Introduction to Property and Commercial Law

Transcription

1 Intrductin t Prperty and Cmmercial Law Table f Cntents FUNCTION OF PROPERTY & INTRODUCTION TO REAL PROPERTY 4 (A) WHAT IS PROPERTY? 4 (I) RIGHTS USUALLY ASSOCIATED WITH PROPERTY 5 (B) REQUIREMENTS FOR CREATION OF TRANSFER OF A (PARTICULAR) PROPRIETY RIGHT 6 (I) ESSENTIAL/SUBSTANTIVE REQUIREMENTS 6 (II) FORMAL REQUIREMENTS 7 (III) PROPERTY AND LAND MARKED BY TWO MAJOR DOCTRINES 7 (C) DOCTRINE OF TENURE AND NATIVE TITLE 8 (D) FORMALITIES FOR CREATING/TRANSFERRING INTERESTS IN LAND 10 (I) LEGAL AND EQUITABLE INTERESTS 11 THERE ARE TWO MAIN WAYS PROPERTY IS TRANSFERRED DEED (OLD SYSTEM) & REGISTRATION (TORRENS) 12 (E) OLD SYSTEM TITLE 12 (I) REQUIREMENTS FOR CREATING A LEGAL INTEREST IN LAND 12 (II) REQUIREMENT FOR CREATING EQUITABLE INTERESTS IN LAND 14 (A) CHARACTERISTICS OF OLD SYSTEM AND TORRENS TITLE 19 (I) OLD SYSTEM TITLE 19 (II) TORRENS TITLE 20 (III) GENERAL LAW AND TORRENS TITLE MORTGAGES 23 (B) DOCTRINE OF FIXTURES 23 (I) DEFINITION OF FIXTURES 23 (II) WHAT IS THE TEST? 24 (III) NATURE OF INTENTION 24 (C) TENANT S RIGHT TO REMOVE FIXTURES 27 INTRODUCTION TO CHOSES IN POSSESSION 28 (A) WHAT IS COMMERCIAL LAW? 28 (I) INTERRELATIONSHIP BETWEEN PROPERTY LAW AND COMMERCIAL LAW 28 (B) GENERAL TAXONOMY 28 (I) DOCTRINE OF REPUTED OWNERSHIP 29 (C) PPSA TAXONOMY PPSA S 10 DEFINITIONS 29 (C) OWNERSHIP 30 (D) POSSESSION 31 (I) CUSTODY CASE LAW 32 (F) CONCEPT OF DELIVERY 32 (G) TRANSFERRING OWNERSHIP THROUGH LOSING AND FINDING 33 (I) RIGHTS AND OBLIGATIONS (OF FINDER) 34 (II) RIGHTS AND LIABILITY (OCCUPIER) 34 (H) TRANSFER OF OWNERSHIP BY GIFT INTER VIVOS 34 (I) 3 ESSENTIAL ELEMENTS OF A VALID GIFT 34 (I) TRANSFER OF OWNERSHIP BY GIFTING COMMON ESTABLISHMENT 35 (J) TRANSFERRING OWNERSHIP BY GIFT DONATIO MORTIS CAUSA 37 (K) TRANSFERRING OWNERSHIP BY SALE (UNDER SALE OF GOODS ACT 1923) 37 (I) IS THE CONTRACT A CONTRACT FOR THE SALE OF GOODS? 37 (II) WHEN IS AN AGREEMENT A CONTRACT FOR THE SALE OF GOODS? (S 6) 38 (III) HOW IS IT MADE? (S 8) 38 (L) WORKING OUT IN PRACTICE WHEN THERE IS SUCH A CONTRACT 38 1

2 (M) WHEN DOES PROPERTY PASS UNDER A CONTRACT OF SALE? (S 21 25A) 40 (I) SPECIFIC OR ASCERTAINED GOODS 40 (II) S 21 GOODS MUST BE ASCERTAINED 41 (III) S 25A CONTRACTS OF SALE FOR GOODS FORMING PART OF BULK QUANTITY 41 (IV) DEFAULT RULES (S 23) RULE 1 41 (N) TRANSFER OF POSSESSION BY BAILMENT 43 (I) IS THERE A BAILMENT? 43 (II) 6 CATEGORIES 43 (O) KEY FEATURES 44 (I) TYPE OF PROPERTY 44 (II) RECEIPT OF POSSESSION 44 (III) RE-DELIVERY (OR DEALING IN A STIPULATED WAY) 44 (P) IS THERE A SUB-BAILMENT? 46 (Q) LIABILITY OF A BAILEE DUTY TO TAKE REASONABLE CARE? 46 INTRODUCTION TO CHOSES IN ACTION 48 (A) INTRODUCTION 48 (B) ASSIGNMENT OF CHOSES IN ACTION 48 (C) PROPERTY THAT CANNOT BE DEALT WITH EXCEPTIONS TO THE PRINCIPLE 49 (I) BARE RIGHT TO LITIGATE 49 (II) CONTRACTUAL OBLIGATION 51 (III) PERSONAL SERVICE CONTRACTS 53 (IV) PUBLIC PAY 54 (D) TRUST 55 (I) HOW TO CREATE A TRUST? 55 (II) REQUIREMENTS 56 (III) THE TRUST IN EXISTENCE 57 (E) TRUST V DEBT 58 (F) TRUST V CONTRACT 61 (I) CONTRACTS FOR THE BENEFIT OF THIRD PARTIES 61 (II) TRUSTS OF VOLUNTARY COVENANTS 62 (III) TRUST AND EQUITABLE CHARGE 63 (IV) TRUST AND AGENCY 64 (G) SUCCESSION 65 (I) LIVINGSTON RIGHTS 65 (H) BANKRUPTCY 67 ASSIGNMENT AND DISPOSITION OF INTERESTS 69 (A) ASSIGNMENT OF CHOSES IN ACTION (LEGAL) CONVEYANCING ACT S (B) EQUITABLE INTERVENTIONS IN ASSIGNMENT 70 (C) VOLUNTARY (GRATUITOUS, I.E. NOT FOR VALUE) ASSIGNMENTS 70 (D) FOR VALUE ASSIGNMENTS 72 (I) EXAMPLE 1 IMMEDIATE CONSIDERATION 72 (II) EXAMPLE 2 PRESENT CONTRACT; DELAYED CONSIDERATION 73 (E) CHOSES UNASSIGNABLE AT LAW 73 (F) EQUITABLE PROPERTY 74 (I) DECLARATIONS OF TRUST 74 (I) AGREEMENTS TO DECLARE A TRUST 75 (G) ASSIGNMENT IN EQUITY 76 (I) ASSIGNMENT 76 (II) DIRECTIONS TO A TRUSTEE 76 (III) SUB-TRUSTS 79 (IV) CONTRACTS FOR VALUE TO ASSIGN 79 (V) RELEASE TO TRUSTEE 80 (H) FUTURE PROPERTY 81 2

3 (I) IDENTIFYING WHAT FUTURE PROPERTY IS 82 (I) EQUITY RE FUTURE PROPERTY 83 PRIORITY REGIMES 86 (A) WHEN ARE INTERESTS INCONSISTENT? 86 (I) RESULT OF PRIORITY CONTEST 86 (B) SOURCES OF PRIORITY RULES 86 (I) SPECIFIC PRIORITY RULES 87 (II) GENERAL PRIORITY RULES 87 (C) PRIORITY RULES UNDER THE SALE OF GOODS ACT 87 (D) EXCEPTIONS 88 (I) ESTOPPEL 88 (II) SALE BY A MERCANTILE AGENT S 26(2)(A) 90 (III) VOIDABLE TITLE S (IV) SELLER IN POSSESSION S 28(1) 91 (V) BUYER IN POSSESSION S 28(2) 93 (D) GENERAL LAW PRIORITY RULES 94 (I) HIERARCHY OF INTERESTS 94 (II) MERE EQUITY 94 (III) VARIOUS TYPES 95 (E) ALTERNATE ORDERING OF THE RULES 95 (I) CATEGORY A 95 (II) CATEGORY B 95 (F) SITUATIONS 96 (I) CATEGORY A PRIOR EQUITABLE INTEREST V LATER LEGAL INTEREST 96 (II) CATEGORY A MERE EQUITY V LATER EQUITABLE INTEREST 98 (III) CATEGORY B PRIOR LEGAL V SUBSEQUENT LEGAL 98 (III) PRIOR EQUITABLE V SUBSEQUENT EQUITABLE 100 COMMERCIAL DEALINGS AS SECURITY INTERESTS OVER PROPERTY 104 (A) PPSA 2009 (CTH) 104 (B) SUGGESTED ANALYTICAL FRAMEWORK 104 (C) TYPES OF SECURITY INTEREST OVER PERSONAL PROPERTY 105 (D) DEFINITION OF A SECURITY INTEREST 105 (I) WE ARE LOOKING FOR 106 (II) EXAMPLES OF TRANSACTION AS IN SUBSTANCE SECURITY INTERESTS PPSA S 12(2) 106 (III) A DEEMED SECURITY INTEREST (PPSA S 12(3)) 107 (IV) NATURE OF A SECURITY INTEREST? 108 (V) WHEN IS A SECURITY INTEREST EFFECTIVE? ATTACHMENT (S 19) 108 (VI) WHEN IS THE SECURITY INTEREST EFFECT? ENFORCEABILITY AGAINST THIRD PARTIES (S 20) 108 (VII) WHEN IS A SECURITY INTEREST EFFECTIVE? PERFECTION (S 21) 108 3

4 Functin f prperty & intrductin t real prperty Cntent f unit Prperty Cncept Types Rights attached t varius types Cmmerce Prperty as the lifebld f cmmerce land, chattels, shares, IP, gdwill, debts Hw things are bught cash (currency), debts/chses in actin, negtiable instruments Secured brrwing mrtgages, charges, liens, pledges Relatinship between tpics Level A tpics #1, #2 & #3 nexus between physical nature f the subject f the prperty right and substantive law Tpic #1: Land Cnstitutes territry f a plitical r cultural cmmunity (dctrines f tenure, nature title) Enduring (dctrine f estates) Attachment f things (law f fixtures) [Vertical as well as hrizntal bundaries (airspace and subsil trespass etc) nt examinable] Tpic #2: Chses in pssessin (gds, chattels) Primacy f pssessin (delivery, bailment, security) Can be lst and fund [Can be jined/mixed/changed (accessin, cnfusin, specificatin) nt examinable] Tpic #3: Chses in actin Lack f physicality Crssing the persnal/prpriety membrane emphasis n assignability Unassignable chses in actin (public plicy) Level B tpic #4 assignment and dispsitin f interests Differing frmalities fr creatin and transfer f interests in land, chses in pssessin and chses in actin Nuances within categries (legal v equitable, vluntary v value) Level C tpic #5 Hw d we decide which interest has pririty when incnsistent interests have been created? (Tpic #5A) When is the purprted creatin f a persn prperty security interest effective? (Tpic #5B) Recurring theme Requirements fr the creatin r transfer f Prpriety Interests Essential/substantive requirements Frmal requirements Distinctin between legal and equitable interests Cncept f pssessin (A) What is prperty? The right t wn, nt a thing because it s a right, it s a relatinship between peple 4

5 The legal relatinship that exists between the prperty and the persn Right t cmpel actin r reactin f thers frce t d r nt t d smething Difference between cntractual and prperty rights Cntractual rights Sphere f enfrceability by whm against whm? Parties t the cntract Ptential cntent? Wide/virtually infinite terms f the cntract Prperty rights Sphere f enfrceability by whm against whm? Thse with a legal interests Ptential cntent? Narrwer limited number that can exist in the cmmn law Numerus clausus principle (clsed number f rights) lease, wnership, bailment etc What rights make up a interest in prperty rights? Cmes frm the laws peratin itself Certain rights fr a lease, wnership etc But rle f equity in bridging the divide Equity regards as dne that which ught t be dne at times, undermines the separatin between cntractual and prperty rights (Lysaght v Edwards; Walsh v Lnsdale) (i) Rights usually assciated with prperty Enfrceability à Generally against ther persns in sciety, the right nt t interfere with yur prperty and yur bligatin nt t interfere with theirs The existence f sme thing à Must relate t things which are separate and apart frm urselves Alienability à Can be sld r given away t thers Excludability à Ability t exclude thers frm making use f the thing subject t the right Value à Nt always necessary Transferrable/assignable à Is it persnal t right hlder r can be transferred t anther? Pssessin à (r) physical cntrl in re crpral hereditaments Enjyment and use à Prperty rights are use rights but nt necessarily vice versa just because yu have the right t enter a natinal park, desn t mean wnership Enjyment rights can turn int prperty rights, E.g. fishing r hunting nce yu have pssessin f a dead animal Other enjyment rights can have prprietary characteristics, E.g. Rbane v Telstra à the number became valuable t the user and subject t PR s Durability Ecnmic justificatin fr prperty Efficient allcatin f resurces (measured by willingness t pay) and s maximise ttal wealth f sciety Right t use and exclude prvides incentive t put resurces t their mst prductive use Right t alienate allws resurces t mve t mre highly valued uses thrugh mutually beneficial exchange 5

6 Hwever, prperty rights can vary frm cntext t cntext, depending upn the ends we want prperty t serve native title cnfirms this Yanner v Eatn Facts Yanner was a member f an Abriginal clan Crcdile meat was fund in his freezer in cntraventin with the Fauna Cnservatin Act, that prvided a persn shall nt take, keep r attempt t take fauna f any kind unless he is the hlder f a license, permit, certificate r ther authrity granted and issued under this Act Issue did this clause take away all rights t hunt crcdiles? Held The Fauna Act did nt amunt t abslute wnership, therefre his right t native title was nt extinguished Prperty in The Act des nt mean abslute wnership rather, they were the rights t limited fauna that can be taken, rights t receive ryalty payment fr fauna taken etc (nt granting full wnership, but merely giving regulatry pwers) HCA Prperty is used in the sense in s 7(1) as an aggregate f legal relatins between the Crwn and the fauna Pint t take away prperty des nt have a single fixed meaning can vary frm cntext t cntext King v David Allen and Sns, Billpsting Ltd Facts P had a licence with a cinema as a pster biller fr 3 years When the wnership f the cinema changed he claimed prprietary rights t cntinue putting the psters up Issue Is a prprietary right really what he cntracted fr? Was there an intentin that these rights be enfrceable against third parties? Held Rights were persnal in nature, and didn t amunt t any frm f prpriety nature Creates nthing but a persnal bligatin License is an agreement t d an act, which wuld be unlawful withut permissin Initial agreement was a mere license, nt a prprietary right Did nt have exclusive pssessin bill psting cmpany didn t have the rights t pst and exclude thers frm the wall Was there an easement? A right that benefits ne parcel f land, which allws the dminant wner f that parcel t d ther things t anther parcel t benefit it N easement nt a dminant tenant because they nly had a right t put psters up, and n the fee simple King in breach f license and sued in cntract, but culdn t sue leasee in prperty rights (B) Requirements fr creatin f transfer f a (particular) prpriety right (i) Essential/substantive requirements What package f rights has the grantr / transferr intended t create in the grantee / transferee? Fee simple [Exclusive pssessin frever ] 6

7 Must have an intentin t enjy frever, and exclude all thers Intentin may be t enjy exclusive pssessin fr ne s wn r anther s life Intentin must be present Nte King v David Allen, Billpsting n intentin t grant exclusive pssessin Life estate [Exclusive pssessin fr duratin f measuring life] Lease [Exclusive pssessin fr certain time] Easement [Right, accmmdating dminant land t use, r restrain use f, servient land in manner nt incnsistent with servient land and remved the sil r its natural prduce] E.g. t guarantee the flw f light r air Prfit a prendre [right t enter servient land and remve the sil r its natural prduce] Chattel wnership [exclusive pssessin frever ] Bailment f chattel [Delivery f exclusive pssessin with an bligatin t redeliver (ii) Frmal requirements Hw must intentin be manifested? E.g. must a dcument be used; if s, what type; is a particular frm f wrds required? (iii) Prperty and land marked by tw majr dctrines Dctrine f tenure In English legal thery, every parcel f land in England is held either mediately r immediately f the King wh is the Lrd Paramunt Land in Australia which has been granted by the Crwn is held n a tenure f sme kind and the title acquired under the accepted land law cannt be disturbed (Mab v Queensland) Dctrine f estates The wner wns an estate the largest pssible thing t wn in land is the fee simple Land can be wned in successin 7

8 Types: Feel simple Feel tail (extinct in NSW Cnveyancing Act 1919, ss 19, 19A) Life estate Cntrast ther interests, E.g. Lease limited time use Easement right f less than pssessin Prfit a prendre limited time use Dctrine f tenure Capitalist prperty Uncnditinal n perfrmance f a scial functin Unlimited Freely alienable Receptive t allcatin by market (C) Dctrine f tenure and native title Wider cncept than cmmn law prpriety interests But mre fragile Why recgnise native title? Wuld destry equality f treatment Wuld perpetuate injustice if it were t cntinue t embrace the enlarged ntin f terra nullius Racially discriminatry might lead t a need fr cnstitutinal change? In what manner shuld the recgnitin happen? 8

9 Cannt be seen as an uncnditinal success fr indigenus Australians A plitical cmprmise was reached, taking int accunt imperial prperty rights and Abriginal custm Mab v Qld (N 2) Facts Meriam peple ccupied the Murray Islands, lng befre Eurpean cntact Queensland enacted the Queensland Cast Islands Declaratry Act 1985 (Qld) fllwing their annexatin in 1879 the Murray Islands were vested in the Crwn in right f Qld freed frm all ther rights, interests and claims Mab (N 1) HCA held that if native title existed at the time f the enacted f the Racial Discriminatin Act 1975 (Cth), the Qld Act was invalid t the extent that it purprted t extinguish that native title Mab (N 2) did native title exist at the time f the enactment f the RDA? Brennan J antecedent rights and interests survived native title existed [57] Cmmn law des nt create native title it recgnises it Attributes f native title Prtects traditinal custms right t fish, gather etc Traditinal use, rather than cmmercial explitatin Can t be transferred, but can be surrendered t the Crwn May be prpriety r persnal and usufructuary in nature and pssessed by a cmmunity, a grup r an individual Curt is expanding the ntin f prperty these wuldn t be cnsidered as prpriety under the cmmn law Subject t being extinguished by an interest granted by the Crwn Requirements fr existence f native title Cnnexin with the land must be nrmative, with a particular significance in accrdance with the traditinal custms f the grup Maintain their identity as a peple and bserve their custms The Murray Islands clearly remain their hme cuntry [61] Extinguishment f native title Grant f freehld r leases t third parties cnfirms exclusive pssessin n the leasee (fee simple) Exercise f plenary pwer reserving land fr the Crwn s wn use Depends n the nature f the use Extinguish rads, railways, pst ffices and ther permanent public wrks Nn-extinguish natinal parks Wik Peples v Queensland Facts Issue cncerned the effect f pastral leases n land claimed by tw clan grups questin f extinguishment Pastral leases are authrised by statute dn t necessary grant exclusive pssessin 9

10 Issue did pastral leases granted under the Land Act 1962 (Qld) cnfer exclusive pssessin n grantees s as t cmpletely extinguish the native titles f the Wik and Thayrre peple t their traditinal lands f Western Cape Yrk Peninsula? Held Majrity n The leases were creatures f statute, rather than the cmmn law, and thus did nt necessarily grant exclusive pssessin Extinguishment Majrity said that n clear intentin in wrds f grant means n extinguishment They, Gaudrn & Gummw JJ specific fcus n exercise f rights and cnflict with actual Abriginal custm Kirby J nly the grant itself WA v Brwn Facts Parties agreed, absent issue f extinguishment, that Ngarla Peple held native title ver traditinal lands in the Pilbara regin f WA Native title rights included nn-exclusive rights f access and camp, take flra and fauna, fish, water, care fr the land, including places f ritual and ceremnial relevance A lease authrised jint venture leasee s t extract irn re and build a twn, rads and railway 200 huses, shps, clubs etc After the cessatin f mining, the twn was decnstructed Issue had native title had been extinguished by the granting f a 1966 and 1974 [tw mineral] leases jint ventures WA argued that the granting f the leases extinguished native title, fr three reasns: The leases cnferred exclusive pssessin The leases, that allwed the building f infrastructure, were incnsistent with native title The right t mine and cnstruct infrastructure at particular sites were incnsistent with the cntinuatin f native title Held IF exclusive pssessin has been granted, then native title will always be extinguished Had nt been granted here cnstrued the statute The mineral leases merely allwed them t g nt the land t take the minerals When the jint venturers cease t exercise their rights (r their rights cme t an end), the native title rights and interests remain, unaffected Native title was suspended, nt extinguished Native Title Act 1993 (Cth) Enacted after Mab (N 2), and amended pst Wik Act allws fr the extinguishment f native title n the payment f cmpensatin Validates previus acts which wuld therwise have extinguished native title but fr the Racial Discriminatin Act (cmpensatin payable) Nte we are examining native title thrugh prperty law (D) Frmalities fr creating/transferring interests in land 10

11 Frmal v substantive validity Frmal hw t satisfy the apprpriate frmalities Inter vivs dealings (different frmalities apply t wills) Dealings between living persns Cnveyancing Act 1919 (NSW) s 14 All land shall as regards the assurance f the immediate freehld theref be deemed t lie in grant as well as in livery Legal v equitable interests ss 23B, 23C, 23D & 54A Different frmalities fr the creatin f legal interest in land as frm equitable interests in land Nte s 23E Nthing in sectin 23B, 23C r 23D shall: (a) Invalidate any dispsitin by will; r (b) Affect any interest validly created befre the cmmencement f the Cnveyancing (Amendment) Act 1930; r (c) Affect the right t acquire an interest in land by virtue f taking pssessin; r (d) Affect the peratin relating t part perfrmance Substantive requirements fr prpriety interests must cme within a pigen hle, E.g. fee simple, life estate, easement, prfit a prendre etc Different frmalities apply t create legal rather than equitable interests in land (i) Legal and equitable interests What d we mean by equity? A parallel system f legal nrms develped by the Curt f Chancery, based upn gd cnscience, which perate t mitigate the rigurs f the cmmn law Legal interests may prduce a result which is uncnscinable equity will be f interest in such a circumstance Great cntributin f equity remedies and equitable interests, E.g. trust Have t dispense equity in accrdance with established principle can t just apply in a casual fashin Hw equity wrks des nt destry legal rights, but restricts hw they can be used Equitable remedies different t cntract remedies Equity presuppses the existence f the cmmn law Ambiguity in meaning f cmmn law Narrw sense cmmn law (r law) v equity Wider sense cmmn law (general law) v statute Hw d we knw if an interest is legal r equitable? Hw des the law v equity distinctin relate t the essential/substantive v frmal requirements distinctin? Equitable AND legal interests are binding against third parties Nte equitable interests aren t as strng as legal interests Equitable interests are binding against the whle wrld, except fr bn fide purchasers (nt guilty f fraud) Can have: Legal r equitable fee simple; r Legal r equitable prfit a prendre; Etc Inherently equitable interests: 11

12 Restrictive cvenant (nt assessed in this subject) Livingstne chse in actin (Tpic 3) Pririty rules There are different pririty rules that apply in terms f claim based n whether they are legal r equitable E.g. tw parties have a claim f legal rights and legal rights the pririty rules are different if ne claim was equitable and the ther legal Prperty in cmmn law Legal rights (cf. equitable rights) Universalised, reified, fetishised the materialisatin f the cmmn law (viewing prperty as things ) Frmality Creatin Transfer Rights recgnised in cntract and trt breach f cntract, trespass, negligence Remedies fr breach f prperty rights damages CL makes rder abut the prperty, nt the peple Cncerned with frmality, nt what is really happening Legal prperty rights relate directly t things cf. equitable prperty rights are smewhat parasitic, anther persn s right t sme space (prperty right) is subject t equitable rights Prperty in equity Substance, cnscience, trust, cnfidence, ntins f pwer Respnsibility Rights recgnised thrugh dctrines f equity misrepresentatin, undue influence, duress, uncnscinability, fiduciary relatinships, part perfrmance, equitable estppel, breach f cnfidence Remedies cmpensatin, injunctins, specific perfrmance, cnstructive trusts, persnal rders Equity makes rders abut the peple nt prperty Equitable prperty r interest (equitable fee simple, mrtgages, cvenants etc) à imitatins f cmmn law prperty types There are tw main ways prperty is transferred deed (ld system) & registratin (trrens) (E) Old system title (i) Requirements fr creating a legal Interest in land There needs t be a means f measuring interests against each ther The whle system is abut deeds à chain f title: each dcument refers t the next dcument Cnveyancing is the prcess f checking the dcuments and ging thrugh them The requirement fr writing Used fr transfer f bth equitable and legal prperty rights legal prperty rights granted by deed r registratin EXCEPTIONS t requirement that prperty rights t land be created by writing Infrmal leases Adverse pssessin 12

13 Dctrine f part perfrmance Trusts arising frm the peratin f law Cnveyancing Act 1919 (NSW) 23B requirement f a deed (1) N assurance f land shall be valid t pass an interest at the law unless made by deed (2) This sectin des nt apply t: (d) a lease r tenancy r ther assurance nt required by law t be made in writing (3) This sectin des nt apply t land under the prvisins f the Real Prperty Act 1900 Nte refers t Trrens Title land What is a deed? Mixture f cmmn law and statutry requirements Written Paper, parchment r vellum Signed, sealed and attested by ne witness nt a party s 38(1) Sealed (deemed if expressed t be an indenture r a deed t be sealed and if signed and attested s 38(3)) Delivered Physically, r just manifested by intentin (if expressed itself t be delivered, then taken t be delivered) Cnditinal deed escrw cnditin must be satisfied Indenting nt necessary s 38(2) Des nt require a physical handing ver A deed pll is a deed made by ne party alne s 23D interests in land withut writing / by parl (1) All the interests in the land created by parl and nt put in writing and signed by the persn s creating the same, r by the persn s agent thereunt lawfully authrised in writing, shall have, ntwithstanding any cnsideratin having been given fr the same, the frce and effect f interests at will nly (2) Less than 3 year term leases can be made verbally with r withut a right fr the lessee t extend the term at the best rent which can reasnably be btained withut taking a fine fr a perid which with the term wuld nt exceed three years Nte Best rent reasnably available market rent Take effect in pssessin must give leasee an immediate right t pssessin Term plus ptin nt exceed 3 years s 23E Save as t regard fr preceding sectins (d) nthing in preceding sectins shall affect the dctrine f part perfrmance s 38 Signature and attestatin Signed, sealed, delivered (3) Dn t need real seal if signed and attested t s 54A Cntracts fr sale etc f land t be in writing 13

14 N actin r prceedings may be brught upn any cntract fr the sale r ther dispsitin f land r any interest in land, unless the agreement upn which such actin r prceedings is brught, r sme memrandum r nte theref, is in writing, and signed by the party t be charged r by sme ther persn thereunt lawfully authrised by the party t be charged (ii) Requirement fr creating equitable interests in land Nte Legal interest is better than equitable Binding upn anyne wh takes a subsequent interests Where equitable is nt binding upn a persn wh takes a subsequent legal estate fr value withut ntice Nt as rigrus as legal interests The intentinal creatin f equitable prperty rights invlves the same tw basic questins in re legal rights (1) Did the persn intend t create that right? and; (2) Did he r she take the steps necessary t give effect t that intentin? Cnveyancing Act 1919 (NSW) s 23C (a) Instruments required t be in writing, must be signed by persn (r agent f persn) creating r cnveying the interest in land (b) Declaratin f trust als t be in writing (c) A dispsitin f an equitable interest r trust subsisting at the time f the dispsitin, must be in writing signed by the persn dispsing f the same (2) This sectin des nt affect the creatin r peratin f resulting, implied, r cnstructive trusts Pints t take away frm s 23C 23(1)(a) allws creatin f an equitable (nt legal) interest in Old System land by a written and signed instrument (nt in the frm f a deed) s 23(1)(a) des nt allw the creatin f an equitable interest in Trrens title land by an unregistered written and signed instrument withut the prvisin f cnsideratin, I.e. Real Prperty Act 1900 (NSW) s 41 s 23(a)(b) deals with the declaratin f trusts in respect f the land. Express trusts are cnsidered in Tpic #3 s 23(1)(c) deals with the dispsitin f existing equitable interests and is cnsidered in Tpic #4 Requirements TEST (1) Was there an agreement? Cntracts need t be made in writing re Cnveyancing Act s 54A usually nt upheld if ral UNLESS significant part perfrmance (2) Did a party act under that agreement and permed an act t their detriment? If s, Need sufficient acts f part perfrmance unequivcally referable t existence f cntract (3) Is the agreement ne which a curt f equity wuld rder specific perfrmance? I.e. cmpensatin regarded as an inadequate substitute fr perfrmance f cntract ften with prperty, als s with rare r unique gds If YES t all, then equity creates an interest which is an equitable impersnatin r cpy f the cmmn law interest being claimed Rle f intentin? 14