(1) FUNDAMENTALS OF LAND OWNERSHIP Flashcards
(22 cards)
fee simple =
exclusive possession forever
life estate =
exclusive possession for duration of measuring life
lease =
exclusive possession for certain term
easement =
a right, accommodating dominant land to use, or restrain use of servient land in a manner not inconsistent with servient owner’s continuing ownership
profit a prendre =
right to enter servient land and remove the soil/its natural produce
What are the 5 types of interests for land ownership known to the law?
1) fee simple
2) life estate
3) lease
4) easement
5) profit a prendre
6) mortgage
Formal requirements - what do you have to consider?
whether a particular form of words is required/how that intention is manifested
–> are words of limitation or purchase used?
General law priority rules: legal interests
prior legal interest has priority later legal
reflects nemo dat quod non habet principle - can’t convey what you don’t have anymore
General law priority rules: earlier legal vs later equitable?
earlier legal (if bona fide + hasn't contributed to subsequent creation of equitable estate) has priority over later equitable interest (priority only conferred to the extent of the interest)
General law priority rules: earlier equitable vs later legal interest?
prior equitable interest has priority over later legal interest (this legal interest is postponed)
General law priority rules: equitable
prior equitable has priority over later equitable
General law priority rules: mere equities vs equitable?
in principle higher equitable interest will prevail over a mere equity (even if mere equity is the prior interest)
basic priority rule
a bona fide purchaser of the legal estate for value without notice
will take priority over the interest of an equitable interest holder
is Nemo dat applicable to equitable interests?
NO
as title and possession not conferred
types of notice
(1) actual
(2) constructive
(3) imputed
s 164(1) Conveyancing Act
you can only register proprietary interests that are
known to the law (Re Lehrer; Re Ridgeway)
where a person holds the totality of ownership, it is
incorrect to ‘split’ the ownership into legal and equitable interests. The one owner does not have two estates (legal and equitable), it is all ‘absorbed into’ (Corin v Patton (1990) at 579) the legal estate.
Thus, a person cannot transfer to someone the bare legal fee simple whilst purporting to retain the equitable fee simple.
where land is vested in trustees, what do beneficiaries do?
they compel the trustee to hold the legal estate in accordance with the obligations that equity imposes on them
how are equitable interests vulnerable?
they’re vulnerable to the extent that remedies aren’t automatic but discretionary (as opposed to common law) and can be refused (ie if it would be unconscionable to grant the remedy)
equitable interest of a purchaser under contract for sale of land?
on entry into the valid enforcable K for sale, E treats purchaser as ‘beneficial’ owner. The vendor is ‘trustee’ for the purchaesr’ (Lysaght v Edwards) as a constructive trust
how is a K for the sale of land different from a conveyance/transfer?
it’s a promise to transfer the interest at some time AFTER the formation of the K
The traditional position (has been doubted in Scott) that a purchaser under a specifically enforceable contract of sale has an equitable interest in the property capable of assignment was affirmed in
Fuentes v Bondi Beachside –> purchasers ‘interest’ is said to be dependent on the purchaser’s ability to obtain an order for SP of the contract (can be seen as the condition precedent for the acquisition of a proprietary interest by the purchaser)
