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Property notes 3
na
37
Law
Undergraduate 3
06/11/2013

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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
ss 195 - 198
Term
Test for 'genuine' belief in improvement?
Definition
(Ex parte Karynette Pty Ltd [1984])
Term
PLA remedies section?
Definition
s197
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
s198
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
ss 182-194
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
s185 PLA
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
Re Melden Homes
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
What is a life estate?
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
2 types of fee simple?
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
What is a legal estate?
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
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