Term
| General common law on improvement under mistake of title? |
|
Definition
- At common law, improving another's property (i.e. mistakenly building a house on the wrong lot) generally gave no remedy for the work carried out. The improvement generally became a fixture and became the property of the owner of the land
(Chris v Brand Building Society) |
|
|
Term
| PLA sections for improvement under mistake of title? |
|
Definition
|
|
Term
| Test for 'genuine' belief in improvement? |
|
Definition
| (Ex parte Karynette Pty Ltd [1984]) |
|
|
Term
|
Definition
|
|
Term
Case where respondent given choice of alternative remedies?
Improvement |
|
Definition
- Re Verdugo (1990) - respondent given a choice of alternative remedies
Applicant inspected Lot 51 believing it to be Lot 50. Purchased Lot 50. Mistake by estate agent. Applicant built house on Lot 51 (owned by respondent).
Choice to t/f, pay applicants, or give mortgage. |
|
|
Term
| Who can make applications for relief in improvments? |
|
Definition
|
|
Term
N purchased property from P; both parties thought this included the garage. It did not - it sat on adjacent lot. N commenced action against P.
Because N was not a person who constructed the improvements, and P did not own the land on which they were built, the action failed. |
|
Definition
| - Newman v. Powter [1978]: |
|
|
Term
| Elements of encroachments PLA section? |
|
Definition
|
|
Term
| Case for building definition and elements. |
|
Definition
Ex parte Van Achterberg [1984]: Fence
Elements:
1. Man made;
2. Of substantial and lasting character;
3. Made for domestic/industrial purposes;
4. Of such a kind that the rights of those affected by it are best adjusted by permitting it to remain rather than by ordering its removal |
|
|
Term
| Must be encroachment by a building that traverses the boundary between adjacent lots. Otherwise mistake of title. |
|
Definition
| Amatek Ltd v Googoorewon Pty Ltd |
|
|
Term
| Relief available for encroachments? |
|
Definition
|
|
Term
(a) Court has discretion
(b) Order normally made where adjacent owner is required to transfer land to encroaching owner.
(c) Unreasonable conduct may lead to no order for compensation
(d) Obligation on adjacent owner to mitigate loss
(e) Not awarded if intentional or negligent. Onus of proof on encroaching owner to prove this.
(f) If arising from negligence or intent, minimum compo is 3 times the unimproved capital value. |
|
Definition
|
|
Term
| Court can only make an order for conveyance or grant of lesser right of land over which the encroachment extends. Furthermore, land cannot be swapped between parties. |
|
Definition
| Tallon v. Proprietors Metropolitan Towers |
|
|
Term
| Three means of acquiring sovereignty in Australia (18th Century Law)? |
|
Definition
Settlement
Conquest
Treaty (Cession) |
|
|
Term
| What is estate in fee tail |
|
Definition
Freehold estate that lasts as long as holder has direct heirs.
Abolished by PLA–if an intention to create a fee tail is shown then a fee simple is created (PLA s 22) |
|
|
Term
|
Definition
A freehold estate for as long as the holder lives (or sometimes for the lifetime of another)
PLA s 19 |
|
|
Term
| Explain the doctrine of waste. |
|
Definition
s24,25 PLA –
Waste comprises any acts by the life tenant which alter the nature or quality of the land. Waste can be restrained by injunction or give rise to liability in damages to the person entitled to fee simple after holder dies. |
|
|
Term
|
Definition
Determinable Fee Simple
Conditional Fee Simple |
|
|
Term
| Determinable Fee Simple definition |
|
Definition
- Duration of the estate is defined by reference to an event (which must not be bound to occur).
- If the determining event is void, then the whole estate fails.
- Example: “To A in fee simple, until the land ceases to be used for farming” |
|
|
Term
| Conditional Fee Simple definition |
|
Definition
- The estate is absolute, but is subject to defeat if a condition is satisfied/fulfilled.
- Grantor has a right to re-entry on breach of condition.
“To A in fee simple provided she never sells the land”) |
|
|
Term
Condition Fee Simple contrary to public policy/immoral.
3 Cases. |
|
Definition
• Trustees of Church Property Diocese of Newcastle v Ebbeck: Restraint on marriage
• Zapletal v Wright: Binding partner, immoral.
• Andrews v Parker: Condition that married women transfer back property if she returned to husband. Not immoral. |
|
|
Term
| For estates, how long is the right of re-entry before the fee simple becomes absolute. |
|
Definition
| - Statute of Limitations gives grantor 12 years to exercise right of re-entry |
|
|
Term
| 3 ways estates can be held. |
|
Definition
In possession
in reversion
in remainder |
|
|
Term
| What is estate in possession? |
|
Definition
| The holder of the estate has the present right to the occupation and enjoyment of the land |
|
|
Term
| what is estate in reversion? |
|
Definition
| The interest remaining with the grantor after the grant of a lesser estate, such as the grant of a life estate. The fee simple in reversion remains with the grantor |
|
|
Term
| What is estate in remainder? |
|
Definition
| An interest which is given to another but which will only fall into possession on the completion of a prior estate, eg grant of life estate to X, and the fee simple in remainder to Y. Y’s estate is an estate in remainder |
|
|
Term
|
Definition
| legal title to property enforceable against all the world. |
|
|
Term
| What is an equitable estate? |
|
Definition
| Right of beneficial use and enjoyment of property. Enforceable against all persons, except for a bona fide purchaser of the legal estate for value and without notice. |
|
|
Term
| How are legal and equitable estates separated? (3 ways) |
|
Definition
By Trust
By Equitable Fee Simple
By Equitable Lease |
|
|
Term
| How does a trust separate legal and equitable estates? |
|
Definition
Original owner grants “to A in fee simple on trust for B in fee simple”
- A, the trustee, holds the legal estate
- B, the beneficiary, holds the equitable estate |
|
|
Term
| How does equitable fee simple separate legal and equitable estates? Case. |
|
Definition
| A purchaser of land has an equitable fee simple on the signing of a contract of sale because the purchaser has a right to specific performance of the contact. (Lysaght v Edwards) |
|
|
Term
| How does equitable lease separate legal and equitable estates? Case. |
|
Definition
An equitable lease arises out of a binding contract/agreement for a lease which can be enforced by an order for specific performance. (Walsh v Lonsdale)
- Equitable lease formed where there is a promise to grant a lease, but no formal lease created at law |
|
|
Term
| Reqs to create legal and equitable leases in land sections? |
|
Definition
PLA - 10. 11. 59
LTA - 181 |
|
|
Term
| What's the exception to the statutory requirement of writing? |
|
Definition
Part Performance
- Under doctrine of part performance, court may allow an oral contract for the creation of an interest in land to be proved by oral evidence. The acts of a person done in performance of an agreement can, if certain established principles are satisfied, be used as a substitution for any actual documentation of the agreement. |
|
|
Term
| Husband and Wife orally agreed with W’s parents that parents house would be transferred to the couple if they paid off the mortgage and repaid deposit parents had paid on the house. |
|
Definition
- Regent v Millet
found that oral agreement was enforceable because of sufficient acts of part performance to overcome fact that contract not in writing |
|
|
Term
| What are the 5 requirements to establish part performance? |
|
Definition
1. Would be fraud for D to hide behind Statue of Fraud provisions.
2. Acts of PP must be explicable only by reference to contracat of type alleged to exist.
3. Clear evidence of concluded agreement.
4. Proof of the terms of the agreement by oral evidence must be possible.
5. contract must be capable of specific performance. |
|
|
Term
| What are the equitable remedies for interest in property? |
|
Definition
1) Injunction
2) Specific Performance
i. A valid and binding contract:
Cannot enforce an agreement made under a deed
ii. Damages must not be an adequate remedy.
Land is regarded as unique with a special value. Generally interest in land will not be able to be compensated with damages
Personalty is regarded as unique when the goods are not readily available on the open market (e.g. taxi license)
iii. The plaintiff must be ready, willing and able to perform his/her obligations under the contract |
|
|
