages and forfeiture; fee tail: linear descent, abolished in NSW by s 19 Conveyancing Act 1919 NSW, words creating a fee simple instead). Cooper v Stuart (1889) 14 App Cas 286 and terra nullius (peacefully settled without settled inhabitants, Rule Against Perpetuities confirmation, Indigenous laws invisible). Mabo v Queensland (No 2) (1992) 175 CLR 1 (facts: Meriam people 1982 proceedings, Queensland legislation struck down under s 109 Constitution in Mabo No 1; terra nullius overruled by Brennan J majority as false in fact and unacceptable, Western Sahara Case 1975 ICJ; doctrine of tenure maintained; fallacy of equating sovereignty with beneficial ownership identified; held 6:1 Meriam people entitled to possession occupation use and enjoyment of Mer; six key principles; Commonwealth of Australia v Yunupingu HCA 6 on meaning of recognition). Week 2, Class 3 (Native Title): NTA s 223(1) (full text, three conjunctive requirements: rights under traditional laws acknowledged and customs observed, connection by those laws and customs, recognition by common law). Yorta Yorta v Victoria (2002) 214 CLR 422 (facts: Murray-Goulburn river system claim disrupted by settlement; held: normative content requirement, traditional as origins in pre-sovereignty norms plus continuous existence and vitality, three requirements for proving native title, adaptation and modification permissible but complete cessation cannot be revived; Gaudron and Kirby JJ dissent on overly high standard). Nature of native title (relational and interconnected, spiritual and cultural, communal, generally inalienable, fragile, extending over waters; Western Australia v Ward (2002) 213 CLR 1 on breadth beyond control of access; bundle of rights metaphor cautiously applied with separate severability). Extinguishment (three modes: grants to third parties on inconsistency of incidents test, legislation appropriating not merely regulating, Crown reservation; Wik Peoples v Queensland (1996) 187 CLR 1: pastoral leases as sui generis not automatically conferring exclusive possession, partial extinguishment only to extent of inconsistency, Western Australia v Brown (2014) 253 CLR 507 on mineral leases, Native Title Amendment Act 1998 Cth policy response; Yanner v Eaton (1999) 201 CLR 351: mere regulation does not extinguish, proper characterisation required; Leo Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth HCA 33: fishing statutes regulated not appropriated). Week 2, Class 4 (Introduction to Torrens Title and Indefeasibility): Old System (general law) title (derivative title, 30-year chain, deed-based, defeasible on nemo dat, doctrine of notice, practical defects, fewer than 500 parcels remain in NSW). Torrens system (Robert Torrens mid-19th century, Real Property Act 1858 SA, Real Property Act 1900 NSW, six key elements: state-guaranteed indefeasible title, central public register with folio per parcel, e-conveyancing via PEXA from 11 October 2021 and Electronic National Conveyancing Law 2012, mirror principle, curtain principle, insurance principle; Breskvar v Wall (1971) 126 CLR 376 on system of title by registration not registration of title). Section 42 RPA (full text of s 42(1), s 43 abolishing doctrine of notice, combined effect). Immediate vs deferred indefeasibility comparison table (deferred: Gibbs v Messer AC 248, Clements v Ellis (1934) HCA, Boyd v Mayor of Wellington NZLR; immediate: Frazer v Walker 1 AC 569, Breskvar v Wall (1971) HCA). Frazer v Walker 1 AC 569 (forged mortgage facts, immediate indefeasibility confirmed, Gibbs v Messer distinguished on fictitious person, in personam exception affirmed). Breskvar v Wall (1971) 126 CLR 376 (blank transfer void by statute, once registered Wall had indefeasible title, competing unregistered interests of Alban Pty Ltd and Breskvars). Week 3, Class 5 (Implications of Indefeasibility): Volunteers (definition, at common law vs under Torrens, Bogdanovic v Koteff (1988) 12 NSWLR 472: s 42 RPA applies to registered proprietor who takes as volunteer, son took free of unregistered equitable interests, ss 45 and 118 RPA). Extent of indefeasibility (registration confers indefeasibility on interest created and provisions delimiting or qualifying or intimately connected with it, not collateral provisions; Mercantile Credits v Shell (1976) 136 CLR 326: option to renew as incident of lease with indefeasibility, options intimately connected with registered interest; Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1971) 124 CLR 73: stratum interest in registered transfer referenced on folio, three principles including registered instruments form part of register, s 42 RPA and as are recorded in the folio). Torrens register and e-conveyancing (consequences of registration under ss 36(11), 36(9) and 36(5) RPA, PEXA as authorised ELNO, implications for timing cases like Frazer v Walker). Week 3, Class 6 (Exceptions to Indefeasibility: Fraud and In Personam): Overview of all exceptions in a table (fraud, in personam, short term leases, omitted or misdescribed easements, overriding statutes, wrong description of parcels, prior folio, volunteers debated). Fraud exception s 42(1) (what constitutes Torrens fraud: personal dishonesty or moral turpitude from Butler v Fairclough (1917) 23 CLR 80, consciously dishonest act from Stuart v Kingston (1923) 32 CLR 309, actual fraud personal dishonesty or moral turpitude from Bahr v Nicolay (No 2) (1988) 164 CLR 604, wilful blindness included, mere carelessness excluded, must exist at or before registration, must be brought home to registered proprietor or agent within scope of authority). Fraud and notice (s 43 RPA, notice alone not fraud, notice plus deliberate and dishonest trick equals Torrens fraud from Loke Yew v Port Swettenham Rubber Co AC 491, Loke Yew full analysis). Mortgages and fraud (Grigic v ANZ Banking Group Ltd (1994) 33 NSWLR 202: merely careless not fraudulent, Russo v Bendigo Bank Ltd 3 VR 376, s 56C RPA requiring reasonable steps to verify mortgagor identity). Agency and fraud: Cassegrain v Cassegrain HCA 2 (scope of authority test, Schulz v Corwill Properties (1969) two situations). In personam exception (Frazer v Walker confirmation, three requirements: conduct before or after registration by RP or agent, creating recognisable and enforceable legal or equitable cause of action; circumstances including breach of contract, breach of trust or fiduciary relationship, unconscionable breach of undertaking, fraud unconscionability duress or undue influence in mortgages, knowing receipt; negligence alone insufficient from Pyramid Building Society v Scorpion Hotels Pty Ltd 1 VR 188; Bahr v Nicolay (No 2) two routes: Mason CJ and Dawson J express trust route, Brennan J unconscionable conduct route). Week 4, Class 7 (Exceptions to Indefeasibility: Short Leases, Omitted Easements, Overriding Statutes): Short term lease exception s 42(1)(d) (text and four requirements: tenancy, tenant in possession or entitled to immediate possession, not exceeding 3 years NSW, notice actual or constructive; notice in electronic conveyancing context; s 43A RPA on dealing registrable as deemed legal estate; jurisdictional variation with Victoria: Perpetual Trustee Co v Smith and less protective approach). Omitted or misdescribed easements s 42(1)(a1) (first limb: pre-Torrens easements wide in scope including implied prescriptive and express; second limb: validly created means registered then accidentally omitted, narrow, does not cover unregistered or equitable easements or executed but not registered, omitted means registered then accidentally omitted). Overriding statutes s 42(3) (text, two-step approach: reconcile first then canons of construction: later in time, more specific, public rights; Kirby J in Hillpalm Pty Ltd v Heaven's Door Pty Ltd HCA 59; types of overriding statutes including revenue, compulsory acquisition from Pratten v Warringah Shire Council 2 NSWLR 1, defects in title, involuntary vesting from Horvath v Commonwealth Bank of Australia 1 VR 643; City of Canada Bay v Bonaccorso NSWCA 351 on express override requirement). Week 4, Class 8 (Equitable Interests, Caveats, and Competing Equitable Interests): Status of unregistered interests (s 41 RPA, equitable rather than legal, Barry v Heider (1914) 19 CLR 197 on equitable interests consistent with Torrens, examples including purchaser under contract for sale, beneficiary, unregistered mortgagee, option holder; vulnerability to s 42 making prompt caveating critical). Caveat system (s 74F(1) RPA full text, who may lodge: any person with legal or equitable estate or interest, examples of caveatable interests, non-caveatable personal claims, registered proprietor under s 74F(2), adverse possessor under s 74F(3); effect as statutory injunction freezing register, prospective only in NSW, recorded not registered; removal: lapsing under s 74J with 21-day Supreme Court application period, withdrawal under s 74M, court order under s 74MA; s 74O restriction on second caveat; s 74P compensation for wrongful caveats). Priority rules for competing unregistered interests (rule in Rice v Rice (1853) 61 ER 646: better equity first, equities equal then first in time, postponing conduct factors including failure to take reasonable steps, conduct enabling later interest, misrepresentation; J and H Just (Holdings) Pty Ltd v Bank of NSW (1971) 125 CLR 546: failure to caveat not automatically fatal per Barwick CJ; Black v Garnock (2007) 230 CLR 438: failure to caveat as postponing conduct where significant contributing factor; Moffett v Dillon 2 VR 480: prior notice directly relevant, Brooking JA vs Ormiston JA approaches). Weeks 5 and 7 (Co-ownership): Introduction (joint tenancy vs tenancy in common comparison table: core concept, right of survivorship, devolution on death, four unities, alienation, shareholding). Joint tenancy essential features (four unities: possession, interest, title, time; jus accrescendi; s 35 Conveyancing Act 1919 NSW on common calamity). Tenancy in common key features (individual undivided share, only unity of possession required, no survivorship, freely alienable, creation under s 26(1) Conveyancing Act 1919 NSW and s 100(1) RPA, exceptions in s 26(2)). Creation of co-ownership (common law preference for joint tenancy and words of severance, equity's three preferences for TIC: unequal contributions via resulting trust, partnership assets, express agreement or conduct from Malayan Credit Ltd v Jack Chia-MPH Ltd AC 549; statute reversal under s 26 Conveyancing Act NSW). Rights of co-owners inter se (occupation rent: no general duty, three exceptions: agreement, ouster requiring positive acts from Biviano v Natoli (1998) 43 NSWLR 695, domestic relationship breakdown from Callow v Rupchew (2009) 14 BPR 27,533; rents and profits from third parties: liability to account, equity's inherent jurisdiction from Ryan v Dries (2002) 10 BPR 19,497, set-off for outgoings; credit for repairs improvements: passive defensive equity only at partition or sale, improvements include mortgage payments from Foundas v Arvanitakis (2002), occupation rent offset). Severance of joint tenancy (Williams v Hensman (1861) three modes: act of one JT, mutual agreement, course of dealing; additional NSW modes: s 26D CA 1919 written notice, involuntary alienation; Torrens practical consequences: equitable severance effective between parties, registration required at law, risk if unregistered severing JT dies). Section 66G Conveyancing Act 1919 NSW (trust for sale or partition, narrow discretion to refuse, any co-owner may apply). Strata title (inadequacy of co-ownership for multi-storey, failed pre-strata techniques, Conveyancing (Strata) Titles Act 1961 NSW, current Strata Schemes Management Act 2015 NSW and Strata Schemes Development Act 2015 NSW, basic structure). Weeks 7 and 8 (Leases): Nature of leases (time-limited grant of exclusive possession, both property and contract, Gray and Gray on curious hybrid). Two substantive requirements (certainty of duration: Lace v Chantler KB 368 on maximum duration ascertainable at creation; exclusive possession: Street v Mountford AC 809 on objective substance not label). Lease vs licence (licence is personal revocable does not bind successors, lease creates property interest binding successors, objective substance test). Formal requirements in Torrens (short leases not exceeding 3 years: s 42(1)(d) RPA protection; long leases: must be registered for legal interest; agreement for lease: Walsh v Lonsdale (1882) 21 Ch D 9 on equitable lease, equity treats as done what ought to be done). Key implied and express covenants (landlord: quiet enjoyment, not to derogate from grant, fitness for purpose, obligation to repair; tenant: pay rent, repairing obligations, not to assign or sublet without consent under s 133B Conveyancing Act NSW, obligation to use for permitted use, yield up). Enforceability of covenants after assignment (privity of contract: original L and T remain liable, Baker v Merckel 1 QB 657 on assignee default, s 70A Conveyancing Act 1919 NSW; privity of estate: running covenants from Spencer's Case (1583) three requirements: touch and concern, privity of estate, intention; all standard covenants touch and concern; Torrens registration extends framework). Remedies for breach (landlord: forfeiture with Conveyancing Act notice requirements, relief against forfeiture, rent arrears via debt, repudiation from Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17; tenant: specific performance, abatement of rent, injunction, repudiation from Shevill v Builders Licensing Board (1982) 149 CLR 620). Weeks 8 and 9 (Mortgages): Nature of Torrens mortgages (mortgagor remains registered proprietor, mortgagee obtains registered charge, no conveyance of legal estate, contrast with Old System general law mortgage, s 57 RPA). Mortgagee remedies (five remedies: power of sale, possession, appointment of receiver, foreclosure rarely used, personal action for debt; duty to obtain reasonable price: Forsyth v Blundell (1973) 129 CLR 477, four-step duty: good faith, reasonable precautions for best price, proper valuations, no deliberate depression; remedies for breach; s 111A Conveyancing Act 1919 NSW on 30 days notice). Protection of purchasers in mortgagee sales (bona fide purchaser takes free of mortgagor's equity of redemption, indefeasible title on registration under s 42 RPA, mortgagor's remedy against mortgagee personally not purchaser). Week 9 (Easements): Nature and characteristics (Re Ellenborough Park Ch 131 four requirements: dominant and servient tenement, must accommodate and serve, not same ownership and occupation, capable of forming subject matter of a grant; Gas and Fuel Corporation of Victoria v Barba VR 755 on identification of dominant tenement from circumstances; positive and negative easements, caution about novel easements, easements of view generally not recognised in Australia). Creation of easements (five methods: express grant under s 46 RPA, express reservation under s 45A Conveyancing Act 1919 NSW, implication by easement of necessity or common intention, prescription: nec vi nec clam nec precario, limited practical significance in Torrens; s 88K Conveyancing Act NSW for court-imposed easements where reasonably necessary and no unreasonable interference). Easements in Torrens (registration under s 88B Conveyancing Act or s 46 RPA, s 42(1)(a1) protection, unregistered equitable easements vulnerable, construction by reference to instrument and surrounding circumstances at creation). Extinguishment of easements (five modes: s 89 Conveyancing Act 1919 NSW court order for obsolete or impeding easements, unity of ownership and possession noting registered easement survives without cancellation, express release, implied release requiring clear intention not mere non-use, limitation statutes not generally applicable in NSW for registered Torrens easements). Weeks 9 and 10 (Freehold Restrictive Covenants): Nature and origin (covenantor promise restricting use, negative in character, Tulk v Moxhay (1848) 2 Ph 774: facts of Leicester Square, Moxhay bound with notice, basis in inequity of using land contrary to known restriction, transformation from contractual to equitable proprietary interest). Running of the burden in equity (four requirements: negative in substance not positive, touch and concern the dominant land as land, intended to run with burdened land deemed by s 70A Conveyancing Act 1919 NSW, person against whom enforcement sought must have had notice: general law notice or Torrens registration). Running of the benefit in equity (three modes: annexation including strong and weak, s 70A deemed to run, Federated Homes Ltd v Mill Lodge Properties Ltd 1 WLR 594 UK statutory approach; express assignment at time of each transfer with identification of covenant; building scheme from Elliston v Reacher 2 Ch 374: four requirements of common vendor, divided land into plots, restrictions for benefit of all plots, purchaser notice; building schemes widely used in Australian residential estates). Restrictive covenants and Torrens system (registration under s 88 or s 88B Conveyancing Act 1919 NSW, effect of registration, anomalous position with no express exclusion from s 42 unlike easements, unregistered restrictive covenants precarious against registered proprietor without notice). Construction and interplay with planning laws (words used and surrounding circumstances, no liberal construction, s 89 Conveyancing Act for obsolescence, independent operation of restrictive covenants and planning approvals, both must be satisfied).