CHATTELS AND FIXTURES

INTRO: In order to determine whether a chattel has become a fixture,

transforming frompersonal property to real property, the following must be
satisfied:

Test 1: First is there a contract to provide for this item?
YES: Prima facie a chattel and onus is on the fixture advocate party to prove
otherwise.
NO: Prima facie a fixture, onus is on the chattel advocate party to prove otherwise

Test 2: Define Fixture
An object which has once been a chattel but which has become in law, land because it
has become affixed to the land, thereby making it real property. Australian Provincial
Co v Coreneo (Seats in a cinema / multipurpose / life outside the cinema)

Test 3: What is the degree of Annexation (Is itemattached by its own weight?
YES: Prima facie is an object which is attached to the land only by its own weight is
not part of land unless circumstances are such as to show that it was intended to be
part of the land, the onus of showing that it was so intended is on the person who has
asserted that the object ceased to be a chattel. Holland v Hodgson
NO: Pima facie an object which is fixed to the land even slightly is considered to be
part of the land unless the circumstances are such as to show that it was intended to
continue as a chattel, and the onus is on the person who is trying to show that the
object has remained a chattel. Holland v Hodgson (looms fixture / textile factory)

Test 4: What is the purpose of annexation, (Is the itemfor the use or enjoyment of
the land?)
YES If intention for annexing the chattel to the real property is for the better use and
enjoyment of the land, then there is a tendency to say it is likely to be a fixture.
Belgrave Nominees v Barlin Scott Air-conditioning
NO: If intention for annexing the chattel to the real property is for the better use and
enjoyment of the chattel, then it is likely a chattel. Leigh v Taylor: Attorney of the
Commonwealth v RT Co Pty Ltd (tapestries / slightly annexed)
Case Examples Fixtures
Hawkins v Farley (Dishwasher incorporated into kitchen, H: incorporated into the
design of the kitchen and if you removed it there would be a huge gap, therefore it was
considered a fixture because it was for the better use and enjoyment of the land)
Belgrave Nominees v Barlin Scott Air-conditioning (air-condition units sitting on
pads, they were connected with some water pipes, and attached by electricity. H-
Fixture because use of air-conditioning units was for the better use and enjoyment of
the land) Reid v Smith: Old house resting on its own weight, they were on stumps to
avoid termites, H-fixture only not attached because of termite.
Case Examples Chattels
Leigh v Taylor: (tapestry attached special hooks, h-chattel better enjoyment of tapestry
and not real property. Attorney of the Commonwealth v RT Co Pty Ltd (printing
press situated in the basement, affixed to the concrete, H-chattel, because the purpose
of the annexation was to hold the presses steady / function)
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Factors to Consider:
-Degree of Annexation (ease and cost of removal)
-Duration of Annexation (temporary v permanent)
-Necessity (trade, business, architectural purpose)

Test 5: Do any Exceptions Apply
1. Vendor/Purchaser: (YES) All fixtures pass to the purchase unless otherwise
provided in the contract.
2. Mortgagor/Mortgagee: (YES+contract) Mortgage over the land secures the loan
against the real property and also the fixtures. Typical Contractual Provision: Standard
clause in property sales in order to avoid the problem of determining whether something
is a chattel or a fixture.
3. Landlord v Tenant: (NO) A tenant who attaches fixtures to the land is donating it to
the landlord. Curtin v Meadlow Holdings: Held: Tenant should remove their chattels,
but need to be very specific about what property will be transferred from tenant to
landlord, but the equipment was not considered furnishings, fixtures or fittings. Landlord
did not use proper language in contract. The cold room however is considered a tenant
fixture and so he was allowed to keep the cold room according to the language in the
lease


Exception:
a) Trade fixtures: if you as the tenant can demonstrate that you've attached something
to the land for the purposes of trade/commerce, ex a significant piece of machinery, in
this case it is likely considered a trade fixture, Vasco Nominees Pty Ltd v Stefan Hair
Fashions: (Held: Balcony has basic characteristics of tenant fixture: Affixed or placed
on premises at cost of tenant and for the purposes of tenants business. The separate
crown leases suggest they are not intended to be a permanent improvement to the
lease and therefore not intended to be part of rental property) Curtin v Meadlow
Holdings: Held: Tenant should remove their chattels, but need to be very specific
about what property will be transferred from tenant to landlord, but the equipment was
not considered furnishings, fixtures or fittings. Landlord did not use proper language in
contract. The cold room however is considered a tenant fixture and so he was allowed
to keep the cold room according to the language in the lease
b) Ornamental or domestic fixtures: can also be removed. But the courts will interpret
this narrowly and it should be something that can be removed without damage.

TCON: Therefore it appears that the better view is that the (item) is a
fixture/chattel/, affixed/attached by its own weight to the real property for the
better use and enjoyment of the land/better use and enjoyment of the chattel.

FINDERS/KEEPERS
INTRO: The objective is to find the true owner of the item and return it to them. If
however the itemis abandoned, the courts will consider which party has a better
claimbut not the best claimrelying on the concept of just tertii.

Prior Possessor v True Owner
In a dispute between a finder and the true owner:

General Rule: As the true owner, they have a better claim than the finder as they are
able to prove ownership through (apply) and can therefore prove the item was not
abandoned (Re Jigrose)

Test 1: Is the true owner a party to the court proceeding?
YES: True owner will win subject to proof of ownership and rebuttal of finders
argument of abandonment
NO: Next Test: Determining Abandonment

Test 2: Has the itembeen abandoned?
YES: Item has been abandoned because the owner has by throwing, giving the item
away, a physical and mental intention to relinquish their proprietary interest (Re Jigrose)
NO: Item was not abandoned as there was no intention to relinquish and mere
inaction is not abandonment (Moorehouse v Angus Robertson)

Test 3: Does the prior possessor retain possession?
YES: The prior possessor satisfies both physical and mental intention to possess
and exclude others (Button v Cooper or The Tubantia)
NO: Finder has not satisfied either physical or mental element.

Test 4: Does the prior possessor have lack of dishonest intent?
YES: There s little evidence to support dishonest claim and the prior possessor has
taken reasonable steps to contact true owner.
NO: Prior possessors dishonest intent in trespassing/stealing/selling straight away
(Hannah v Peel) and not taking reasonable steps to contact the true owner (Armory v
Delamirie) overrides their prima facie claim to the item and therefore the owner has the
better claim.

Prior Possessor v Subsequent Possessor
General Rule: The finder will retain possession of the item against the subsequent
possessor based on the concept of Jus Tertii as a subsequent possessor will not be
successful against a prior possessor simply by arguing that the true owner has the
better claim. (Asher v Whitlock/Armory v Delamirie)

Prior Possessor v Employer
General Rule: People who find property as employees find them for their employer.
Hannah v Peel (found brooch in home being leased, h-current owner of house not
owner of brooch, never even in possession of house) or South Staffordshire v
Sharman
Exception: Where employment is not the effective cause of finding the item, but merely
an incident cause of finding the item, then the employee is entitled to keep the item.
Byrne v Hoare (found gold near exit of drive in, h-employment wasnt the cause of
finding, but merely provided the opportunity)

Prior Possessor v Owner of Land
Attached Property: Property that is attached or embedded in land or building gives the
occupier the better claim regardless of his awareness of the existence of the item.
Elwes v Brigg Gas Co(boat found in backyard, occupier didnt know but b/c embedded,
occupier has prior poss). South Staffordshire v Sharman: Workmen to clean a pool
dirty, found two gold rings. Employees tried to claim ownership. Workmen were
employed by the occupier of the land. Held: The rings were deemed to be in possession
of the occupier of the land on the basis that they were embedded in the soil/mud.
Unattached Property: Property that is not attached or embedded in land or building,
gives the finder the better claim, unless occupier can prove he exercised a manifest
control over the land as to indicate an intention to control the land. Parker v British
Airways Board (found bracelet in lounge, h-no sufficient control over lounge). Bridges
v Hawkesworth (money found in store, given to store owner, h-store didnt have prior
poss) or Ranger v Griffin (owner of property given possession of money tin)
Tamworth Industries v Attorney General (found money during raid, charges dropped,
h-insufficient manifest intention to control property, neighbour controlled very little of
who went on property)

TCON: Therefore it appears that the better view is that
(finder/occupier/employer/true/owner) has a better claimto the (item).

If theres an adverse possession involved in a finders keepers question, note
that person wasnt registered owner of the lot yet just because he is an adverse
possession, so do not think he is entitled to it, only entitled once application for
AP is approved and he becomes registered

BAILMENT
INTRO: In order to determine whether (bailor) has a possible cause of action
against (Bailee), we need to determine whether a bailment exists between them. A
bailment is delivery of goods of one person, the bailor, into possession of
another, the bailee upon an express or implied promise that they will be
redelivered to bailor or death with in a stipulated way. (Hobbs v Petersham)

Bailment Arrangement: During term of bailment, bailee has immediate possessory
interest, and bailor has reversionary interest. Unless there is a time provision, bailor
may make demand for return of property and bailee must comply. If there is a term and
bailor makes demand or gains possession, bailor is subject to action in trespass,
conversion or detinue.

Test 1: Is there a bailment:
The three elements that need to be fulfilled in order to establish a bailment:
Three Elements 8
1. Actual or constructive delivery of goods by Bailor to Bailee.
2. Voluntary or consensual assumption of possession of goods by the Bailee.
3. Bailee need to be knowingly in possession of the goods.

Test 2: What type of bailment: (Coggs v Bernard)
It would be argued that the type of bailment is:
Commercial Bailment: often sources in a contract, for reward and for a period of time.
(Payment) (Hire, Pawn, Contract for work/labour)
Gratuitous Bailment: can be based in contract, no reward, and uncertain terms of
duration. (No Payment) (grat safe keeping, grat loan, grat work and labour)

Test 3: Is there a sub-bailment?
A sub bailment occurs when the bailee transfers possession of the goods to a 3
rd
party
with or without the bailors permission thereby creating a collateral bailment. This gives
the (bailor) the right to sue the (sub-bailee).
A sub-bailment will only be authorized where:
1. The Bailor consented to the sub-bailment? Bailee needs consent from the Bailor
for sub-bailment which may be express or implied by circumstances. (express asking,
implied dry cleaning who gives to another for special cleaning).
If no consent then Bailee has strict liability for loss. So will be liable for all breaches by
sub-bailee. Bailee also loses right to possession and bailment is terminated. The bailor
may sue the bailee.
2. The sub-baillee was aware of the bailment On voluntarily taking possession of the
goods by the sub-bailee knowing of the existence of the head Bailor creates a legal
relationship between head Bailor and sub-bailee without necessity for contract.
Unauthorized Bailment Result: If no consent then Bailee has strict liability for loss.
So will be liable for all breaches by sub-bailee. Bailee also loses right to possession and
bailment is terminated. The bailor may sue the bailee.

Test 3: Is there breach of Bailment

Bailor Duties:
1.Right to bail goods.
2. Not to interfere with bailees possession during bailment.
3. Duty to ensure goods are fit for purpose and safe for use
4. Warn of any hazards or defects.
5. Reimburse for damage or injuries.

Bailees Duties (prescribed in contract):
(Bailee) has breached his duties under the bailment if he did not:

1. Use reasonable care in relation to goods. Uniform standard for all types of
bailment, based on the reasonable care test, determining what is reasonable, sufficient
or adequate in the circumstances. They may accept reasonable wear and tear, but
anything beyond that the Bailee will be held liable. Pitt Son and Badgery Ltd v
Proulefco

2. Duty to return goods: Bailee has obligation to returns good at expiry of bailment.
Jackson v Cochrane.
Non Delivery of Goods

3. Duty to retain possession-Bailee has obligation to retain possession of goods for
duration of the bailment. Jackson v Cochrane.
Misdelivery, Unauthorized Delivery

Test 4: Is there an exclusion
There may be an exclusion clause in favour of the Bailee which limits his liability in
regards to the bailment. The Pioneer Container.

Test 5: Remedies for the Bailor
Where the bailee has breached the bailment by
Not using reasonable care, the bailee has breached the contractual bailment terms
therefore providing the bailor the ability to sue in breach of contract.
Failing to return the goods, the baillee has breached the contractual bailment terms
therefore providing the bailor the ability to sue in breach of contract and raise a cause of
action in Trespass to goods, Conversion, Detinue. (then explain each of them)
Failing to retain possession, the bailee has breached the contractual bailment terms
therefore providing the bailor a cause of action in Tresspass to Goods.

Trespass to Goods: Wrongful intentional direct interference with chattel in actual
possession of another. (baillee not return goods, bailor demanding goods before comm
bailment is up)
Conversion: Involves an act intentional done inconsistent with the owners rights to
those goods. Must demonstrate that something has been done contrary to the plaintiffs
entitlement to possession. (bailee had immediate possession and does something to
goods that he shoudlnt, ie sell them, gives them to someone else, etc) Hollin v
Fowler/Penfolds Wines v Elliot)
Detinue: Tortuous or wrongful detention of goods and a refusal to hand them over to a
person with a right to immediate possession who has formally demanded their return.
(bailor requesting his chattels back. (car rental loses money when guy doesnt bring
back car, bailee doesnt return goods)

TCON: Based on the facts, the better view is that the bailee breached the
contractual bailment terms, therefore providing the bailor with a possible cause
of action in (cause)







LAND POSSESSION DISPUTE
INTRO: In order to determine whether (prior possessor) has a better claimto the
land than (subsequent possessor) a number of issues need to be resolved.

Test 1: Establish Abandonment

Test 2: Establish elements of possession.

Test 3: Establish better Claim
General Rule: An action for the recovery of possession of land need not prove a better
right to possession than that of any other person. The plaintiff need only prove a better
right to possession than that of the defendant. Ocean Estates v Pinder
Just Terti: If you are a person in possession and subject to an action by a prior
possessor you should not be successful by simply arguing that the third party who is the
actual owner is the rightful owner has the better title. Asher v Whitlock

Test 4: True owner claim
Where the true owner may reclaim the land subject to: LAA 1974-s13 Actions to
Recover Land, s14 Accrual of right of action in cases of present interest in land,
and s29 Extension.

IMMEDIATE VS DEFFERRED INDEFEAIBILITY
INTRO: In order to determine whether (names) are capable of reclaiming
(property), it needs to be determined whether the current registered owner is
indefeasible under s37.
If last person in the deal has registered, then A loses interest and applies for
compensation
If last person in deal is not registered, A will engage in equity priority dispute with
last person to get Legal title.

Test 1: Applying immediate or Deferred Indefeasibility

Immediate Indefeasibility: Indefeasibility is conferred immediately upon registration
irrespective of validity of instruments or transaction (S37 and Breskvar v Wall). The RP
will hold their interest subject to registered interests but free from all other interest under
S184(1)(a). The RP will not be affected by actual or constructive knowledge of an
unregistered interest affecting the lot (s182(2)(a)/Freedman v Barrett).

Deferred Indefeasibility: Registration does not confer indefeasibility on a bona fide
person if the registered instrument is void because of forgery using a fictitious name.
Indefeasibility is deferred or postponed until the next valid transaction. (Gibbs v
Messer) (Can be dead/fictitious)
If an exception to indefeasibility applies, go to the exception, if not then continue to
conclusion.

TCON: Based on the facts (new owner) has gained indefeasibility under s184(1)(a)
and in this situation no exceptions to indefeasibility apply. (Prev registered
owner) has lost their legal and equitable interest and may apply for a claimin
compensation/ Based on the facts, (new owner) has not become registered and is
therefore not indefeasible, in order to determine which party may register and
obtain legal title (land), the following needs to be determinedgo to equitable
interests dispute

EXCEPTIONS TO INDEFEASIBILITY
INTRO: (Registered owner) is the registered owner of (property and therefore is
indefeasible under s184(1)(a). However, (reg owner) does not obtain the benefit of
indefeasibility under s184(1)(a), as (reg owner)s indefeasibility is subject to the
exception under (state sec and statue)

FRAUD 184(3)(b)
State section
Therefore indefeasibility is not maintained if the intention of the registered proprietor is
to defeat an interest in land (184(3)(b).

Define Fraud: Fraud can be defined as dishonest of some sort (Assets Co v Mere
Roihi) or if the designed object of a transfer be to cheat a [person] of a known existing
right, that is fraudulent dishonesty of some sort (Waimiha Sawmilling Co Ltd v
Waione Timber Co Ltd). Fraud requires an element of moral turpitude (Latec
Investments Ltd v Hotel Terrigal Pty Ltd)
Mere notice of an unregistered interest does not constitute fraud under section
184(2)(a) (Freedman v Barrett).

Causal Link: To be relevant there must be a causal link between the fraudulent act
and the obtaining of the registered title. Bank of SA v Ferguson-bank employee create
false statement of assets, dishonest but only internal doc, no impact on grant mortgage,
h-no fraud bc it must operate on the mind of the person said to have been defrauded or
to have induced detrimental action by that person)

A) Mortgages-FRAUD AGAINST PREVIOUS RO/RP
In order to determine whether fraud poses an exception to the mortgaees
indefeasible title, the mortgagee must have perpetrated fraud. (Go right into
sentence)
1) Knowledge of false doc = Fraud
Fraud will be established against the registered proprietor if the registered proprietor at
the time of lodging the instrument for registration knows that the instrument has not
been properly executed in accordance with statutory formalities or knows the document
to be false. AGC v De Jager-bank employee knew signature on mortgage not prop
witnessed, h-Deemed fraud because you are presenting to the registrar a document
that you know is not properly signed.
But fraud will not be established when:
Less than meticulous Fraud
A less than meticulous practice as to the identification of persons purporting to deal with
land registered under the provisions of the Torrens statute does not constitute a course
of conduct so reckless as to constitute fraud. Grgic v ANZ-Imposter dad get mortgage
over house.
Negligence Fraud
Fraud will not always be established if the forgery is due to wilful blindness, reckless
indifference or shutting of the eye for fear of the truth on behalf of the mortgagee
Young v Hoger-fraud mortgages, abstained from making inquires into eh truth, h-this
was careless and negligent but did not act dishonestly, didnt have suspicion. Royalene
v Registrar Titles-failure to identify mortgagor with drivers license, h-shortcomings in
conduct in relation to identification doesnt mean the conduct was infected by actual
dishonesty or moral turpitude.

Reasonable Steps Identification
In order for a mortgagee to obtain the benefit of indefeasibility under s184, they must
establish that reasonable steps were taken to identify the mortgagor, in doing so the
mortgagee must comply with s11A(2) (S185)(1A).

State s11A(2)(3) and Manual s9A(2)(c)

Where the reasonable steps were not fulfileld by the mortgagee, they will not be
granted indefeasibility under s184(1)(a).

PERSONAL COVENANT
The loan may also apply personally against the innocent mortgagor or it may just
provide the mortgagee with the ability to exercise its power of sale on default?
Traditional Mortgages-contains an express statement that a principal sum was lent to
mortgagor.
All Moneys Mortgages-theres a loan arrangement which involves a mortgage and a
separate loan agreement.
YES PERSONAL EQUITY: Hilton v Gray (forged mortgage under traditional
mortgage)
NO PERSONAL EQUITY: Grigc v ANZ and Duncan v McDonald-A registered
forged mortgage for a traditional mortgage secures only to extent necessary to protect
charge but personal covenant not enforceable, therefore debt not recovered beyond
exercise of power of sale of land. (BETTER VIEW)

ALL MONEYS MORTGAGE- In a forged registered all moneys mortgage it may be
indefeasible but the mortgage secures nothing as the separate agreement has not been
signed by the mortgagor. (Chandra v Perpetual Trustees-mortgage quoted Secured
Money as moneys under a loan agreement called secured agreement and mortgagor
had obligations under the mortgage. Mortgage did not secure anything as there was no
secured money or secured agreement)

B) Unregistered Interest
Fraud can also be committed against an unregistered interest holder.
In equity, a transferees notice of an unregistered interest, coupled with an attempt by
the transferee to rely on the provisions of a statute to defeat that interest, constitutes
fraud and is referred to as equitable fraud. Loke Yew v Port SwettenhamRubber-58
acres of land left out of contract even tho Glass said: I will make arrangements, this
induced contract, h-statement was false and fraudulently made for the purpose of
inducing the vendor into selling the whole 322 acres. But for his fraudulent statement,
the transfer would not have been completed, therefore fraud

C) Supervening Fraud
No final decision on whether fraud can occur after the registration of an instrument.
Bahr v Nicholay-lease had repurchase agreement to Bahrs, lease not registered, new
owner notified of lease and repurchase agreement. Refuse to sell back. H-Wilson and
Toohey JJ: No, fraud under Torrens statute is fraud committed in the act of acquiring a
registered title. Mason and Dawson JJ: there is no difference between the false
undertaking which induced the execution of the transfer in Loke Yew and an
undertaking honestly given which induces the execution of a transfer and is
subsequently repudiated for the purpose of defeating the prior interest. Brennan J: No
need to decide the issue as the in personam action allows them to recover.

D) Fraud by An Agent
Title registered with fraud by agent of registered owner will be defeasible if done within
agents actual or apparent authority to create a valid mortgage. Dollars and Sense
Finance Ltd v Nathan-son given mortgage docs-deemed an agent for mortgagee to
obtain signatures and this fraud impacted on the mortgagee indefeasibility as fraud was
part of the task he was asked to undertake albeit done fraudulently. Normally if agent is
an employee employer is bound by fraudulent act if it is an unauthorised mode of doing
their job ie within scope of employment. If the agent was acting for their own benefit,
then fraud is not imputable to the RP (Schultz v Corwill)

Remedies:
IF FRAUD BY MORTGAGEE, THEN APPLY FOR:
S187 (1) If fraud by RP or 185(1)(c)(d)(e)(f)(g). SC make orders it considers just.
S187(2) SC direct registrar to make change to cancel/correct registrar, (e)-do
ANYTHING ELSE.
IF NO FRAUD IS ESTABLISHED, THEN INSTRUMENT IS INDEFEASIBLE, AND
DEPRIVED OWNER CAN APPLY FOR THIS:
S188(1)(a) Compensation
IF REASONBLE STEPS NOT TAKEN BY MORTGAGEE,
THEN RP APPLY FOR
S187 (1) If fraud by RP or 185(1)(c)(d)(e)(f)(g). SC make orders it considers just.
S187(2) SC direct registrar to make change to cancel/correct registrar, (e)-do
ANYTHING ELSE.
MORTGAGEE APPLIES FOR COMPENSATION
S188(1)(a)


TCON: Based on these facts, the better view is that (prev registered owner) has
successfully proved that fraud occurred in the registration of (name who), this
will entitle (prev reg owner) to apply under s187(1) or s187(2). Based on these
facts the better view Is that (preg reg own) has lost their legal tile and may apply
for compensation under s188(1)(a).

IN PERSONAM 185(1)(a)
State section
The title of a purchaser who not only has notice of an unregistered interest but who
purchased on term that he will be bound by the unregistered interest is subject to that
interest. Equity will compel him to perform his obligations. Valbirn v Porprop-property
with tenants, clause in contract sale was subject to acceptance of leases. Or Bahr v
Nicholay.
Need to Show:
1. RP purchased on terms of someones rights or unregistered interest (Bahr v
Nicholay)
2. RP has acknowledged or undertaken to acknowledge someones rights or
unregistered interest. (Minority of Tara Shire)

Exception: Knowing Receipt of Trust Property
Knowing receipt of trust property can raise equitable liability. Equity will hold a third
party liable who takes trust property with knowledge it is trust property. Tara Shire
Council v Garner-land sold to Arcape even though they knew it was supposed to be
held for council. Davies Minority said: All that is asserted is that the applicant acquired
registered interest with knowledge of an asserted prior interest - this is insufficient to
bring within exception to s185(1)(a). No acknowledgment or agreement by Arcape to
recognize interest. To raise equity it must involve some dishonest act generally
repudiation of acknowledgment or agreement. But in Farah Constructions v Say-
Dee-partners knew property was held in trust, h- one should distinguish between
Bahr v Nicholay type situations where the defendant was attempting to ignore an
obligation to share or convey the land with or to the plaintiff. In none of those cases was
the defendant a party who merely had notice of an earlier interest or notice of third party
fraud. Where there is no dishonesty or fraud by the holder of the registered interest,
knowing receipt of trust property cannot be set up to defeat indefeasibility.

Look for: Inducement into contract (Loke Yew). Express clauses in the contract
(Valbirn v Powprop). Acknowledgment or agreement to recognize interest (Minority of
Tara Shire)
Remedies: Specific performance of contract. S187 does not apply. Provides for rights
enforced in personam.

TCON: Based on these facts, (guy) has successfully proved an equity exception
to (reg props) indefeasible title under s184. (Reg owner) will not be allowed to
avoid his obligations to (guy). (Reg owner) will be obligated to fulfil (what guy
wants)

SHORT LEASES 185(1)(b)
State section

Registration of a lease of any term, does not require the protection afforded under
S185(1)(b). However unregistered short leases are protected under s185(1)(b) and
therefore any regisetered owner with indefeasible title will be subject to a short lease.

Schedule 2 Dictionary Short lease means a lease(a) for a term of 3 years or less;
or (b) from year to year or a shorter period.

Also keep in mind a 1 year lease fromDec 15 2010 runs till Dec 14, 2011
Establish what term of the lease is being exercised.

Determine what kind of lease it is and what is protected

1. Unregistered 3 year lease-no options: Exception to Indefeasibility under s185(1)(b)
2. Unregistered 3 year lease plus options to renew: Three year lease is exception to
indefeasibility under s185(1)(b), options to renew are not protected and therefore not an
exception to indefeasibility under s185(2)(b) Option and initial term must complete
within 3 years to be exception under S185(2)(b)
1+1+1-YES, 1+2-YES, 1+2+2, first option YES, second option NO
Exception for Options:
If an option to extend an unregistered lease is exercised prior to registration of new
owner, this is an exception to indefeasibility of new owner as a new short term lease
under s185(1)(b). Re De Jersey-renewed his option for 3 years just before property
sold, h-exception to indefeasibility. Must be 3 years or less though.
3. Registered lease of any termplus option to renew: A registered lease does not
require the protection under s185(1)(b), as it is already an exception to indefeasibility
by merit of registration. Registration of lease also extends to any options under the
lease. Re Eastdoro Pty. Mercantile Credit Limited v Shell Co: The right of renewal is
so intimately connected with the term granted to the lessee, which it qualifies and
defines, that it should be regarded as part of the estate or interest which the lessee
obtains under the lease, and on registration is entitled to the same priority as the term
itself.
if lease for whatever reason isnt on the register go to S15 to correct register

Remedies:
If the lease is registered and the new owner tries to kick them out, are they entitled
to compensation? S188A(3) NO
If unregistered and no protection see if the in personam exception may help you (did
knew owner say he will acknowledge?)
*Only reason to register a 3 year lease is to get the options protected, because there is
no need to register a 3 year lease as its protected under short lease exception*

TCON: Based on these facts, (leasee) will/will not be afforded protection under
S185(1)(b) and may remain in his lease until (end date of lease).




OMMITED EASEMENTS 185(1)(c)

Element 1: Easement must fall within
S185(3)(a): Easements on land held under deeds Registration Land
185(3)(b): Easement was registered under Torrens and somehow its been left off due
to a mistake.
S185(3)(c): Easement was lodged but by some mistake was never registered.
Number of Transfer Irrelevant: S185(4): This means that regardless of how many
transfers have occurred on the land, if there is an easement on the land, this is an
exception to the indefeasibility of title therefore you will be subject to it. James v
Registrar General

Element 2: Compensation for Omitted Easements
No entitlement to compensation s189(1)(j) or (k)

Element 3: Ability To Correct Registrar
Registrar may be corrected even if it prejudices interest holder in omitted easements
s15(3)(a)

TCON: The omitted/misdescribed easement over (reg Owner) property is/isnt an
exception to his/her indefeasible title. (Reg owner) will not qualty for
compensation under s189(1)(j) or (k). (guy will apply to the regisrtar under s15 to
correct the registrar)

ADVERSE POSSESSION 185(1)(d)
In order to establish adverse possession by (ap), the following elements need to be
fulfilled).

Test 1: Establishing Common Law Elements of Adverse Possession
A) Possession must be adverse, open, peaceful, not by force and without the true
owners consent.. Mulcahy v Curramore Pty Ltd
B) Must show mental (intention) and physical (control) possession of land and
EXCLUDE ALL OTHERS. J A Pye (Oxford) Ltd v Graham

Indicators of possession:
Look at each stage of what they are doing and determine whether it is
sufficient to establish AP. THEN If AP is established at this date, then this
happens (Either yes AP-make app, No AP, reclaim land). IF Successive occupiers, look
at each stage determine whether AP, and then at end state they can be added together.
Paying rates - when real owner acquiesces in possessor paying rates - may be very
strong evidence of adverse possession Quach v Marrickville Municipal Council.
Cultivation/Repairs/Other Improvements (Includes farming, let animals roam,
building stuff on their) (Buckinghamshire v Moran)
Fences: Erecting fences to exclude others will indicate AP (intention of fencing
important) Full fencing: (Buckinghamshire v Moran) Partial Fencing: George
Wimpey v Sohn/ Riley v Pentilla
Character and value of the property: Using the land in the course of conduct that
the proprietor would be expected to follow. Lord Advocate v Lord Lovat

Successive Occupiers: Successive occupiers without abandonment (and without
consent from the registered owner or acknowledgement of the title of the registered
owner) one can add separate continuance periods of occupation to constitute limitation
period. Importance is that there is no abandonment between the adverse occupiers.

Abandonment by AP: Temporarily relocating for a few years and then coming back
occasionally does not equal abandonment. Abbatnagelo v Whttlesea City Council-
Abandonment is complete relinquishment of intention and physical possession.

Test 2. Satisfying LAA Provisions
S13 Action to Recover by true owner is 12 years. S14 Action to recover land deemed
to accrue at dispossession. S19 AP begins at date when person takes possession, not
when property is abandoned by true owner. S29(1) Extension for Disability or Under
Age is 6 years after end of disability or 18 years of age for minors. in Case of Disability
S29(2)(b) Extension up to 30 years is only granted IF true owner is unknown at time AP
makes application.
Disability is defined as an infant or anyone of unsound mind (S5(2)
Unsound mind extends to anyone who is in a mental health institution and anyone
who has been locked up under special verdict s647 (S5(3)
Re Johnson: guy camped on land occasionally, paid rates, fenced partially. H-no AP
as elements of possession not made out. Possession was equivocal and no intention.
Statement in newspaper no weight unless communicated to true owner.
Statutory Limitations: s98- No AP for government land.

Test 3: Applying for AP
Step 1: Applying for Adverse Possession: s99, Refusal of application: s102. Step 2:
Notice to anyone interest in Application (any true owners, neighbors or prior APs, s103.
Step 3: Interested party lodging Caveat s104, Lapsing of Caveat s105, lodging further
caveat s106, Refusal or acceptation of caveat s107. Step 4: Registration of AP s108

TCON: Based on the facts (AP) has established adverse posession and will most
liekly become the new registered owner, pending application. The (reg owner)
has lost their legal and equtiable title to (property).
Prior Certificate of Title s185(1)(e)
A mistake in the registrar to note a prior certificate of tile does not confer indefeasibility
under section 184(1) to the new registered proprietor. Registrar of Titles and
Esperance Land (CT issued by registrar included land that was under CT to someone
else, no fraud. Tried to claim indefeasibility to entire land, h-not indefeasible)
Failure to Cancel s185(1)(f)
A mistake in the registrar to cancel a prior indefeasible title on registration does not
confer indefeasibility to prior registered proprietor. Subsequent interests will prevail.
Failure to Cancel s185(1)(f)
Where land is wrongly included in indefeasible title, the true owner rather than the
registered owner retains title to that land. Overland v Lenehan It is clear, therefore,
that if it is made out that the description of the land or of the boundaries of the land as
set out in a certificate of title is erroneous, the erroneous description is not conclusive.
May be corrected under s186.
New Provisions s185(1)(h)(i)
Registered owner is subject to Petroleum and Gas Safety Act and Greenhouse Gas
Storage Act.

REMEDIES

INTRO: A successful claim in (exception) will afford (claimant) the ability to apply
to the Supreme Court under s187 to (name what you want done) or they may
apply to the Registrar under s15 for correction of the registrar.

METHOD 1: SUPREME COURT
Avail for: Fraud, omitted easements, adverse poss, prior certificates, wrong
inclusion
S187 Order by Supreme Court
(1) Supreme Court may make any order they consider just
(2) Order the registrar to (a) cancel or correct title (b) cancel, correct, register an
instrument (c) create new indefea title (d) issue a new instrument (e) do anything else

METHOD 2: REGISTRAR CORRECTION
Use this where for some reason an instrument has been left of the registrar
(lease/easement
S15 Registrar may Correct Registers
1(a) Must be incorrect. 1(b) Must not prejudice. (3)(a) even if prejudice, for omitted or
misdescribed easement. (8) No prejudice if constructive knowledge that registrar is
incorrect.
General Rule: Exercisese of Registrar's powers of correction conferred by s. 15 LTA is
permitted where
(1) a clear case of error, provided that the correction
(2) does not prejudice the rights of the holder of an interest recorded in the register.
Error in procedures does not suffice. Equitiloan Securities v Registrar Of Titles
(Mortgage lodged for reg, reg delayed, regisrtar notified of poss fraud. Reg failed
procedures to investigate, h-reg exceeded powers, mortgagee is prejudice)

Exception: Correction can be made despite prejudice to interest holder if the error
involves the
a) Omitted easement exception contained in s.15(3)(a)
b) Pursuant to Supreme Court order under s26.
c) If the interest holder has knowledge register is incorrect and how it was incorrect
s15(8)

Registrar may also hold an inquiry
-> S19 Registrar may decide to hold inquiry. S20 Registrars duties on inquiry. S21
Registrar may decide procedures. S22 Registrars Powers on Inquiry
if inquiry says yes there is incorrectness, then registrar will use powers under
s15 to correct.

COMPENSATION

INTRO: Where a previous registered owner has been deprived of their interest in
land or suffered damage or loss because of the operation of the torrens system,
(reg owner) may apply for compensation from the Registrar so long as the
following elements of satisfied.

Test 1: Claimant must be deprived of a lot/interest in a lot or suffered loss or
damage.

Element 1: Why was it deprived?
Claimant must be deprived of her or his land or an interest in the land
s188 or Suffer loss or damage S188A.

Element 2: What was deprived
A) (Reg owner) suffered a Deprivation of Equitable Interest (Williams v Papworth:
land register under torrens, forgot to include a charge for trustee, h-beneficiaries
entitled to comp for deprived equitable interest.
B)(Reg owner) suffered a Partial Deprivation, where the land has been returned
but subject to a registered mortgage (Heron v Broadbent: land subject to
indefeasible registered mortgage)
C) (Reg owner) suffered Complete Deprivation (Frazer v Walker)

Test 2: Deprivation must be caused by one of the matters listed in s188(1) or
s188A.
S1188(1) a) Fraud of another person b) Incorrect indefeasible title c) Incorrect
registration d) Error in indefeasible title. e) Tampering with register, f) loss, destruction,
improper use od document deposited or lodged
S188A(1) (a) incorrect creation indefeasible title b) incorrect registration c) error in
indefeasible title d) reliance on the incorrect state of freehold land register e) loss,
destruction, improper use of document lodged

Test 3: The claimant must not be excluded fromclaiming compensation
a. Where the error can be corrected by the registrar S188A(3)
b. No compensation for personal injury S188AA
c. Anything listed in S189 a) breach of fiduciary duty ab) failure of mortgagee to
follow reasonable steps under 11A. b) person or agent substantially
contributed to depr. f) error in boundaries. i. registrar lodging caveat. j. omitted
easement. k. misdescribed easement.

S189(1)(b) Substantial Contribution
Claimants: Neglect of the claimant must be more than contribution, it must be a
large or big contribution to the fraud. Registrar of Titles v Fairless (contractor got guy
to sign over papers, didnt know what papers were, old, h-he got comp)
Agent: A person acting as an agent will only have substantially contributed to the
deprivation if it is within the scope of their agency to commit such actions. Registrar of
Titles v Fairless

Depends on occupation and it only ever really is within their occupation if
their job is to deal with the registration of homes etc or if the claimant asked the
person to register their home, only in such specific circumstances would it
amount to within the scope of their agency.

When compensation should be calculated: 2 Ways
The measure of compensation can be measured fromtwo different dates:
Date of Deprivation (date new owner gets registered) Spencer v Registrar of Titles
Date of Trial/Judgment (to restore claimant to pre-deprivation position) Registrar of
Titles v Behn

The better view is that the (pre reg owner) is entitled to the amount which will
restore the claimant to the pre-deprivation position which is supported by the
date of trial judgment, and therefore the (prev reg owner) will be entitled to the
current market value which is (amount)

Time Limit for Claim S188C a) 12 years after aware of entitlement to compensation or
b) within longer persiod court finds necessary.
The claimant will/not be entitled to compensation as (reg owner) is within the
allotted time limit to make a claim S188C

Measure of Comp (Only relevant for land that is subject to a reg mortgage)
The damages recoverable when land is fraudulently subjected to a mortgage is
ordinarily the lesser of the amount secured by the mortgage and the value of the
land. However, the higher amount may be recovered where that is reasonable
between the parties. Kendel v Regarose
a) Mortgage amount
b) If mortgage more than land value, then take land value and maybe more

Limit on Amounts Recoverable by Mortgagee
A mortgagee may be limited in the amount they may recover under s189A.
-> S189 A Limits on Amounts recoverable by Mortgagee

TCON: Where (Reg prev owner) has fulfilled the requirements in order to make a
claimof compensation, they should make a claim under s188 or s188A to registrar.
IF the registrar refuses to aid, (reg owner) may apply to SC under s188B, to (1)(a)
Compensation to be paid by state or b) direct registrar to take actions to

CAVEATS
TCON: in order to protect an interest in land, an interest holder may lodge a
caveat into the registrar. A caveat is an entry made in the books of the offices of
a registry or court to prevent a certain step being taken without previous notice
to the person entering the caveat. In order to lodge a caveat, the following
elements must be satisfied.

Test 1: Identify interest or transaction being prevented fromregistration
s124(1) Prevention of registration of another instrument over the lot
Doesnt Prevent Reg:
124(2) (a) instrument caveat doesnt apply
(b) consent of caveator
(c) mortgagee has power to execute
(d) transfer of mortgage, by a prev register mortgage prior to caveat
(e) interest not affect caveator.
Registrar provided notice to anyone effected by mortgage. s123 LTA:

Test 2: Identify Caveator/caveatee
Caveatee: for a lot over which a caveat has been lodged means (a) registered
proprietor of the lot or (b) someone who has an interest (SCh2)
Caveator: for a lot over which a caveat has been lodged, means a person in whose
favor the caveat is lodged (SCh2)

Test 3: Who has an interest? If not should caveat be withdrawn?
A caveat may be lodged by any of the following:
a) a person claiming an interest in a lot
AIA s36 Interest: (a) a legal or equitable estate in land or other property (Narrow
Interpretation)
(b) a right, power or privilege over, or in relation to the land or other property (broad
interpretation)

General Rule: Normally a personal right is not sufficient, you must establish some right
which affects the land itself. Re P. T Earthmoving Pty Ltd s Caveat (contract to move
dirt, granted possession of land. Lodged a caveat bc not being paid. H-No, mere
personal interest enforceable in personam but not in rem. Did not satisfy concept of
interest under Acts Interpretation Act.

Exception: Personal interest such as a license does fall within the definition of interest
under section (b). Medical Service Pty Ltd v Chief Executive Dept of Main Roads
(took car park, person who owned car parking license wanted compensation. H-A car
park license came within para b. this suggest a broad interpretation of interests)

Contract include a caveatable interest :Parties cannot create caveatable interest by
agreement that caveat can be lodged unless interest in land created. An interest in the
land can be created by including in a contract that any money owning in the contract will
become a charge against the land. Depsun Pty Ltd v Tahore Holdings Pty Ltd (tried
to create a caveatable interest in the contract).

Contract for Sale/Purchase Land
General Rule: A contract to purchase land, creates an equitable title which supports a
caveat. By signing the contract an equitable interest is created.

Exception: Conditional Contracts
An equitable interest in land by construct for sale and purchase of land is only created
when purchaser is entitled to specific performance, ie when the condition is filled Re
Bosca Land Pty Ltd s Caveat
BUT NOW: The estate or interest claimed by the purchasers under the contracts was
sufficient to ground a caveatable equitable interest in the relevant land notwithstanding
the conditional nature of the contracts Kuper v Keywest Constructions Pty Ltd
Equitable Mortgages
s122(2) However a caveat may only be lodged by an equitable mortgagee if it is a
caveat to which s126 applies.
Caveats lapse after 3 months. So all caveats lodged for equitable mortgages must
lapse. S126 Lapsing of Caveat

Test 4: How long does the caveat last
1. Withdrawal of caveat s125 at request of caveator and under s129-cant lodge same
caveat unles approval of court.
2. Lapse of caveat s126 (2) cavaetee may serve caveator notice to commence
proceeding. (3) if he does (2) must notify registrtar 14 days of notice. (4) caveator must
start proceedings (i) if notice, within 14 days, (ii) no notice, 3 months. (5) no comply
with 4, caveat lapse.
Exceptions to s126(1)
S126(1)(e) Installment Contracts qualify for non lapsing caveats. (a contract to
purchase land where you make a payment over the 10% depsoit and do not receive a
conveyance in return.

Test 5: Can caveatee apply for Removal?
If the caveatee has successfully won the priority dispute against the other
equitable interest, they may apply to get the caveat removed:
S128(1) removal by registrar, if that doesnt happen
S127 Apply to SC to remove:

Caveat will be removed if caveator fails to:
a) Caveatable interest (refer to Test 3)
b) Prove a serious matter is to be tried (link to exceptions to indefeasibility
(short lease, omitted easement, etc) this will be considered a serious matter.
c) Balance of convenience: courts will look at potential harm to caveatee if
caveat remains and harm to caveator is caveat is removed Ridge v Incentive
Programmes Pty Ltd

Compensation: S130 Compensation for Improper Caveat
If the cavatee has successfully won the priorirty dispute against the other
equitable interest, they may apply for compensation:
(1) caveat w/o reasonable cause must compensate for loss. (2) exemplary damages
may be awarded by court (3) presumption that caveat lodged without reasoanble cause
unless caveator prove otherwise.

Test 1: Absence of honest belief on part of ceavtor on reasonable grounds that
caveatable interest existed.
Reasonable Cause: Foundation of a reasonable cause is not actual existence of
caveatable interest but honest belief based on reasonable grounds that the caveator
had such an interest. Bedford Properties Pty Ltd v Surgo Pty Ltd

Test 2: The caveat was lodged and maintained for an improper purpose eg to
apply pressure and in doing so caused loss/damage.
Very important to look at the intention and purpose as to why the caveat was
lodged in first place
Where a caveat has been lodged and maintained for an improper purpose, the
caveatee may claimcompensation. In Farvet v Frost, it was concludes that the
heading of S130(1) using the word improper could be used to define a caveat as
being improper where it is used to apply pressure or causes damage or loss to
an equitable interest holder. Farvet Pty v Frost




SETTLEMENT NOTICES
INTRO: Where an equitable interest holder such as a purchaser of land or a
mortgagee cant financially lodge a caveat, a settlement notice may be lodged as
it is less expensive and more timely efficient.
S151-can still lodge caveat if SN lodged, S138-person lodging SN is purchaser or
mortgagee, S139-less onerous requirements then caveats, S141-SN prevent
registration unless lapses, withdrawn (S142) or cancelled. S143 all SNs lapse (2m)
S146-further SN require court approval S147 Similar liability for improper lodge

PRIORITY DISPUTES BETWEEN EQUITABLE INTERESTS
TCON: In order to determine which equitable interest will gain priority and be
allowed to register their interest thereby receiving legal title to the property, a
number of elements need to be established.

Element 1: Caveats protect dont, create.
It is important first to note that a holder of equitable interest cannot improve interest by
lodging caveat - priority based upon general law not by order of lodgment of caveats.
Waltons Finance Ltd v Crest Realty Pty Ltd:

Prima facie first created equitable interest is entitled to priority. Rule may be displaced
where it makes it inequitable to apply the general rule. (Abigail v Lapin)

Holder of the prior equitable interest (Lapin) had created the situation which allowed
the fraudulent party to go out into the world under false colors (Abigail v Lapin)

Element 2: Establish order of Equitable Interest Holder
The first equitable interest was created on (name date), because (date
lodged/date paid money/completion of contract) therefore this would make
(equitable interest holder) the prior equitable interest holder. The second
equitable interest was created on (date), because (date lodged/date
paid/completion of contract) thereby creating a second equitable interest on the
proeprty for (equitabe interest holder) making him the subsequent interst holder.
-> Refer to date of lodgment of interest. S178

Element 3: Look at Conduct of Prior Interest Holder
When there is more than one equitable interest holder just look at everyones
conduct independently then come to a conclusion.
Wifes who have paid entire house price but are not registered have a equitable
interest in the formof a construstive trust (. (Platzer v Commonwealth Bank of A)
Lodge Caveats/SN-Omitting to lodge a timely caveat before creation of subsequent
equitable interest holder may result in postponement of priority of the prior equitable
interest holder (Butler v Fairclough, Good owns land, owners Butler money agrees to
charge against land. Good sells to Fair, who searched registrar, no charge listed, buys
property. But lodges caveat, h-omit to lodge caveat, loss priority. Important: Span of
time was 2 days-so doesnt matter how little time. Abigal v Lapin and Breskvar v
Wall-Failure to lodge timely caveat


Exception to Failure to Lodge CT:
a) Failure to lodge caveat where CT is held by Prior Equitable Interest holder. (J
and H Holdings v Bank of NSW)

b) Failure to lodge caveat where strong family and trust ties between Prior
Equitable Interest holder and vendor. (Jacobs v Platt Nominees Pty Ltd-daughter
option to buy hotel, dad who doesnt like daughter sells to someone else, daughter
advised to caveat but doesnt because trust mom, h-She didntt get CT, she didnt
lodge timely caveat. where daughter reasonably believe that lodging a caveat wasnt
necessary because of the trust with the mother)
Hold CT: Where the prior equity holder is in possession of CT this will aid in keeping
his priority. J and H Holdings v Bank NSW-had mortgage with bank, bank held CT.
Went to someone else for loan, lied about not having CT. They lodge caveat and stop
BNSW from reg h-they had CT, therefore not need caveat. Abigail v Lapin and
Breskvar v Wall-failed to retain CT

Element 4: Look at conduct of Subsequent Equitable Interest Holder

Searching Registrar: Where the subsequent equity holder searches the registrar this
may entitle them to priority. Osmanowski v Rose - Classic Vendor Sold Twice Case-
vendor sells to Osman and then to rose. Osman dont lodge timely caveat. Rose
searched registrar, no ref to prior interest or caveat, h-search of registrar and paying
money and fail to caveat disentitles prior holder.
Paying Purchase Monies/Balance-Payment of monies owing or payment of
settlement and receiving of transfer forms may entitle the subsequent equity holder to
priority. (Clark v Raymor-Vendor has charge against land, then sells to Clark, who
does search which shows no charge b/c charge holder doesnt caveat) paid money and
sought registration, h-he wins.
Exception: Holder of prior equitable interest will not be postponed if later equitable
interest holder knew of prior equity (this will include constructive knowledge. (Platzer v
Commonwealth Bank of A-hus gets mortgage for house that wife paid for in full, so
she had constructive trust over land. H-caveat by wife is late but bank lost priority bc if
they had done search they would have known wife had constructive trust, so deemed to
have constructive notice.
Element 5: Result
New title holder can:
1) Apply to have caveat removed (refer to Test 5 under caveats)
2) May apply for compensation (S130
Concepts of Property
Justification for Private Property: The Occupation Theory: A person who is original discoverer and
occupier is entitled to dispose of it. The Labor Theory: Product of labor gives entitlement to property
right and society should encourage that. This arose out of the English revolution. Idealist Personality
Theory: A persons ability to act as a free personality requires the ability to have dominion over property.
The Economic Theory: Idea is if you didnt give someone an economic incentive to do certain things,
then they wouldnt and everyone would be worse off.
Characteristics of Property National Provincial Bank v Ainsworth:
1. Definability: able to define property, has physical presence
2. Identifiability: (by 3
rd
parties)
3.Assignability: normally assignable to 3
rd
parties
4. Durability: Some degree of stability/durability.
Categories of Property
1. Real Property: (Land, houses) A. Corporeal Hereditaments-actual physical things over which
ownership could be exercised. Books, crops, trees etc). Corporeal- Moveable (Goods) and Immoveable
(Land) B. Incorporeal Hereditaments-intangible. Non physical rights affecting the land, ie easements,
profits a prendre. .Incorporeal-Moveable (Ownership of Goods) and Immovable (Ownership of Land)
2. Personal Property (Personalty): A. Chattels Real: Leaseholds. Developed later were not
considered real property but personal contracts. B. Choses or things in possession (Chattel personal)
Synonymous with goods and chattels. Ex Book, pen car, clothes. Fishers Three Characteristics of
Choses in Possession: a) Tangibility: the thing in question has substance or a physical presence. b)
Capable of Physical Acquisition: the material object is capable of being reduced into possession c)
Movable: not unique to corporeal Hereditaments C. Chooses or things in action (Chattel personal) All
personal things which are not choses in possession. Loxton v Moir: A right enforceable by action. A right
to sue for a sum of money is a chose in action and is a proprietary right. Fishers Three Characteristics of
Choses in Action: a. Enforceability: By the right holder against the duty holder b. Incorporeal and
Intangible: An immaterial legal object c. Bare Right: Without any occupation or enjoyment. Ex.
Entitlement to recover debt, shares, patents.
Numerous Clausus Principle/Closed List Rule: landowner are not at liberty to customise land rights
they must fit into established pigeonholes and the law permits only a small and finite number to be
considered as an in rem property right.
Doctrine of Tenure (Fragmentation of Property Rights)
PLA S20 Incidents of tenure on grant in Fee Simple(1) All tenures created by the Crown upon any
grant of an estate in fee simple made after the commencement of this Act shall be taken to be in free and
common scoage without any incident of tenure for the benefit of the crown.
Of the Crown: The way the doctrine of tenure is still relevant today is that all land in Australia is freehold
interests (therefore no fee system in place) but the land is held of the crown (implying it is still owned by
the crown), but is free of incidents of tenure (so no need for any obligations or services to crown).
Doctrine of Estates (Fragmentation of Property Rights on the basis of time)
An estate in land is a collection of rights that can be exercised over and in respect of land for a particular
time.
1. Estates in Freehold (duration is uncertain).
A) Fee simple: Fee means inheritable which means it can be left to anybody under a will. Its the largest
estate known to English law. Determinable Fee Simple: A fee simple granted and will end automatically
on the occurrence of a specified event that may or may not occur Eg: Grantor: To X in fee simple for so
long as the land is used for the purposes of a university Defeasible or Conditional Fee Simple Fee
simple defeasible by condition subsequent ie fee simple granted in absolute terms but qualified by a
super-added condition of defeasance. Eg To A in fee simple but if the land ceases to be used as a
university it shall return to the grantor. B) Fee Tail (Abolished) Continued so long as the original tenant
or any of his or her lineal descendants survived ie children; grandchildren or great grandchildren. C) Life
Estate Lasts for life only. Eg. to X for life.Estate pur autre vie: A life estate granted to one person where
the estate is measured by the life of another Eg. To X for the life of Y
2. Estates less than freehold (duration is determined)An estate less than freehold. Usually called a
leasehold.
Successive Enjoyment of Land: Allowing different people to own different interests in property. 1.
Estates in Expectancy Estates that allow you to have possession of land at a future time. But it is still a
present right, just not present possession. A) Reversion: Grantor grants a lesser estate. At the
termination of the estate, the land reverts back to grantor. Ex. Grantor grants Blackacre to A for Life. A-
Life estate in possession. G-Fee simple reversion. B) Remainders: When the owner of the fee simple
grants a particular estate to one person and then in the same instrument grants another estate in the
same land which will take effect on the termination of the prior estate. Vested Remainders: Where the
owner is given a present and unqualified right to possession of the land as soon as the prior estate
comes to an end. Pre conditions for Vested Remainders: 1. The person or persons who are to take the
estate must be ascertained. 2. There is no condition precedent attached to the estate other than the
termination of all preceding estates. Contingent Remainders: A remainder is contingent if either of the
two conditions for vesting are not met at the time of the grant. G transfers to A for life, fee simple
remainder to As eldest son living at As death. As son has contingent fee simple remainder. Contingent
as until A does, it is impossible to say who As eldest son living at his death will be. (As death is irrelevant,
its the uncertainty of who the eldest son is) 2. Estates in Possession Gives holder an immediate right to
possession and enjoyment of land. Person with a current right to possession has the estate in possession.
Equity and Equitable Estates in Land Law: Trustee: Held legal estate / title. Beneficiaries: Equitable
estate.


Torrens Title
Seisin: If you are a free holder you are said to hold seisin in regard to that parcel of land. Leasehold has
possession but not seisin.
Title to Land: any title to possession, not necessarily the best
Good title: best title to land, allowing resistance of any claim for possession of the land. Good title is
saying you have the best title to land.
Deeds Registration: Priority given to first registered. Notice subject to S246 PLA requires bona fide.
Notice of prior registration does not equal bona fide. Nemo Dat: If prior fraudulent transaction, your tile is
void.
Torrens Title: A system of title by registration. (Barwick CJ in Breskvar v Wall)
Mirror: the register is complete and accurate reflection of indefeasible title, not bound by unregistered
interests. Curtain: one need not look beyond the register to prove the registered proprietors title-the
register is conclusive evidence of title. Insurance: compensation by state govt for losses resulting from
operation of Torrens Title.

Differences between Old System and New System
Old System/Deeds Registration Torrens System
Title conferred by parties signing documents Title conferred by registration

Registration merely conferred priority Registration confers prima facie indefeasible title
Documents as proof Register as proof
Validity of title depended on validity of
documents
Validity of title conferred by registration
Notice = equitable fraud Mere notice isnt Torrens fraud
Remediless? Compensation?
Mortgage took effect as conveyance Mortgage is merely a statutory charge

LTA
CT issued under s42. Registration of instrument: s173 Instrument lodged: s177 Priority of Instruments
when lodged, not executed: s178. Requisitions s156 Exceptions to lodgment order: S177, S159, S157.
Volunteers benefit too s180 Legal title given once registered s181 Registration confers constructive
notice to other re instrument s182. Bursill Enterprises v Berger Bros, (easement over land was in
registry, guy failed to read it. H-if he has made such searches as ought reasonably to have been made by
him, as a result of what there appears.)
LEGAL TITLE: Once registered under LTA and enforceable against 3
rd
parties
EQUITABLE TITLE: Not registered under LTA, but still enforceable against contracting parties.


GRAND THEMES
1) Possession is nine parts of the law. (Personal Property torts, rights over personal property,
elements of possession, finders/keepers) Real property-who has best right to property, seisin)

2) You actually dont own anything you own rights in things (you own something separate in land)

3) Many people can own different aspects of property at the same time (Frag of prop-personal prop-
bailment, real prop-fee simple, life estates, leaseholds, mortgages, create easements)

4) The extent of your property interest is measured by how many sticks you have in the bundle of
sticks that is property (fee tails, fee simples, life estates, estates less than freehold, ownership and fee
simple is greatest number of sticks.

5) The dividing line between chattels and land is fixtures. (personal property can become party of
real property, Chattel becomes land)

6) You are safe when you get registered except when you are not (immediate indefeasibility, is
important to register first, exceptions to indefeasibility)

7) It is a rush to the register. (important to get registered for priority disputes, doesnt matter if other
person caveats, because its too late).

8) If the registration system works against you, you will be compensated except when you dont
deserve it. (omitted easements, substantial contribution to deprivation, loss or damage, ability of registrar
correct, having prior notice of equitable interest)

Upon registration, the registered owner/proprietor gains immediate indefeasibility (s37 LTA) Breskvar v
Wall) free from all unregistered interests. S184(1)