1 EQUITABLE INTERESTS ARISING BY OPERATION OF LAW Includes resulting trusts, constructive trusts and estoppel

Transcription

1 TOPIC OVERVIEW 1 EQUITABLE INTERESTS ARISING BY OPERATION OF LAW Includes resulting trusts, cnstructive trusts and estppel 2 MORTGAGES The main fcus is n the remedies available t registered Trrens System mrtgagees upn default 3 AN INTRODUCTION TO THE ENFORCEMENT OF PROPRIETARY INTERESTS AND THE TORRENS SYSTEM Includes a brief verview f pririty disputes under the general law, the deeds registratin system and an intrductin t the Trrens System 4 THE PRINCIPLE OF INDEFEASIBILITY OF TITLE Defines the principle f indefeasibility and delineates its scpe 5 EXCEPTIONS TO INDEFEASIBILITY OF TITLE Includes fraud, in persnam and ther exceptins 6 UNREGISTERED INTERESTS UNDER THE TORRENS SYSTEM Includes the basis fr recgnitin f equitable interests under the Trrens system; the caveat system and pririty disputes between unregistered interests 7 CO-OWNERSHIP Includes jint tenancy and tenancy in cmmn, rights and duties f c-wners, severance and terminatin f c-wnership

2 IN READING TIME: OVERVIEW Ask which parties are cmpeting Which parties are registered/unregistered What are their interests? DON T FORGET: Implied things: Cmpensatin Caveats Pririty ntices S.87A verificatin f identity requirements (fr fraud) Objectives f the Trrens system Bring back t Q (s client can understand) - e.g. indefeasibility f title means they can assert their right against the RP

3 TOPIC 1 - EQUITABLE INTERESTS ARISING BY OPERATION OF LAW RESULTING TRUSTS Resulting Trusts (RT) They need nt be in writing (s 53(2) PLA) Equity will presume that the transferr intended fr sme r all f the equitable title t be retained by themselves Timing: arises at the time f the purchase/transfer [1] RT: Vluntary transfer Autmatically arises where prperty is transferred t [defendant] fr n cnsideratin A. There is a presumptin that there is a RT. B. Hwever, this presumptin may be displaced by a presumptin f advancement if the transfer invlves the fllwing relatinship: Parent t child (Bumelhem) Husband t wife Male fiance t female fiance But nt de fact (cf. Gibbs J view in Calverley) [If the presumptin is displaced, the presumptin will nw be that there is n RT, and the nus will be n the claimant (seeking the trust t prve therwise). Likewise, if n displacement, the presumptin f RT remains.] C. Evidence f cntrary intentin Lk at cnduct & evidence pinting t the parties' intentins t deduce the bjective intentins nt the subjective r imputed nes at the time f the transfer Is it enugh t rebut the presumptin? D. Cnclusin Wuld illegality prevent the parties frm being rewarded? If presumptin + n evidence f cntrary intentin (r vice versa) trust gives a prprietary interest r where nt apprpriate, damages in its place [2] RT: Purchase in the name f anther Autmatically arises where the actual cntributins t the purchase price d nt reflect legal title

4 Relevant cntributins: liability under mrtgage; but nt mrtgage repayments (as they are made pst-purchase) (Calverley) A. Presumptin: That (the persn withut legal title wh did cntribute) retains an interest in the prperty, reflective f hw much they paid (Calverley) Examples A & B bth pay equal amunts t purchase price, under B's name nly: presumptin that B hlds a prtin f the prperty n trust fr bth A & B A pays 60%, B pays 20% and C pays 20%: presumptin that A actually wns 60%, B wns 20% and C wns 20% B. Presumptin f advancement? See abve. C. Evidence f cntrary intentin See abve + specific examples via case law (Cummins; Muschinski; Bumelhem) D. Cnclusin If RT fund, interest reflects the amunt they pay (Calverley) That is, if A has full legal title, but B made cntributin X% t the purchase price, then B has a beneficial interest in that prperty f X%

5 TOPIC 2 MORTGAGES OVERVIEW THE NATURE AND TYPES OF MORTGAGES MORTGAGES VERSUS TERMS CONTRACTS EQUITY S PROTECTION OF THE MORTGAGOR CLOGS ON THE EQUITY OF REDEMPTION UNCONSCIONABILITY STATUTORY PROTECTION OF THE MORTGAGOR NATIONAL CREDIT CODE RIGHTS OF MORTGAGEES ON DEFAULT RIGHT TO SUE ON THE PERSONAL COVENANT POSSESSION SALE OF THE PROPERTY NOTICE PROVISIONS POWER OF SALE PROVISIONS APPLICATION OF THE PROCEEDS OF SALE WHAT INTEREST IS ACQUIRED BY A REGISTERED PURCHASER FROM THE MORTGAGE? PRIORITY DISPUTES INVOLVING MORTGAGES

6 THE NATURE AND TYPES OF MORTGAGES Creatin f Unregistered Mrtgages Creatin f mrtgages - General RP can mrtgage land by instrument f mrtgage in an apprved, apprpriate frm (TLA s 74(1)). Mrtgage acts as security interest ver land - fee simple remains with RP (s 74(2)). Legal vs unregistered mrtgage creatin Only legal if registered. Unregistered mrtgages nly take effect in equity. Equivalent t cnveyance f fee simple t mrtgagee. Mrtgagr has equity f redemptin t recver land upn payment f debt. Nt registered desn t mean invalid - will simply be unregistered mrtgage. Hw t create unregistered mrtgages? T be valid in equity, minimum requirements: Be in writing, r specific part perfrmance. Enfrceable against all but bna fide purchaser fr value withut ntice. Hwever, is the mrtgage subject t the NCC? Cde applies if (NCC s 7): Secures under a credit cntract/related guarantee (cntract under which credit may be prvided - s 4); and Mrtgagr is a natural persn r strata (wner s) crpratin (mrtgage fr persnal/residential/dmestic/renvatin fr investment purpses - s 5(1)).

7 EQUITY S PROTECTION OF THE MORTGAGOR CLOGS ON THE EQUITY OF REDEMPTION UNCONSCIONABILITY RIGHTS OF MORTGAGORS In equity: There are clgs n equity f redemptin (mre imprtant fr GLL) Uncnscinability (Amadi)

8 STATUTORY PROTECTION OF THE MORTGAGOR NATIONAL CREDIT CODE If NCC applies... Writing must be in frm f written cntract dcument with signatures f bth debtr and credit prvider (s 14; 42). Cpy f mrtgage must be given t mrtgagr (s 43). Credit prvider has additinal duties t prvide full disclsure t debtr (ss 14-22). Includes inter alia: details f cntract, inf f debtr s rights/duties, mney being credited, rates f interest. Cannt cntract ut f Cde (s 191) therwise it will be vid (s.42(4)). Curt has pwers under NCC as well: Can extend terms f cntract/pstpne payments if debtr unable t meet bligatins due t illness/unemplyment/ther reasnable cause (ss 72-4). Can re-pen unjust cases if debtr requests, can set aside/vary cntracts (ss 76-7). Can review uncnscinable interest, fees and charges and alter them (ss 78-9).