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17 Real Property © Oxford University Press, 2007. All rights reserved.

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Presentation on theme: "17 Real Property © Oxford University Press, 2007. All rights reserved."— Presentation transcript:

1 17 Real Property © Oxford University Press, 2007. All rights reserved.

2 Real Property Learning Objectives: Understand the different types of property that are recognized by the Australian legal system; Describe the different types of property doctrines; Explain what is meant by possession and adverse possession of land; Understand how the Torrens system of land registration applies in Australia; Explain how priorities are accorded for general-law land and Torrens land; Explain what is a caveat, easement and covenant; Understand how land is acquired and transferred under the Torrens system; Explain how equitable interests are created and enforced by the courts; Understand the difference between a lease and a license.

3 Real Property cont... Defining Property: What is it? real property personal property intellectual property. Enforceable against the whole world c/f with contract law and problem of privity.

4 Real Property cont... Possession and Adverse Possession Relative not absolute concept Radical title vested in the Crown Adverse possessor to be entitled to claim the land they must both have:- Physical control of the land; An intention to exclude others from the use of that land.

5 Real Property cont… Requirements of adverse possession The original owner must have been dispossessed; There must be an adverse possessor; The adverse possessor must have continuous possession of the land; The adverse possessor must have possession of the land.

6 Real Property cont... Torrens System System of land registration Act of registration gives indefeasible title (except fraud) C/f General Law Land State based system with moves to make it uniform in Australia

7 Real Property cont... Torrens system of land title three types of interest exist:- Registered interest; Unregistered paramount interest; Other unregistered interests.

8 Real Property cont... Aims of the Torrens System indefeasible interest (except in the case of fraud) in land upon registration prior unregistered interests assurance fund See: Frazer v Walker [1967] a AC 569; Vassos v State Bank of SA [1993] 2 VR 316

9 Real Property cont... Exceptions to Indefeasibility under Torrens Fraud Paramount Interests

10 Real Property cont... Caveats, Easements & Covenants Caveats Registered at Titles Office Caveator must indicate the following:- (1) the amount of the claim; (2) the nature of the interest claimed; (3) any supporting documentation.

11 Real Property cont... Easements Dominant Tenement v Servient Tenement Onus to Maintain on Dominant Tenement Physical Proximity

12 Real Property cont... Covenants Contractual agreement between two or more landowners Can be registered at Titles Office

13 Real Property cont... General Law Land & Priorities Land not covered by Torrens Governed by common law Not registered at Titles Office Priorities Disputes Between: –Prior and subsequent legal interests ; –Prior equitable interest and a subsequent legal interest. –See Pilcher v Rawlins (1872) 7 Ch App 259 (known as the bona fide purchaser for value rule)

14 Real Property cont... Leases & Licences Generally created with a lease agreement Lessee entitled to exclusive possession and quiet enjoyment Lessor entitled to payment of rent

15 Real Property cont… Termination of Leases Lease may be terminated in a number of ways including:- –Expiration of time, –Notice to Quit (by the lessor), –Forfeiture, –Surrender and –Repudiation.

16 Real Property cont... Licences Three types of licences:- Bare, Contractual and Licence coupled with a grant. Only a licence coupled with a grant creates a proprietary interest in the land

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