Real Property Notes
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LAWS2017 Real Property
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Comprehensive Study Notes
1. Common Law and Equitable Approached to Competing Interests
The basic rules of priority: 1. Priority disputes occur when two or more people claim independent property rights that cannot co-exist. When one property right takes priority over another, the latter is extinguished or diminished to the extent of any inconsistency between them. 2. An earlier legal right takes priority over a subsequent legal right (nemo dat rule at common law). 3. A legal right takes priority over an equitable right of which a bona fide purchaser does not have notice. 4. An earlier equitable right takes priority over a later equitable right (but some exceptions exist).
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A: Old System Title * Deeds: * A deed is the most solemn act that can be done in respect to property: Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361. * Where the land is Old System title, the alienation of the fee simple and most interests in land at law must be effected by deed: s 23B(1) Conveyancing Act 1919 (NSW). There are four requisites for a valid deed: signing, sealing, delivery and attestation: s 38 Conveyancing Act * To create a legal interest under old system title, a deed must be signed conveying the land to the mortgagee whereas for an equitable interest under old system title, the title deeds are deposited with the mortgagee. * There can only be one legal owner, subsequent mortgages can only create equitable interests in the land.
3 stage process to purchase land: 1. Decision to buy
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LAWS2017 Real Property
-------------------------------------------------
Comprehensive Study Notes
1. Common Law and Equitable Approached to Competing Interests
The basic rules of priority: 1. Priority disputes occur when two or more people claim independent property rights that cannot co-exist. When one property right takes priority over another, the latter is extinguished or diminished to the extent of any inconsistency between them. 2. An earlier legal right takes priority over a subsequent legal right (nemo dat rule at common law). 3. A legal right takes priority over an equitable right of which a bona fide purchaser does not have notice. 4. An earlier equitable right takes priority over a later equitable right (but some exceptions exist).
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A: Old System Title * Deeds: * A deed is the most solemn act that can be done in respect to property: Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361. * Where the land is Old System title, the alienation of the fee simple and most interests in land at law must be effected by deed: s 23B(1) Conveyancing Act 1919 (NSW). There are four requisites for a valid deed: signing, sealing, delivery and attestation: s 38 Conveyancing Act * To create a legal interest under old system title, a deed must be signed conveying the land to the mortgagee whereas for an equitable interest under old system title, the title deeds are deposited with the mortgagee. * There can only be one legal owner, subsequent mortgages can only create equitable interests in the land.
3 stage process to purchase land: 1. Decision to buy