Shared and Transferred Interest in Real Property Property Law Chapter 3 Shared and Transferred Interest in Real Property

3.1 Joint Ownership of Property Land can be owned by an individual, or jointly owned by two or more individuals. The two types of joint title are: - Joint tenancy Tenancy in common. The essential feature of both forms of co-ownership is that each co-owner has a right to possession of the whole of the land.

Joint Ownership of Property Joint Tenancy This is where the parties have equal interests, and are entitled to simultaneous enjoyment of the whole of the property. Joint tenants have separate rights between themselves but are like a single owner when they deal with third parties.

Joint Ownership of Property Joint Tenancy Two crucial elements of a joint tenancy are:- The four unities, of possession, interest, title and time. The right of survivorship or jus accrescendi, whereby on the death of one of the joint tenants, their interest in the land passes automatically to the other joint tenants, even if a contrary wish is expressed in their wills.

Joint Ownership of Property Tenants in Common Tenants in common have separate and distinct interests from each other, but are entitled to simultaneous enjoyment of the whole of the property. Each is the sole owner of his or her share of the property. There is no right of survivorship and each party can dispose of their interest inter vivos (during their life time) or by will. If a tenant in common dies without a will that person’s interest will pass under his or her estate under the rules of intestacy. This is a common form of commercial ownership. READ EXAMPLE

Joint Ownership of Property Co-ownership Agreements It is commercially important for co-owners owning property as partners for a business, or for investment purposes to enter into a mutual co-ownership agreement. Matters addressed may include:- • Who contributes what share of the price or and/or deposit. • How much the parties will borrow and who is responsible for the repayment. • How proceeds of income will be distributed. • How proceeds of a sale will be distributed. • What events will cause a sale to take place?

3.2 Strata Title and Community Title A strata title is a title associated with town houses, home units, apartment buildings, and commercial uses such as shops or warehouses. The title is evidence of ownership of a unit in a strata plan. A strata plan divides a building and its associated land into units and common property, each of which has a title. Community title is evidence of ownership of a lot in a community plan or scheme. In a community scheme the lot boundaries do not generally relate to a structure, but are determined by surveyed land measurements and are unlimited in height, depth, unless otherwise specified on the plan.

3.3 Easements An easement is an intangible right over land, traditionally classified as a form of real property. Essentially an easement is a section of land registered on the certificate of title which gives someone the right to use that section of the land for a specific purpose even though they are not the land owner. Usually this also means that you are not allowed to build over that particular section of the land. Common easements include :- - rights of access shared driveways statutory easements such as power, telephone, water or sewerage easements.

3.4 Restrictive Covenants A covenant over land is by general definition a contractual agreement, set out in a deed where two parties agree either to carry out, or not to carry out specific obligations with respect to land. Restrictive covenant – is where the land contract imposes a burden over the land. They are used to control how land is used, and how land is developed and may be a means of preserving the character of a neighbourhood or ensuring environmental protection. Restrictive covenants control the permissible use of land.

3.5 Leases A lease is a particular form of contract in which an owner of property – the lessor, grants another person – the lessee the right to exclusive possession of the tangible property, real or personal in return for consideration (usually money payments). In leases of real property – the lessor is commonly known as the landlord and the lessee as the tenant. Leases are either: - Residential – where someone is leasing property to another person to live. Commercial – where someone is leasing property to another as a place to work.

3.6 Contracts for the Sale of Land Common legislation throughout the States and Territories, such as 54A of the Conveyancing Act, 1919 (NSW), requires than an agreement for the sale of an interest in land be evidenced in writing. A party seeking to enforce the agreement must provide evidence in writing that: - Identifies the parties and the property States the price or method of fixing the price, and Is signed by the other party or on the party’s behalf.

Contracts for the Sale of Land Conveyancing Process The complexity and expense of buying, selling and transferring a property varies from state to state. The steps are most often carried out by a solicitor or a licensed conveyancer, but they can also be done by the seller or purchaser themselves.

Contracts for the Sale of Land Proposed National Electronic Conveyancing System. Every day business day over 3000 transactions occur that involve changes to land titles across Australia. E-conveyancing is about moving from a paper based system for title changes to an electronic system that is ‘national, secure and seamless’.

Contracts for the Sale of Land The Council of Australian Governments (COAG) has undertaken the establishment of a single national electronic conveyancing system throughout Australia to enhance commercial efficiency and to support sustainability. The responsibility of the Australian Registrars’ National Electronic Conveyancing Council (ARNECC) is to ensure a consistent national approach in the regulation of national electronic conveyancing. More information can be found at the ARNECC website at http://www.arnecc.gov.au/. National E-Conveyancing Development Ltd (NECDL) is responsible for development of an electronic conveyancing platform. More information can be found at their website at www.nationaleconveyancing.com.au